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HomeMy WebLinkAbout07-54751 'a /- Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Court of Common Pleas Nancy K. Baker and Paul W. Baker, her husband Plaintiff Vs. No 07-5475 Casey J. Williams, D.M.D. 210 Forge Road Boiling Springs, Pa. 17007 In CivilAction-Law Defendant To Casey J. Williams D.M.D., You are hereby notified that Nancy K. Baker and Paul w Baker the Plaintiff(s) has /have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment ma a entered a t you. (SEAL) C is R. Lon otho Date September 17, 2007 By Deputy Attorney: Name: Bradley D. Allison ,Esquire Address: 102 W. Penn Street, Suite 1 Bedford, Pa. 15522 Attorney for: Plaintiff Telephone: *\(814) 623-7566 Supreme Court ID No. 80072 ~ w ~ ~ ~o U~ b W G' fl +.`~-.+ -~ -.- ~~ ~ ~~;; t:= ~t C. ~Q t r.a Q crs ...e ~ w -a SHERIFF'S RETURN - REGULAR CASE NO: 2007-05475 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BAKER NANCY K ET AL VS WILLIAMS CASEY J DMD SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Penn~ylvania, who being duly sworn according to law, says, the within WRIT QF SUMMONS WILLIAMS CASEY J DMD DEFENDANT at 154:00 HOURS, on the at 210 FORGE ROAD was served upon the 18th day of September, 2007 BOILING SPRINGS, PA 17p07 by handing to MELISSA WEBER, FRONT DESK MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS NOTICE OF TAKING OF ORAL DEPOSITION together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge n `1 J~ y10~ `"7'~" 18.00 4.80 .58 ,' 10.00 .00 33.38 Sworn and Subscibed to before me this ~ day -r of , So Answers: r .~ R. Thomas Kline 09/19/2007 BRADLEY ALLI ~- By: Dep Sheriff A.D. 1~ • (~ NANCY K. BAKER and PAUL Her husband, Plaintiffs v. CASEY J. WILLIAMS, D.M.D., Defendant W. BAKER, : IN THE COURT OF COMMON PLEAS OF, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED NOTICE OF DEATH The death of Nancy ~. Baker, a party to the above action, on Friday, March 20, 2009 and during the pe Respectfully Submitted, LAW OFF1~E OF BRAD BY ~BfaCdley D. ison, E Pa. I.D. No. 0072 Attorney for Plaintiff 102 W. Penn Street. Bedford, PA 15522 (814) 623-7566 of this action is noted upon the record. . ALLISON Ste. 1 r• CERTIFICATE OF SERVICE I hereby certify th t a copy of the foregoing document has been served in this matter on the ~ day of /~~ ~ , 2009, by placing a copy of the same in the United Stat s Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1 6! ~. By r ley D. son, Esq ire Attorn for Plaintiffs 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 ~~ Vf 6IOJ4. CF ~~ F'F'i'~'~~~~Q3'RY ~a~9 ~'~ ! ~ AM 1Q~ 5th ~fiF1«... ~ `Jv ' ~~ ~uVTY ~P~~S f'L.4~N1~ PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED CERTIFICATE OF MERIT as to CASEY J. WILLIAMS, D.M.D. I, Bradley D. Allison, Esquire hereby certify, in accordance with Pa.R.C.P. 1042.3(a) that an appropriate licensed professional(s) has supplied a written statement to the undersigned that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. ~ Date: ~~ ~ 3 ~ ra ley D. A ' on, Esquire La Office f Bradley D. Allison, Esquire Attorney f r Plaintiffs .. i CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 13th day of November, 2009, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 By l~aglley`b~ison, Esquire Att rney f Plaintiffs 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 FILET;-~:'~ ,~~~~ 2009 H~~ ~ 6 P~3 2~ 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may. proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for. any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes pars usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, : v. IN THE COURT OF COMMON PLEAS OF, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiff(s), Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire, and files this Complaint, respectfully setting forth as follows: 1. Plaintiff Paul W. Baker is an adult individual, the surviving husband of Nancy K. Baker, deceased, and the court-appointed Executor of the Estate of Nancy K. Baker, who died testate, having a current address of 415 Kauffman Street, Boiling Springs, Cumberland County, Pennsylvania 17007. 2. Defendant Casey J. Williams, D.M.D. is an adult individual having a principal place of business located at 210 Forge Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. At all times material hereto, Defendant was a licensed professional with offices in Cumberland County, Pennsylvania at the address set forth in Paragraph 2 above and licensed to practice and held himself out to the members of the public, including Nancy K. Baker, now deceased, as being licensed and capable of practicing general dentistry in the Commonwealth of Pennsylvania. Plaintiff is asserting a professional liability claim against this Defendant. 4. In or about November, 2006 at or near Thanksgiving, Nancy Baker began noticing pain or soreness in her tongue. 5. On or about March 29, 2007, Nancy presented to her family physician, Dr. Donald Kovacs, complaining of a sore spot or ulcer and pain in the left latera( side or border of her tongue. 6. Following such meeting and/or as the result thereof, Dr. Kovacs prescribed an oral rinse for Nancy and recommended that she consult her dentist to see if her teeth were causing the problem and/or referred her to the Defendant for further treatment of such spot on her tongue. 7. On or about Aprit 12, 2007, Nancy presented to the Defendant complaining of a sore spot on the left lateral border of her tongue. 8. From April 12, 2007 until August 28, 2007, Defendant treated Nancy by performing various dental procedures, charging her approximately $1,000.00 for such procedures and recommending additional dental treatment anticipated to cost more than $2,000.00. 9. During such time period, however, despite his knowledge and familiarity with Nancy's history, her age, and her continued complaints of pain and soreness in the left lateral border of her tongue, the Defendant never referred Nancy onto an oral surgeon and/or other qualified or specialized professional to have the tongue biopsied. 10. On or about August 28, 2007, Nancy Baker made her own appointment with Dr. Frederick Hecht, an oral and maxillofacial surgeon in Carlisle, Pennsylvania to have her tongue examined on August 29, 2007. 11. During such examination on August 29, 2007, Dr. Hecht advised Nancy that he would need to biopsy the area of her tongue, and he completed the biopsy at such time, stitching her tongue thereafter. 12. On or about August 30, 2007, Nancy Baker was advised, for the first time, by Dr. Hecht that the biopsy showed an ulcerating and well to moderately differentiated squamous cell carninoma (cancer) in Nancy's tongue. 13. Thereafter, Dr. Hecht referred Nancy onto Dr. Roger Levine, an otolaryngologist, for further opinion and evaluation for surgical treatment. 14. Clinically, Dr. Levine initially diagnosed Nancy with stage II squamous cell carcinoma of the left lateral tongue. 15. On or about October 4, 2007, Nancy underwent surgery by Dr. Levine at Harrisburg Hospital in Harrisburg, Pennsylvania. 16. Dr. Levine performed a left hemiglossectomy with modified radical neck dissection upon Nancy, removing part of her tongue, part of her throat, and several of her lymph nodes which tested positive for spread of the cancer. 17. Following surgery, Nancy underwent radiation and chemotherapy treatment under the care of Dr. Ronald Malcom in Carlisle, Pennsylvania. 18. The surgery left Nancy unable to talk and/or communicate, swallow, or eat in the manner in which she had prior to the surgery. 19. Due to the effects of the radiation and chemotherapy treatment, Nancy developed large ulcers in her esophagus, which made it difficult for her to eat. 20. Due to the effects of the radiation and chemotherapy treatment and a health conditions related to such cancer or treatment of such cancer, Nancy was admitted for treatment in the hospital numerous times following the aforementioned surgery. 21. On or about September 15, 2008, as Nancy struggled to recover from the surgery performed by Dr. Levine and subsequent treatment, she became very weak to the point where she fell in the dining room after coming down a flight of stairs in her home and/or down the stairs and sustained a fractured right hip, which required hospitalization and surgical repair at Carlisle Hospital in Carlisle, Pennsylvania. 22. From August, 2008 until March, 2009, Nancy became progressively thinner and weaker, losing weight and/or being unable to gain weight or regain her strength. 23. After being admitted to the intensive care unit of the Carlisle Hospital on or about March 1, 2009, Nancy was transferred by ambulance to Harrisburg Hospital in Harrisburg, Pennsylvania on or about March 19, 2009, where she died on March 20, 2009 from pneumonia and/or complications resulting from her weakened state following the surgery and radiation and chemotherapy treatments for oral cancer. 24. Nancy's death, the surgical and post-surgical treatment, pain and suffering, and the corresponding difficulties she experienced occurred as a direct and proximate result of the negligence, carelessness, and recklessness of the Defendant as more particularly set forth below. COUNTI Paul W Baker as Executor of the Estate of Nancy K. Baker deceased v. Casey J. Williams. D.M.D 25. Paragraphs 1 through 24 above are incorporated herein by reference as if set forth at length. 26. The negligence, carelessness, and recklessness of Defendant Williams consisted of the following: a. Failing to diagnose or properly diagnose the suspicious lesion in Nancy's tongue; b. Failing to timely diagnose the suspicious lesion in Nancy's tongue; c. Failing to refer and/or timely refer Nancy Baker to an oral surgeon or other qualified professional or specialist for further examination and biopsy of the lesion on her tongue; d. Continuing to perform dental procedures and billing Nancy Baker for same without diagnosing or properly or timely diagnosing the suspicious lesion in Nancy's tongue and/or referring or timely referring Nancy Baker to an oral surgeon or qualified professional or specialist for further examination and biopsy of the lesion on her tongue; e. Failing to ask Nancy appropriate questions in order to diagnose, properly diagnose, and/or or timely diagnose the suspicious lesion in Nancy's tongue in order that the same might have been biopsied; f. Failing to investigate and/or properly investigate or have investigated the suspicious lesion in Nancy's tongue and/or to investigate or have the same investigated in a timely fashion. 27. The negligence, carelessness, and/or recklessness of Defendant Williams proximately caused Nancy to be required to undergo surgical and medical treatment, including but not limited to radiation and/or chemotherapy, from which she was unable to fully recover and thus proximately caused her injuries, damages, and death described herein. 28. As a direct and proximate result of the negligence, carelessness, and/or recklessness of Defendant Williams as aforesaid, Nancy Baker sustained great pain and suffering, discomfort, humiliation, embarrassment, shame, mental anguish, permanent scarring and/or disfigurement, and a limitation and/or loss of use of some portion(s) of her body and/or bodily functions, including but not limited to performing necessary and routine functions of living such as talking, eating, and swallowing; fear and increased risk of death due to delay of diagnosis of the oral cancer; loss of life's pleasures and the enjoyment thereof; loss of opportunity or chance to survive and/or loss of increased opportunity or chance of survival; and death. COUNT II Paul W Baker as Executor of the Estate of Nancy K Baker deceased v. Casey J. Williams, D.M.D. 29. Paragraphs 1 through 28 above are incorporated herein by reference as if set forth at length. 30. Nancy K. Baker died as a direct and proximate result of the negligence, carelessness, and/or recklessness of the Defendant named herein as aforesaid. 31. Plaintiff Paul W. Baker, as the named and court-appointed Executor of the Estate of his wife, Nancy K. Baker, deceased hereby brings this claim under the Wrongful Death Act on his behalf, as her sole surviving heir and beneficiary, who has suffered and/or will suffer the following damages due to the death of his wife: a. Loss of consortium, companionship, comfort, society, guidance, friendship, and solace of the decedent; b. Funeral expenses, including burial, cost of tombstone, and expenses of administration; c. Medical bills incurred and/or which are outstanding which are related to Nancy's care and treatment up to the time of her death. d. Loss of value of household services performed by Nancy. 32. Paul W. Baker, as Executor of the Estate of his wife, Nancy K. Baker, claims the following damages under the Survival Act on behalf of the Estate of Nancy K. Baker, as the result of her injury(ies) due to the negligence, carelessness, and/or recklessness of the Defendant as aforesaid: a. great pain and suffering, including but not limited to humiliation, shame, physical discomfort, fear of death and increased risk of death, loss of opportunity or chance to survive or to have an increased chance of survival; and mental anguish and suffering; b. Medical expenses incurred for her care and treatment; c. Loss of life's pleasures and their enjoyment; d. Permanent impairment of her bodily functions, including but not limited to her ability to talk, swallow, and eat. e. Punitive damages for the outrageous and/or recklessly indifferent conduct or his conduct exhibiting reckless indifference to the rights of Nancy K. Baker, as more fully alleged in Paragraph 7 above. COUNT III Paul W Baker individually v Casev J. Williams, D.M.D. 33. Paragraphs 1 through 32 above are incorporated herein by reference as if set forth at length. 34. At all times material hereto, Plaintiff Paul W. Baker was married to and the husband of Nancy K. Baker who sustained very serious and permanent injuries and damages as a result of the negligence, carelessness, and/or recklessness of the Defendant as aforesaid. 35. As a result of the injuries suffered by his wife, Plaintiff Paul W. Baker was deprived of the companionship, affection, society, and services of his spouse. 36. As a result of the injuries suffered by his wife, Plaintiff Paul W. Baker has incurred in the past medical expense for the care and treatment of his spouse, and claim is made therefor. 37. As a result of the injuries suffered by his wife, Plaintiffs Paul W. Baker has incurred loss of earnings and/or loss or diminishment of earning capacity in having to take his wife for medical treatment and to care for her, and claim is made therefor. WHEREFORE, Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, respectfully requests your Honorable Court to enter judgment against Defendant Casey J. Williams, D.M.D in an amount in excess of the compulsory arbitration limits in Cumberland County, on behalf of himself, individually, and as beneficiary under the Wrongful Death Act and on behalf of the Estate of Nancy K. Baker, deceased, under the Survival Act, plus punitive damages, interest on the judgment at the statutory rate, and costs of suit. A JURY TRIAL IS HEREBY DEMANDED Respectfully Submitted, ICE OF B EY D. ALLISON B ley D. ison, Esgf~ire a. .D. No. 0072 Atto ney for Plaintiffs 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 VERIFICATION I, Paul Baker, individually and as Executor of the Estate of Nancy K. Baker, hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements made herein are made subject to the penalties of 18 Pa. Con. Stat. Ann. Section 4904 relating to unsworn falsification to authorities. By: ~~ ~ ~~ Paul Baker, individually and as Executor of The Estate of Nancy K. Baker Dated: I l ~ (3 -O q CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 13th day of November, 2009, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 By 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 v ?D~9 I~~Y ,l ~ P~1 2~ ~ 1 ,,, 1 .~ NANCY K. BAKER and PAUL W. BAKER, : IN THE COURT OF COMMON PLEAS OF, Her husband, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. CASEY J. WILLIAMS, D.M.D., Defendant CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED AS BAKER. AND NOW, comes Plaintiff Paul W. Baker, by and through his attorney, Bradley D. Allison, Esquire, and files this Statement of Material Facts pursuant to Pa.R.C.P. 2352(a) to substitute himself as Executor of the Estate of Nancy K. Baker, deceased, for her as a party to the above-referenced action, setting forth as follows: 1. The instant action was originally filed by Nancy K. Baker and Paul W. Baker, her husband, against the Defendant, Casey J. Williams, D.M.D related to treatment of Nancy by the Defendant. 2. This action was commenced by the filing of a Praecipe for Writ of Summons on or about September 14, 2007, which was served upon the Defendant on September 18, 2007. 3. Subsequent to the initial filing of this lawsuit and prior to filing of the Complaint, Nancy K Baker died on Friday, March 20, 2009. A Death Certificate for Nancy K. Baker is attached hereto as Exhibit "A." 4. Nancy Baker died testate, and her Last Will and Testament was admitted to Probate in the Cumberland County Register of Witls' Office on March 30, 2009. 5. Her husband, Paul W. Baker, was named as Executor in her Last Will and Testament and appointed by the Cumberland County Register of Wills to serve in such capacity. A copy of the Short Certificate issued demonstrating same is attached hereto as Exhibit "B." 6. Paul W. Baker has a derivative claim for loss of consortium involving his wife's injury(ies) and/or for loss of monies or expenses incurred in caring for his wife, including but not limited to for medical bills and/or loss of earnings and/or earning capacity related thereto. 7. Accordingly, Paul W. Baker, as Executor of the Estate of Nancy K. Baker, deceased, and her successor appointed by law is, pursuant to Pa.R.C.P. 2352(a), hereby substituted on the record as a party for the decedent, Nancy K. Baker. 8. Hereafter, the parties in the caption of this case shall read, "Paul W. Baker, individually, and as Executor of the Estate of Nancy K. Baker, deceased v. Casey J. Williams, D.M.D. Respectfully Submitted, LAW S~FF~CE OF BRAY D. ALLISON Bradle~ D. Allison! Esquire Pa. I.D. No. 80072 Attorneys for Plaintiffs 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (8140 623-7566 EXHIBIT "A" *~+nt.cns ?_~,~ m~ m-~ LOGAL REGISTRAR'S CERTIFICATION OF DEATH WARNING: It is illegal to duplicate this copy by photostat or photograph. Fee for this certificate, $6.00 P 15256848 Certification Number This is to certify that the information here given is correctly copied from an original Certificate of Death duly filed with me as Local Registrar. The original certificate will be forwarded to the State Vital 5 Records Office for permanent filing. 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F1bb~f'~ p u Y Pda aaraoerr+ Ga7~rryr ^lbeiere ~ Mp ~•~7 ,^-, // ^ Y 4J'~ ^ N ^ Y ^ ,~ ^ prbp rM 3za Tyne d guy Sze. s}ry r 1Yaky szl. sTmyorrrat rM•YfSe••r~'1 3~7. euwlrl d rWr Iseaet aM 1 eyn, sere) w r o ^&eaea ^Caldrotr0abtmYyd ^ ~ ^ e]Aarll7pwror ^ Fyaaetga ^ PadeeNan ^Vr r Olyr-SpIpY4s 1tla c•nsir Mna~ a1y arl 99h.3grybn rd • ~MMlayb+••l~•aePeq errarrn alye rryr gyrtln hr penaror rrh and aatprbdleen Z9) T•tr MldrYYrWrp, daalh•apW erbrrpaaiya)ayd e••aayr•ered_________________________________ ^ _ ~ • pt••a•rar ead•aM/MM7•~NhYrar heetpmweYp6eb ar nieyeipbtytraerea - Tesrsera.ys...rem,ruocaer.drr.rer.am,.aMr.~redrbwerrlg ens a..~.rare------------------ • weer WiyrlOaaar spud dry. _ VO / //vv Onrr hrYraatwy/atrdlaMerlplba,hay aoYYee, death eaaardrrrer, daM aM prr,ad drbtlr eatryalaM aa111errabYd. ^ rr ar. d1/ r/Nle I11ab T IRYt y / /~ ~ ~~ ~ / / /a~ >tl. iLprbda rd.OttaYl. ~~ ~ ~ ~~ 30. OaY F11ed (rylh, dq'. e / C e~v~ ~ V K / ~ ~~% ~ f _ ti9 i .. 3. 3 i i 14~ ~~ i >.~ ,~^ , { is ~~ !~ ;~ - ,:' Fd ' ~ ., ,d ~~ '~9 ;~ E ~~~! 9 ~ k PN ~ ~' it 'I! i~ ! ~~ ~. ~ °I~~~°" ~~ I~ E ~ r ~. f i ~~~~~ ~ ~~ ~I:. ~ ' ~~~ ~~ EXHIBIT "B" COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND _ SHORT CERTIFICATE I, GLENDA EARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 30th day of March, Two Thousand and Nine, Letters TESTAMENTARY in common form were granted by the Register of said County, on the estate of NANCY K BAKER late of SOUTH M/DDLETON TOWNSHIP (first, Midd/e, Lasrl in said county, deceased, to PAUL W BAKER /First, Middle, LasU and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 30th day of March Two Thousand and Nine. File No. PA File No. Date of Death S.S. # 2009- 00300 21- 09- 0300 3/20/2009 175-40-5549 a.'" NOT VALID WITHOUT ORIGINAL SIGNATURE ANI7 IMPRESSED SEAL CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 13th day of November, 2009, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 By 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 n~ THE f' € Y' "~~Y 2~3D9 ~Y ! ~ ~~- ~~ 1 ~LLL.~`t.)~`.rr IN THE COURT OF COMMON PLEAS OF ~~ ~;;~?,"'~'u~i~~TARy OF CUMBERLAND COUNTY, PENNSYLVANIA20~~FEg _9 ~~ ~. ` ~ PAUL W. BAKER, individually and as ; : y,=. , ,, _, . Executor of the ESTATE OF NANCY K.: GL~v~~ ~ L"-`~. ~-' ~1,J.v~~il' BAKER, deceased, ~'` '' '~~ ~.,~."~"'"~~! Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages,. you must take action within twenty (20) days after this Amended 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, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda modificdo y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant IN THE COURT OF COMMON PLEAS OF, :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2007-05475 P JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW, come the Plaintiff(s), Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire, and files this Complaint, respectfully setting forth as follows: 1. Plaintiff Paul W. Baker is an adult individual, the surviving husband of Nancy K. Baker, deceased, and the court-appointed Executor of the Estate of Nancy K. Baker, who died testate, having a current address of 415 Kauffman Street, Boiling Springs, Cumberland County, Pennsylvania 17007. 2. Defendant Casey J. Williams, D.M.D. is an adult individual having a principal place of business located at 210 Forge Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. At all times material hereto, Defendant was a licensed professional with offices in Cumberland County, Pennsylvania at the address set forth in Paragraph 2 above and licensed to practice and held himself out to the members of the public, including Nancy K. Baker, now deceased, as being licensed and capable of practicing general dentistry in the Commonwealth of Pennsylvania. Plaintiff is asserting a professional liability claim against this Defendant. 4. In or about November, 2006 at or near Thanksgiving, Nancy Baker began noticing pain or soreness in her tongue. 5. On or about March 29, 2007, Nancy presented to her family physician, Dr. Donald Kovacs, complaining of a sore spot or ulcer and pain in the left lateral side or border of her tongue. 6. Following such meeting and/or as the result thereof, Dr. Kovacs prescribed an oral rinse for Nancy and recommended that she consult her dentist to see if her teeth were causing the problem and/or referred her to the Defendant for further treatment of such spot on her tongue. 7. On or about April 12, 2007, Nancy presented to the Defendant complaining of a sore spot on the left lateral border of her tongue. 8. From April 12, 2007 until August 28, 2007, Defendant treated Nancy by performing various dental procedures, charging her approximately $1,000.00 for such procedures and recommending additional dental treatment anticipated to cost more than $2,000.00. 9. During such time period, however, despite his knowledge and familiarity with Nancy's history, her age, and her continued complaints of pain and soreness in the left lateral border of her tongue, the Defendant never referred Nancy onto an oral surgeon and/or other qualified or specialized professional to have the tongue biopsied. 10. On or about August 28, 2007, Nancy Baker made her own appointment with Dr. Frederick Hecht, an oral and maxillofacial surgeon in Carlisle, Pennsylvania to have her tongue examined on August 29, 2007. 11. During such examination on August 29, 2007, Dr. Hecht advised Nancy that he would need to biopsy the area of her tongue, and he completed the biopsy at such time, stitching her tongue thereafter. 12. On or about August 30, 2007, Nancy Baker was advised, for the first time, by Dr. Hecht that the biopsy showed an ulcerating and well to moderately differentiated squamous cell carninoma (cancer) in Nancy's tongue. 13. Thereafter, Dr. Hecht referred Nancy onto Dr. Roger Levine, an otolaryngologist, for further opinion and evaluation for surgical treatment. 14. Clinically, Dr. Levine initially diagnosed Nancy with stage II squamous cell carcinoma of the left lateral tongue. 15. On or about October 4, 2007, Nancy underwent surgery by Dr. Levine at Harrisburg Hospital in Harrisburg, Pennsylvania. 16. Dr. Levine performed a left hemiglossectomy with modified radical neck dissection upon Nancy, removing part of her tongue, part of her throat, and several of her lymph nodes which tested positive for spread of the cancer. 17. Following surgery, Nancy underwent radiation and chemotherapy treatment under the care of Dr. Ronald Malcom in Carlisle, Pennsylvania. 18. The surgery left Nancy unable to talk and/or communicate, swallow, or eat in the manner in which she had prior to the surgery. 19. Due to the effects of the radiation and chemotherapy treatment, Nancy developed large ulcers in her esophagus, which made it difficult for her to eat. 20. Due to the effects of the radiation and chemotherapy treatment and a health conditions related to such cancer or treatment of such cancer, Nancy was admitted for treatment in the hospital numerous times following the aforementioned surgery. 21. On or about September 15, 2008, as Nancy struggled to recover from the surgery performed by Dr. Levine and subsequent treatment, she became very weak to the point where she fell in the dining room after coming down a flight of stairs in her home and/or down the stairs and sustained a fractured right hip, which required hospitalization and surgical repair at Carlisle Hospita{ in Carlisle, Pennsylvania. 22. From August, 2008 until March, 2009, Nancy became progressively thinner and weaker, losing weight and/or being unable to gain weight or regain her strength. 23. After being admitted to the intensive care unit of the Carlisle Hospital on or about March 1, 2009, Nancy was transferred by ambulance to Harrisburg Hospital in Harrisburg, Pennsylvania on or about March 19, 2009, where she died on March 20, 2009 from pneumonia and/or complications resulting from her weakened state following the surgery and radiation and chemotherapy treatments for oral cancer. 24. Nancy's death, the surgical and post-surgical treatment, pain and suffering, and the corresponding difficulties she experienced occurred as a direct and proximate result of the negligence, carelessness, and recklessness of the Defendant as more particularly set forth below. COUNT l Paul W. Baker, as Executor of the Estate of Nancy K. Baker, deceased v. Casey J. Williams, D.M.D 25. Paragraphs 1 through 24 above are incorporated herein by reference as if set forth at length. 26. The negligence, carelessness, and recklessness of Defendant Williams consisted of the following: a. Failing to diagnose or properly diagnose the suspicious lesion in Nancy's tongue; b. Failing to timely diagnose the suspicious lesion in Nancy's tongue; c. Failing to refer and/or timely refer Nancy Baker to an oral surgeon or other qualified professional or specialist for further examination and biopsy of the lesion on her tongue; d. Continuing to perform dental procedures and billing Nancy Baker for same without diagnosing or properly or timely diagnosing the suspicious lesion in Nancy's tongue and/or referring or timely referring Nancy Baker to an oral surgeon or qualified professional or specialist for further examination and biopsy of the lesion on her tongue; e. Failing to ask Nancy appropriate questions in order to diagnose, properly diagnose, and/or or timely diagnose the suspicious lesion in Nancy's tongue in order that the same might have been biopsied; f. Failing to investigate and/or properly investigate or have investigated the suspicious lesion in Nancy's tongue and/or to investigate or have the same investigated in a timely fashion. 27. The negligence, carelessness, and/or recklessness of Defendant Williams proximately caused Nancy to be required to undergo surgical and medical treatment, including but not limited to radiation and/or chemotherapy, from which she was unable to fully recover and thus proximately caused her injuries, damages, and death described herein. 28. As a direct and proximate result of the negligence, carelessness, and/or recklessness of Defendant Williams as aforesaid, Nancy Baker sustained great pain and suffering, discomfort, humiliation, embarrassment, shame, mental anguish, permanent scarring and/or disfigurement, and a limitation and/or loss of use of some portion(s) of her body and/or bodily functions, including but not limited to performing necessary and routine functions of living such as talking, eating, and swallowing; fear and increased risk of death due to delay of diagnosis of the oral cancer; loss of life's pleasures and the enjoyment thereof; loss of opportunity or chance to survive and/or loss of increased opportunity or chance of survival; and death. COUNT II Paul W. Baker. as Executor of the Estate of Nancy K. Baker. deceased v. Casey J. Williams. D.M.D. 29. Paragraphs 1 through 28 above are incorporated herein by reference as if set forth at length. 30. Nancy K. Baker died as a direct and proximate result of the negligence, carelessness, and/or recklessness of the Defendant named herein as aforesaid. 31. Plaintiff Paul W. Baker, as the named and court-appointed Executor of the Estate of his wife, Nancy K. Baker, deceased hereby brings this claim under the Wrongful Death Act on his behalf, as her sole surviving heir and beneficiary, who has suffered and/or will suffer the following damages due to the death of his wife: a. Loss of consortium, companionship, comfort, society, guidance, friendship, and solace of the decedent; b. Funeral expenses, including burial, cost of tombstone, and expenses of administration; c. Medical bills incurred and/or which are outstanding which are related to Nancy's care and treatment up to the time of her death. d. Loss of value of household services performed by Nancy. 32. Paul W. Baker, as Executor of the Estate of his wife, Nancy K. Baker, claims the following damages under the Survival Act on behalf of the Estate of Nancy K. Baker, as the result of her injury(ies) due to the negligence, carelessness, and/or recklessness of the Defendant as aforesaid: a. great pain and suffering, including but not limited to humiliation, shame, physical discomfort, fear of death and increased risk of death, loss of opportunity or chance to survive or to have an increased chance of survival; and mental anguish and suffering; b. Medical expenses incurred for her care and treatment; c. Loss of life's pleasures and their enjoyment; d. Permanent impairment of her bodily functions, including but not limited to her ability to talk, swallow, and eat. e. Punitive damages for the outrageous and/or recklessly indifferent conduct or his conduct exhibiting reckless indifference to the rights of Nancy K. Baker, as more fully alleged in Paragraphs 8 and 9 above. COUNT III Paul W. Baker, individually v. Casey J Williams D M D 33. Paragraphs 1 through 32 above are incorporated herein by reference as if set forth at length. 34. At all times material hereto, Plaintiff Paul W. Baker was married to and the husband of Nancy K. Baker who sustained very serious and permanent injuries and damages as a result of the negligence, carelessness, and/or recklessness of the Defendant as aforesaid. 35. As a result of the injuries suffered by his wife, Plaintiff Paul W. Baker was deprived of the companionship, affection, society, and services of his spouse. 36. As a result of the injuries suffered by his wife, Plaintiff Paul W. Baker has incurred in the past medical expense for the care and treatment of his spouse, and claim is made therefor. 37. As a result of the injuries suffered by his wife, Plaintiffs Paul W. Baker has incurred loss of earnings and/or loss or diminishment of earning capacity in having to take his wife for medical treatment and to care for her, and claim is made therefor. WHEREFORE, Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, respectfully requests your Honorable Court to enter judgment against Defendant Casey J. Williams, D.M.D in an amount in excess of the compulsory arbitration limits in Cumberland County, on behalf of himself, individually, and as beneficiary under the Wrongful Death Act and on behalf of the Estate of Nancy K. Baker, deceased, under the Survival Act, plus punitive damages, interest on the judgment at the statutory rate, and costs of suit. A JURY TRIAL IS HEREBY DEMANDED Respectfully Submitted, LAW ICE OF Y D. A LI w B n dley D. son, Esquire P . I.D. No. 80072 Attorney for Plaintiffs 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 VERIFICATION I, Paul Baker, individually and as Executor of the Estate of Nancy K. Baker, hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements made herein are made subject to the penalties of 18 Pa. Con. Stat. Ann. Section 4904 relating to unsworn falsification to authorities. By: ~d~ ~ ~j~~~ Paul Baker, individually and as Executor of The Estate of Nancy K. Baker Dated: ~~~ ~~~~~~ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 3~d day of February, 2010, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 171081268 By Ufa ey D. Alli n, Esquire Atto ney for aintiffs 102 .Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually And as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • C'7 c : N ~' c., - . . - ~:, n Z7 t7i 'r'1 ,'7 CIVIL ACTION -LAW ~- ~ °° ..~, r ~ .~; cya NO. 2007-05475 P ~ ~ ~, ' m -` "~~ n . ~ ~ ~ JURY TRIAL DEMANDED ~- r =~ PRAECIPE FOR ENTRY OF APPEARANCE TO: CUMBERLAND COUNTY PROTHONOTARY Please enter the appearance of the undersigned as co-counsel on behalf of Plaintiff, Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, in the above-referenced matter. Respectfully submitted, ~~ ~ . Mark A. Mateya, quire Pa. I.D. No. 78931 Attorney for Plaintiff P.O. Box 127 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-3099 Fax Date: ~- l0 CERTIFICATE OF SERVICE I, Mark A. Mateya, Esquire, hereby certify that I have served a copy of the foregoing document on the following person(s) by depositing a true and correct copy of the same in the United States Mail, by way of United States Mail, first class, postage prepaid, at Boiling Springs, Cumberland County, Pennsylvania addressed to: Bradley Allison Esquire 102 West Penn Street Ste 2 Bedford PA 15522 Thomas J Weber Esquire Goldberg Katzman 320 Market Street Strawberry Square PO BOX 1268 Harrisburg PA 17108 ~~ . Mark A. Matey ,Esquire PO Box 127 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-3099 Fax Dated:~~~_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiff v. CASEY J. WILLIAMS, D.M.D., . Defendant a' ~~. ~ - ~sj ~~~ ~ ,- CIVIL ACTION -LAW ~ ~ `j~ % w c; - N0.2007-05475 P `' .~.. ~ 9 . ° 7 __, ..... ~,1 ~' N ~ rt JURY TRIAL DEMANDED ~ - `~- ~ '~ ~ ,~ PRELIMINARY OBJECTIONS OF DEFENDANT CASEY J. WILLIAMS. D.M.D., TO PLAINTIFF'S COMPLAINT Defendant, Casey J. Williams, D.M.D., by and through his attorneys, Goldberg Katzman, P.C., pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure and Rule 1028(c) of the Cumberland County Rules of Civil Procedure, files the following Preliminary Objections to Plaintiff s Complaint: L FACTUAL AND PROCEDURAL HISTORY 1. Plaintiff s Amended Complaint was filed on or about February 3, 2010. 2. In his Amended Complaint, Plaintiff asserts a professional liability claim against Defendant, seeking damages arising from dental treatment provided by Defendant to Plaintiff from April through August of 2007. 3. Plaintiff alleges counts for negligence, a wrongful death action, loss of consortium, and punitive damages. II. PRELIMINARY OBJECTION TO PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES 4. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), preliminary objections may be filed by any party to any pleading on the basis of legal insufficiency. See Pa. R.C.P. No. 1028(a)(4). 5. Preliminary objections in the nature of a demurrer should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. See Lerner v. Lerner, 954 A.2d 1229 (Pa. Super.2008); Pa.R.C.P. No. 1028(a)(4). 6. In Paragraphs 27, 28, 30, and 32 of the Amended Complaint, Plaintiff alleges that Defendant acted with "recklessness" in connection with the disputed treatment at bar in this case. 7. In Paragraph 32 of the Amended Complaint, Plaintiff is entitled to punitive damages and avers that the Defendant demonstrated "outrageous and/or recklessly indifferent conduct or his conduct exhibiting reckless indifference to the rights of Nancy K. Baker." 8. Plaintiff s Amended Complaint references paragraphs 8 and 9 to support this entitlement to punitive damages. 9. Paragraph 8 of the Amended Complaint states in its entirety: From April 12, 2007 until August 28, 2007, Defendant treated Nancy by performing various dental procedures, charging her approximately $1,000.00 for such procedures and recommending additional dental treatment anticipated to cost more than $2,000.00. 10. Paragraph 9 of the Amended Complaint states in its entirety: During such time period, however, despite his knowledge and familiarity with Nancy's history, her age and her continued complaints of pain and soreness in the left lateral border of her tongue, the Defendant never referred Nancy to an oral surgeon and/or other qualified or specialized professional to have the tongue biopsied. i s~2o2. i 2 11. In Count II of the Amended Complaint, Plaintiff includes in his claim for relief a request for the imposition of punitive damages in connection with the aforesaid alleged reckless conduct. See Complaint, ¶ 32. 12. Other than the boilerplate legal assertions, Plaintiff makes no other factual averments in his Amended Complaint concerning any alleged "outrageous" or "reckless" conduct of Defendant. In fact, the only averments made in the Complaint that bear on Defendant's conduct, at all, generally state that treatment was provided to Plaintiff by Defendant and also allege a failure by Defendant to perform or prescribe certain other treatments for Plaintiff. See Complaint, ¶¶ 8, 9, and 26. 13. Under Pennsylvania law, plaintiffs must establish that defendants' acts were outrageous because of the defendants' evil motive or their reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (adopting Restatement (Second) of Torts ~ 908(2)). 14. Punitive damages are appropriate only where the defendant's conduct was of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct. SHV Coal v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991). 15. Punitive damages may not be awarded for misconduct that constitutes ordinary negligence such as inadvertence, mistake, and errors of judgment. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985); McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987). 16. Plaintiff has failed to allege any facts that remotely suggest intentional, reckless, or malicious conduct, but has, instead, merely made conclusory assertions that the Defendant has demonstrated such conduct, having provided no factual support for such assertions. At a ~ s~zoa. ~ 3 maximum, the Plaintiff alleges that Defendant's treatment of Plaintiff did not meet the requisite standard of care appropriate for the dental procedures that are in dispute in this case. Nowhere in the Complaint are there any averments of fact evincing or bearing on any intentions on the part of Defendant regarding the Plaintiff s care, let alone a malicious, or even reckless, intent. 17. A court may dismiss allegations which are mere conclusions of malicious conduct where there are no factual allegations in support of the conclusion. Giannini v. Fox, 279 Pa. Super. 553, 555, 421 A.2d 338, 339 (1980). 18. Reading Plaintiffs Amended Complaint establishes Defendant treated Plaintiff decedent for afour-month period, performing various dental-related functions. Plaintiff complains that Defendant should have diagnosed the existence of oral cancer. This amounts to a claim of negligence, nothing more. 19. In the absence of factually supported allegations of the requisite outrageous conduct, punitive damages cannot be imposed, and Plaintiff s claim for same should be dismissed with prejudice. WHEREFORE, Defendant Casey J. Williams, D.M.D., respectfully requests that this Honorable Court dismiss the claim for punitive damages with prejudice. GOLDBERG KATZMAN, P.C. By: Thomas J. Weber, squire (No. 58853) J. Ronaldo Legaspi, Esquire (No. 200240) P.O. Box 1268 Harrisburg, PA 17108-1268 (717)234-4161 Attorney for Defendant Date: February 22, 2010 ~ s~zoz. i 4 CERTIFICATE OF SERVICE And now, this 22nd day of February, 2010, I hereby certify that on this date a true and correct copy of the foregoing document was served via U.S. Mail to the following party: Bradley D. Allison, Esquire 10 W. Penn Street, Suite 1 Bedford, PA 15522 GOLDBERG KATZMAN, P.C. J. Ro~aldo Leg spi, squire (I.D. #200240) Gold erg Katzm C 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 (717) 234-6808 (facsimile) Counsel for Defendant PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) --------------------------------------------------------------- CAPTION OF CASE CA 4 (entire caption must be stated in full) . ? t PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER dece 4 , rr, vs. ? -0 _ r ) CASEY J. WILLIAMS, D.M.D. Z-' t C7 A ?? No. 2007 05475P :X 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer b co l i ? } mp a nt, etc.): u Defendant's Preliminary Objections to Plaintiffs' Complaint -? 2. Identify all counsel who will argue cases: (a) for plaintiffs: Bradley D. Allison, Esquire 102 W. Penn Street, Suite 1, Bedford, PA 15522 (Name and Address) Thomas J. Weber, Esquire 320 Market Street, Strawberry Square, Harrisburg, PA 17108 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 27, 2011 Date: April 1, 2011 Print your name Plaintiffs Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. r. PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiff V. CASEY J. WILLIAMS, D.M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION : NO. 2007-05475 JURY TRIAL DEMANDED C-7) c -a ?m rv ?a -V r M IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE EBERT, J. ORDER OF COURT AND NOW this 24th day of June, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiff's Amended Complaint, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant's Preliminary Objections are SUSTAINED, with leave granted to Plaintiff to file an amended pleading within twenty (20) days of the date of this order, consistent with the Court's opinion. Defendant is granted twenty (20) days from service of any such amended complaint to file an answer or preliminary objections, and in the absence of an amended complaint, thirty (30) days from the date of this order to file an answer. By the Court, 14A / M. L. Ebert, Jr., J. ? Bradley D. Allison, Esquire Attorney for Plaintiff 102 W. Penn Street, Suite I Bedford, PA 15522 Thomas J. Weber, Esquire Attorney for Defendant Golberg Katzman, PC 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Np'-' IA &Ia.T/(( r dtb PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2007-05475 CASEY J. WILLIAMS, D.M.D., Defendant JURY TRIAL DEMANDED IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE EBERT, J. ORDER OF COURT EBERT, J., June 24, 2011- PROCEDURAL HISTORY This civil action began when Nancy K. Baker and Paul W. Baker, her husband, filed a Praecipe for Issuance of Writ of Summons on September 17, 2007. Before a Complaint was filed, Nancy died on March 20, 2009. In her Last Will and Testament, Nancy named her husband Paul as the executor of her estate. A Statement of Material Facts was filed on November 16, 2009, substituting "Paul W. Baker, individually, and as Executor of the Estate of Nancy K. Baker, deceased" for Nancy's name in the caption of this case. On November 19, 2009, Plaintiff filed a complaint alleging counts for negligence, wrongful death, loss of consortium and punitive damages against Defendant Casey J. Williams, D.M.D. On February 9, 2010, Plaintiff filed an amended complaint.) Defendant filed Preliminary Objections to Plaintiff's Amended Complaint on February 23, 2010, requesting that Plaintiff's claim for punitive damages be dismissed with prejudice based on the alleged legal insufficiency of Plaintiff's pleading. 1 Plaintiff amended Paragraph 32(e) of the Complaint to state that the claim for punitive damages was based on conduct more fully alleged in Paragraphs 8 and 9 rather than paragraph 7 as was originally stated in the Complaint. STATEMENT OF FACTS The following facts are alleged in Plaintiff's Amended Complaint.z On or about March 29, 2007, Nancy K. Baker visited her family physician, Dr. Donald Kovacs, complaining of pain and soreness in the left lateral border of her tongue.3 After prescribing an oral rinse, Dr. Kovacs suggested that Nancy visit a dentist for further treatment.4 On or about April 12, 2007, Nancy visited Defendant Casey J. Williams, D.M.D. who was licensed to practice general dentistry in Pennsylvania.5 Nancy complained to Defendant of the pain and soreness in her tongue.6 From April 12, 2007 until August 28, 2007, Defendant performed various dental procedures on Nancy, for which he charged her $1,000, and he recommended additional dental treatment anticipated to cost over $2,000.' Defendant never referred Nancy to an oral surgeon to biopsy her tongue.8 Nancy made her own appointment with Dr. Frederick Hecht, an oral and maxillofacial surgeon in Carlisle, on or about August 28, 2007.9 Dr. Hecht performed a biopsy on Nancy's tongue and informed her that she had an ulcerating and well to moderately differentiated squamous cell carcinoma in her tongue.10 From there, Nancy was referred to Dr. Roger Levine, an otolaryngologist, who diagnosed her with stage II squamous cell carcinoma of the left lateral tongue. 11 Dr. Levine performed surgery on Nancy on or about October 4, 2007, removing part of her tongue, part of her throat, and several of her lymph nodes to which the cancer had spread .12 The surgery left Nancy unable to talk, swallow, or eat in the manner in which she had prior to the 2 The recitation of facts alleged in Pl.'s Compl. is not intended to indicate any view of the court as to their accuracy. s Pl.'s Compl., filed Feb. 9, 2010, ¶ 5 [hereinafter Pl.'s Compl. ¶ _]. 4 Pl.'s Compl. at ¶ 6. 5 Pl.'s Compl. at ¶ 3, 7. 6 Pl.'s Compl. at ¶ 7. 'Pl.'s Compl. at ¶ 8. 8 Pl.'s Compl. at ¶ 9. 9 Pl.'s Compl. at ¶ 10. 10 Pl.'s Compl. at ¶ 11, 12. 1' Pl.'s Compl. at ¶ 13, 14. 12 Pl's Compl at ¶ 15, 16. 2 surgery.13 Under the care of Dr. Ronald Malcom, Nancy underwent radiation and chemotherapy treatment. 14 The treatment caused Nancy to develop large ulcers in her esophagus which made it difficult for her to eat.15 Nancy was admitted to the hospital numerous times following the surgery due to the effects of the radiation and chemotherapy treatment!6 Nancy became very weak and, on or about September 15, 2008, she fell in her home and sustained a fractured right hip which required hospitalization and surgery. 17 On or about March 1, 2009, after becoming progressively thinner and weaker, Nancy was admitted to the Intensive Care Unit of the Carlisle Hospital in Carlisle, Pennsylvania." On March 19, 2009, Nancy was transferred by ambulance to Harrisburg Hospital in Harrisburg, Pennsylvania.19 Nancy died on March 20, 2009, at Harrisburg Hospital from pneumonia and/or complications resulting from her weakened state.20 Plaintiff is asserting a claim for punitive damages against Defendant.21 Plaintiff alleges that Defendant had knowledge and familiarity with Nancy's history, her age, and her continued complaints of pain and soreness in the left lateral border of her tongue. 22 Plaintiff alleges that Defendant's failure to timely diagnose the suspicious lesion in Nancy's tongue and/or refer her to an oral surgeon while continuing to perform dental procedures for a period of over 4 % months and billing her for the same constituted outrageous conduct and/or reckless indifference to Nancy's rights. 23 " Pl.'s Compl. at 118. 14 Pl.'s Compl. at ¶ 17. 15 Pl.'s Compl. at ¶ 19. 16 Pl.'s Compl. at ¶ 20. 1' Pl.'s Compl. at ¶ 21. 18 Pl.'s Compl. at ¶ 22, 23. 19 Pl.'s Compl. at ¶ 23. 20 Pl.'s Comp l. at ¶ 23. " Pl.'s Compl. at ¶ 32(e). 22 Pl.'s Compl. at ¶ 9. 23 Pl.'s Compl. at ¶ 8, 9, and 32(e). 3 In filing Preliminary Objections to Plaintiff's Amended Complaint, Defendant states that Plaintiff's claim for punitive damages should be dismissed with prejudice. 24 Defendant asserts that Plaintiff has made no factual averments concerning any alleged "outrageous" or "reckless" conduct of Defendant other than boilerplate legal assertions.25 Defendant maintains that Plaintiff has failed to allege any facts that suggest intentional, reckless, or malicious conduct and has made only conclusory assertions that Defendant demonstrated such conduct. 26 Defendant maintains that, at most, Plaintiff has alleged that Defendant's treatment of Plaintiff did not meet the requisite standard of care appropriate for the dental procedures involved in this case. 27 DISCUSSION According to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure, preliminary objections in the form of a demurrer may be filed by any party to any pleading on the grounds of legal insufficiency of a pleading. Pa.R.C.P. 1028(a)(4). When a court considers preliminary objections in the form of a demurrer, it accepts as true all well-pleaded material facts in the complaint, as well as, all inferences it might reasonably deduce from those facts. Donnelly v. DeBourke, 486 A.2d 826, 828 (Pa. 1980). Only in cases that are clear and free from doubt, in which it appears with certainty that the law will not permit recovery by the plaintiff upon the` facts averred, should a court sustain preliminary objections and dismiss a claim. Id. Pennsylvania has adopted Section 908(2) of the Restatement (Second) of Torts as the guideline for the imposition of punitive damages: "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984); see also Chambers v. 24 Preliminary Objections of Defendant to Pl.'s Compl., filed Feb. 23, 2010, ¶ 19. [hereinafter Prelim. Objections of Def. to Pl.'s Compl. ¶ _]. 25 Prelim. Objections of Deff, to Pl.'s Compl. at ¶ 12. 26 Prelim. Objections of Def. to Pl.'s Compl. at ¶ 16. 27 Prelim. Objections of Def. to Pl.'s Compl. at ¶ 16. 4 Montgomery, 192 A.2d 355, 358 (Pa. 1963). With regard to claims for punitive damages, the Pennsylvania Supreme Court has emphasized that "the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious." Feld, 485 A.2d at 748. Under Pennsylvania law, the only definition of reckless conduct that is sufficient to create a jury question on the issue of punitive damages is where the "actor knows, or has reason to know.... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or fail to act in conscious disregard of, or indifference to, that risk." SHV Coal, Inc. v. Cont'l Grain Co., 587 A.2d 702, 494-95 (Pa. 1991) (citing Restatement (Second) of Torts § 500 cmt. a (1965)). In the present case, Plaintiff's Complaint fails to show that Defendant's conduct toward Nancy was outrageous. The allegations in the Complaint lack the specificity necessary to conclude that Defendant was intentional, reckless, or malicious in his state of mind when acting or failing to act. The allegations also fail to support a finding that Defendant acted with an evil motive. While Plaintiff alleges that Defendant performed dental procedures on Nancy for a period exceeding four months and recommended additional procedures, it is not alleged that the dental work performed was frivolous or unnecessary. Furthermore, although Plaintiff alleges that Defendant billed Nancy $1,000 for the completed dental procedures and anticipated billing her more than $2,000 for additional work, it is not alleged that Defendant was over-billing Nancy, or ignoring her tongue complaint in order to simply maximize the amount of money he could make by continuing unnecessary treatments. When preliminary objections are filed, Rule 1028(c) states, "A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections." Pa.R.C.P. 1028(c). Even after twenty days have passed, however, the Pennsylvania 5 Superior Court has held that "where it is apparent that a pleading can be cured by amendment, the ... court may not sustain a demurrer that would put an end to a controversy without giving the pleader an opportunity to file an amended complaint, if there exists a reasonable possibility that a cause of action may be sustained." Del Turco v. Peoples Home Savings Ass'n, 478 A.2d 456, 464 (Pa. Super. 1984). The Plaintiff's rather vague reference in paragraphs 8 and 9 of his amended complaint to what Nancy was charged or what further dental treatment was proposed with more specific facts could support a claim of evil motive or recklessness if it were shown that the Defendant simply wanted to maximize his profit while totally ignoring Nancy's obvious tongue ailment. Therefore at this juncture, this Court cannot say that there is not a reasonable possibility that Plaintiff's defective claim for punitive damages cannot be cured by amendment of the complaint. Accordingly, the following Order shall be entered: AND NOW, this 24th day of June, 2011, upon consideration of Defendant's Preliminary Objections to Plaintiffs Amended Complaint, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant's Preliminary Objections are SUSTAINED, with leave granted to Plaintiff to file an amended pleading within twenty (20) days of the date of this order, consistent with the Court's opinion. Defendant 6 is granted twenty (20) days from service of any such amended complaint to file an answer or preliminary objections, and, in the absence of an amended complaint, thirty (30) days from the date of this order to file an answer. By the Court, M. L. Ebert, Jr., Bradley D. Allison, Esquire Attorney for Plaintiff 102 W. Penn Street, Suite 1 Bedford, PA 15522 Thomas J. Weber, Esquire Attorney for Defendant Golberg Katzman, PC 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 J. 7 M PAUL W. BAKER, Individually and as Executer of the ESTATE OF NANCY K. BAKER, deceased Plaintiff, V. CASEY J. WILLIAMS, D.M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 2007-05475 P : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Paul W. Baker, individually and as = j 'zj Executor of the Estate of Nancy K. Baker ? - - - c/o Bradley D. Allison, Esquire CAD Law Office of Bradley D. Allison 102 W. Penn Street, Ste. 1 Bedford, PA 15522 ==; r- You are hereby notified to file a written response to the within New Matter within twenty (20) days of service hereof or a judgment may be entered against you. Date: August 17, 2011 Thom Is- J. Webe squire (58853) Goldberg Katzman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant t00558063;vlI GOLDBERG KATZMAN, P.C. Thomas J. Weber, Esquire - I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant PAUL W. BAKER, Individually and as IN THE COURT OF COMMON PLEAS Executer of the ESTATE OF NANCY K. CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased Plaintiff, CIVIL ACTION - LAW V. : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D. JURY TRIAL DEMANDED Defendant. DEFENDANT'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT Defendant Casey J. Williams, D.M.D., by and through his counsel, Goldberg Katzman, P.C., files this Answer to Plaintiff's Amended Complaint as follows. 1. Admitted based upon information and belief. 2. Admitted. 3. It is admitted that Defendant is a licensed dentist. It is also admitted that Plaintiff is asserting of a professional liability claim against the Defendant. However, the validity of such claim is specifically denied. 4. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 4 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at trial. (00558063;v1} 5. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 5 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at trial. 6. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 6 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at trial. 7. Admitted. By way of further answer, Nancy Baker had been made an inactive patient as of March 3, 2004 as a result of her missing her last three scheduled appointments and having not presented at the office since January 17, 2001, some six years prior to the treatment involved in this litigation. 8. Admitted in part, denied in part. It is admitted that between April 12, 2007 and August 9, 2007, Defendant saw Nancy Baker in a professional capacity. To the extent the averments contained in paragraph 8 of Plaintiff's Amended Complaint are intended to infer that the dental procedures performed were either unnecessary or below the standard of care, such inference is specifically denied. By way of further answer, to the extent the averments contained in paragraph 8 of Plaintiff's Amended Complaint are intended to infer that the Defendant somehow deviated from the standard of care in relation to Nancy Baker by charging her for the dental procedures performed or recommending additional necessary treatments at an additional cost, such inference is specifically denied. 2 {00558063;v1} 9. Denied. On August 9, 2007, Defendant referred Nancy Baker to oral and maxiofacial surgeons Drs. Currie and Hecht, as he had done on previous occasions with Ms. Baker. 10. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 10 of Plaintiff's Amended Complaint, and, therefore, they are denied. By way of further answer, Defendant had already referred Nancy Baker to Currie & Hecht as of August 9, 2007. 11. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 11 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 12. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 12 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 13. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 13 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 14. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 14 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. {00558063;v1} 15. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 15 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 16. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 16 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 17. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 17 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 18. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 18 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 19. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 19 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 4 100558063;v1 } 20. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 20 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 21. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 21 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 22. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 22 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 23. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 23 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof of the same is required at time of trial. 24. The averments contained in paragraph 24 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, it is specifically denied that Defendant was negligent, careless or reckless in his treatment of Nancy Baker. By way of further answer, Nancy's death, surgical and post-surgical treatment, pain and suffering and corresponding difficulties were caused by Ms. Baker contracting cancer, an unfortunate event completely independent of the actions of the Defendant. {00558063;v 1 } COUNTI 25. The answers contained in paragraphs 1 through 24 are incorporated herein as though set forth in their entirety. 26. The averments contained in paragraph 26 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, it is specifically denied that the Defendant: a. failed to diagnose or properly diagnose Plaintiff's condition; b. failed to timely diagnose Plaintiff's condition; c. failed to refer or timely refer Nancy Baker to an oral surgeon or other qualified professional or specialist; d. can be found liable for performing dental procedures and billing Nancy Baker for the same; e. failed to ask Nancy Baker appropriate questions; f. failed to investigate or properly investigate the lesion. 27. The averments contained in paragraph 27 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, it is specifically denied that the Defendant was negligent, careless or reckless in his treatment of Nancy Baker. By way of further answer, the complaint of treatment and corresponding problem were caused by the unfortunate occurrence of Ms. Baker contracting cancer, an event completely independent of the actions of the Defendant. 28. The averments contained in paragraph 28 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, it is specifically denied that Defendant was negligent, careless or reckless in his 6 100558063;v1 } treatment of Nancy Baker. By way of further answer, the injuries complained of were caused by Nancy Baker's unfortunate contraction of cancer, an event completely independent of the actions of the Defendant. WHEREFORE, Defendant respectfully requests that judgment be entered in his favor and against the Plaintiff, along with all other relief the Court deems just. COUNT II 29. The answers contained in paragraphs 1 through 28 are incorporated herein as though set forth in their entirety. 30. The averments contained in paragraph 30 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, it is specifically denied that the Defendant was negligent, careless or reckless in his treatment of Nancy Baker or that his actions were the direct and proximate result of Ms. Baker's injuries or death. 31. Based upon information and belief, it is admitted that Paul W. Baker is the court- appointed executor of the Estate of Nancy K. Baker. Further, it is admitted that as Plaintiff, he is bringing this action under the Wrongful Death Act. It is specifically denied that the claimed damages are as the result of any improper act of the Defendant or that Defendant can be found liable for the same. 32. Based upon information and belief, it is admitted that Paul W. Baker is the executor of the Estate of Nancy K. Baker and that he is bringing this action under the Survival Act. It is specifically denied that the Defendant was negligent, careless or reckless in his 7 {00558063;v1} treatment of Nancy Baker and further denied that he can be held liable the injuries and damages claimed. (Pursuant to this Court's Order, the claim for punitive damages has been stricken.) COUNT III 33. The answers contained in paragraphs 1 through 32 are incorporated herein as though set forth in their entirety. 34. The averments contained in paragraph 34 of Plaintiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, it is specifically denied that Defendant was negligent, careless or reckless in his treatment of Nancy Baker or that any actions of the Defendant caused any recoverable injuries to the Plaintiff or Nancy Baker. By way of further answer, based upon information and belief, it is admitted that Plaintiff Paul W. Baker was married to Nancy K. Baker. 35. After reasonable investigation, Answering Defendant is without sufficient knowledge, information or belief to form a belief as to the truth of the averments contained in paragraph 35 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof is required at the time of trial. 36. After reasonable investigation, Answering Defendant is without sufficient knowledge, information or belief to form a belief as to the truth of the averments contained in paragraph 36 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof is required at the time of trial. By way of further answer, it is specifically denied that any actions of the Defendant were the proximate cause of any injuries suffered by Nancy Baker. {00558063;v1} 37. After reasonable investigation, Answering Defendant is without sufficient knowledge, information or belief to form a belief as to the truth of the averments contained in paragraph 37 of Plaintiff's Amended Complaint, and, therefore, they are denied, and strict proof is required at the time of trial. By way of further answer, it is specifically denied that any actions of the Defendant were the proximate cause of any injuries suffered by Nancy Baker. WHEREFORE, Defendant respectfully requests that judgment be entered in his favor and against the Plaintiff, along with all other relief the Court deems just. NEW MATTER 38. The answers contained in paragraphs 1 through 37 to Plaintiff's Amended Complaint are incorporated herein as though set forth in their entirety. 39. Plaintiff delayed in seeking treatment for the alleged soreness on her tongue. 40. Plaintiff presented to the Defendant with an anatomical condition likely to cause an ulceration on Nancy Baker's tongue. 41. Following the conservative treatment of the Defendant, Nancy Baker's condition initially improved. 42. Upon reoccurrence of Nancy Baker's complaints, Defendant appropriately referred Nancy Baker to an oral surgeon. 43. At the time of Nancy Baker's presentation to the Defendant on April 12, 2007, her cancer had progress to the point wherein the unfortunate result had been determined. 44. The injuries complained of by the Plaintiff were caused by actions or events outside the control of the Defendant. 45. Ms. Baker's poor oral hygiene impacted her presentation to the Defendant's office. 9 100558063;v I I 46. At all times, Defendant acted appropriately and timely in his attention to Ms. Baker's complaints. 47. Defendant's actions, at all times, met or exceeded the applicable standard of care. WHEREFORE, Defendant respectfully requests that judgment be entered in his favor and against the Plaintiff, along with all other relief the Court deems just. Respectfully Submitted, GOLDBERG KATZMAN, P.C. Date: August 17, 2011 By: Tho as eber, quire (ID #58853) 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (T) 717/234-4161 (F) 717/234-6808 tjw(&olg_ dbergkatzman.com 10 100558063;vII VERIFICATION I hereby acknowledge that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date:/,j _ By: 'L/- h4 Cas illiams, D.M.D. {00558063;vII CERTIFICATE OF SERVICE On this 17th day of August, 2011, I certify that a copy of the foregoing was served upon the following parties of record by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Bradley D. Allison, Esquire Law Office of Bradley D. Allison 102 W. Penn Street, Ste. 1 Bedford, PA 15522 GO KATZMAN, P.C. Tho as Weber-, uire (ID #58853) 100558063;vII PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K. BAKER, deceased, Plaintiffs, V. CASEY J. WILLIAMS, D.M.D., Defendant IN THE COURT OF COMMON PLEAS OF, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2007-05475 P JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER r-n M wYr, • f C r n , r ?> x- `-, C ' C N rn - ? n AND NOW, come the Plaintiffs, Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through their attorney, and file their Reply to Defendant's New Matter, respectfully averring as follows: 38. Paragraphs 1 through 37 of Plaintiffs' Amended Complaint are incorporated herein by reference as if set forth at length. 39. The averments of Paragraph 39 of Defendant's New Matter are specifically denied. To the contrary, Nancy Baker timely sought treatment for her problem from her family physician who referred her onto the Defendant for treatment and evaluation. It was Defendant who delayed in seeing Nancy Baker as a patient and/or scheduling her for an office visit and/or in referring her onto an oral and maxillofacial surgeon for evaluation and biopsy. Strict proof otherwise is demanded at the time of trial. 40. It is specifically denied, to the extent implied in Paragraph 40 of Defendant's New Matter, that Nancy Baker's condition at the time she presented to Defendant was such that he should not have referred her onto an oral and maxillofacial surgeon at such time for evaluation and biopsy. To the contrary, had Defendant 1 Williams followed the applicable standard of care and taken a proper history from Nancy Baker at that time, he should have referred her at that time onto an oral surgeon for evaluation and treatment and/or given the information he had at his disposal, he should have referred her at that time onto an oral surgeon for evaluation and treatment. It is specifically denied, to the extent implied in Paragraph 40 of Defendant's New Matter, that Nancy Baker did not have a suspicious lesion in her oral cavity related to which the Defendant should have referred her onto an oral surgeon for evaluation and biopsy when she presented to him. Strict proof otherwise is demanded at the time of trial. As for the remaining averments in Paragraph 40 of Defendant's New Matter, after reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of such averments; the same therefore are specifically denied, and strict proof otherwise is demanded at the time of trial. 41. The averments of Paragraph 41 of Defendant's New Matter are specifically denied. To the contrary, Nancy Baker's condition did not initially improve; she continued to complain to the Defendant concerning pain in her tongue, and his own Chart Notes reflect he dispensed Penedex and/or oral rinse to her during the second documented office visit on May 14, 2007. Strict proof otherwise is demanded at the time of trial. 42. The averments of Paragraph 42 of Defendant's New Matter are specifically denied. To the contrary, the condition at issue never abated or resolved; therefore, it could not have reoccurred. Moreover, it is specifically denied that Defendant ever referred Plaintiff to an oral surgeon and/or ever referred Plaintiff to an oral surgeon before she made the appointment with the oral surgeon herself or that 2 Defendant appropriately or timely referred Nancy Baker to an oral surgeon. Strict proof otherwise is demanded at the time of trial. 43. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 43 of Defendant's New Matter; the same therefore are specifically denied, and strict proof thereof is demanded at the time of trial. 44. Paragraph 44 of Defendant's New Matter contains a conclusion(s) of law to which no response(s) is required. To the extent that a response is deemed required, each and every averment of same is specifically denied as more particularly set forth in Plaintiffs' Amended Complaint, and strict proof thereof is demanded at the time of trial. 45. Paragraph 45 of Defendant's New Matter contains a conclusion(s) of law to which no response(s) is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. By way of further response, any issues with respect to Nancy Baker's oral hygiene should have been taken into account by the Defendant and prompted him to have referred her to an oral and maxillofacial surgeon for evaluation and/or to have timely referred her to such a surgeon for evaluation. Strict proof otherwise is demanded at the time of trial. 46. Paragraph 46 of Defendant's New Matter contains a conclusion(s) of law to which no response(s) is required. To the extent that a response is deemed required, each and every averment of same is specifically denied as more particularly set forth in Plaintiffs' Amended Complaint, and strict proof thereof is demanded at the time of trial. 3 47. Paragraph 47 of Defendant's New Matter contains a conclusion(s) of law to which no response(s) is required. To the extent that a response is deemed required, each and every averment of same is specifically denied as more particularly set forth in Plaintiffs' Amended Complaint, and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiffs Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased respectfully requests your Honorable Court to deny and dismiss Defendant's Answer with New Matter with prejudice and enter judgment in Plaintiffs' favor and against the Defendant, Casey J. Williams, D.M.D. as more particularly requested in Plaintiffs' Amended Complaint previously filed. Respectfully Submitted, LAW Of FIDE OF B BY ;rdfity B"'Allis , Esquire a. I. . No. 72 Attorney for Plaintiffs 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 4 VERIFICATION I, Paul Baker, individually and as Executor of the Estate of Nancy K. Baker, hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements made herein are made subject to the penalties of 18 Pa. Con. Stat. Ann. Section 4904 relating to unsworn falsification to authorities. BY: &U& LO Paul Baker, individually and as Executor of The Estate of Nancy K. Baker Dated: 1- 6 U CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 12th day of September, 2011, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 By gr ley D. Alli , E: Aft rney for aintiffs 102 W. Penn St., Ste Bedford, PA. 15522 (814) 623-7566 PAUL W: BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, V. : CIVIL ACTION — LAW NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., Defendant JURY TRIAL DEMANDED NOTICE OF SERVICE OF PLAINTIFFS' REQUEST TO DEFENDANT FOR PRODUCTION OF EXPERT REPORTS TO: CUMBERLAND COUNTY PROTHONOTARY Notice is hereby,given that I, Bradley D. Allison, Esquire have on the 28th day of August, 2013 served Plaintiffs' Request to Defendant for Production of Expert Reports upon Defendant through his counsel. LAW E OF BRAD D. ALLISO (-) C """ .....E M. C :L1 G') t1l cl3� w BY ° .r dley D. Alli on, Esquire P . I.D. No. 072 ?-:c C)C-) At rney for Plaintiff(s) ' 102 W. Penn Street, Ste. 1 CD Bedford, PA 15522 (814) 623-7566 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 28th day of August, 2013, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 By 'e�e Br d ey D. Allis Esquire A to ney for P in tiffs 102/W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, V. : CIVIL ACTION — LAW NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., Defendant JURY TRIAL DEMANDED NOTICE OF SERVICE OF PLAINTIFFS' SECOND SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT AND FIRST SET OF REQUESTS FOR ADMISSION DIRECTED TO DEFENDANT TO: CUMBERLAND COUNTY PROTHONOTARY Notice is hereby given that I, Bradley D. Allison, Esquire have on the 28th day of August, 2013 served Plaintiffs' Second Set of Interrogatories and Requests for Production of Documents directed to Defendant and First Set of Requests for Admission Directed to Defendant upon Defendant through his counsel. LAW O OF BRAD D. ALLISON m ) Fri Y .0 rte. Bra ley D. Allis?,15, Esquire s ''0 Pa. I.D. No. 80072 Attorney for Plaintiff(s) � 102 W. Penn Street, Ste. 1c ° Bedford, PA 15522 (814) 623-7566a CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 28th day of August, 2013, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 By *radley ison, Esquire Plaintiffs 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVALNIA`- BAKER, deceased, - - Plaintiffs, • mC = v. : CIVIL ACTION — LAW � ' Co.) `ac G� - 6_ yr, : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., : v � • Defendant : JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR STATUS CONFERENCE WITH THE COURT AND NOW, comes the Plaintiff, Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire and files this Motion for Status Conference with the Court, respectfully averring as follows: 1. This professional malpractice action was instituted by the filing of a Praecipe for Writ of Summons on or about September 14, 2007. 2. Discovery has proceeded in the case. 3. Despite service of appropriate liability expert report(s) by Plaintiff upon Defendant and thereafter service upon Defendant through his counsel of a Notice to Produce Defendant's Expert Report on liability on August 28, 2013, Defendant has not produced its expert report. 4. The Honorable M.L. Ebert, Jr. has been assigned to this case. 5. A Status Conference with this Court is needed in order for the Court to set discovery and expert witness report deadlines applicable to this case and dates for trial, which conference is requested hereby to be set. WHEREFORE, Plaintiff Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, respectfully requests your Honorable Court to grant him the relief set forth herein. Respectfully Submitted, LAW4 E OFr / D. ALLIS R N B /� 'adley D. A son, Esquire P:. I.D. No. 80072 A torney for Plaintiff 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 9th day of January, 2014, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA i 08-1268 ..y Bradley 6. Allison, Esquire Attorn•y for Plaintiff(s) 102 . Penn St., Ste. 1 ' Bedford, PA. 15522 (814) 623-7566 d.\ PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, • v. : CIVIL ACTION — LAW : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., Defendant • : JURY TRIAL DEMANDED ORDER AND NOW, thisay of , 2014, upon consideration of Plaintiffs Motion for Status Conference with the Court, it is hereby ORDERED, DIRECTED, AND DECREED that said Motion is GRANTED. A Status Conference with the Court is hereby set for theaOy of ' / A , 2014 at COO a.mIp in Courtroom No.ca.of the Cumberland County Court of Common Pleas before the Honorable M.L. Ebert, Jr. BY THE COURT, ‘,1\1\d‘A\ J. Cort'es re&I'LL R14.1 . PW of act max:, // E14,, CA) PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, V. : CIVIL ACTION — LAW rr rn �., co fir, ri NO. 2007-05475 P � j CASEY J. WILLIAMS, D.M.D., Defendant 'mac JURY TRIAL DEMANDED _ D t. PLAINTIFF'S MOTION FOR CONTINUANCE ' AND NOW, comes the Plaintiff, Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire and files this Motion for Continuance, respectfully averring as follows: 1. Previously, Plaintiff filed a Motion for Status Conference with the Court. 2. By Order dated January 22, 2014, the Court established the date of February 20, 2014 for the Status Conference. 3. Counsel for Plaintiff is attached for trial in the Circuit Court of Morgan County, West Virginia on February 18-20, 2014 in the case of Price v. Gamble, 12-C-82. Trial begins on February 18, 2014. A copy of the Scheduling Order pertaining to same is attached hereto as Exhibit "A." 4. Accordingly, Plaintiff hereby requests a continuance of the aforesaid status conference and that the Court establish a new date in the future to hold the conference. WHEREFORE, Plaintiff Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, respectfully requests your Honorable Court to grant him the relief set forth herein. Respectfully Submitted, LA5bo§y 4on, LLISON BY Al Pa. I.P. No. Attor ey for Plaintiff 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 � C E)rhibif A Ccr IN THE CIRCUIT COURT OF MORGAN COUNTY,WEST VIRGINIA MATTHEW PRICE, et al., Plaintiff, VS. Civil Action No.: 12-C-82 HAROLD GAMBLE III, Defendant. SCHEDULING ORDER The following schedule is ORDERED by the Court in the above-styled civil action; and shall not be modified except by leave of Court. 1. TRIAL DATE: February 18, 2014 at 9:00 a.m. Continuance motions must be heard prior to the pre-trial conference or they will not be considered. 2. PRE-TRIAL CONFERENCE DATE: January 31, 2014 at 9:00 a.m. At which time lead counsel must appear. All parties are directed to exchange and deliver their respective PRE-TRIAL CONFERENCE MEMORANDA to the Judge's Chambers NO LATER THAN SEVEN (7) DAYS BEFORE the conference. FAILURE TO COMPLY MAY RESULT IN CONTINUANCE OF TRIAL. Said memoranda are to contain as a minimum, the following: 1. Statement of the Case 7. Pending Motions 2. Issues of Fact 8. Motions in Limine 3. Issues of Law 9. All Proposed Instructions of Law 4. Proposed Stipulations (Disk as well as hard copy shall be 5. Schedule of Exhibits provided to the Court.) 6. List of Witnesses 10. Proposed Voir Dire SCHEDULE OF EXHIBITS The parties shall exchange a list of all proposed exhibits (including demonstrative) and shall make the exhibits available for viewing by counsel at least 5 work days prior to the pre-trial conference. By the time of the pre-trial conference counsel shall have stipulated as to which exhibits shall be admitted without objection and provide a list to the Court and Clerk. The parties shall mark all exhibits by use of standard exhibit stickers and provide a list to the Court and counsel. VIDEO DEPOSITION TO BE USED.AT TRIAL If a video deposition is to be used, all parties must be prepared to argue objections at the pretrial conference. Thereafter, the proponent of the video deposition shall have the video edited to reflect the court's rulings. In addition, the proponent of the video deposition must have a videographer at trial. JURY INSTRUCTIONS The Court desires that all counsel read all parties' proposed jury instructions prior to the conference and be prepared to discuss them at the conference. The Court will not be inclined to receive instructions after the pre-trial conference. 3. EXPERTS DISCLOSED: Plaintiff. September 1, 2013 Defendant: October 1, 2013 a) Any party desiring to use an expert witness must furnish opposing counsel with the specialty of such expert and copies of all reports submitted by such witness, or, if no reports have been submitted, a summary of the substance of such expert's contemplated testimony, on the date of Expert Disclosure per WVRCP 26(b)(4). b) The admissibility of expert testimony is subject to Rule 104(a) of the Rules of Evidence. Objection to the admissibility of expert testimony will be deemed waived if not objected to by a motion in limine filed at least 10 days prior to the pre-trial and a hearing thereon set with the Court prior to first day of trial. c) Co-designation or co-reliance upon experts must also specifically be made in writing on date of Expert Disclosure. 4. MEDICAL EXAMINATIONS AND EXPERT EVIDENTIARY INSPECTIONS: September 15, 2013 All medical examinations by expert physicians must be completed by this date. Medical examinations in accordance with WVRCP 35 are granted, but subject to court control. Any modification to the standard medical examination of the plaintiff must be made by plaintiff's counsel in writing and noticed for hearing prior to the examination. Any continuing medical treatment to be admissible at trial must be disclosed prior to the discovery completion date. 5. DISPOSITIVE MOTIONS: WVRCP 12(b) and 56 motions should be filed at least 60 days prior to the pre-trial conference. 6. AMENDMENTS, THIRD PARTY PLEADINGS, AND OTHER MATTERS NO LATER THAN: June 1, 2013 7. FINAL WITNESS LIST EXCHANGED: October 15, 2013, 2013 This is to be a bona fide list of intended trial witnesses. S. DISCOVERY COMPLETION DATE: December 15, 2013 All requests must be served and evidence of service filed at least 35 days in advance of this date so that all responses may be completed by this date. All trial depositions must be completed at least 14 days before the pretrial. 9. MOTIONS INLIMINE MUST BE FILED AT LEAST 10 DAYS BEFORE PRETRIAL AND WILL BE RULED UPON AT THE PRE-TRIAL CONFERENCE. 10. This matter is ORDERED to MEDIATION which must be completed by Ocotber 15, 2013. Counsel or unrepresented parties may opt out of mediation by advising the court and counsel in writing within 21 days of this order. FAILURE TO COMPLY WITH 'THIS REQUIREMENT MAY RESULT IN THE CASE BEING CONTINUED OR OTHER 'SANCTIONS. Counsel and pro se parties are directed to confer to agree upon a mediator. If counsel cannot agree upon a mediator, plaintiffs counsel is to notify the Court within 28 days prior of this order. 11. SANCTIONS: In accordance with WVRCP 16(o, the Court may impose the full spectrum of sanctions authorized by the WVRCP if a party or party's counsel fails to obey this order or other orders of this Court including exclusion of evidence and granting of default for failure to comply. 12. UNLESS AUTHORIZED BY COURT ORDER, THE ABOVE DATES ARE FINAL. No additional evidence developed as a result of deviations from the above schedule will be admissible at trial unless justice requires. 13. OBJECTIONS to the above schedule must be made to the undersigned Judge within 21 days of the date of this Order or will be deemed waived. 14. It will be the responsibility of plaintiff or their counsel to notify opposing counsel and pro se parties of the existence of this scheduling order, if and when such counsel or pro se party appears of record. 15. The dates set out above do not relieve counsel or parties from timely compliance with discovery requests propounded pursuant to the West Virginia Rules of Civil Procedure. The Clerk shall transmit certified copies to counsel of record and pro se parties. ENTER: May 3, 2013 L/U_ � Michael D. Lorensen Twenty-Third Judicial Circuit Jefferson County, West Virginia A TRUge Copy, A'dTES7': GUARDIAN 0 MAO 0 �f Morgan Q�tk of he Circuif Court DOM❑ MH CIVIL J1JVEP1SLE r C®rifli �est Vr CRIMINAL❑ABM t..�z , 91tU$ ©RDE2 BC:0: . ^�Pl PAGE�_ N!TIAL nATE s CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 5th day of February, 2014 by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 ey adley . Alliso , Esquire ttorne or Plaintiff(s) 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, • v. : CIVIL ACTION — LAW : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., Defendant : JURY TRIAL DEMANDED it ORDER AND NOW, this )t-)'day of --ear . , 2014, upon consideration of Plaintiffs Motion for Continuance, any response thereto, and after holding hearing or argument regarding same, it is hereby ORDERED, DIRECTED AND DECREED that said Motion is GRANTED. A Status Conference with the Court is rescheduled for the la ay of , 2014 at 9 %IYD a.m./p2rLin Courtroom No.ca-- of the Cumberland County Court of Common Pleas before the Honorable M.L. Ebert, Jr. By the Court, \‘k,j(.* J. Ca '- r yes m . ACCT ry mac'; Q t`-' r' 211 PAUL W. BAKER, individually : IN THE COURT OF COMMON PLEAS OF And as Executor of Estate : CUMBERLAND COUNTY, PENNSYLVANIA Of NANCY K. BAKER, deceased : PLAINTIFF V. CASEY J. WILLIAMS, D.M.D. DEFENDANT : NO. 07-5475 CIVIL IN RE: SCHEDULING CONFERENCE ORDER OF COURT AND NOW, this 12th day March, 2014, after status conference with counsel; cz M rril r- c=3 arz :Za.• r.) %C) C.T's IT IS HEREBY ORDERED AND DIRECTED that: 1. AU discovery in this matter shall be completed on or before June 30, 2014. 2. Plaintiff's expert reports shall be filed on or before June 30, 2014. Defendant's expert reports responding to the Plaintiff's expert reports shall be filed on or before July 30, 2014. Any Plaintiff rebuttal expert report shall be filed on or before August 30, 2014. 3. Any dispositive motions, if applicable, shall be filed on or before October 1, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the motions will be held during the November 14, 2014, Argument Court. 4. The case shall be tentatively set down for trial during the February 2015 Civil Trial Term. Given the fact that the 2015 court calendar has not yet been published, and assuming that counsel may have scheduling conflicts, continuance of the case to the May Civil trial term may be necessary. ra ✓Bdley Allison, Esquire Attorney for Plaintiff Thomas Weber, Esquire Attorney for Defendant Mark Mateya, Esquire bas i eS /ila.: LEL 3p1iy PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant : CIVIL ACTION — LAW : NO. 2007-05475 P : JURY TRIAL DEMANDED PRAECIPE TO FILE PLAINTIFFS' EXPERT REPORTS TO: CUMBERLAND COUNTY PROTHONOTARY Pursuant to the Order of Court dated March 12, 2014, kindly file the attached expert reports on behalf of Plaintiffs. Respectfully Submitted, LAW OFFICE OF BRA!Lf Y D. ALLISON BY ley D. Alb-. sn, Esquire Pa. I.D. No. 7.0072 Att rney for - laintiffs 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 C RANDALL K. STUART, D.M.D. Randall K. Stuart, D.M.D. Bedford Dental Professional Corporation 902 Echo Vale Drive Bedford, Pa 15522 (814) 623-2217 January 28, 2009 Information used in the preparation of this report was obtained from the medical/dental records of Nancy Baker and from facts obtained through Attorney Bradley Allison. The written opinion offered by Dr. Roger Levin also served as a reference. This report will initially overview the care given to Nancy Baker (with specific dates), and end with an opinion rendered by the author. Beginning on or about Thanksgiving 2006, Mrs. Nancy Baker informed Dr. Ronald Kovacs, MD, of a sore area on her tongue that would not heal. Dr. Kovacs instructed Mrs. Baker to be seen by her general dentist, Dr. Casey Williams. According to information provided to me through attorney Allison, over the next several months Mrs. Baker contacted Dr. Williams concerning this situation and was instructed to apply Vaseline to affected area. For reasons not written in the chart notes, patient was not seen in Dr. Williams' office until April of 2007. During this visit Dr. Williams diagnosed the tongue pain as arising from the lingual inclination of teeth #18-20 causing an irritation. Treatment this visit included smoothing offending teeth, and instructions to continue with the oral antimicrobial rinse chlorhexidine gluconate that was prescribed by Mrs. Baker's primary care physician. At this point, patient was rescheduled for operative dentistry. Approximately one month later, on May 14, 2007, patient was seen in office for a composite resin restoration on tooth #20. No mention of tongue soreness noted this visit. However, additional chlorhexidine was dispensed. Chart notes indicate patient seen in office on July 14, complaining of tongue soreness. Chart notes indicate this was an EOE (Emergency Oral Exam). At this point Dr. Williams suggests placement of a 3 -unit fixed bridge. Chart notes indicate no ulceration present, but notes do indicate patient complaint of "pain in tongue when it passes over the teeth". Approximately two weeks later on July 31, 2007, patient was seen in office mandibular scaling and root planing. Hygienist noted in chart notes that patient was unable to open mouth completely and of her tongue still being very sensitive. Four days later on August 4, 2007, Mrs. Baker presents in office for preparation of 3 -unit fixed bridge. Two weeks following tooth preparation, on August 19, 2007, chart notes indicate patient presents in Dr. Williams office again as an unscheduled emergency (EOE) complaining of increased pain in tongue as well as an ulcerated left side of tongue. Temporary bridge was smoothed and referral made to specialist for additional examination. This examination by an oral surgeon ultimately leads to a diagnosis of squamous cell carcinoma (oral cancer), for which Mrs. Baker is still receiving treatment. Dentists are usually the first healthcare providers to see a patient that has oral pain. Dentists are not trained nor expected to diagnose oral cancer. A cancer diagnosis can only be confirmed through a microscopic analysis of a surgically obtained biopsy. Typically, these procedures (biopsies) are performed by an oral surgeon or ENT. However, what dentists are trained and expected to do is recognize suspicious lesions in the oral cavity. Suspicious lesions are lesions that may be unexplained or faiJ to heal in a reasonable amount of time. The universally accepted standard for referral is any oral lesion or pain that does not completely heal within approximately two weeks. While Dr. Williams may have believed that the irritation was caused by the lingual inclination of a few teeth, the fact that Mrs. Baker was a 55+ year old female with prior periodontal problems, and an alcohol user(she admitted to Dr. Levin she drinks several beers daily), this lesion should have risen to the level of "suspicious" right away. Because I have not been provided with any information as to why it took five months for Mrs. Baker to be seen in Dr. Williams' office, I cannot say with a reasonable degree of dental certainty that Dr. Williams was negligent prior to April 2007. However, during that first appointment in April, Dr. Williams should have recognized Mrs. Baker's age, duration that lesion had been present(five months) and with a few simple questions, alcohol use, as several of the risk factors for oral cancer, regardless of whether the teeth were inclined lingually or not. Also, chronic irritation in the oral cavity caused by poorly aligned teeth, dentures, or anything for that matter can also be a predisposing factor for oral cancer. Prior to being seen by Dr. Hecht, chart notes indicate that Mrs. Baker complained of her tongue soreness on four separate occasions. Chart notes indicate two of those complaints came during appointments made specifically for that reason. Dentists, and in fact all healthcare providers are trained to ask questions and i complaints completely. Had Dr. Williams taken the time to ask the appropriate questions and evaluate the information he had available, he could have recognized the obvious risk factors present and referred Mrs. Baker to the appropriated specialist immediately. This would have led to an earlier diagnosis and could have potentially prevented Mrs. Baker from requiring the radical neck dissection, and subsequent radiation and/or chemotherapy treatments she ultimately received. It is for these reasons that I feel that Dr. Williams deviated from the standard of care in the treatment of Nancy Baker. All opinions in this report were given with a reasonable degree of dental certainty. Respectfully, o Randall K. Stuart, D.M.D. Randall K. Stuart, D.M.D 902 Echo Vale Drive Bedford, Pa 15522 (814)623-2217 Education: Bedford Area High School, Bedford, Pa 1982-1985. e. Edinboro University of Pennsylvania, Edinboro, Pa 1986-1989. B.S. Biology, Pre -Dental University of Pittsburgh School of Dental Medicine, Pittsburgh, Pa 1989-1993. D.M.D. Professional Memberships and Associations: Member of American Dental Association Member Western Pennsylvania Dental Society Member Bedford County Dental Association Past President Bedford County Dental Association 1 ROGER J. LEVIN, M.D.,F.A.C.S. i OF ASSOCIATED 4OTOLARYNGOLOGISTS D PENNSYLVANIA ovem • er JOHN A. FORNADLEY, MD, FACS ROGER J. LEVIN, MD, FACS ANDREW M. SHAPIRO, MD, FAAP JON E. ISAACSON, MD F DONALD COOPEY, MD, FACS NORMAN M. WOLDORF, MD CLIFFORD N. STEINIG, DO, FOCOO KEVIN C. GORDON, PA -C JILL A. HOFFMAN, MA, CCC -A KATHRYN M. MCNAMARA, AUD, CCC -A SANDRA C. RABIN, MA, CCC -A JODY S. BURKHART, MA, CCC -SLP CYNTHIA BYLOTAS, MS, CCC -SLP Mr. Bradley Allison 102 West Penn Street Suite 1 Bedford, PA 15522 Dear Mr. Allison: Please pardon the delay in my getting this letter to you regarding your handling of the matter Nancy K. Baker and Paul W. Baker versus Casey J. Williams, D.M.D. As you know, I have been asked to give my expert opinion regarding the treatment of Nancy's care, both in our office as well as preceding her referral to our office. Specifically, I understand the issue to be whether or not there was a delay in referral for definitive treatment by Dr. Williams. I have had the opportunity to review all of her medical records that you provided, as well as the list of questions that you have asked. I am sure that you are aware that I treated Nancy for a squamous carcinoma of the left lateral tongue. This had actually been diagnosed by Dr. Frederic Hecht, an oral surgeon in Carlisle. Based on the size of the lesion, Fred promptly referred her for my evaluation and treatment. Nancy had a fair amount of pain when she initially presented and was felt to be a probable stage. II carcinoma of the lateral tongue. It was difficult to fully evaluate this clinically due to the discomfort in the area. We referred her for a PET scan, which confirmed the lateral tongue lesion, as well as suggesting a possible lymph node metastasis to the left neck. Based on the size of the primary lesion in the left lateral tongue, it would have been my preference and recommendation to perform a modified neck dissection on the left side even without the PET scan findings. Presuming her to be a stage II tongue carcinoma, or at minimum a stage I tongue carcinoma with at least 5 mm depth of invasion, the incidence of node metastasis in the left neck would have been 40-50%. I first met Nancy on August 31, 2007. Dr. Hecht had performed the biopsy on August 29, 2007. As mentioned, we recommended and then ultimately performed a left hemiglossectomy with modified radical neck dissection. We then recommended adjuvant chemoradiation therapy based on the presence of multiple positive nodes in the left neck. When I first met Nancy in August of 2007, I estimate that her tongue cancer had been there for approximately one year. Clinically, I staged the lesion as a stage II, but of course we upstaged her cancer once we had the final pathology back from her surgery. At that time she would be stage IV. It is the standard of care in dealing with mouth ulcers that if they do not resolve within a month, as would be expected of a typical aphthous ulcer, they be evaluated for possible biopsy. Oftentimes I will see a patient with a superficial ulcer that has been slower to heal than expected, and I will observe them for another month. We oftentimes will treat the area with topical steroids as well. If it does not resolve at that point, then an incisional or excisional biopsy is warranted. As you are aware, there was a delay in Nancy ultimately getting a biopsy of this oral lesion. The patient had become aware of it around Thanksgiving of. 2006 and did not actually get in to her general dentist until April of 2007. At that time she had been treated for a presumptive jagged tooth that could be irritating the tongue. Several attempts 880 POPLAR CHURCH ROAD • CAMP HILL, PA 17011 • (717) 763-7400 • FAX: (717) 763-4177 34 NORTHEAST DRIVE • HERSHEY, PA 17033 • (717) 835-1900 • FAx: (717) 835-0980 4854 LONDONDERRY ROAD • HARRISBURG, PA 17109 • (717) 652-7774 • FAX: (717) 652-8113 ASSOCIATED OTOLARYNGOLOGISTS OF PENNSYLVANIA, INC. Page 2 JOHN A. FORNADLEY, MD, FACS ROGER J. LEVIN, MD, FACS ANDREW M. SHAPIRO, MD, FAAP JON E. ISAACSON, MD E. DONALD COOPEY, MD, FACS NORMAN M. WOLDORF, MD CLIFFORD N. STEINIG, DO, FOCOO KEVIN C. GORDON, PA -C JILL A. HOFFMAN, MA, CCC -A KATHRYN M. MCNAMARA, AUD, CCC -A SANDRA C. RABIN, MA, CCC -A JODY S. BURKHART, MA, CCC -SLP CYNTHIA BYLOTAS, MS, CCC -SLP were made to correct this, but that did not improve matters. It was not until August 28, 2007 that she ultimately was referred to an oral surgeon for definitive biopsy. This consists of a delay of about four months from the time she was referred to her general dentist and almost one year since the patient initially noticed the lesion. When I did her surgery it became clear that she had metastatic nodes in the left neck. Three lymph nodes were ultimately determined to be malignant out of a total of twenty lymph nodes encountered in the neck dissection tissues. There was no mention on the lymph node evaluation as to whether or not there was any extracapsular extension, and the largest focus of cancer was 1.7 cm in the lymph node. The hemiglossectomy specimen fortunately showed negative margins and no evidence of perineural invasion or angioinvasion. We are still awaiting the data regarding the marker p16, as this also has a positive impact on prognosis. Given the high-risk disease with multiple nodes positive in the neck, I recommended that Nancy be evaluated for combined chemotherapy and radiation. She ultimately chose to undergo radiation alone and was evaluated and treated by Dr. Ron Malcolm of the Carlisle Radiation Center. In general, we quote patients with a stage IV oral cavity carcinoma like Nancy had as having an approximately 60-70% survival rate when aggressively treated. Historically, we would have quoted her a survival rate in a 30-40% range. Our current experience with aggressive chemoradiation, as well as some important data we are getting back from the marker p16, has allowed us to improve the survival rate in this cancer somewhat. Certainly, however, had the cancer been diagnosed as a pure stage I disease, survival would have been dramatically improved. With superficial tongue carcinomas we quote survival of approximately 90%. Had this cancer been diagnosed as a superficial stage I carcinoma, she most likely could have avoided left neck dissection and adjuvant radiation. The sequelae from the adjuvant radiation of course include the acute effects of skin erythema and oral mucositis, as well as long-term dental effects, dry mouth and soft tissue fibrosis. The consequences from neck dissection include cosmetic deficits, potential weakness to the left shoulder and neck stiffness, as well as chronic pain syndrome. Certainly the surgical procedure that we performed on Nancy was indicated and medically necessary to offer her the best chance of cure. I do not anticipate any surgical procedures in the future for Nancy aside from restorative dental procedures. She could ultimately develop delayed metastasis to the contralateral (right) neck and require right neck dissection. She also could ultimately present with distant disease such as lung or bone metastasis. In that setting she would certainly require chemotherapy if not further surgical procedures. Nancy has unfortunately experienced pain and suffering as a result of this tongue cancer surgery and radiation therapy. With appropriate physical therapy and tincture of time, most of her long-term sequelae should settle down. Nonetheless, we do have patients who develop chronic refractory pain syndromes related to both the surgery and radiation. Patients often require long-term management in a pain management center to optimize their relief. Most of this pain and discomfort is located in the neck, shoulder and oral area. Certainly were she to develop distant disease the pain could be anywhere. 880 POPLAR CHURCH ROAD • CAMP HILL, PA 17011 • (717) 763-7400 • FAx: (717) 763-4177 34 NORTHEAST DRIVE • HERSHEY, PA 17033 • (717) 835-1900 • FAx: (717) 835-0980 4854 LONDONDERRY ROAD • HARRISBURG, PA 17109 • (717) 652-7774 • FAx: (717) 652-8113 ASSOCIATED OTOLARYNGOLOGISTS OF PENNSYLVANIA, INC. Page 3 JOHN A. FORNADLEY, MD, FACS ROGER J. LEVIN, MD, FACS ANDREW M. SHAPIRO, MD, FAAP JON E. ISAACSON, MD F. DONALD COOPEY, MD, FACS NORMAN M. WOLDORF, MD CLIFFORD N. STEINIG, DO, FOCOO KEVIN C. GORDON, PA -C JILL A. HOFFMAN, MA, CCC -A KATHRYN M. MCNAMARA, AUD, CCC -A SANDRA C. RABIN, MA, CCC -A JODY S. BURKHART, MA, CCC -SLP CYNTHIA BYLOTAS, MS, CCC -SLP It is difficult to anticipate the cost of future treatment. Certainly if she wound up with widely metastatic disease, she would need aggressive chemotherapy and perhaps even palliative or hospice care. Assuming we have this disease controlled, she may need long-term physical therapy, continued surveillance in my office and Dr. Malcolm's office, further dental intervention and potential management by a pain specialist. I hope this letter addresses all of your concerns. I have answered them to the best of my ability and certainly within a reasonable degree of medical certainty as a Head and Neck Surgical Oncologist. Again please pardon the delay in my getting this letter to you. Sincerely, J. Levin, M.D., F.A.C.S. L/lls 880 POPLAR CHURCH ROAD • CAMP HILL, PA 17011 • (717) 763-7400 • FAX: (717) 763-4177 34 NORTHEAST DRIVE • HERSHEY, PA 17033 • (717) 835-1900 • FAX: (717) 835-0980 4854 LONDONDERRY ROAD • HARRISBURG, PA 17109 • (717) 652-7774 • FAX: (717) 652-8113 RONALD H. MALCOM, M.D. UO -3V-14, IU.00RIVI, CAS: O REGONAL MEDICAL CE ITER Re: BAKER, NANCY June 27, 2014 Bradley D. Allison 814-623-7566 b.allison@embarqmail.com Fax number 814-623-7367 102 West Penn Street Suite 1 Bedford Pennsylvania 15522 Dear Mr. Allison: ; / 1 /buJ l ;i4 2/ I have reviewed medical records pertaining to Nancy K. Baker. Those records pertained to1) Care delivered at Carlisle Regional Medical Center between 8-29-07 and 3-18-09. 2) Care delivered by Carlisle Digestive Disease Associates between 11-9-2007 and 3-3- 2009, 3) Care provided by Yellow Breeches Family Practice between 8-7-2007 and 4-7-2009, 4) Carlisle HMA Physician Management between 10-21-2007 and 3-18-2009, 5) Appalachian Orthopedics between 9-15-2008 and 1-9-2009, and 6) Pinnacle Health Hospitals between 10-4-2007 and 3-20-2009. The treatment given during these episodes appears to be reasonable and necessary and related to her tongue cancer diagnosis. Ms. Baker had moderately to poorly differentiated squamous cell carcinoma of the oral tongue. She underwent surgery, which revealed metastasis to 3 cervical lymph nodes. As there were multiple lymph nodes involved. I recommended that she receive radiotherapy postoperatively. The goal of radiation was to reduce the risk of recurrent cancer and thereby improve her chance for cure. Nancy had numerous side effects including fatigue, altered taste, dry mouth, thickened secretions and skin burns. Nancy couldn't eat normally, and took most of her nutrition via a feeding tube. Nancy continued to suffer after her treatments. She had ongoing altered taste, fatigue, thickened secretions, dry mouth, difficulty speaking and difficulty swallowing. Discouraged, Nancy didn't take enough nutrition through her PEG tube and she became increasingly malnourished. Although, there was no sign that her cancer recurred, Nancy's health was very poor after treatments. While I am unable to discern the exact cause for the development of hyponatremia,pneumonia and her subsequent death, I do feel that her cancer diagnosis and subsequent treatments resulted in debility and put her at an increased risk of contracting pneumonia.. The above opinions are given with a reasonable degree of medical certainty. Sincere Rona ' Malcom, MD Vo -JV- I't, 1 V , Jd/IV , GIONAL ME:DiC .L .CE ;TEIt Addendum 6-30-2014 /1 /SbO3 /;i4 # 3/ 3 In addition to the records documented in the letter from 6-27-2014, I have reviewed the medical bill summary 3-6-2007 through 3-20-2009, the summary of medical treatment provided by Bradley Allison and photos of Ms Baker taken on 3-2-2009. In my opinion, the care received after her diagnosis was reasonable and necessary. In my opinion, with a reasonable degree of certainty, she died of pneumonia. Sincerely Ro - . 1-� •L MD LAW OFFICE OF BRADLEY D. ALLISON 102 W. Penn Street, Ste. 1 Bedford, PA 15522 Bradley D. Allison, Esquire Telephone No. (814) 623-7566 e-mail: b.allison@embarqmail.com or tlw1961@,embarqmail.com Ronald H. Malcom, M.D. Carlisle Regional Cancer Center 24 Spring Drive Carlisle, PA 17015 Fax No. (814) 623-7367 June 6, 2014 RE: Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased v. Casey J. Williams, D.M.D., Cumberland County Docket No. 2007-05475 P Dear Dr. Malcom: As you know, I represent the Plaintiff(s) in the above -referenced matter. You are familiar with Nancy Baker's health condition(s) and the circumstances of her death related thereto on March 20, 2009. Enclosed you will find the following: (1) a copy of the Statement of Material Facts for Substitution of Paul W. Baker, as Executor of the Estate of Nancy K. Baker, Deceased, for Nancy K. Baker with Death Certificate attached thereto as Exhibit "A" filed of record with the Court; (2) a copy of Nancy's treatment records from Carlisle Regional Medical Center (Carlisle Hospital) dated August 29, 2007 through March 18, 2009; her records from Pinnacle Health (Harrisburg Hospital) from October 3, 2007 through March 20, 2009; (3) a copy of her treatment records from Dr. Kovacs (Yellow Breeches Family Practice); (4) a copy of her medical treatment summary from March 6, 2007 through March 20, 2009; and (5) a copy of photographs taken of Nancy the week of March 2, 2009, which was a couple of weeks before her death. Included within the medical records provided herewith, which are voluminous, are treatment records including, but not limited to, from Dr. Donald Kovacs; Currie & Hecht; Carlisle Regional Cancer Center; Carlisle Digestive Disease Associates; Carlisle Endoscopy Center; Bryant General Surgery; Milton S. Hershey Medical Center; Appalachian Orthopedic Center, Ltd.; and HealthSouth. A medical billing summary showing her treatment from March 6, 2007 through March 20, 2009 is also attached for your review. To the extent I am able to provide additional records to supplement this list to the extent they exist, I will do so. Based on your review of these records, documents, and photos and knowledge of Nancy's health conditions, including your own treatment of her, I would like to know whether you are able to render an opinion to a reasonable degree of medical certainty to the following inquiries: 1. The Death Certificate lists the immediate cause of Nancy's death as pneumonia. Do you agree with that assessment of cause of death? If not, what was the cause(s) of Nancy's death? 2. What condition(s) led to Nancy's development of pneumonia? 3. Did the pneumonia and/or other cause(s) of Nancy's death likely result from Nancy's weakened state of health post-radiation and chemotherapy treatment, including but not limited to her difficulty in or inability to eat due to ulcers in her esophagus? What caused such ulcers in her esophagus? What caused her frail health? 4. Did any such condition(s) relate to treatment which she underwent to combat the squamous cell carcinoma? 5. Was the medical treatment which Nancy received reasonable, necessary, and related to the squamous cell carcinoma which she developed and her efforts to combat such disease? Any opinion rendered by you should not include treatment with any oral and maxillofacial surgeon or otololaryngologist, which is more properly the province of Dr. Levin and being addressed by him. 6. Finally, have all of your opinions been given to a reasonable degree of medical certainty? Upon receipt and review of this letter, kindly contact me at (814) 623-7566 to discuss these matters prior to authoring your report. I appreciate, as does my client, your continued cooperation and assistance as we prepare to finalize preparation of the case to proceed to list it for trial. I need to have any report ultimately authored by you prior to June 30, 2014, which is the date it must be filed. To the extent that you require any retainer for your services, kindly let me know that amount, and I will promptly forward the same to you. I will also need a copy of your updated curriculum vitae or resume. Should you have any questions, you may contact me at the number listed above or make inquiry by email to me at b.allison@embarqmail.com. mei ly, Brade D. Allison 17 Ends. cc: Paul W. Baker Mark Mateya, Esq. CURRICULUM VITAE Ronald IL Malcom, MD BOARD CERTIFICATION: American Board of Radiology June 6, 1993 PLACE OF BIRTH: Augusta, GA EMPLOYMENT: 2007 to Present Carlisle Regional Cancer Center Quantum Imaging & Therapeutic Associates Carlisle, PA 01/01/97 to Present 07/91 to 12/96 EDUCATION: 07/87 to 06/91 09/83 to 05/87 09/76 to 5/81 Quantum Imaging & Therapeutic Associates 629-D Lowther Road Lewisbury, PA Radiology Associates, PC (Merged with AZ Ritzman to form Quantum Imaging) York, PA Resident — Therapeutic Radiology and Oncology University of Virginia Charlottesville, VA MD Medical College of Georgia Augusta, GA BS — Mathematics Augusta State University Augusta, GA ACADEMIC APPOINTMENT 1989 to 1990 Chief Resident — Therapeutic Radiology and Oncology University of Virginia MISCELLANEOUS 07/81 to 06/83 Many odd jobs during this time period. CURRICULUM VITAE Page Two Ronald H. Malcom, MD PUBLICATION AND PRESENTATIONS: Malcom, R.H., Kersh, R.R., Constable, W.C,, Anderson, W.A.: The role of Radiotherapy in the treatment of Stage I endometrial carcinoma. Mid -Atlantic Society of Radiation Oncology, Williamsburg, VA, May 1989. Malcom, R.H., Spaulding, C.A., Lamer, J.M,, Constable, W.C.: The role of Radiotherapy in the treatment of advanced rectal carcinoma. Mid -Atlantic Society of Radiation Oncology, Williamsburg, VA, May 1990. Trials in Clinical Oncology. University of Virginia Dental Resident Reunion, September 1991. JAMES D. RODGERS, PH.D. JAMES D. RODGERS, PH.D. Economic Appraisals & Forensic Economics 237 Tim berton Circle Bellefonte, Pennsylvania 16823-9070 814/355-4944 Facsimile 877/430-7617 Email: idr@psu.edu Internet: http://www.jimrodgers.com December 30, 2013 Bradley D. Allison, Esquire Law Office of Bradley D. Allison Attorney at Law 102 W. Penn Street, Ste. 1 Bedford, PA 15522 In Re: PAUL W. BAKER, Individually and as Executer of the ESTATE OF NANCY K. BAKER, deceased, v. CASEY J. WILLIAMS, D.M.D. No. 2007-05475 P (Cumberland County) Dear Mr. Allison: This constitutes my report appraising the economic losses arising from the death of Nancy Baker on 3/20/2009, as a result of alleged medical negligence beginning on 4/12/2007. It is my opinion that the economic loss arising from the death of Mrs. Baker is $513,899. The figure of $513,899 does not include any amount to compensate for (1) any medical expenses arising from the alleged medical negligence, (2) funeral and burial expenses, or (3) non -economic damages, such as pain and suffering. I. Sources Relied Upon In preparing this report, I have relied upon my general knowledge and experience as an economist. In addition, I have relied upon the publications and sources referred to in the text and tables of this report, and I have had access to the following information regarding Mrs. Baker: 1. Checklist of information needed for appraisal of wrongful death of an employer adult 2. Checklist for household work in a wrongful death case 3. Decedent's expenditure questionnaire 4. Complaint 5. Defendant's Answer to Plaintiff's Amended Complaint 6. Tax returns for 2006-2009, inclusive 7. Deposition transcript of Casey J. Williams, dated 8/20/2010 8. Phone conversation with Paul Baker. BAKER APPRAISAL December 30, 2013 Page 2 II. Background Information JAMES D. RODGERS, PH.D. Nancy K. Baker, a white female, was born on 9/18/1948. She died on 3/20/2009 at 60 years of age as a result of alleged medical negligence that began on 4/12/2007 and continued through August of 2007. Family Circumstances and Residence. Mrs. Baker lived at 415 Kauffman Street, Boiling Springs, PA 17007, a home of 1,074 square feet on a lot of 0.33 acre. Mrs. Baker resided at this address with her husband, Paul W. Baker, a white male born on 12/6/1949. The Bakers were married on 12/9/1967. The couple had no children. Educational Background and Work History. Mrs. Baker graduated from Boiling Springs High School in 1966. She was a full-time housewife and full-time director of an animal shelter/pet adoption agency. She began the animal shelter/pet adoption agency in 1982. It was a non-profit organization that was funded by public donations and private donations from friends and from her husband, Paul Baker. Mrs. Baker did not receive any pay, benefits or insurance from the organization. Before starting the animal shelter, Mrs. Baker worked for a number of other employers/held various positions, including: Kinney Shoe Corp. (while in high school); McCoy Electronics; Cumberland County (office staff); Dr. John T. Ziegler (orthodontist), now retired (office manager); church in Mechanicsburg; Carlisle Electronics, which job she quit on 7/6/1978 when Mr. Baker had a serious motorcycle accident and needed care); and Helen Kraus Animal Shelter. Mrs. Baker did not have any earnings while she was working full time as a volunteer at the animal shelter she started. It was her intention to retire from her unpaid position at the animal shelter when she reached age 65. Income. Tax returns and related documents for 2006-2009 reveal the income for Paul and Nancy Baker Table 4. The wage and pension income shown in this table represents income paid to Paul Baker. Mr. Baker spent over 30 years working for the Pennsylvania Turnpike Commission as a diesel mechanic, road maintenance worker, assistant foreman in road maintenance and trainer of Turnpike employees for obtaining the commercial drivers license. The pension income shown in Column (7) of Table 4 is the Pennsylvania State Employees Retirement System pension that Mr. Baker receives as a result of his 30+ years of Turnpike employment, retiring in 1999. The wage income shown in Column (2) of Table 4 was earned by Mr. Baker working as a CDL truck driver for Crowne Transportation Company, Elizabethtown, PA. Mr. Baker worked at Crowne from 1999 to July of 2008, when he quit to care for his wife. The lower wage income in 2008 and 2009, compared to what he earned in 2006 and 2007, reflect the impact of the time Mr. Baker took off to care for his wife. Paul Baker began receiving Social Security retirement benefits at the beginning of 2012 after he reached age 62. He received $1,588 per month in 2013 and will receive $1,612 per month in 2014. Household Services Performed by Mrs. Baker. According to a completed household BAKER APPRAISAL December 30, 2013 Page 3 JAMES D. RODGERS, PH.D. services questionnaire, Mrs. Baker performed the services shown in Section 1 of Part A of Table 5. The amount of hours reported is approximately double the average number of hours found in the American Time Use Survey (ATUS) from the U.S. Department of Labor, shown in Section 2 of Part A of Table 5. Section 2 shows the average number of hours of household services provided by female members of households with characteristics like that of the Baker household. Section 3 of Part A of Table 5 shows the average number of a hours spent providing household services for married retired females. No replacement services have been purchased in the labor market since the time of Mrs. Baker's cancer diagnosis. Health and Family Longevity. Prior to the incident referenced in the complaint in this case, Mrs. Baker was in general good health. She smoked cigarettes in her youth but had not smoked for at least 20 years prior to the time the cancer developed. When she smoked, she smoked less than a pack of cigarettes a day. She liked to drink beer and would have two or three at a time, with ice to water down the beer and make it last longer. She had normal consumption expenditures and habits. She never used illegal drugs and was never convicted of a crime. Mrs. Baker was 5'7" tall and, before the cancer, weighed 146 pounds. At the end of her life, she weighed less than 96 pounds. One of Mrs. Baker's grandmothers died at the age of 93. Her mother died of Alzheimer's disease at the age of 93. Her father died of a heart attack at the age of 75. Mrs. Baker has an older sister who is still living. About Paul Baker. Paul Baker received a GED from Northern High School, Dillsburg, PA in 1982. His employment history was described above. He spent almost two years in the U.S. army. He is in good health. He stopped smoking more than 20 years ago. He smoked up to 3 packs a day when he did smoke. He does not drink alcohol now but was a social drinker in his youth. III. Estimating the Economic Damages The economic losses occasioned by the death of Mrs. Baker are estimated as (1) the loss Social Security benefits, (2) the loss of household services that she would have provided from the date of her death until the end of the average number of "years of healthy life" for a person with her characteristics of sex, race and age as of her date of death, and (3) the loss of money earnings of Paul Baker as a result of taking time off work to care for his wife from July of 2008 until the time of her death. The sum of these Social Security benefit losses, wage loses, and value of lost household services is the gross economic loss arising from Mrs. Baker's death. In making the economic damage calculations in this report, cognizance is taken of appropriate damage calculation procedure as specified by the MCARE Act, by court decis- ions, and by pattern jury instructions. Act 13, the Pennsylvania Medical Care Availability BAKER APPRAISAL December 30, 2013 Page 4 JAMES D. RODGERS, PH.D. and Reduction in Error Act ("MCARE") was enacted by the Pennsylvania legislature on March 20, 2002. Section 510 of MCARE states: "Future damages for loss of earnings or earning capacity IN A MEDICAL PROFESSIONAL LIABILITY ACTION shall be reduced to present value based upon the return that the claimant can earn on a reasonable secure fixed income investment. These damages shall be presented with competent evidence of productivity and inflation over time. The trier of fact shall determine the applicable discount rate based on competent evidence." The damage computation procedure specified in Section 510 of Act 13 is applied in this report. According to McClinton vs. White (Pa. Super., 444 A.2d 85 (1982)), maintenance expenses include all those expenses which relate to the production of earnings, including expenses which would have been reasonably necessary for the decedent to incur in order to keep himself in such a condition of health and well-being that earning power could be maintained. These expenses should be computed according to the decedent's station in life, means and personal habits. However, the notes to the pattern jury instructions for wrongful death and survival actions indicate that, as a matter of law, personal maintenance should not be deducted during the retirement period: "(3) Loss of Retirement and Social Security Income: (This item is also to be considered in wrongful death damages.) Income from Social Security should be considered in the same manner as actual earnings for the purpose of providing some measure of a loss under either wrongful death or survival. Since retirement benefits represent past earnings put aside for the future and from which past cost of maintenance has already been deducted, it would be improper to allow a "double" deduction by again deducting cost of maintenance during the retirement period."1 Because Mrs. Baker had no earnings and because maintenance is not to be deducted during the retirement period, I have not made a deduction for the cost of Mrs. Baker's personal maintenance in the damage estimates in this report.' As a consequence, the gross 'Pennsylvania Bar Institute, Pattern Jury Instructions for "Damages in Wrongful Death and Survival Actions," 6.19, October 2005, p. 4. 2An addition consideration regarding the personal maintenance deduction relates to the subcommittee note to the pattern jury instructions medical negligence cases. The subcommittee note to the pattern jury instructions 14.170 (Civ.) for "Medical Malpractice—Damages in Wrongful Death and Survival Actions in Medical Professional Liability Claims (Under the MCARE Act Effective for All Claims Arising Subsequent to March 20, 2002)" points out that "The MCARE Act requires a reduction to present value BAKER APPRAISAL December 30, 2013 Page 5 JAMES D. RODGERS, PH.D. economic loss defined above is also treated as the net economic loss. Relevant Dates and Expectancies. The relevant dates and expectancies used in this report are shown in Table 1. It is assumed that, but for the alleged medical negligence, Mrs. Baker would have lived to the end of the average statistical life expectancy of persons with her characteristics of race, sex and age as of the date of her death, which is to age 84.210. It is further assumed that Mrs. Baker would have provided household services to the end of the average "years of healthy life," which is to age 77.840. It is also assumed that Paul Baker will live to the end of the average remaining life expectancy of someone with his characteristics of sex, race and age as of the date of his wife's death, which is to age 80.985 in late 2030 (2030.916), a future time that is slightly more than 2 years shorter than the date associated with the end of the average life expectancy of someone with his wife's characteristics (2032.924). Hence, losses of Social Security income arising from Mrs. Baker's death are computed only to the end of average life expectancy of someone with her husband's characteristics. Economic Damage Calculations. Table 6 shows the computation of the economic loss elements composed of the loss of Social Security benefits and the market replacement value of lost household services. The loss of wage earnings by Mr. Baker is described in note (f) in Table 6 and is shown in Table 7. Social Security Benefit Losses. Given Mrs. Baker's death, there will be a loss of the Social Security benefits she would have otherwise collected. Note (a) to Table 6 describes how this benefit loss was computed as a spouse benefit. The loss of these benefits as a result of Mrs. Baker's death is computed in Column (4) of Table 6 and the present value of this loss is computed in Column (7) of Table 6. Column (4) shows the loss before discounting. Column (5) shows the projected future increases in benefits due to inflation and Column (6) shows the discount factors to reduce future losses to present value as of the beginning of 2014. Replacement Value of Lost Household Services. The replacement value of Mrs. Baker's household services is computed using the time amounts shown in Sections 1, 2 and 3 of Part A of Table 5, along with the replacement wages shown in Part B of Table 5. The time amounts shown in Sections 1 and 2 of Part A are combined in a weighted average giving 25% weight to the amounts in Section 1 and 75% weight to the amounts in Section 2, a procedure giving more weight to the professional measurement of the ATUS but which also allows a degree of tailoring for the particular circumstances of Mrs. Baker. This weighted average is used for the time before it is assumed that Mrs. Baker would have retired from her full-time volunteer position at her animal shelter/pet adoption agency at approximately age 67 and two months, when her husband would have reached age 66. but is silent with respect to subtracting maintenance costs." BAKER APPRAISAL December 30, 2013 Page 6 JAMES D. RODGERS, PH.D. After this "retirement," it is assumed that Mrs. Baker's hours of household services would have equaled the average shown in Section 3 of Part A of Table 5, but with an adjustment to allow for the above-average hours shown in Section 1 of Part A compared to the average hours from the ATUS shown in Part 2. Both the pre -retirement and post-retirement amounts of hours are adjusted for self -consumption, as shown in Part C of Table 5. After these adjustments, the annual replacement value of the loss is estimated to be $14,979 before retirement and $21,265 after retirement, which annual loss is projected over the average number of years of healthy life for someone with Mrs. Baker's characteristics. The annual replacement cost is shown in Part C of Table 5. The Appendix contains the data from Dollar Value of a Day used to put a dollar replacement value on each type of service provided by Mrs. Baker. As shown in Part B of Table 5, the ATUS weighted average replacement value of services is $12.86 per hour pre -retirement and $12.83 per hour post-retirement, where the weights are based on the hours reported for the services shown in Section 2. The wages used in the ATUS are national averages and I have adjusted them for wage levels in the local labor market (the Harrisburg -Carlisle area of Pennsylvania) near where Mrs. Baker and her husband resided at the time of Mrs. Baker's death. Columns (8) of Table 6 shows the annual replacement value of household services based on the description in the previous paragraph and adjusted for the variation in the general level of wages in the U.S. economy from 2009 to 2013. These annual amounts are computed as present values in Column (10) with combined adjustments for wage increases and for the discount factors used to reduce the annual amounts to present value. The future period over which the loss is assumed to occur is the average number of years of healthy life for a person with Mrs. Baker's characteristics of sex, race and age at the date of her death, shown in Table 1. This is a period that extends to 2026.554, which is shorter than the average life expectancy of someone with Paul Baker's characteristics of sex, race and age as of the date of his wife's death (2030.916). Paul Baker's Wage Loss. Paul Baker earned $50,086 in 2006 and $51,055 in 2007, for an average of $50,571, before his wife became ill. He cut back on his hours of employment in 2008 and 2009 to take care of his wife. But for her illness and death, it is assumed that he would have been able to continue earning $50,571 in both 2008 and 2009, instead of $34,764 in 2008 and $25,136 in 2009. Table 7 computes the loss of earnings as the difference between $50,571 per year and the actual earnings received, which for 2008 and 2009 combined totals $41,241. Summary. Column (11) of Table 6 shows the year -by -year economic damages—excluding Paul Baker's wage loss. Column (12) shows cumulative totals. The economic loss, excluding Paul Baker's wage loss, over the average life and healthy life expectancies is estimated to be $472,658. Adding Paul Baker's wage loss, the total economic loss amounts to $513,899, as shown in Table 7. The loss figures shown in Table 7 do not include any amount to compensate for (1) any medical expenses arising from the alleged medical negligence, (2) funeral and burial expenses, or (3) non -economic damages, BAKER APPRAISAL December 30, 2013 Page 7 such as pain and suffering. JAMES D. RODGERS, PH.D. This concludes my report. It is subject to revision based on the receipt of additional relevant information. Please contact me if you have any questions. Sincerely, James D. Rodgers BAKER APPRAISAL JAMES D. RODGERS TABLE 1 RELEVANT DATES IN THE CASE OF PAUL W. BAKER, individually and as Executor of the Estate of NANCY K. BAKER, deceased, Plaintiff vs. CASEY J. WILLIAMS, D.M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA, No. 2007-05475 P NANCY K. BAKER, DECEASED: 50% OF GROUP WILL HAVE YEAR AND NUMBER EXPECTANCY BETWEEN FRACTIONAL OF APPROXIMATELY DATE EQUIVALENT YEARS AGE AGE (LOW) AGE (HIGH) 1. DATE OF BIRTH 18 -Sep -1948 1948.714 2. DATE OF INITIAL INCIDENT 12 -Apr -2007 2007.278 58.564 58.564 3. DATE OF DEATH 20 -Mar -2009 2009.215 60.501 60.501 4. DATE OF THIS REPORT 28 -Dec -2013 2013.990 4.775 65.276 5. AGE 65 18 -Sep -2013 2013.714 4.499 65.000 6. SOCIAL SECURITY NORMAL RETIREMENT AGE 18 -Sep -2014 2014.714 5.499 66.000 7. AVERAGE STATISTICAL WORK LIFE EXPECTANCY (a) Mar -2015 2015.215 6.000 66.500 63.001 69.001 8. AVERAGE "YEARS OF HEALTHY LIFE" (b) Jul -2026 2026.554 17.339 77.840 73.182 83.062 9. AVERAGE STATISTICAL LIFE EXPECTANCY (c) Dec -2032 2032.924 23.709 84.210 77.841 91.350 PAUL W. BAKER: 1. DATE OF BIRTH 6 -Dec -1949 1949.930 2. DATE OF INCIDENT 12 -Apr -2007 2007.278 57.348 57.348 3. DATE OF WIFE'S DEATH 20 -Mar -2009 2009.215 1.937 59.285 4. DATE OF THIS REPORT 28 -Dec -2013 2013.990 4.775 64.060 5. SOCIAL SECURITY NORMAL RETIREMENT AGE 6 -Dec -2015 2015.930 6.715 66.000 6. AVERAGE STATISTICAL WORK LIFE EXPECTANCY (a) Mar -2016 2016.197 6.982 66.267 63.001 69.001 7. AVERAGE STATISTICAL LIFE EXPECTANCY (c) Nov -2030 2030.916 21.701 80.985 74.403 88.398 (a) Computed from Nancy Baker's date of death using Gary R. Skoog, James E. Ciecka and Kurt V. Krueger (SCK), "The Markov Process Model of Labor Force Activity: Extended Tables of Central Tendency, Percentile Points and Bootstrap Standard Errors, "Journal of Forensic Economics, Vol. 22, No. 2 (August 2011), pp. 165-230, Table 22, for "Initially Active Women with a High School Diploma." This study updates with recent data the older worklife expectancy estimates found in U.S. Dept. of Labor, "W orklife Estimates: Effects Race and Education," Bulletin 2254, (Feb. 1986). The work life expectancy of Paul Baker was computed from Table 5 of the SCK source. (b) Computed from Nancy Baker's age as of her date of death using Expectancy Data, "Healthy Life Expectancy: 2008," Shawnee Mission, Kansas, 2012, Table 6. (c) Computed from Paul and Nancy Baker's ages as of Nancy Baker's date of death using Elizabeth Arias, "United States Life Tables, 2008," National Vital Statistics Reports, Vol. 61, No. 3, Sept. 24, 2012, U.S. Dept. of Health and Human Services, Tables 6 and 5, respectively. BAKER APPRAISAL TABLE 2 HISTORICAL DATA ON INTEREST RATES, WAGE GROWTH AND PRICES JAMES D. RODGERS (1) (2) (3) (4) (5) (6) (7) (8) (8) (10) (11) (12) (13) (14) Employment Employment Interest Cost Cost One -Year Rate on U.S. Index (ECI-PI) Index (ECI-PI) Treasury 3 -month Treasury High- Private Private Constant T -Bills Securities Grade Industry % Change Industry % Change Consumer Consumer Maturity Bank Effective Constant Municipal Workers (d) in Workers (d) in Price % Change Price % Change Interest Discount Yield Maturities Bonds W & S Only W & S Benefits Benefits Index In Index in Rates (a) Method (b) Basis (c) 10 -Year (a) (S & P's) (b) December ECI December ECI CPI -W (e) CPI -W CPI -U (e) CPI -U 1953 1.93% 1.98% 2.85% 2.72% 26.9 26.7 1954 1.05% 0.94% 0.96% 2.40% 2.37% 27.0 0.37% 26.9 0.75% 1955 2.04% 1.72% 1.76% 2.82% 2.53% 26.9 -0.37% 26.8 -0.37% 1956 2.99% 2.62% 2.70% 3.18% 2.93% 27.3 1.49% 27.2 1.49% 1957 3.62% 3.22% 3.33% 3.65% 3.60% 28.3 3.66% 28.1 3.31% 1958 2.27% 1.77% 1.81% 3.32% 3.56% 29.1 2.83% 28.9 2.85% 1959 4.24% 3.39% 3.51% 4.33% 3.95% 29.3 0.69% 29.1 0.69% 1960 3.63% 2.87% 2.96% 4.12% 3.73% 29.8 1.71% 29.6 1.72% 1961 2.98% 2.35% 2.42% 3.88% 3.46% 30.1 1.01% 29.9 1.01% 1962 3.10% 2.77% 2.86% 3.95% 3.18% 30.4 1.00% 30.2 1.00% 1963 3.36% 3.16% 3.27% 4.00% 3.23% 30.8 1.32% 30.6 1.32% 1964 3.85% 3.55% 3.68% 4.19% 3.22% 31.2 1.30% 31.0 1.31% 1965 4.14% 3.95% 4.11% 4.28% 3.27% 31.7 1.60% 31.5 1.61% 1966 5.20% 4.86% 5.08% 4.92% 3.82% 32.6 2.84% 32.4 2.86% 1967 4.89% 4.29% 4.47% 5.07% 3.98% 33.6 3.07% 33.4 3.09% 1968 5.69% 5.34% 5.60% 5.65% 4.51% 35.0 4.17% 34.8 4.19% 1969 7.12% 6.67% 7.06% 6.67% 5.81% 36.9 5.43% 36.7 5.46% 1970 6.90% 6.39% 6.75% 7.35% 6.51% 39.0 5.69% 38.8 5.72% 1971 4.88% 4.33% 4.51% 6.16% 5.70% 40.7 4.36% 40.5 4.38% 1972 4.96% 4.06% 4.22% 6.21% 5.27% 42.1 3.44% 41.8 3.21% 1973 7.31% 7.04% 7.47% 6.84% 5.18% 44.7 6.18% 44.4 6.22% 1974 8.18% 7.85% 8.37% 7.56% 6.09% 49.6 10.96% 49.3 11.04% 1975 6.76% 6.79% 7.19% 7.99% 6.89% 26.9 54.1 9.07% 53.8 9.13% 1976 5.87% 4.98% 5.21% 7.61% 6.49% 28.9 7.43% 57.2 5.73% 56.9 5.76% 1977 6.09% 5.26% 5.52% 7.42% 5.56% 30.9 6.92% 60.9 6.47% 60.6 6.50% 1978 8.34% 7.18% 7.62% 8.41% 5.90% 33.2 7.44% 65.6 7.72% 65.2 7.59% 1979 10.67% 10.05% 10.87% 9.44% 6.39% 36.1 8.73% 73.1 11.43% 72.6 11.35% 1980 12.05% 11.39% 12.43% 11.46% 8.51% 39.4 9.14% 82.9 13.41% 82.4 13.50% 1981 14.78% 14.04% 15.60% 13.91% 11.23% 42.8 8.63% 91.4 10.25% 90.9 10.32% 1982 12.27% 10.60% 11.51% 13.00% 11.57% 45.5 6.31% 96.9 6.02% 96.5 6.16% 1983 9.57% 8.62% 9.24% 11.10% 9.47% 47.8 5.05% 99.8 2.99% 99.6 3.21% 1984 10.89% 9.54% 10.29% 12.44% 10.15% 49.8 4.18% 103.3 3.51% 103.9 4.32% 1985 8.43% 7.47% 7.95% 10.62% 9.18% 51.8 4.02% 106.9 3.48% 107.6 3.56% 1986 6.46% 5.97% 6.29% 7.68% 7.38% 53.5 3.28% 108.6 1.59% 109.6 1.86% 1987 6.76% 7.58% 8.07% 8.39% 7.73% 55.2 3.18% 112.5 3.59% 113.6 3.65% 1988 7.65% 6.67% 7.06% 8.85% 7.76% 57.5 4.17% 117.0 4.00% 118.3 4.14% 1989 8.53% 8.11% 8.66% 8.49% 7.24% 59.9 4.17% 122.6 4.79% 124.0 4.82% 1990 7.88% 7.50% 7.98% 8.55% 7.25% 62.3 4.01% 52.9 129.0 5.22% 130.7 5.40% 1991 5.86% 5.38% 5.65% 7.86% 6.89% 64.6 3.69% 56.2 6.24% 134.3 4.11% 136.2 4.21% 1992 3.89% 3.43% 3.55% 7.01% 6.41% 66.3 2.63% 59.1 5.16% 138.2 2.90% 140.3 3.01% 1993 3.43% 3.00% 3.10% 5.87% 5.63% 68.3 3.02% 62.2 5.25% 142.1 2.82% 144.5 2.99% 1994 5.31% 4.25% 4.43% 7.09% 6.19% 70.2 2.78% 64.3 3.38% 145.6 2.46% 148.2 2.56% 1995 5.95% 5.49% 5.77% 6.57% 5.95% 72.2 2.85% 65.7 2.18% 149.8 2.88% 152.4 2.83% 1996 5.51% 5.01% 5.24% 6.44% 5.75% 74.7 3.46% 67.0 1.98% 154.1 2.87% 156.9 2.95% 1997 5.63% 5.06% 5.30% 6.35% 5.55% 77.6 3.88% 68.5 2.24% 157.6 2.27% 160.5 2.29% 1998 5.05% 4.78% 5.00% 5.26% 5.12% 80.6 3.87% 70.2 2.48% 159.7 1.33% 163.0 1.56% 1999 5.08% 4.64% 4.85% 5.65% 5.43% 83.5 3.60% 72.6 3.42% 163.2 2.19% 166.6 2.21% 2000 6.11% 5.82% 6.12% 6.03% 5.77% 86.7 3.83% 76.7 5.65% 168.9 3.49% 172.2 3.36% 2001 3.48% 3.40% 3.52% 5.02% 5.19% 90.0 3.81% 81.5 6.26% 173.5 2.72% 177.1 2.85% 2002 2.00% 1.61% 1.65% 4.61% 5.05% 92.2 2.44% 85.0 4.29% 175.9 1.38% 179.9 1.58% 2003 1.24% 1.01% 1.03% 4.01% 4.73% 95.1 3.15% 90.5 6.47% 179.8 2.22% 184.0 2.28% 2004 1.89% 1.37% 1.40% 4.27% 4.63% 97.6 2.63% 96.5 6.63% 184.5 2.61% 188.9 2.66% 2005 3.62% 3.15% 3.26% 4.29% 4.29% 100.0 2.46% 100.3 3.94% 191.0 3.52% 195.3 3.39% 2006 4.93% 4.73% 4.94% 4.80% 4.42% 103.2 3.20% 103.4 3.09% 197.1 3.19% 201.6 3.23% 2007 4.52% 4.36% 4.55% 4.63% 4.42% 106.6 3.29% 105.9 2.42% 202.8 2.89% 207.3 2.83% 2008 1.63% 1.37% 1.40% 3.66% 4.80% 109.4 2.63% 108.0 1.98% 211.1 4.09% 215.3 3.86% 2009 0.47% 0.16% 0.16% 3.26% 4.64% 110.8 1.28% 109.1 1.02% 209.6 -0.71% 214.5 -0.37% 2010 0.32% 0.11% 0.11% 3.21% 4.16% 112.8 1.81% 112.3 2.93% 214.0 2.10% 218.1 1.68% 2011 0.18% 0.05% 0.05% 2.78% 4.29% 114.7 1.68% 116.3 3.56% 221.6 3.55% 224.9 3.12% 2012 0.17% 0.09% 0.09% 1.80% 3.67% 116.6 1.66% 118.9 2.24% 226.2 2.08% 229.6 2.09% Sept. 2013 118.5 1.63% 120.3 1.18% 229.7 1.55% 233.6 1.74% Year Average 1963-2012 Average 1973-2012 Average 1983-2012 Average 1993-2012 Average 2003-2012 5.72% 5.23% 5.55% 6.69% 5.97% 5.87% 5.37% 5.71% 7.01% 6.32% 4.75% 4.32% 4.56% 6.22% 5.97% 3.19% 3.33% 2.97% 3.10% 4.78% 4.98% 2.87% 3.57% 1.90% 1,64% 1.70% 3.67% 4.41% 2.38% 3.43% 4.13% 4.18% 4.34% 4.39% 2.87% 2.94% 2.50% 2.50% 2.55% 2.48% (a) Source: http://research.stlouisfed.org/fred2/series/GS17cid=115. (b) Source: http://www.gpoaccess.gov/eop/tables11.html; 2013: http://research.stiouisfed.org/fred2/data/AAA.txt (c) Source: Boyd L. Fjeldsted, "A Nontrivial (Though Seemingly Common) Error in Calculating the Discount Rate Used to Reduce Future Losses to Present Value," Journal of Legal Economics, Spring/Summer 2000, Volume 10, No. 1, pp. 73-80, Equation (4). Difference 1963-2012 Difference 1973-2012 Difference 1983-2012 Difference 1993-2012 Difference 2003-2012 (2) - (8) (5) - (8) (2) - (14) (5) - (14) (d) Source:http://www.bls.gov/web/eci/echistrynaics.pdf; http://www.b1s.gov/news.release/eci.t09.htm; and http://www.bls.gov/news.release/eci.t12.htm (e) Source: http://data.bls.gov/cgi-bin/surveymost n.a. n.a. 1.54% 2.52% n.a. n.a. 1.48% 2.61% 1.56% 3.03% 1.81% 3.28% 0.46% 1.91% 0.83% 2.28% -0.48% 1.29% -0.58% 1.20% BAKER APPRAISAL JAMES D. RODGERS Table 3 INTERMEDIATE FORECASTS FOR THE GROWTH OF WAGES, PRICES AND INTEREST RATES FROM THE 2013 OASDI TRUSTEE'S REPORT (1) (2) (3) (4) (5) (6) (7) (8) Year Growth Rate of OASDI Age at Average Intermediate Beginning Annual Average of the Wage in Wage CPI -W CPI -W Annual Gross Indicated Covered Increase Price Increase Interest Discount Year Employment (a) Factors Inflation (a) Factors (b) Rate (a) Factors 2013 64.286 2.67% 1.00000 1.80% 1.00000 1.60% 1.00000 2014 65.286 4.60% 1.04600 2.21% 1.01500 2.80% 0.97276 2015 66.286 5.52% 1.10374 2.42% 1.03956 4.50% 0.93087 2016 67.286 5.58% 1.16533 2.54% 1.06597 5.30% 0.88402 2017 68.286 5.36% 1.22779 2.70% 1.09475 5.50% 0.83793 2018 69.286 4.15% 1.27874 2.80% 1.12540 5.60% 0.79350 2019 70.286 4.14% 1.33168 2.80% 1.15691 5.60% 0.75142 2020 71.286 4.07% 1.38588 2.80% 1.18931 5.60% 0.71157 2021 72.286 3.89% 1.43979 2.80% 1.22261 5.60% 0.67384 2022 73.286 3.92% 1.49623 2.80% 1.25684 5.70% 0.63750 2023 74.286 3.83% 1.55354 2.80% 1.29203 5.70% 0.60312 2024 75.286 3.93% 1.61459 2.80% 1.32821 5.70% 0.57060 2025 76.286 3.93% 1.67805 2.80% 1.36540 5.70% 0.53983 2026 77.286 3.93% 1.74399 2.80% 1.40363 5.70% 0.51072 2027 78.286 3.93% 1.81253 2.80% 1.44293 5.70% 0.48317 2028 79.286 3.93% 1.88376 2.80% 1.48333 5.70% 0.45712 2029 80.286 3.93% 1.95780 2.80% 1.52487 5.70% 0.43247 2030 81.286 3.93% 2.03474 2.80% 1.56756 5.70% 0.40915 2031 82.286 3.93% 2.11470 2.80% 1.61145 5.70% 0.38708 2032 83.286 3.93% 2.19781 2.80% 1.65658 5.70% 0.36621 2033 84.286 3.93% 2.28419 2.80% 1.70296 5.70% 0.34646 2034 85.286 3.93% 2.37395 2.80% 1.75064 5.70% 0.32778 2035 86.286 3.93% 2.46725 2.80% 1.79966 5.70% 0.31010 2036 87.286 3.93% 2.56421 2.80% 1.85005 5.70% 0.29338 2037 88.286 3.93% 2.66499 2.80% 1.90185 5.70% 0.27756 2038 89.286 3.93% 2.76972 2.80% 1.95510 5.70% 0.26259 2039 90.286 3.93% 2.87857 2.80% 2.00985 5.70% 0.24843 2040 91.286 3.93% 2.99170 2.80% 2.06612 5.70% 0.23503 (a) Source for Columns (3), (5) and (7): the intermediate projections in the 2013 OASDI Trustees Report at http://www.ssa.gov/OACT/TR/2013N_B_econ.html#170227. (b) Source: the increase factor for 2014 is set at 1.5% based on the COLA effective 2014. The COLA is shown at the web link: http://www.ssa.gov/pressoffice/pr/2014cola-pr.html .BAKER APPRAISAL JAMES D. RODGERS TABLE 4 INCOME HISTORY OF PAUL W. BAKER AND NANCY K. BAKER (1) (2) (3) (4) (5) (6) (7) (8) UNEMPLOY- MENT INTEREST CAPITAL COMPEN- WAGES & & DIVIDEND GAIN OR BUSINESS IRA PENSIONS SATION (UC) YEAR SALARIES INCOME (LOSS) INCOME DISTRIBUTIONS & ANNUITIES BENEFITS 2006 $50,086 $25 $0 $0 $0 $23,386 $0 2007 $51,055 $188 $0 $1,048 $0 $23,386 $0 2008 $34,764 $39 -$507 $0 $3,700 $23,386 $544 2009 $25,136 $13 $0 $0 $0 $23,386 $1,088 (a) Source: Form 1040 tax returns, 2006-2009. BAKER APPRAISAL TABLE 5 ESTIMATED HOURS OF HOUSEHOLD SERVICES WORK AND MARKET REPLACEMENT COST OF SERVICES PART A. HOUSEHOLD WORK HOURS JAMES D. RODGERS Household Work Activity 1. Nancy Baker's Provision of Household Services Per Questionnaire (a) 2. All Married Females --T76 Age 55 and Over, Employed FT Spouse Emp., No Children Under 18 Using ATUS Data (b) 3. All Married Retired Females --T114 Based on ATUS Data (b) No Children Under Age 18 Weekly Hours Annual Hours Weekly Hours Annual Hours Weekly Hours Annual Hours Inside Housework 10.00 520.00 5.96 309.92 9.05 470.60 Food Cooking & Cleanup 4.00 208.00 5.12 266.24 8.20 426.40 Pets, Home and Vehicles 3.00 156.00 2.78 144.56 3.58 186.16 Household Management 5.00 260.00 1.21 62.92 2.13 110.76 Shopping 11.00 572.00 3.41 177.32 3.60 187.20 Obtaining Services 3.00 2.50 0.14 0.00 0.20 0.00 Travel for Household Activity 7.50 390.00 2.22 115.44 2.45 127.40 Caring & Helping: HH Children 0.00 0.00 0.00 0.00 0.00 0.00 Caring & Helping: HH Adults 0.00 0.00 0.30 15.60 0.91 47.32 Travel for Household Members 0.00 0.00 0.11 5.72 0.12 6.24 Totals 43.50 2,108.50 21.25 1,097.72 30.24 1,562.08 PART B. MARKET REPLACEMENT VALUE OF TIME Household Work Activity Inside Housework Food Cooking & Cleanup Pets, Home and Vehicles Household Management Shopping Obtaining Services Travel for Household Activity Caring & Helping: HH Children Caring & Helping: HH Adults Travel for Household Members Weighted Average Time Value Time Weights 0.230 0.092 0.069 0.115 0.253 0.069 0.172 0.000 0.000 0.000 Adjusted for the Harrisburg -Carlisle area of PA (d) 1.000 Hourly Wage (c) $12.10 $11.76 $13.99 $17.83 $12.91 $15.42 $13.88 $12.61 $12.40 $15.53 $13.60 $13.50 Time Weights 0.280 0.241 0.131 0.057 0.160 0.007 0.104 0.000 0.014 0.005 PART C. ANNUAL REPLACEMENT COST OF LOSS OF HOUSEHOLD SERVICES Hourly Wage (c) $12.10 $11.76 $13.99 $17.83 $12.91 $15.42 $13.88 $12.61 $12.40 $15.53 1.000 $12.95 $12.86 Time Weights 0.299 0.271 0.118 0.070 0.119 0.007 0.081 0.000 0.030 0.004 Hourly Wage (c) $12.10 $11.76 $13.99 $17.83 $12.91 $15.42 $13.88 $12.61 $12.40 $15.53 1.000 $12.92 $12.83 Annual Replacement Value of Services Self -Consumption Percentage (b) Annual Replacement After Self -Consumption Deduction (a) Source: Household Services Check List. $28,472 15.4 $24,087 Average of #1 & #2 25%, 75% weights $17,706 $14,979 $20,041 16.2 $16,955 Average of #3 and 2.0168 times #3 with 25%, 75% weights $25,136 16.2 $21,265 (b) Source: Expectancy Data, "The Dollar Value of a Day, Time Dairy Analysis, 2012 Dollar Valuation" (DVD), Shawnee Mission, Kansas, 2012, Tables 76, and 114, shown in Appendix. The self -consumption percentage for the household services shown in the household services questionnaire is assumed to be 15.4%. (c) Source: Same as in note (b). (d) Source: Wages from DVD are adjusted to 99.3% of the average U.S. level based on the wages in the Harrisburg -Carlisle area of Pennsylvania, as shown in Table 229 of DVD, reproduced in the Appendix. BAKER APPRAISAL (1) YEAR JAMES D. RODGERS TABLE 6 ESTIMATION OF THE VALUE OF ANNUAL AND CUMULATIVE LOSSES (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) NANCY BAKERS PROJECTED PRESENT SOCIAL PRESENT VALUE OF SECURITY VALUE OF MARKET LOSS OF YEAR RETIREMENT LOSS OF REPLACEMENT NANCY AGE AT OR BENEFITS PRICE GROSS SOCIAL VALUE OF WAGE BAKER'S TOTAL START OF FRACTION BUT FOR HER INCREASE DISCOUNT SECURITY HOUSEHOLD INCREASE HOUSEHOLD YEAR -BY -YEAR CUMULATIVE YEAR OF YEAR DEATH (a) FACTORS (b) FACTORS (c) BENEFITS SERVICES (d) FACTORS (e) SERVICES LOSS LOSS (1) (4) x (5) x (6) (6) x (6) x (9) (7) + (10) FROM DATE OF DEATH (3/20/2009) TO DATE OF THE END OF 2013 (12/31/2013) 2009 60.286 0.785 $0 1.00000 1.00000 $0 $11,173 1.00000 $11,173 $11,173 $11,173 2010 61.286 1.000 $0 1.00000 1.00000 $0 $14,491 1.00000 $14,491 $14,491 $25,664 2011 62.286 1.000 $0 1.00000 1.00000 $0 $14,735 1.00000 $14,735 $14,735 $40,399 2012 63.286 1.000 $9,624 1.00000 1.00000 $9,624 $14,979 1.00000 $14,979 $24,603 $65,002 2013 64.286 1.000 $9,788 1.00000 1.00000 $9,788 $15,223 1.00000 $15,223 $25,011 $90,013 Past Totals 4.785 $19,412 $70,602 $90,013 FROM THE BEGINNING OF 2014 (1/1/2014) TO END OF AVERAGE STATISTICAL LIFE EXPECTANCY FOR PAUL BAKER (12/1/2030) (f): 2014 65.286 1.000 $9,788 1.01500 0.97276 $9,664 $15,223 1.04600 $15,490 $25,154 $115,167 2015 66.286 1.000 $9,788 1.03956 0.93087 $9,471 $15,223 1.10374 $15,641 $25,113 $140,280 2016 67.286 1.000 $9,788 1.06597 0.88402 $9,223 $21,265 1.16533 $21,906 $31,130 $171,409 2017 68.286 1.000 $9,788 1.09475 0.83793 $8,978 $21,265 1.22779 $21,877 $30,856 $202,265 2018 69.286 1.000 $9,788 1.12540 0.79350 $8,740 $21,265 1.27874 $21,577 $30,317 $232,583 2019 70.286 1.000 $9,788 1.15691 0.75142 $8,509 $21,265 1.33168 $21,279 $29,787 $262,370 2020 71.286 1.000 $9,788 1.18931 0.71157 $8,283 $21,265 1.38588 $20,970 $29,253 $291,623 2021 72.286 1.000 $9,788 1.22261 0.67384 $8,063 $21,265 1.43979 $20,631 $28,694 $320,317 2022 73.286 1.000 $9,788 1.25684 0.63750 $7,842 $21,265 1.49623 $20,283 $28,126 $348,443 2023 74.286 1.000 $9,788 1.29203 0.60312 $7,627 $21,265 1.55354 $19,924 $27,552 $375,994 2024 75.286 1.000 $9,788 1.32821 0.57060 $7,418 $21,265 1.61459 $19,591 $27,009 $403,003 2025 76.286 1.000 $9,788 1.36540 0.53983 $7,214 $21,265 1.67805 $19,263 $26,477 $429,480 2026 77.286 1.000 $9,788 1.40363 0.51072 $7,016 $11,781 1.74399 $10,493 $17,509 $446,989 2027 78.286 1.000 $9,788 1.44293 0.48317 $6,824 $0 1.81253 $0 $6,824 $453,813 2028 79.286 1.000 $9,788 1.48333 0.45712 $6,637 $0 1.88376 $0 $6,637 $460,450 2029 80.286 1.000 $9,788 1.52487 0.43247 $6,455 $0 1.95780 $0 $6,455 $466,904 2030 81.286 0.916 $8,972 1.56756 0.40915 $5 754 $0 2.03474 $0 $5,754 $472,658 Future Totals 16.916 $133,719 $248,926 $382,645 Past + Future 21.701 $153,131 $319,528 $472,658 (a) Source: Mr. Baker's Social Security benefit in 2013 was $1,588 per month. Given the cost of living increase in 2013 was 1.7%, his benefit in 2012 was $1,561 (= $1,588/1.017). Given that Mr. Baker began drawing Social Security retirement benefits at age 62, he would have been penalized 25% due to early retirement. Hence is "primary insurance amount" (PIA) is equal to $2,081.50 (_ $1,561/0.75). Nancy Baker's spouse benefit would have equaled 50% of Mr. Baker's PIA, reduced by a penalty for early retirement equal to 25/36 percent for the first 36 months younger than age 66 plus 5/12 percent for each additional month younger than age 66. Nancy Baker would have been age 63 and 3 months when Mr. Baker was age 62 at the beginning of 2012. Hence, she would have been 33 months away from age 66. Her benefit of $1,040.50 (= 50% of $2,081.50) if she retired at age 66 is reduced by 22.916% to $802.00. (b) Source: Table 3, Column (6). (c) Source: Table 3, Column (8). (d) Source: Table 5. The annual replacement value of household services is computed as $14,979 (adjusted for wage changes in 2013) though 2015, and $21,265 thereafter (following Mrs. Baker's retirement from her volunteer work) to the end of the average number of years of healthy life for someone with her characteristics, which would have extended to the summer of 2026. (e) Source: Table 3, Column (3). (f) Source: Paul Baker earned $50,086 In 2006 and $51,055 in 2007, for an average of $50,571, before his wife became ill. He cut back on his hours of employment in 2008 and 2009 to take care of his wife. But for her illness and death, it is assumed that he would have been able to continue earning $50,571 in both 2008 and 2009, instead of $34,764 in 2008 and $25,136 in 2009. The earnings losses in each of these years are not shown in this table but are presented as a line item in Table 7. It is also worth noting that the earning capacity of someone with Mrs. Baker's characteristics of age and sex working as an animal control worker in 2011 was $36,657, the median annual earnings shown for women 55-64 years of age in Table 3900 of Expectancy Data, "Full -Time Earnings in the United States, 2011 Edition," Shawnee Mission, Kansas, 2013. For all occupations combined, the median earnings of white females aged 55-64 with a high school diploma working full-time, year-round in 2011 was $32,222, as shown on p. 30 of the same Expectancy Data publication. These annual earnings figures give an indication of the earning capacity of employed persons with characteristics similar to Mrs. Baker, who was also working full-time, year-round but in a volunteer job rather than in paid employment. If Mrs. Baker had earned such earnings, an incremental personal maintenance deduction, if permissible, could be computed using Kurt Krueger, "Personal Consumption by Husbands and Wives," Journal of Forensic Economics, Vol. 20, No. 1 (2007), pp. 15-30, Table 1. BAKER APPRAISAL JAMES D. RODGERS TABLE 7 SUMMARY OF ECONOMIC DAMAGES LOSS OF SOCIAL SECURITY BENEFITS $153,131 LOSS OF HOUSEHOLD SERVICES $319,528 SUBTOTAL $472,658 MR. BAKER'S LOSS OF MONEY EARNINGS (a) $41,241 TOTAL ECONOMIC DAMAGES $513,899 History of Automatic Cost -of -Living Adjustments Page 1 of 2 Social Security Official Social Security Website Cost -Of -Living Adjustment History of Automatic Cost -Of -Living Adjustments Automatic benefit increases, also known as cost -of -living adjustments or COLAs, have been in effect since 1975. The 1975-82 COLAs were effective with Social Security benefits payable for June (received by beneficiaries in July) in each of those years. After 1982, COLAs have been effective with benefits payable for December (received by beneficiaries in January). COLAs received in 1975-2013 are shown below. July 1975 -- 8.0% July 1976 -- 6.4% July 1977 -- 5.9% July 1978 -- 6.5% July 1979 -- 9.9% July 1980 -- 14.3% July 1981 -- 11.2% July 1982 -- 7.4% January 1984 -- 3.5% January 1985 -- 3.5% January 1986 -- 3.1% January 1987 -- 1.3% January 1988 -- 4.2% January 1989 -- 4.0% January 1990 -- 4.7% January 1991 -- 5.4% January 1992 -- 3.7% January 1993 -- 3.0% Automatic Cost -Of -Living Adjustments January 1996 -- 2.6% January 1997 -- 2.9% January 1998 -- 2.1% January 1999 -- 1.3% January 2000 -- 2.5%(1) January 2001 -- 3.5% January 2002 -- 2.6% January 2003 -- 1.4% January 2004 -- 2.1% January 2005 -- 2.7% January 2006 -- 4.1 % January 2007 -- 3.3% January 2008 -- 2.3% January 2009 -- 5.8% January 2010 -- 0.0% January 2011 -- 0.0% January 2012 -- 3.6% January 2013 -- 1.7% January 2014 -- 1.5% http://www.ssa.gov/cola/automatic-cola.htm titIV/www.ssa.gov/aila/automati-67c7fEhtm cola.htm 12/31/2013 12/31/2013 Benefit Reduction for Early Retirement Page 1 of 2 Social security Owe Social Security Benefits Office of the Chief ly actua Benefit Reduction for Early Retirement Benefit Calculators How we compute retirement benefits Early or Delayed Retirement Spousal benefits %illl We sometimes call a retired worker the primary beneficiary, because it is upon his/her primary insurance amount that all dependent and survivor benefits are based. If the primary begins to receive benefits at his/her normal (or full) retirement age, the primary will receive 100 percent of the primary insurance amount. If the spouse of a primary begins to receive benefits at his/her normal retirement age, the spouse will receive 50 percent of the primary's primary insurance amount. The table below illustrates the effect of early retirement, for both a retired worker and his/her spouse. For our illustration, we have used a $1,000 primary insurance amount. With this primary insurance amount and both primary and spouse retiring at their respective normal retirement ages, the primary would receive $1,000 per month and his/her spouse would receive $500 per month. The table shows that retirement at age 62 results in substantial reductions in monthly benefits. Please note that relatively few people can begin receiving a benefit at exact age 62 because a person must be 62 throughout the first month of retirement. Thus most early retirees begin at age 62 and 1 month. Primary and spousal benefits at age 62 {benefits based on a $1,000 primary insurance amount) Normal Number Primary Spouse Year (or full) of Percent Percent of retirement reduction reduction reduction birth a age months b Amount c Amount d 1937 or earlier 65 36 $800 20.00% $375 25.00% 1938 65 and 2 months 38 791 20.83% 370 25.83% 1939 65 and 4 months 40 783 21.67% 366 26.67% 1940 65 and 6 months 42 775 22.50% 362 27.50% 1941 65 and 8 months 44 766 23.33% 358 28.33% 1942 65 and 10 months 46 758 24.17% 354 29.17% 1943- 1954 66 48 750 25.00% 350 30.00% http://www.ssa.gov/OACT/quickcalc/earlyretire.html 12/31/2013 Benefit Reduction for Early Retirement Page 2 of 2 1955 66 and 2 months 50 741 ':25.8a%':' . c v: ,'_, y .y.f 345 c " : , ' 30.83% ,s, ,i. . 1956 66 and 4 months 52 733 26.67% 341 31.67% 1957 66 and 6 months 54 725 27.50% 337 32.50% 1958 66 and 8 months 56 716 28.33% 333 33.33% 1959 66 and 10 58 708 29.17% 329 34.17% months i % - f c 1960" ' ' '-467 ‘ 60 _- 700 — 30.00% 325 35.00% ands: later a If you are born on January 1, use the prior year of birth.' t. b Applies only if you are born on the 2nd of the month; otherwise the number of reduction months is one less than the number shown. Reduction applied to primary insurance amount ($1,000 in this example). The percentage reduction is 5/9 of 1% per month for the first 36 months and 5/12 of 1% for each additional month. d Reduction applied to $500, which is 50% of the primary insurance amount in this example. The percentage reduction is 25/36 of 1% per month for the first 36 months and 5/12 of 1% for each additional month. http://www.ssa.gov/OACT/quiciccalc/earlyretire.html 12/31/2013 Expectancy Data Economic Demographers ' Table 76. Married females, ages 55 and over, that work full-time, spouse employed, no children under age 18 Time Use Category Weekly Hours Hourly Value Dollar Value of a Day Weekly Waking Hours Secondary Child Care With Family At Home Alone Particip- ation Rate Inside Housework Food Cooking & Clean-up Pets, Home & Vehicles Household Management Shopping Obtaining Services Travel for Household Activity Household Production Household Children Household Adults Non -Household Members Travel for Household Members Travel for Non -Household Members Caring and Helping Eating & Drinking Personal Health Care Grooming Sleeping Private, Personal, or N/A Personal lime Socializing Passive Leisure Active Leisure Attendance Leisure Religious Activities Volunteering Travel Related to Leisure Leisure Working at Job Educational Activities Commuting to Work or School Work and Education Total Size of U.S. Population in 2003-2012 ATUS Respondents in 2003-2012 Sunday Respondents Weekday Respondents Saturday Respondents 5.96 5.12 2.78 1.21 3.41 0.14 2.22 20.85 0.00 0.30 1.40 0.11 0.50 2.31 8.39 1.02 5.93 57.05 1.66 74.04 4.65 19.72 1.02 0.71 1.15 0.96 2.73 30.94 36.99 0.15 2.72 39.86 168.00 $12.10 11.76 13.99 17.83 12.91 15.42 13.88 12.95 12.61 12.40 12.81 15.53 15.53 13.48 12.87 12.17 12.30 13.56 13.55 13.36 13.42 12.55 12.55 12.55 16.87 16.87 13.88 13.09 69.67 16.87 13.88 65.66 $25.67 3,225,417 1,460 360 735 365 $10.31 8.60 5.55 3.09 6.29 0.31 4.40 38.55 0.00 0.53 2.56 0.25 1.11 4.45 15.42 1.77 10.42 110.52 3.21 141.33 8.91 35.35 1.82 1.28 2.77 2.31 5.42 57.87 368.17 0.35 5.40 373.92 $616.12 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 n/a 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 n/a 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1.31 1.84 1.13 0.38 1.56 0.09 1.03 7.35 0.00 0.21 0.89 0.08 0.24 1.42 5.21 0.22 n/a n/a 0.27 5.69 3.65 10.62 0.30 0.51 0.71 0.19 1.55 17.54 1.14 0.05 0.35 1.54 0.00 33.53 Average Age 5th Percentile Age 95th Percentile Age Household Size Number of Adults Number of Children under Age 18 Household Production Weekly Hours for the Benefit of the Respondent Percentage of Total Household Production Weekly Hours Benefiting the Respondent 5.93 4.96 2.45 0.97 0.07 0.02 0.01 14.40 0.00 0.14 0.52 0.00 0.00 0.66 4.72 0.30 n/a n/a 0.61 5.63 2.34 18.85 0.30 0.03 0.23 0.30 0.02 22.06 5.07 0.14 0.02 5.23 4.50 3.15 1.61 0.78 1.46 0.04 1.10 12.64 0.00 0.07 0.07 0.03 0.17 0.34 1.93 0.61 n/a n/a 0.72 3.26 0.40 8.74 0.55 0.04 0.29 0.35 1.00 11.37 3.28 0.10 2.32 5.69 47.99 33.30 59.0 55.0 66.0 2.22 2.22 0.00 3.20 15.4% 50.6% 70.3 33.8 27.7 43.7 2.5 47.7 92.0 0.0 5.7 14.0 2.2 11.0 18.4 97.8 11.8 86.8 100.0 22.7 100.0 42.6 91.2 15.3 4.0 11.3 7.4 48.6 97.1 70.3 0.6 56.7 70.4 Standard Error Percent 3.1% 2.3 5.0 5.3 3.8 29.2 2.8 1.6 0.0 16.0 6.3 14.9 6.8 4.8 1.4 9.2 1.4 0.9 5.6 1.2 3.3 1.5 4.8 5.4 5.3 73 4.6 1.3 1.6 14.4 2.3 1.9 Definitions Weekly Hours Hourly Value: Dollar Value of a Day Secondary Child Care: With Family: At Home: Participation Rate: Standard Error Percent: Household production weekly hours for the benefit of the respondent: Note: : Weekly average time in hours where the activity category describes the main activity that was being performed by the respondent. Weekly hours are calculated by summing average Sunday hours plus five times average weekday hours plus average Saturday hours. See tables 201-227. Weekly hours times hourly value divided by seven. While performing a primary activity, at wake children under age 13 were in the respondent's care. At least one family member (spouse, child, or parent) was in the room or accompanied the respondent. The respondent was inside or outside his or her own home. Percent of population reporting at least one daily episode of the activity. Standard error of the mean reported as a percent of the episode mean in the activity. Respondent -related household production divided by the respondent's household size plus 1 plus an additional 1 if the respondent's household size is greater than 1. The percentage of the total household production weekly hours benefiting the respondent is respondent -benefit household production weekly hours divided by total weekly hours of household production. See Table 228 for description. 'Who' and 'Where' coding only during waking hours and not coded for sleeping, grooming, some personal activities, and limited coding while working at job. 92 Expectancy Data Economic Demographers ' Table 114. Married females, that are retired, spouse not employed, living only with spouse Time Use Category Weekly Hours Hourly Value Dollar Value ofa Day Weekly Waking Hours Secondary Child Care With Family At Home Alone Particip- ation Rate Standard Error Percent Inside Housework Food Cooking & Clean-up Pets, Home & Vehicles Household Management Shopping Obtaining Services Travel for Household Activity Household Production Household Children Household Adults Non -Household Members Travel for Household Members Travel for Non -Household Members Caring and Helping Eating & Drinking Personal Health Care Grooming Sleeping Private, Personal, or N/A Personal Time Socializing Passive Leisure Active Leisure Attendance Leisure Religious Activities Volunteering Travel Related to Leisure Leisure Working at Job Educational Activities Commuting to Work or School Work and Education Total Size of U.S. Population in 2003-2012 ATUS Respondents in 2003-2012 Sunday Respondents Weekday Respondents Saturday Respondents 9.05 8.20 3.58 2.13 3.60 0.20 2.45 29.20 0.01 0.91 1.77 0.12 0.57 3.38 9.96 1.86 5.05 61.54 2.74 81.16 6.62 37.80 1.77 1.01 1.68 1.54 3.29 53.71 0.46 0.01 0.08 0.54 $12.10 11.76 13.99 17.83 12.91 15.42 13.88 12.93 12.61 12.40 12.81 15.53 15.53 13.26 12.87 12.17 12.30 13.56 13.55 13.36 13.42 12.55 12.55 12.55 16.87 16.87 13.88 13.00 82.76 16.87 13.88 71.77 168.00 $13.36 7,447,600 3,615 942 1,807 866 $15.64 13.77 7.16 5.42 6.63 0.45 4.86 53.92 0.03 1.61 3.23 0.28 1.26 6.41 18.32 3.23 8.87 119.22 5.31 154.95 12.69 67.77 3.18 1.82 4.05 3.71 6.52 99.74 5.41 0.01 0.16 5.58 $320.60 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 n/a 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 n/a 0.00 0.00 0.00 0.01 0.00 0.00 0.00 0.00 0.00 0.01 0.00 0.00 0.00 0.00 2.75 3.18 1.54 0.97 2.09 0.11 1.64 12.29 0.01 0.80 1.11 0.09 0.33 2.35 8.40 0.70 n/a n/a 0.87 9.97 5.11 23.71 0.78 0.74 1.04 0.42 2.44 34.23 0.01 0.00 0.03 0.05 0.01 58.90 Average Age 5th Percentile Age 95th Percentile Age Household Size Number of Adults Number of Children under Age 18 Household Production Weekly Hours for the Benefit of the Respondent Percentage of Total Household Production Weekly Hours Benefiting the Respondent 8.93 8.01 3.37 1.83 0.10 0.11 0.02 22.37 0.01 0.60 0.80 0.00 0.00 1.42 7.51 1.06 n/a n/a 0.97 9.54 3.67 36.64 0.45 0.05 0.40 0.59 0.04 41.83 0.05 0.00 0.00 0.06 6.17 4.88 1.93 1.13 1.29 0.06 0.73 16.19 0.00 0.09 0.15 0.03 0.14 0.40 1.12 0.88 n/a n/a 0.64 2.63 0.66 13.50 0.58 0.06 0.41 0.58 0.64 16.45 0.02 0.00 0.04 0.07 75.22 35.74 70.1 58.0 80.0 2.00 2.00 0.00 4.74 16.2% 65.4% 82.1 32.0 32.3 43.2 4.4 46.7 95.5 0.1 9.3 15.7 3.4 11.4 23.2 98.8 20.6 77.8 100.0 31.7 100.0 51.6 97.2 20.3 5.8 17.2 10.1 52.4 99.4 1.5 0.1 2.6 3.2 1.7% 1.2 2.7 3.1 2.2 10.9 2.2 0.8 68.7 7.2 4.7 9.1 4.1 3.3 0.8 4.8 1.1 0.5 2.8 0.7 1.9 0.8 3.2 3.9 2.4 4.2 2.0 0.7 7.5 21.9 8.4 9.3 Definitions Weekly Hours Hourly Value: Dollar Value of a Day Secondary Child Care: With Family: At Home: Participation Rate: Standard Error Percent: Household production weekly hours for the benefit of the respondent: Note: : Weekly average time in hours where the activity category describes the main activity that was being performed by the respondent. Weekly hours are calculated by summing average Sunday hours plus five times average weekday hours plus average Saturday hours. See tables 201-227. Weekly hours times hourly value divided by seven. While performing a primary activity, at wake children under age 13 were in the respondent's care. At least one family member (spouse, child, or parent) was in the room or accompanied the respondent. The respondent was inside or outside his or her own home. Percent of population reporting at least one daily episode of the activity. Standard error of the mean reported as a percent of the episode mean in the activity. Respondent -related household production divided by the respondent's household size plus 1 plus an additional 1 tf the respondent's household size is greater than 1. The percentage of the total household production weekly hours benefiting the respondent is respondent -benefit household production weekly hours divided by total weekly hours of household production. See Table 228 for description. 'Who' and 'Where' coding only during waking hours and not coded for sleeping, grooming, some personal activities, and limited coding while working at job. 130 PENNSYLVANIA ADDRESS: 237 TimbmtonQrcln Bellefonte, PA18823'9O7O PHONE: (814) 355-4944 EDUCATIONAL QUALIFICATIONS RESUME AND QUALIFICATIONS OF JAMES D. RODGERS, PH.D. Resume Date: October 30, 2013 FLORIDA ADDRESS: EMAILjdn@psu.edu 4250 Tipperary Lane WEB SITE: wwwjimrodgers.com Brooksville, FL 34601 Phone: (352) 345-4345 CELL: (814) 571-4425 FAX: (877) 420-7617 B.A, in Economics, East Texas State University,1966 (named TAMU-Commerce since Sept. 1996) Ph.D. in Economics, University ofVirginia, 1970 ACADEMIC EXPERIENCE Institution University of Virginia The Pennsylvania State University The PeState University University of ¥ork (YorkEngland) The Pennsyvania State University The Pennsylvania State University The Pennsylvania State University The Pennvania State University The Pennsyvania State University The Pennsylvania State University COURSES TAUGHT Rank Graduate Instructor Instructor Assistant Professor Visiting Senior FeIIow Associate Professor Professor Head of Economics Dept, & Professor Professor Professor and Graduate Officer Professor Emeritus Microeconomic Theory (G) Public Expenditure Analysis (G & UG) Intermediate Microeconomic Theory (UG) Intermediate Macroeconomic Theory (UG) Mathematical Analysis for Economists (G) Welfare Economics (G) Seminar on Uncertainty (G) Economic Analysis of Accident Law (UG) Dates 1967-69 1969-70 1970-72 1972-73 1972-76 1976-85 1985-94 1994-97 1997-99 1999 - Economics of Collective Baaining (UG) Industrial Organization (UG) Economics of Regulation(UG) Money and Banking (UG) Public Finance (G & UG) Income Redistribution & Welfare (UG) Principles ot Economics (UG) Forensic Economics (UG) G = Graduate LeveCourse; UG = Undergraduate LeveCourse PROFESSIONAL JOURNALS WHERE MY RESEARCH HAS BEEN PUBLISHED American Economic Review Quarterly Journal of Economics Review of Economics and Statistics National Tax Journal Joumal of Legal Economics Journal of Labor Research Litigation Economics Review Public Finance Quarterl Public Finance Eastern Economic Journal Journal of Forensic Economics Proceedings of the National Tax Association The Earnings Analys A complete Iist of my publioations appears on my web site. JAMES D. RODGERS, PH.D. 2 RESUME AND QUALIFICATIONS October 30, 2013 RECENT PUBLICATIONS ABOUT COMPUTING ECONOMIC DAMAGES: "Assessing Economic Damagein PersonaInjury and of Pennsylvania," (coauthored with Robert J. Thornton), Journal of Forensic Economics, Vol. 15, No. 3, Fall 2002, pp. 335-56. Economic Foundations of Injury and Death Damages . Kaufman and Gerald D. Martin), Northampton, Massachusetts: Edward Elgar Publishing, Inc., 2005. "Fringe BenafitL00000.^Chapter 4in Michael L. Brookshire, Frank Slesnick and John 0. Ward, editors, The Plaintiff and Defense Attorney's Guide to Understanding Economic DamagesTucson, AZ: Lawyers & Judges Publishing Co, Inc., 2007, pp. 35-44. "The Effect of the Loss of a ParntundmEomingoufoMinorChUd," (coauthored by John Kane, Larry M. Spizman and Rick R.GaoWno).EostemEconomic Journal, Vol. 3G.No. 3.Summer, 2O1O.pp. 87V'38O. "Gayduov.Domabyl:APennsylvania Case Rich in|nsights.^Journal ofLegal Economics. Vol. 18, No. 1, October 2011, pp. 79-90. "He/pin v. Trustees of U. Penn: Lost Profits Not Discounted to Present Value in Pennsylvania Breach of Contract Cases," Journal of Legal Economics, Vol. 18, No. 2 (April 2012), pp. 79-92. OFFICES AND MEMBERSHIPS IN SOCIETIES, ASSOCIATIONS AND PROFESSIONAL ORGANIZATIONS National Association of Forensic Economics Vice -President, Eastern U.S., 1994-98 President -Elect, 2000, President, 2001-02 Executive Director, 2008-2014 American Academy of Economic & Financial Experts American Rehabilitation Economics Association V.P. External Affairs, 2001-03 Board of Editors, Journal of Forensic Economics, Vol. 15, No. 3 through Vol. 16, No. 3 Associate Editortor Literature Reviews, Joumo/ofForensic Economics, beginriing with Vol. 17, No. 1 Board of Editors, Journal of Legal Economics, beginning with Vol. 14, No. 3 Board of Editors, The Earnings Analys American Economic Association Eastern Economic Assocation Southern Economic Association Western Economic Association International Society of Labor Economists HONORS National Association of Forensic Economics, 2005 PasPresidents' Award for Outstanding Service to the Association OTHER PROFESSIONAL ACTIVITIES: Research Director on Local Non -Property Taxation, Pennsylvania Tax Commission, 1979-81 I frequently participate on the program at the annual meetings of most of the associations and professional ° JAMES D. RODGERS, PH.D. 3 RESUME AND QUALIFICATIONS October 30, 2013 TYPES OF CASES FOR WHICH 1 HAVE PREPARED APPRAISALS OF ECONOMIC DAMAGES Since 1976 1 have prepared economic appraisalreports for cases involving: 1) personal injury 2) wrongful death 3) losses of business profits 4) divorce & child support, with valuation of parental earning capacity, pensions, & child rearing costs 5) wrorigful termination from employment and constructive discharge 6) analysis and critique of appraisals of "hedonic damages," including preparation of affidavits supporting motions in limine to exclude hedonic damage testimony purporting to measure the lost enjoyment of life 7) assessment of financial losses due to misuse of funds intended for investment 8) assessment of the value of a Iife estate 9) assessment of loss arising from a death in the 9/11/2001 terrorist attacks COURTS IN WHICH 1 HAVE TESTIFIED AS AN EXPERT WITNESS ON ECONOMIC DAMAGES I have given trial or deposition testimony in the following Pennsylvania Courts of Common Pleas: Adams County Allegheny County Bedford County Blair County Bradford County Cambria County Cameron County Centre County Clearfield County Clinton County Cumberland County Dauphin County De!award County Elk County Indiana County Jefferson County Lackawanna County Lancaster County Lycoming County McKean County Mifflin County Montgomery Conty Potter County Philadelphia County Snyder County Tioga County Union County York County |tave also given trial or deposition testimony in Federal District Court in the Eastern and Middle Districts of Pennsylvania, for the Federal District Court in Idaho, and for the Superior Court of Jeff Davis County, Georgia. A list of CERTIFICATE OF SERVICE hereby certify that a copy of the foregoing document has been served in this matter on the 30th day of June, 2014 by email and by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: By Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 1713 y D. All on, Esquire Attor ey for laintiff(s) 102 . Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 -I, PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, v. : CIVIL ACTION — LAW : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., r-3 Defendant /�- 1 ``0) 11 .7 cr>� CJ c—) CD Kindly attach the enclosed report of Ronald Malcom, M.D. dated Novem : JURY TRIAL DEMANDED PRAECIPE TO ATTACH TO: CUMBERLAND COUNTY PROTHONOTARY c) cD rt, rn Cam C a-> 2008 inadvertently left out to the Praecipe to File Plaintiffs' Expert Reports filed of record and served on June 30, 2014. The enclosed report was previously provided counsel for the Defendant twice by letters dated February 4, 2009 and November 13, 2013 and prior to the Praecipe filed on June 30, 2014. Respectfully Submitted, LA FFIC' OF :�__ D.:. ' ISON Ilison, Esquire I.D. No. 80072 Att rney for Plaintiff(s) 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 Cusi E GIONAL CANCER CENTER 11/05/2008 Mr. Bradley D. Allison 102 West Penn Street, Suite 1 Bedford, PA 15522 Re: BAKER, NANCY K (785911) Dear Mr. Allison: I am writing to you in response to your letter in regard to Nancy Baker. I have reviewed records forwarded by you. Nancy's initial diagnosis upon her first visit with me was squamous cell carcinoma of the oral tongue. She had stage T1, N2b, MO disease. She had already undergone left hemiglossectomy and left modified neck dissection. She had 3 of 23 nodes effected or infiltrated with cancer. Based on her risk of recurrence, I recommended radiation therapy and chemotherapy. Given Nancy's stage and general condition, I feel that the percent chance of disease-free survival is 40% to 50% at 3 years. The costs of treatment are outlined in the attachment. She was treated from 11/29/2007 until 01/18/2008. There is approximately a 50% chance that Nancy's cancer will recur. The side effects of radiation included pain, inability to swallow, inability to taste, difficulty speaking, dry mouth, skin bum, fatigue, scarring of the tissues of the neck, and decreased function of the thyroid gland. If Nancy's cancer recurs, there is a 90% chance that the recurrence will be fatal. I estimate that there is a 30% chance that Nancy will not be able to resume normal swallowing. Nancy is profoundly fatigued as a result of radiation therapy, surgery, and chemotherapy. She has difficulty communicating and eating. It is very difficult for her to perform any work. She had significant pain and suffering during and after radiation therapy. I expect her to have ongoing problems with dry mouth, difficulty speaking, and fatigue. If her cancer recurs, it is unlikely that we will be able to re -treat her with radiation. Re -treatment of the same area would incur a substantial risk of serious complications. in my opinion, the treatments rendered were medically necessary. Expenses were per insurance guidelines. In relation to the questions asked above, my opinions were rendered to a reasonable degree of medical certainty in my subspecialty of medicine, which is radiation oncology. Sincerely, Ronald H. Malcom, M.D. RHM/am This document was authenticated by Ronald H. Malcom, M.D. on 11/12/2008 16:00:41. 25 Sprint Drive ® Carlisle, PA 17013 • 717-960-3750 ■ Fax 717-960-3734 ■ www:CarlisleRMC.com 11/25/08 PAGE 001 HEALTH MANAGEMENT ASSOCIATES CARLISLE REGIONAL MEDICAL CTR PATIENT: BAKER, NANCY K F/C: B P/T: 0 A/C: 7751222 ADMISSION: 11/15/07 DA17 COID: 858 AS OF 11/24/08 DSC CODE: 01 DISCHARGE: 11/30/07 CHG DATE DPT REV BAT# HCPC M1M2M3M4 CHGCD DESCRIPTION QTY AMOUNT 11/15/07 433 333 5 77334 10054 TRMT DEV/DES & C 1 715.45 11/15/07 433 333 5 77280 10021 SIMULATE FIELD S 1 540.83 11/26/07 433 333 5 77295 10033 SIM -AIDED FIELD 1 3,345.96 11/26/07 433 333 5 77300 76 10037 BASIC RAD DOSIME 4 2,447.64 11/26/07 433 333 5 77334 76 10054 TRMT DEV/DES & C 4 2,861.80 11/27/07 433 333 5 77417 76 10017 THERA RAD PORT F 4 738.00 11/27/07 433 333 5 77290 10019 SIMULATE FIELD C 1 948.93 11/27/07 433 333 5 77470 10022 SPECIAL TRMT PRO 1 1,882.77 11/29/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 11/30/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 11/29/07 433 333 5 77331 76 10053 TLD OR MICROSOSI 3 1,287.84 TOTAL CHARGES 16,561.62 TOTAL: CASH> 9,335.84- ADJUSTMENTS> 7,225.78- BALANCE> 0.00 SELECT: REV= * DEPT= * CHGCD= * DATE/MDCY= * TO/MDCY= * CMD:1=DAR,2=PAT,4=SUMMARY, S=TOP, 6=END,7=RETURN,8=BACKWARD,12=UPD,ENTER=FORWARD 11/25/08 PAGE 001 HEALTH MANAGEMENT ASSOCIATES CARLISLE REGIONAL MEDICAL CTR PATIENT: BAKER, NANCY K F/C: B P/T: 0 A/C: 7755678 ADMISSION: 12/03/07 DA17 COID: 858 AS OF 11/24/08 DSC CODE: 01 DISCHARGE: 12/31/07 CHG DATE DPT REV BAT# HCPC M1M2M3M4 CHGCD DESCRIPTION QTY AMOUNT 12/03/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/04/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/05/07 433 333 5 77417 76 10017 THERA RAD PORT F 2 369.00 12/05/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/06/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/05/07 433 333 5 77336 10036 CONT MED PHYSICS 1 534.89 12/10/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/11/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/14/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/17/07 433 333 5 77417 76 10017 THERA RAD PORT F 2 369.00 12/17/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/17/07 433 333 5 77336 10036 CONT MED PHYSICS 1 534.89 12/18/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 12/19/07 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 CONTINUED.. SELECT: REV= * DEPT= * CHGCD= * DATE/MDCY= * TO/MDCY= * CMD:1=DAR,2=PAT,4=SUMMARY,5=TOP,6=END,7=RETURN,8=BACKWARD,12=UPD,ENTER=FORWARD 11/25/08 PAGE 002 CARLISLE PATIENT: BAKER, NANCY A/C: 7755678 HEALTH MANAGEMENT ASSOCIATES REGIONAL MEDICAL CTR K F/C: B P/T: 0 ADMISSION: 12/03/07 DA17 COID: 858 AS OF 11/24/08 DSC CODE: 01 DISCHARGE: 12/31/07 CHG DATE DPT REV BAT# HCPC M1M2M3M4 CHGCD DESCRIPTION QTY AMOUNT 12/20/07 433 333 5 77413 12/21/07 433 333 5 77413 12/28/07 433 333 5 77417 76 12/28/07 433 333 5 77413 12/29/07 433 333 5 77413 12/31/07 433 333 5 77413 12/28/07 433 333 5 77336 10024 TRMT 3+ AREAS 6- 10024 TRMT 3+ AREAS 6- 10017 THERA RAD PORT F 10024 TRMT 3+ AREAS 6- 10024 TRMT 3+ AREAS 6- 10024 TRMT 3+ AREAS 6- 10036 CONT MED PHYSICS 1 896.20 1 896.20 2 369.00 1 896.20 1 896.20 1 896.20 1 534.89 TOTAL CHARGES 16,154.67 TOTAL: CASH> 4,370.88- ADJUSTMENTS> 11,783.79- BALANCE> 0.00 SELECT: REV= * DEPT= * CHGCD= * DATE/MDCY= * TO/MDCY= * CMD:1=DAR,2=PAT,4=SUMMARY,5=TOP,6=END,7=RETURN,8=BACKWARD,12=UPD,ENTER=FORWARD 11/25/08 PAGE 001 HEALTH MANAGEMENT ASSOCIATES CARLISLE REGIONAL MEDICAL CTR PATIENT: BAKER, NANCY K F/C: B P/T: 0 A/C: 7763691 ADMISSION: 01/02/08 DA17 COID: 858 AS OF 11/24/08 DSC CODE: 01 DISCHARGE: 01/18/08 CHG DATE DPT REV BAT# HCPC M1M2M3M4 CHGCD DESCRIPTION QTY AMOUNT 01/02/08 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 01/03/08 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 01/03/08 433 333 5 77300 76 10037 BASIC RAD DOSIME 2 1,223.82 01/03/08 433 333 5 77315 10049 ISODOSE PLAN COM 1 528.95 01/03/08 433 333 5 77334 76 10054 TRMT DEV/DES & C 2 1,430.90 01/04/08 433 333 5 77417 76 10017 THERA RAD PORT F 2 369.00 01/04/08 433 333 5 77290 10019 SIMULATE FIELD C 1 948.93 01/04/08 433 333 5 77413 10024 TRMT 3+ AREAS 6- 1 896.20 01/07/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/07/08 433 333 5 77300 76 10037 BASIC RAD DOSIME 2 1,223.82 01/07/08 433 333 5 77315 10049 ISODOSE PLAN COM 1 528.95 01/07/08 433 333 5 77334 76 10054 TRMT DEV/DES & C 2 1,430.90 01/08/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/09/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 CONTINUED... SELECT: REV= * DEPT= * CHGCD= * DATE/MDCY= * TO/MDCY= * CMD:1=DAR,2=PAT,4=SUMMARY,5=TOP,6=END,7=RETURN,8=BACKWARD,12=UPD,ENTER=FORWARD 11/25/08 PAGE 002 HEALTH MANAGEMENT ASSOCIATES CARLISLE REGIONAL MEDICAL CTR PATIENT: BAKER, NANCY K F/C: B P/T: 0 A/C: 7763691 ADMISSION: 01/02/08 DA17 COLD: 858 AS OF 11/24/08 DSC CODE: 01 DISCHARGE: 01/18/08 CHG DATE DPT REV BAT# HCPC M1M2M3M4 CHGCD DESCRIPTION QTY AMOUNT 01/10/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/11/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/11/08 433 333 5 77336 10036 CONT MED PHYSICS 1 534.89 01/14/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/15/08 433 333 5 77417 10017 THERA RAD PORT F 1 184.50 01/15/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/16/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/17/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/18/08 433 333 5 77414 10028 TRMT 3+ AREAS 11 1 871.70 01/18/08 433 333 5 77336 10036 CONT MED PHYSICS 1 534.89 TOTAL CHARGES 20,345.15 TOTAL: CASH> 7,886.76- ADJUSTMENTS> 12,458.39- BALANCE> 0.00 SELECT: REV= * DEPT= * CHGCD= * DATE/MDCY= * TO/MDCY= * CMD:1=DAR,2=PAT,4=SUMMARY,5=TOP,6=END,7=RETURN,8=BACKWARD,12=UPD,ENTER=FORWARD CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 1st day of July, 2014 by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: By Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 17013 adley D. ' lison, Esquire torney f• r Plaintiff(s) 112 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant : CIVIL ACTION — LAW : NO. 2007-05475 P : JURY TRIAL DEMANDED PLAINTIFFS' MOTION FOR PROTECTIVE ORDER` -'o %.• AND NOW, comes the Plaintiff(s), Paul W. Baker, individually and as Executor.bf the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire and files this Motion for Protective Order pursuant to Pa.R.C.P. 4012, respectfully averring as follows: 1. The instant professional malpractice case was instituted by the filing of a Praecipe for Writ of Summons on or about September 14, 2007. 2. The Honorable M.L. Ebert, Jr. has been assigned to this case. 3. Defendant was properly served with original process. 4. Nancy Baker's videotape deposition was taken with counsel for Defendant present, and following direct examination of Mrs. Baker, she was cross-examined by Defendant's counsel. 5. Nancy Baker unfortunately died on March 20, 2009. 6. Thereafter, her husband, as Executor of her Estate, was substituted in her place on the record. 7. Plaintiffs' Amended Complaint was filed on or about February 9, 2010. 1 8. Following Preliminary Objections filed by Defendant, Defendant's Answer with New Matter was filed on or about August 17, 2010. 9. Plaintiffs' counsel deposed Defendant via a videotape deposition on August 20, 2010. 10. Plaintiffs conducted formal written discovery, including serving Interrogatories, Requests for Production of Documents, and a Request for Admissions. 11. Plaintiff provided Defendant's counsel with Plaintiffs' liability expert reports and thereafter, served Defendant via his attorney with a Notice to Produce Defendant's Expert Report on liability on August 28, 2013, requesting production of Defendant's expert report(s) on liability. 12. In response to the Notice, counsel for Defendant did not provide his expert report on liability within the time period required under the Pennsylvania Rules of Civil Procedure, being 120 days. Pa.R.C.P. 1042.29(a)(3). 13. Thereafter, Plaintiffs' counsel filed a Motion for Status Conference with the Court in order to have deadlines established for the completion of discovery, including production of expert reports, and dates for trial. 14. A Status Conference with the Honorable M.L. Ebert, Jr. was held on March 12, 2014. 15. Following such Conference and as discussed therein, the Court issued a Scheduling Order dated March 12, 2014, setting a deadline for discovery and production of expert reports. 16. Plaintiffs' counsel held off filing a Motion to Compel production of Defendant's expert report(s) on liability given the Scheduling Order and deadline 2 established for production of same, even though such report(s) were not provided by Defendant within the required 120-day period. 17. The deadline set for discovery by the Court's Scheduling Order, a copy of which is attached hereto as Exhibit "A," was June 30, 2014. 18. Counsel for Plaintiffs provided Defendant's counsel with approximately 21 dates for him to take Plaintiff Paul Baker's deposition and that of Dr. Donald Kovacs as a fact-only witness via a letter dated January 23, 2014 and an email on April 9, 2014. 19. Counsel for Defendant never responded to such letters, nor did he send out an Notice of Deposition prior to the expiration of the discovery deadline imposed by the Court. 20. At 4:38 p.m. on June 30, 2014, counsel for Defendant, after receiving the remainder of Plaintiffs' Expert Reports by email (a copy was also sent by mail), sent Plaintiffs' counsel an email indicating that his spring had gotten away from him and that he wanted to know dates for depositions. 21. Despite the deadline for discovery imposed by this Court, counsel for Defendant never served any formal discovery requests prior to June 30, 2014, the deadline for discovery set by the Court as requested in the Motion for Status Conference filed by Plaintiffs. 22. Attached hereto as Exhibit "B" is Plaintiffs' counsel's letter of July 2, 2014 to Defendant's counsel indicating, in pertinent part, that the time for engaging in discovery has passed. 3 23. Defendant's counsel sent a follow-up letter to Plaintiffs' counsel, a copy of which is attached hereto as Exhibit "C," indicating that he was requesting a stipulation to modify the time period for discovery and completion of his expert reports. 24. Plaintiffs have already provided, at Plaintiffs' expense and consistent with this Court's Order, Plaintiffs' expert reports which were based upon facts ascertained during the course of discovery and within the time set forth by this Courts Order. 25. Plaintiffs would be forced to obtain supplemental expert reports, at their further burden and expense, if the time period for discovery, including taking of depositions, is extended. 26. Pa.R.C.P. 4012(a) provides that upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden, or expense, including, prohibiting discovery or a deposition. Pa.R.C.P. 4012(a)(1). 27. In as much as Defendant has disobeyed this Courts Order respecting the time period to complete discovery, even though Defendant has had nearly seven (7) years from the initiation of this lawsuit to perform formal discovery; has no valid excuse for failing to complete discovery; and has been offered more than ample number of dates for taking two depositions but never responded to dates proposed by Plaintiffs, and because Defendant's dilatory conduct in this action, if further discovery is permitted, will burden Plaintiffs with unnecessary additional expense and be patently unfair in having Plaintiffs and their counsel perform additional and unnecessary work on this case, Plaintiffs request that this Court grant this Motion for Protective Order and enter 4 an Order precluding Defendant from conducting any further discovery, including any discovery depositions, and requiring Defendant to provide his expert reports, if any, within the time period imposed by this Court's Order of March 12, 2014 so as not to delay the progression of this case to trial. WHEREFORE, Plaintiff, Paul W. Baker, individually, and as Executor of the Estate of Nancy K. Baker, his wife, deceased, respectfully requests your Honorable Court to grant him the relief set forth herein. Respectfully Submitted, LA FICE OF L ADLEY D. ALLISON 1 ra:ley D. Ilison, Esquire a. I.D. N. 80072 A orney for Plaintiff(s) 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 5 Exhibit A v PAUL W. BAKER, individually : IN THE COURT OF COMMON PLEAS OF And as Executor of Estate : CUMBERLAND COUNTY, PENNSYLVANIA Of NANCY K. BAKER, deceased : PLAINTIFF V. C) c rn CASEY J. WILLIAMS, D.M.D.,r�, DEFENDANT : NO. 07-5475 CIVIL G IN RE: SCHEDULING CONFERENCE ORDER OF COURT AND NOW, this 12th day March, 2014, after status conference with counsel; IT IS HEREBY ORDERED AND DIRECTED that: 1. All discovery in this matter shall be completed on or before June 30, 2014. 2. Plaintiff's expert reports shall be filed on or before June 30, 2014. Defendant's expert reports responding to the Plaintiff's expert reports shall be filed on or before July 30, 2014. Any Plaintiff rebuttal expert report shall be filed on or before August 30, 2014. 3. Any dispositive motions, if applicable, shall be filed on or before October 1, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the motions will be held during the November 14, 2014, Argument Court. 4. The case shall be tentatively set down for trial during the February 2015 Civil Trial Term. Given the fact that the 2015 court calendar has not yet been published, and assuming that counsel may have scheduling conflicts, continuance of the case to the May Civil trial term may be necessary. ✓ Bradley Allison, Esquire Attorney for Plaintiff Thomas Weber, Esquire Attorney for Defendant Mark Mateya, Esquire bas .., nza:L(, 3/m.//y Exhibit B LAW OFFICE OF BRADLEY D. ALLISON 102 W. Penn Street, Ste. 1 Bedford, PA 15522 Bradley D. Allison, Esquire Telephone No. (814) 623-7566 Fax No. (814) 623-7367 July 2, 2014 Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 In re: Paul W. Baker, indiv. and as Executor of the Estate of Nancy K. Baker v. Casey J. Williams, D.M.D No. 2007-05475 P (Cumberland County) Dear Tom: I received your email on Monday, June 30, 2014 at 4:38 p.m. saying that your spring got away from you and that you wanted to know dates for depositions. The Court issued a Scheduling Order setting a discovery deadline of June 30, 2014. A copy of that Order is attached. You were present at the Conference held with the Court for that purpose and stated that you needed to take depositions. I also attach copies of three (3) letters: the first being your letter back in January, 2011 to Dr. Donald Kovacs indicating you wanted to take his deposition; the second is my letter to you dated January 23, 2014 providing a host of dates for my client's deposition; and the third is another letter from me to you which I emailed you on April 9, 2014 wherein [provided you, yet again, with a multitude of dates for depositions. In all, I provided you with approximately 21 dates to take my client's deposition and to schedule Dr. Kovacs as a fact -only witness to be deposed the same day. You never responded to either of my two letters, and you never made any effort to schedule any depositions, including send Dr. Kovacs a subpoena for such purpose. The timing for you to engage in further discovery has passed. I sought a Scheduling Order from the Court for a purpose: to move this case to a conclusion. You have never served any formal discovery requests upon the Plaintiff(s). To date, neither your client nor his carrier has made one penny of an offer to resolve the matter despite the severity of the circumstances involved. You will need to rely upon the materials you have been provided with or obtained yourself to date, which you and Dr. Williams' insurance carrier must have believed was sufficient to defend the case through trial given the absence of any attempt to resolve the case, to take depositions, or to serve discovery requests. Otherwise, in all of the time that passed from the filing of this case in 2007 and in particular from your first letter regarding taking Dr. Kovacs' deposition in 2011, you would have scheduled and completed the depositions, particularly that of my client, Paul Baker. Now is not the time to perform a job which you had more than ample time and opportunity to accomplish previously and in the time period imposed by the Court. I trust you understand our position on the matter. cc: Paul W. Baker (w/encls.) Mark Mateya, Esq. (w/encls.) cerel ;di/ adley D. Ilison Exhibit C GoldbergKatzman A T T O R N E Y S a t L A W July 7, 2014 Bradley D. Allison, Esq. 102 West Penn St., Suite 1 Bedford, PA 15522 Re: Baker v. Williams Dear Brad: Email: tjw@goldbergkatzman.com goldbergkatzinan.com I hope this letter finds you well. I am writing in response to my email of June 27, 2014. I am seeking your concurrence in stipulating as to a modification of the scheduling order in this matter. It is my recollection that Judge Ebert indicated during our conference that, given the fact that this was the first scheduling order issued, he would be amenable to requests from either party as to extensions. What I would be proposing would not impact the tentative trial terms set in this matter. Initially, I would like to extend the discovery deadline until August 15, 2014 and then extend the deadline for production of my expert reports until September 15, 2014, with your rebuttal reports, if any, due September 30, 2014. Paragraphs 3 and 4 of the scheduling order would remain unchanged. Kindly advise me as to whether you will agree to such approach. If you are not in a position to agree, I will file the appropriate motion with the Court and note your non- concurrence. TJW/jlb (00708210;v1) 4250 Crums Mill Road, Suite 301 I P.O. Box 6991 I Harrisburg, PA 17112 1717-234-4161 I fax: 717-234-6808 I www.goldbergkatzman.com Plus convenient offices in downtown Harrisburg, Lancaster and Carlisle. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 11th day of July, 2014 by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: By Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 17013 rdley D. liso , Esquire At�rney fo Plaintiff(s) 10 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased PLAINTIFF V. CASEY J. WILLIAMS, D.M.D. DEFENDANT : NO. 07-5475 CIVIL ORDER OF COURT AND NOW, this 22nd day of July, 2014, upon consideration of Paul Baker's Motion for Protective Order; IT IS HEREBY ORDERED AND DIRECTED that: 1. The Defendant shall file an Answer to the Motion on or before August 1, 2014. 2. A brief argument on the matter will be held on Friday, August 8, 2014, at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, BradleY Allison, Esquire Attorney for Plaintiff Thomas Weber, Esquire Attorney for Defendant Mark Mateya, Esquire bas LC, e�tes 7aapy m E CC) c_ r - it' l'11V 11IU r�'U fI'}�, GOLDBERG KATZMAN,P.C. Thomas J. Weber,Esquire-I.D. #58853 ' ,''�' c �,: U` 4250 •Crums Mill Road, Suite 301 vo�l�' P. 0.Box 6991 t,(� �Il�r.e U y Harrisburg, PA 17112 ;C N N S Y`V i I A (717)234-4161 Attorneys for Defendant PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiff : • CIVIL ACTION—LAW v. : • NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., : Defendant • JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR EXTENSION OF CASE DEADLINES AND NOW COMES the Defendant, Dr. Casey J. Williams, by and through his counsel, Goldberg Katzman, P.C., and moves This Honorable Court for an extension of trial deadlines, and in support thereof, asserts the following: 1. This is a dental malpractice action. 2. A scheduling conference was held for the first time on March 12, 2014 before The Honorable M.L. Ebert, Jr. 3. In Chambers, during the conference, Judge Ebert acknowledged that this was the first scheduling conference, and further, that in the event the parties felt they were having difficulty complying with the same, that he would entertain a request for extensions. 4. As a result of the conference, a scheduling order was entered. A copy of the same is attached hereto as Exhibit A. {00711167,v1} 5. Defendant has been unable to conduct two depositions. That of Mr. Baker and Dr. Kovacs, who was the Decedent's family practitioner. 6. Both depositions can be accomplished in less than a day. 7. Following the issuance of the scheduling order, counsel for the Defendant wrote to Plaintiffs counsel in an effort to schedule the depositions. See correspondence dated April 2, 2014 attached hereto as Exhibit B. 8. Plaintiffs counsel subsequently provided dates for depositions, and approximately 900 pages of additional medical records. 9. None of the provided dates ended up being available for Defendant's counsel. 10. Discovery was scheduled to conclude on June 30, 2014. 11. On June 27, 2014, Defendant's counsel sent an email to Plaintiffs counsel requesting additional dates for the depositions. 12. On July 7, 2014, counsel for the Defendant wrote to Plaintiffs counsel again requesting agreement to extend the deadlines in the matter. The proposed extensions would not interfere with the tentative schedule of trial in this matter of next February. See correspondence attached hereto as Exhibit C. 13. By correspondence dated July 11, 2014 but addressed to Defendant's counsel's old address and not received by Defendant's counsel until July 21, 2014, Plaintiffs counsel indicated that he did not concur in the request to extend the discovery deadline. 14. Defendant requests a modest extension of the discovery deadline so as to complete the aforementioned two depositions. 15. No prejudice will occur to the Plaintiff by granting an extension. 16. Prejudice will occur to the Defendant in the event an extension is not granted. {00711167;v1} 2 17. Pursuant to Pennsylvania Rules of Civil Procedure, Defendant's counsel is precluded from speaking with Dr. Kovacs outside of a deposition. 18. Efforts to coordinate a deposition with Dr. Kovacs have proved unsuccessful due to his refusal to respond to any requests for availability. 19. As a result, Dr. Kovacs will need to be subpoenaed in order to be deposed. 20. Defendant's experts cannot conclude their review until receipt of Dr. Kovacs' deposition transcript. 21. The proposed discovery extension will not interfere with the tentative trial date of this matter. 22. The new proposed Order will set forth a time frame for mediation of the matter. 23. This is the first request for any extension filed on behalf of the Defendant. 24. Plaintiff has objected to the request. WHEREFORE, Defendant respectfully requests that the deadlines in this matter be modified as follows: 1. Discovery shall be completed by September 12, 2014. 2. Defendant's expert reports shall be due by September 26, 2014. 3. Any Plaintiff rebuttal expert reports shall be filed on or before October 10, 2014. 4. Any dispositive motions shall be filed by October 17, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the Motions will be held during the November 14, 2014 Argument Court. 5. The parties will hold a mediation in this matter during December, 2014. 6. The case shall be tentatively set down for trial during the February Civil Trial Term. {00711167;v1} 3 Respectfully Submitted, GOLDBERG KATZMAN, P.C. ----Liims;ti-Q-91----- Date: 7t2$I I ti Thomas J. Weber, Esquire (ID #58853) 4250 Crums Mill Road, Suite 301 P.O. Box 6991 Harrisburg, PA 17112 (T) 717/234-4161 (F) 717/234-6808 tjw@goldbergkatzman.com 100711167,v11 4 EXHIBIT A (00711167;v1) PAUL W. BAKER, individually : IN THE COURT OF COMMON PLEAS OF And as Executor of Estate : CUMBERLAND COUNTY, PENNSYLVANIA Of NANCY K. BAKER, deceased : PLAINTIFF : _a V. - - • f;J CASEY J. WILLIAMS, D.M.D. : v=>` DEFENDANT : NO. 07-5475 CIVIL elm IN RE: SCHEDULING CONFERENCE ORDER OF COURT AND NOW, this 12th day March, 2014, after status conference with counsel; IT IS HEREBY ORDERED AND DIRECTED that: 1. All discovery in this matter shall be completed on or before June 30, 2014. 2. Plaintiff's expert reports shall be filed on or before June 30, 2014. Defendant's expert reports responding to the Plaintiff's expert reports shall be filed on or before July 30, 2014. Any Plaintiff rebuttal expert report shall be filed on or before August 30, 2014. 3. Any dispositive motions, if applicable, shall be filed on or before October 1, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the motions will be held during the November 14, 2014, Argument Court. 4. The case shall be tentatively set down for trial during the February 2015 Civil Trial Term. Given the fact that the 2015 court calendar has not yet been published, and assuming that counsel may have scheduling conflicts, continuance of the case to the May Civil trial term may be necessary. By the Court, M. L. Ebert, Jr., I J. Bradley Allison, Esquire Attorney for Plaintiff Thomas Weber, Esquire Attorney for Defendant Mark Mateya, Esquire bas EXHIBIT B (00711167;v1} GoldbergKatzman AT TORNEYS at LAW Email: tjw@goldbergIcatzman.com April 2, 2014 Bradley D. Allison, Esq. 102 West Penn St., Suite 1 Bedford, PA 15522 Re: Baker v. Williams Dear Brad: Following the status conference on March 12, 2014, I was under the impression you would be providing me with additional medical records pertaining to Mrs. Baker. In addition, you were going to provide me with some dates that your client was available for his deposition. As an accommodation, I would like to schedule Dr. Rychek's on the same day so as to eliminate your need to travel to the area on two occasions. Please provide me with an update as to when I might be able to expect those records and proposed deposition dates. Very truly yours, Th J` eb r TJW/jlb {00692439;v1} 4250 Crums Mill Road,Suite 301 I P.O.Box 6991 I Harrisburg,PA 17112 1717-234-4161 I fax:717-234-6808 I www.goldbergkatzman.com Plus convenient offices in downtown Harrisburg,Lancaster and Carlisle. EXHIBIT C {00711167;v1} GoldbergKatzman - ATTORNEYS at LAW Email: tjw@goldbergkatzman.com July 7, 2014 Bradley D. Allison,Esq. 102 West Penn St., Suite 1 Bedford, PA 15522 Re: Baker v. Williams Dear Brad: I hope this letter.finds you well. I am writing in response to my email of June 27, 2014. I am seeking your concurrence in stipulating as to a modification of the scheduling order in this matter. It is my recollection that Judge Ebert indicated during our conference that, given the fact that this was the first scheduling order issued,he would be amenable to requests from either party as to extensions. What I would be proposing would not impact the tentative trial terms set in this matter. Initially, I would like to extend the discovery deadline until August 15, 2014 and then extend the deadline for production of my expert reports until September 15, 2014, with your rebuttal reports, if any, due September 30, 2014. Paragraphs 3 and 4 of the scheduling order would remain unchanged. Kindly advise me as to whether you will agree to such approach. If you are not in a position to agree, I will file the appropriate motion with the Court and note your non- concurrence. V ly yours, (,,,,....... i fbi l: •omas J. 1'- .er TJW/j lb {00708210;v1} 4250 Crums Mill Road,Suite 301 I P.O.Box 6991 I Harrisburg,PA 17112 1717-234-4161 I fax:717-234-6808 I www.goldbergkatzman.com Plus convenient offices in downtown Harrisburg,Lancaster and Carlisle. CERTIFICATE OF SERVICE On this .V day of July, 2014, I certify that a copy of the foregoing was served upon the following parties of record by placing the same in the United States mail, first class,postage prepaid, addressed as follows: Bradley D. Allison, Esquire 10 W. Penn Street, Suite 1 Bedford, PA 15522 GO E G KATZMAN, P.C. "..:111\1\ita. 1/6°'"('1L&L Thomas J. W , Esquire (ID #58853) 00711167,v11 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, v. : CIVIL ACTION — LAW n, :.:,1....+ : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., ( '� : Defendant • : JURY TRIAL DEMANDED �4 PLAINTIFFS' MOTION IN LIMINE ' AND NOW, comes the Plaintiff(s), Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire and files this Motion in Limine, respectfully averring as follows: 1. The instant professional malpractice case was instituted by the filing of a Praecipe for Writ of Summons on or about September 14, 2007. 2. The Honorable M.L. Ebert, Jr. has been assigned to this case. 3. This Court issued an Order dated March 12, 2014 establishing case deadlines, including but not limited to production of Defendant's expert reports. 4. Plantiff(s) provided his expert reports to Defendant's counsel by June 30, 2014 in accordance with the aforesaid Order. 5. Defendant has failed to provide any expert report to date and within the time period established by this Court. 6. Defendant has no legitimate excuse for failing to provide any of his expert reports and particularly on any basis that he cannot provide such reports without the deposition testimony of Dr. Kovacs, the family physician of Nancy K. Baker. 7. Despite acknowledging more than three (3) years earlier that he wanted to take Dr. Kovacs' deposition and being provided with approximately 21 dates for such purpose, Defendant's counsel never noticed the deposition or served Dr. Kovacs with a subpoena directing him to attend a deposition within the deadline established by the Court. (See Exhibit "A" attached hereto). 8. Defendant was served with Notice to provide his liability expert report(s) on or about August 28, 2013. 9. Well more than 120 days have passed since service of such notice. 10. Defendant failed to comply with such notice as well. 11. In filing his Motion for Status Conference with this Court, Plaintiff alerted the Court to Defendant's failure to provide his liability expert report(s) as one of the bases for having deadlines, particularly for discovery and expert witness reports, established. 12. Given Defendant's failure to provide any expert report, he should be precluded from introducing or attempting to introducing any expert or expert report at the trial of this matter and an Order entered so precluding Defendant. 13. Pa.R.C.P. 4019(a)(viii) merits such an Order as a sanction for violating this Court's Order of March 12, 2014. 14. Thus, Plaintiff's Motion in Limine should be granted and the aforesaid Order entered in favor of Plaintiff(s). WHEREFORE, Plaintiff Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, respectfully requests your Honorable Court to grant Plaintiffs' Motion in Limine and preclude Defendant from introducing or attempting to introduce any expert testimony or report into evidence on Defendant's behalf at trial. Respectfully Submitted, LAW ICE OF : D LEY D. ALLISON 4 1 BY I ��� Ner 'ad ey '4. Allison, Esquire i .,. I.D. 1 o. 80072 Ai orney for Plaintiff(s) 162 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 3 Lf li a 1�3•.;: • a Y.1 A full-service law firm. January 12, 2011 Arthur L.Goldberg 11951-2MM Dr. Donald Kovacs Harry B.Goldberg Yellow Breeches Family Practice r196I-1901 1358 Lutztown Rd Boiling Springs,PA 17007 RotriF_t M.Katxmarr Paul I.Esposito Re: Nancy Baker v. Casey Williams J.Jay Cooper 1'!i.,m.>;> .Brenner Dear Dr. Kovacs: Jury i.l?!. I defend Dr. Williams in a dental malpractice case brought on behalf of l :.,.�,,_;c,>.� your former patient,Nancy Baker. Pennsylvania Rules prohibit me from Thorni.,.1,r�,F.ber speaking directly to you. As a result, I will need to take your deposition to learn �,e,;cr�t•r>rtthb the facts and circumstances of your treatment of Mrs. Baker. Plaintiffs counsel Royce L.lvtorris and I are hoping to accomplish this in February. The deposition can occur in my Joseph M.Sembrot office in Carlisle or in your office. Kindly contact(or have your office manager !.C;oitaldn LeQasgi contact) my secretary, Jennifer Boltz, to provide us with several dates, times and Jennifer L.Ruth locations that would be available for your deposition. I do not imagine the same S.Baker!:ertsinger will take more than two hours. Thank you for your attention to this matter. CouNsEL Joshua D.Lock Ver Iy yours, Arno!d B.Kogan A 111 Heather L.Paterno i- I hohlas J. 10 14/4. TJW/jlb cc: Bradley D. Allison, Esq. Casey J. Williams, D.M.D. ::O DM A1P C DOCS\DOCS12 0130711 EXHIBIT 320 Market Street,Strawberry Square I P.O.Box l2c1.1 Harrisi„ 8 / � 61 12.!.:.t..rySrlrt f)�5.1'!1 fi'ifvr fa4't+i'f[;i'..filNRI. LAW OFFICE OF BRADLEY D.ALLISON 102 W. Penn Street, Ste. 1 Bedford, PA 15522 Bradley D. Allison, Esquire Telephone No. (814) 623-7566 Fax No. (814) 623-7367 e-mail: b.allisonCa�embargmail.com or tlw1961@embargmail.com January 23, 2014 VIA EMAIL tiwRgoldbergkatzman.com AND REGULAR MAIL Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 RE: Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased v. Casey J.Williams, D.M.D., Cumberland County Docket No. 2007-05475 P Dear Tom: While I do not believe the taking of my client's deposition or that of Dr. Kovacs is necessary for you to produce your expert report countering our liability expert(s), I will be available for my client's deposition and a fact (not opinions) deposition of Dr. Kovacs on the following dates. You have never subpoenaed the Doctor, which has been available to you as a procedure for various years. My client and I are available the following dates for the depositions: February 27, March 3-7; and March 11-14. I trust that provides adequate dates for the depositions to be scheduled. I have depositions most of next week and a jury trial in West Virginia beginning on February 18; therefore, I will not be available before February 27. I look forward to hearing from ou as to yo . ailability on these dates. ce re's OfryP •ieyD. Alli.•n cc: Paul Baker CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 7th day of August, 2014 by having a copy of same faxed to Attorney Weber noted below at (717) 234-6808 and by having a copy of same placed in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 4250 Crums Mill Road Suite 301 P.O. Box 6991 Harrisburg, PA 17112 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 17013 By ra rey f5. Alli in, squire tt•rney for ' aintiff(s) 10 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as Executor of the ESTATE OF NANCY K BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant : IN THE COURT OF COMMON PLEAS OF, c:„ .: CUMBERLAND COUNTY, PENNS'aVJIA4 't CI3 Tr" ' rn : CIVIL ACTION — LAW r- Tc; =c) : NO. 2007-05475 P : JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S MOTION FOR EXTENSION OF CASE DEADLINES AND NOW, comes the Plaintiff(s), Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire and files this Reply to Defendant's Motion for Extension of Case Deadlines, respectfully setting forth as follows: 1. Admitted that this is a professional malpractice action involving a dentist. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that a scheduling conference was held with Judge Ebert in Chambers on March 12, 2014. It is specifically denied that the Court said that extensions would be entertained if a party felt it was having difficulty meeting deadlines. The Court said that if something came up with respect to the expert witness reports and meeting the deadline for such reports, the Court would consider an extension if needed. No such statement was made by the Court with respect to discovery deadlines, and the Court's statement did not indicate that a self-imposed problem as Defendant has caused here in meeting the scheduled deadlines 1 -< merits an extension or consideration of an extension. Strict proof otherwise is demanded. 4. Admitted in part and denied in part. It is admitted that an Order was entered at the Scheduling Conference. It is specifically denied that the Scheduling Conference with the Court was the sole impetus for establishment of the deadlines; to the contrary, Plaintiff file a Motion for a Status Conference prior thereto to have a conference with the Court and deadlines established and therein informed the Court that despite previously serving the required Notice Produce Defendant's Expert Report upon Defendant through his counsel on the issue of liability on August 28, 2013, his expert report(s) on liability had not been produced and deadlines for discovery, production of expert reports, and trial were necessary. Strict proof otherwise is demanded. 5. The averments of Paragraph 5 of Defendant's Motion are specifically denied as more fully set forth in Plaintiffs Motion for Protective Order previously filed, which is incorporated herein by reference as if set forth at length. By way of further answer, Defendant's counsel never once sent a letter, email, or any correspondence in response to approximately 21 proposed dates for such depositions to take place indicating that he was unable to conduct the depositions. He never responded to either of two (2) letters providing dates for such purpose, nor did he avail himself of the long-establish procedure under Pennsylvania law of serving Dr. Kovacs in particular with a subpoena requiring his attendance at a deposition, even though he knew that was necessary (See October 17, 2013 letter by Defendant's counsel attached 2 hereto as Exhibit "A" and was alerted by the undersigned to that very procedure again by correspondence dated January 23, 2014 emailed to Defendant's counsel attached hereto as Exhibit "B"). Strict proof otherwise is demanded. 6. It is admitted that both depositions could and should have been accomplished in less than a day, and given the same, no viable excuse exists for why Defendant's counsel could not have accomplished that over the course of this case and in one of the approximately 21 days previously provided for such purpose and within the deadline established by this Court. Strict proof otherwise is demanded. 7. Admitted in part and denied in part. It is admitted that such letter was written and additional medical records were in fact provided to Defendant's counsel. It is specifically denied that Defendant's counsel ever responded to any letter offering a plethora of dates for discovery to be accomplished. Strict proof otherwise is demanded. 8. Admitted with clarification. Plaintiff's counsel had already previously provided dates for his client and Dr. Kovacs to be deposed, which dates Defendant's counsel never responded to. 9. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 9 of Defendant's Motion. Strict proof thereof is demanded. By way of further response, Defendant's counsel never responded to any correspondence in writing or by telephone to indicate that such dates were 3 not sufficient to accomplish the depositions, nor does his email at 4:38 p.m. on Monday, June 30, 2014, the date of the deadline for discovery and in response to being provided by email at 4:35 p.m. that day with the Praecipe to File Plaintiff's Expert Reports along with the reports, various of the experts' CVs, and a Medical Bill Summary and Medical Treatment Summary, state that none of the dates proposed were available for him. His email states, in pertinent part, "Thank you. My spring got away from me. I have been meaning to email you... " (See Exhibit "C" attached hereto). The averment in 9 of Defendant's Motion completely lacks credibility under the circumstances before this Court. Strict proof otherwise is demanded. 10. Admitted. 11.The averments set forth in Paragraph 11 of Defendant's Motion are specifically denied. To the contrary, no email was ever sent by Defendant's counsel on June 27, 2014. The only email from Defendant's counsel was sent on June 30, 2014 at 4:38 p.m. only after Plaintiff's counsel had emailed his remaining expert reports to Defendant's counsel and various other related documents. (See Exhibit "C"). Strict proof otherwise is demanded. 12.Admitted in part and denied in part. The first sentence of such Paragraph is admitted. It is specifically denied that the proposed extensions would not interfere trial in as much as continued delay by Defendant will undoubtedly push this case beyond February, 2015 as a proposed trial period and unfairly cause Plaintiff to have to obtain supplemental reports, from Plaintiff's experts and at Plaintiff's additional expense, given any additional facts which may 4 arise in prolonged discovery. It would be patently unfair to Plaintiff(s) to permit Defendant to have received all of Plaintff's expert reports, do nothing to respond or develop Defendant's case despite more than ample time to do so, and now be given additional time for doing his work. Strict proof otherwise is demanded. 13.Admitted in part and denied in part. It is admitted that such letter dated July 11, 2014 was written by Plaintiff's counsel. The remaining averments are denied in as much as after reasonable investigation, Plaintiff's counsel is without knowledge or information sufficient to form a belief as to the truth of such averments. The same therefore are specifically denied and strict proof thereof is demanded. By way of further response, Defendant's counsel never notified Plaintiff, his counsel, or this Court of any change in address, including at the time of or prior to the July 7, 2014 letter authored by Defendant's counsel. Strict proof thereof is demanded. 14. Paragraph 14 contains a conclusion of law to which no response is required. By way of further response, Defendant's counsel has already had ample time to do his job but failed to accomplish the same with no legitimate excuse for such failure. Strict proof otherwise is demanded. 15.The averments of Paragraph 15 are specifically denied. To the contrary, Plaintiff will in fact be prejudiced in as much as he will, at his expense, have to obtain supplemental expert reports if new facts are gathered during additional discovery and unfairly be prevented from receiving Defendant's overdue expert reports, particularly those on the issue of liability which he 5 would have compelled by Motion to this Court absent the established deadline set by the Court for same as a result of the Scheduling Conference held with the Court. Strict proof otherwise is demanded. 16. Paragraph 16 of Defendant's Motion contains a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded. By way of further response, Defendant's counsel has not cited one single prejudicial effect of this Court's denial of Defendant's Motion, nor should this Court, in fairness, grant Defendant's counsel additional time to do a job he should have performed long ago and/or within the time periods established by this Court. Strict proof otherwise is demanded. 17. Paragraph 17 is a conclusion of law to which no response is required. To the extent that a response is deemed required, Defendant's counsel has had more than ample opportunity, as demonstrated above and by the attached Exhibits, to subpoena Dr. Kovacs to sit for a deposition on facts alone, not opinions, if he really needed to. Strict proof otherwise is demanded. 18. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 18 of Defendant's Motion. The same therefore are specifically denied, and strict proof thereof is demanded. By way of further response, Defendant's counsel has had at his disposal during the entirety of this case under the Pennsylvania Rules of Civil Procedure the ability to 6 subpoena Dr. Kovacs for a deposition. Never once has such counsel attempted to do so. Strict proof otherwise is demanded. 19. Paragraph. 19 of Defendant's Motion contains a conclusion of law to which no response is required. 20. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 20 of Defendant's Motion. The same therefore are specifically denied, and strict proof thereof is demanded. By way of further response, Defendant has failed to allege why such experts will be unable to do so. Moreover, if such deposition was truly necessary, Defendant surely would not have failed to accomplish the same in the ample time provided and within the deadline established by the Courts Order. Strict proof otherwise is demanded. 21. Plaintiff incorporates herein by reference his response to the same or similar averments set forth in Paragraph 12 above. 22. Paragraph 22 of Defendant's Motion contains a conclusion of law to which no response is required. To the extent that a response is deemed required, it is specifically denied that any Local Rule of the Cumberland County Court of Common Pleas mandates that parties in a civil case must go to a mediation. Strict proof otherwise is demanded. 23. Admitted. 24. Admitted. 7 WHEREFORE, Plaintiff Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, respectfully requests your Honorable Court to deny and dismiss Defendant's Motion for Extension of Case Deadlines. Respectfully Submitted LAW OE OF ' ' LEY D. ALLISON ley D. ison, Esquire .D. No. 80072 torney for Plaintiff(s) 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 PAUL W. BAKER, individually : IN THE COURT OF COMMON PLEAS OF And as Executor of Estate : CUMBERLAND COUNTY, PENNSYLVANIA Of NANCY K. BAKER, deceased : PLAINTIFF V. rnCV = CASEY J. WILLIAMS, D.M.D.: DEFENDANT : NO. 07-5475 CIVILr- -- -<>, N i —r -:_ -, "rn7 r... QG qty -`t. X © • a c-) i'l f .v IN RE: SCHEDULING CONFERENCE o .- :r ORDER OF COURT AND NOW, this 12th day March, 2014, after status conference with counsel; IT IS HEREBY ORDERED AND DIRECTED that: 1. All discovery in this matter shall be completed on or before June 30, 2014. 2. Plaintiff's expert reports shall be filed on or before June 30, 2014. Defendant's expert reports responding to the Plaintiff's expert reports shall be filed on or before July 30, 2014. Any Plaintiff rebuttal expert report shall be filed on or before August 30, 2014. 3. Any dispositive motions, if applicable, shall be filed on or before October 1, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the motions will be held during the November 14, 2014, Argument Court. 4. The case shall be tentatively set down for trial during the February 2015 Civil Trial Term. Given the fact that the 2015 court calendar has not yet been published, and assuming that counsel may have scheduling conflicts, continuance of the case to the May Civil trial term may be necessary. Bradley Allison, Esquire Attorney for Plaintiff rhomas Weber, Esquire Attorney for Defendant Mark Mateya, Esquire bas a0F.es fizaiLC., GoldbergKatzman ATTORNEYS at LAW October 17, 2013 Bradley D. Allison, Esq. 102 West Penn St., Suite 1 Bedford, PA 15522 Re: Baker v. Williams Dear Brad: Email: qw@goldbergkatzman.com Enclosed are Defendant's responses to your most recent discovery requests. I have not yet had the matter reviewed by an expert in that discovery has not been completed. I would like to take the deposition of Mr. Baker, as well as Dr. Kovacs. Previous attempts to cooperatively schedule Dr. Kovacs' deposition failed due to his refusal to cooperate or even respond. As a result, I believe it is going to be necessary to subpoena him for the deposition. So as to move the matters along, kindly provide me with a series of dates that you and your client would be available for his deposition and that you would also be available for Dr. Kovacs' deposition. Additionally, I know you had previously identified doctors upon whom you anticipated relying as experts in this matter. To ensure my file is complete and enable me to officially retain expert review in a timely manner, I respectfully request that you send me an additional copy of all the reports from all experts you anticipate calling at the trial of this matter. Thank you for your attention to this matter. Should you have any questions, please do not hesitate to contact me. ruly y Thomas J. Weber TJW/jlb Encl. cc: Reggie Green 100666821;v1} 4250 Crums Mill Road, Suite 301 1 P.O. Box 69 -234-4161 1 fax: 717-234-6808 I www.goldbergkatzmarr.corrr Plus convent irg, Lancaster and Carlisle. AaLt, LAW OFFICE OF BRADLEY D. ALLISON 102 W. Penn Street, Ste. 1 Bedford, PA 15522 Bradley D. Allison, Esquire Telephone No. (814) 623-7566 e-mail: b.allisonembarqmail.com or tlw1961@embarq ma il.com January 23, 2014 Fax No, (814) 623-7367 VIA EMAIL tiwOgoldbergkatzman.com AND REGULAR MAIL Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 RE: Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased v. Casey J. Williams, D.M.D., Cumberland County Docket No. 2007-05475 P Dear Tom: While I do not believe the taking of my client's deposition or that of Dr. Kovacs is necessary for you to produce your expert report countering our liability expert(s), 1 will be available for my client's deposition and a fact (not opinions) deposition of Dr. Kovacs on the following dates. You have never subpoenaed the Doctor, which has been available to you as a procedure for various years. My client and 1 are available the following dates for the depositions: February 27, March 3-7; and March 11-14. I trust that provides adequate dates for the depositions to be scheduled, I have depositions most of next week and a jury trial in West Virginia beginning on February 18; therefore, 1 will not be available before February 27. I look forward to hearing from ou as to yo pa ailability on these dates. cc: Paul Baker dley D. Alp Webmail Page 1 of 1 Webmail b.allison@embarqmail.com Baker v. Williams From CenturyLink Customer Wed, Apr 09, 2014 09:54 AM <b.allison@embarqmail.com> 01 attachment Subject : Baker v. Williams To : tjw <tjw@goldbergkatzman.com> Tom: See attached letter with dates for depos. Original will follow in mall. Brad Allison lettertoattyweberwithadditionaldatesfordepos.doc 27 KB http://mail.oenturylink.net/zimbra/h/printmessage?id=40049 7/2/2014 LAW OFFICE OF BRADLEY D. ALLISON 102 W. Penn Street, Ste. 1 Bedford, PA 15522 Bradley D. Allison, Esquire Telephone No. (814) 623-7566 e-mail: b.allisonaembaramail.com or tiw1961Ca embargmail.com April 9, 2014 Fax No. (814) 623-7367 VIA EMAIL tiwOgoldbergkatzman.com AND REGULAR MAIL Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 RE: Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased v. Casey J. Williams, D.M.D., Cumberland County Docket No. 2007-05475 P Dear Tom: have the following dates currently available for the deposition of my client, Paul Baker, and Dr. Kovacs: April 25 and 25 and May 1, 5, 7, 8, 22, 23, 27, and 28. In your recent letter, I believe you noted Dr. Rychak. That would appear to be incorrect. I presume the depositions can be taken either at Mark Mateya's office in Carlisle or your office there. Either is fine with me. I have no problem providing a copy of the records I have received from Harrisburg and Carlisle Hospitals; however, I will tell you that they are voluminous and were expense. Consequently, I will need to assess some reasonable copy charge given the sheer number of the documents. If you have any questions on that, please let me know. Otherwise, if I do not hear from you on that issue, I will have my paralegal start to copy them by next Tuesday so as to get them to you. Sincerely, Bradley D. Allison cc: Paul Baker • Webmail 1 of 1 http://mail.centurylink.net/zimbra/h/printmessage?id-48884 Webmail b.allison@embargmail.com Re: Baker v. Williams From : Thomas Weber <tjw@goldbergkatzman.com> Mon, Jun 30, 2014 04:38 PM Subject : Re: Baker v. Williams To : CenturyLink Customer <b.allison@embargmall.com> Thank you. My spring got away from me. I have been meaning to email you. Please let me know some dates you and your client are good for depositions. We can put them in the book and get them done. Sent from my 'Phone > On Jun 30, 2014, at 4:35 PM, "CenturyLink Customer" <b.allison@embargmail.com> wrote: > Tom: Attached is Praecipe to File Plaintiff's Expert Reports with reports and various of the experts CV's attached, along with > a Medical Bill Summary and Medical Treatment Summary. I am filing original of the Praecipe with the attached reports today in > > Cumberland County. You will receive a time -stamped copy in the mail of the Praecipe with its attachments. > Brad Allison > <medical bill summary for trial.xlsx> > <Medical treatment summary for trial.doc> > <20140630140147160,pdf> 8/7/2014 5:52 AM LAW OFFICE OF BRADLEY D. ALLISON 102 W. Penn Street, Ste. 1 Bedford, PA 15522 Bradley D. Allison, Esquire Telephone No. (814) 623-7566 Fax No. (814) 623-7367 July 2, 2014 Thomas J. Weber, Esquire Goldberg, Katzman 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 In re: Paul W. Baker, indiv. and as Executor of the Estate of Nancy K. Baker v. Casey J. Williams, D.M.D No. 2007-05475 P (Cumberland County) Dear Tom: I received your email on Monday, June 30, 2014 at 4:38 p.m. saying that your spring got away from you and that you wanted to know dates for depositions. The Court issued a Scheduling Order setting a discovery deadline of June 30, 2014. A copy of that Order is attached. You were present at the Conference held with the Court for that purpose and stated that you needed to take depositions. I also attach copies of three (3) letters: the first being your letter back in January, 2011 to Dr. Donald Kovacs indicating you wanted to take his deposition; the second is my letter to you dated January 23, 2014 providing a host of dates for my client's deposition; and the third is another letter from me to you which I emailed you on April 9, 2014 wherein I provided you, yet again, with a multitude of dates for depositions. In all, I provided you with approximately 21 dates to take my client's deposition and to schedule Dr. Kovacs as a fact -only witness to be deposed the same day. You never responded to either of my two letters, and you never made any effort to schedule any depositions, including send Dr. Kovacs a subpoena for such purpose. The timing for you to engage in further discovery has passed. I sought a Scheduling Order from the Court for a purpose: to move this case to a conclusion. You have never served any formal discovery requests upon the Plaintiff(s). To date, neither your client nor his carrier has made one penny of an offer to resolve the matter despite the severity of the circumstances involved. You will need to rely upon the materials you have been provided with or obtained yourself to date, which you and Dr. Williams' insurance carrier must have believed was sufficient to defend the case through trial given the absence of any attempt to resolve the case, to take depositions, or to serve discovery requests. Otherwise, in all of the time that passed from the filing of this case in 2007 and in particular from your first letter regarding taking Dr. Kovacs' deposition in 2011, you would have scheduled and completed the depositions, particularly that of my client, Paul Baker. Now is not the time to perform a job which you had more than ample time and opportunity to accomplish previously and in the time period imposed by the Court. I trust you understand our position on the matter. cc: Paul W. Baker (w/encls.) Mark Mateya, Esq. (w/encls.) adley D. llisori CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 7th day of August, 2014 by having a copy of same faxed to Attorney Weber noted below at (717) 234-6808 and by having a copy of same placed in the United States Mail, Postage Paid, addressed as follows: By Thomas J. Weber, Esquire Goldberg, Katzman 4250 Crums Mill Road Suite 301 P.O. Box 6991 Harrisburg, PA 17112 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 7013 Ill�radley D. llison, Esquire ttorney .r Plaintiff(s) 02 W. 'enn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF Executor of the ESTATE OF NANCY K. CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased PLAINTIFF V. CASEY J. WILLIAMS, D.M.D. DEFENDANT : NO. 07-5475 CIVIL ORDER OF COURT AND NOW, this 18th day of August, 2014, upon consideration of the Plaintiff's Motion for Protective Order, the Defendant's response thereto and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that: 1. Defendant is prohibited from engaging in any further written discovery or conducting any further discovery depositions. 2. In an exercise of discretion, this Court will allow the Defendant to file an expert report in this matter on or before September 5, 2014. Plaintiff will respond to this expert report on or before September 26, 2014. 3. All time limits that have been set as of this date will be strictly enforced. By the Court, — Bradley Allison, Esquire Attorney for Plaintiff Xhomas Weber, Esquire Attorney for Defendant /Dark Mateya, Esquire bas COT ,'ES 8/1/g//y PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased PLAINTIFF V. CASEY J. WILLIAMS, D.M.D. DEFENDANT : NO. 07-5475 CIVIL ORDER OF COURT AND NOW, this 18th day of August, 2014, upon consideration of the Defendant's Motion for Extension of Case Deadlines, the Plaintiff's Reply thereto, the Plaintiff's Request to Defendant for Production of Expert Reports filed on August 30, 2013, this Court's scheduling Order dated March 12, 2014, and fact that the case was actually begun on September 17, 2007, IT IS HEREBY ORDERED AND DIRECTED that: 1. No further discovery will be permitted in this case. The Plaintiff was afforded ample opportunity to depose Paul Baker and Dr. Ronald Kovacs, which should have been completed by June 30, 2014. Accordingly, there will be no deposition of Paul Baker or Dr. Ronald Kovacs. 2. The Defendant will be allowed to file an expert report, if he can produce one, on or before September 5, 2014. Plaintiff will respond to this expert report on or before September 26, 2014. 3. Any dispositive motions, if applicable, shall be filed on or before October 1, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the motions will be held during the November 14, 2014, Argument Court. 4. The case shall be set down for trial on or before February 2, 2015. Pretrial Conference in the case will be held on March 11, 2015. Trial in the matter will begin on March 23, 2015. All counsel are attached for this date. By the Court, .-Bradley Allison, Esquire Attorney for Plaintiff ✓ Thomas Weber, Esquire Attorney for Defendant ./Mark Mateya, Esquire Court Administrator —45 bas CO:t*E,s f Zat.t LcL 8 hsfiy `="fri GOLDBERG KATZMAN, P.C. Thomas J. Weber, Esquire - I.D. #58853 4250 Crums Mill Road, Suite 301 P. 0. Box 6991 Harrisburg, PA 17112 (717) 234-4161 Attorneys for Defendant 0i1-iONO " R f,UG 26 Fti 2:40 CUMBERL AND ,NCOINTY r EPdN.S PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiff v. CASEY J. WILLIAMS, D.M.D., Defendant CIVIL ACTION — LAW NO. 2007-05475 P JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR RECONSIDERATION AND NOW COMES the Defendant, Dr. Casey J. Williams, by and through his counsel, Goldberg Katzman, P.C., and files this Motion for Reconsideration of the Court's Order of August 18, 2014, and in support there of, avers the following: 1. Prior to the August 18, 2014 Court Order, various motions had been pending before the Court focusing on the completion of discovery and production of expert reports generally revolving around Plaintiff's request that no further discovery be conducted and Defendant's request for a limited extension of time within which to take two depositions prior to production of his expert reports. 2. The Court held brief oral argument on the outstanding motions. 3. On August 18, 2014, the Court issued its Order denying Defendant's request to take two depositions, and further, requiring that all expert reports be provided on or before September 5, 2014. {00714727;v1} 4. The Order goes on to indicate the trial in the matter will be conducted on March 23, 2015, one month later than had been contemplated previously by the parties. 5. In rendering its decision, the Court notes that the case was actually begun in 2007. 6. Although this is true, during the tenure of the case, there have been two periods of time, each approximately 3 years each in duration, wherein the Plaintiff did not do anything to prosecute the matter. 7. The Order also states that the Plaintiff (sic) [Defendant] was afforded ample opportunity to depose Paul Baker and Dr. Ronald Kovacs. 8. Although it is true that opportunity did exist to obtain the depositions, this fact is not determinative of Defendant's request for an extension of deadlines. 9. Defendant was not in violation of any discovery orders or motions to compel. 10. Plaintiff has not previously filed any motion seeking sanctions, nor obtained an order to such effect. 11. Although a scheduling order had been issued on the case in March 12, 2014 providing a discovery deadline, it was the first scheduling order entered. 12. Furthermore, at the time of the status conference leading to the March 12 Order, the Court acknowledged it was the first scheduling order and indicated that if the parties ran into difficulty complying, extensions would be entertained. 13. Although the Plaintiff did not specifically seek the imposition of sanctions, the Court's August 18, 2014 Order effectively constitutes the imposition of sanctions against the Defendant and his ability to properly defend the matter. {00714727;v1} 2 14. Although Plaintiff filed a Motion for Protective Order, to which Defendant had the opportunity to respond, and a Motion in Limine, to which Defendant did not have an opportunity to respond, Plaintiff never filed a Motion to Compel and/or for Sanctions Pursuant to Pa. R.C.P. No. 4019. 15. Nor has there ever been issued a specific discovery order that Defendant has violated. 16. In evaluating Defendant's Request for Extension of Deadlines, the Court should consider the impact granting the request would have on the timely resolution of the matter, as well as the prejudice to the respective parties on granting or denying the request. 17. The factors that must be considered when a discovery sanction is imposed are: (i) The defaulting party's failure in light of the prejudice caused to the opposing party and whether the prejudice can be cured; (ii) The defaulting party's willfulness or bad faith in failing to comply with the discovery order; (iii) The number of discovery violations; and (iv) The importance of the precluded evidence in light of the failure. Reilly v. Ernst & Young, L.P., 929 A.2d 1193 (Pa. Super. Ct. 2007). 18. No prejudice will occur to the Plaintiff by allowing the deposition of two witnesses mo 19. depositions. {00714727;v1} re than six months prior to trial. There has been no bad faith by the Defendant in not previously taking the two 20. Although the scheduling deadline has passed, Defendant's counsel's actions were not willful, but instead, improperly based on the relationship of the parties up until this time and the general practice in Central Pennsylvania as to discovery scheduling. 21. There have not been any previous discovery violations. 22. The importance of the depositions prior to trial is great. Given the identity of the deponents, Defendant cannot informally contact them, and instead, must pursue depositions. 23. Defendant's requested extensions did not delay resolution of the matter. In fact, Defendant had proposed having the matter proceed to trial one month earlier than it is now scheduled. 24. The only prejudice that would befall the Plaintiff by allowing the two depositions requested is the fact that the Plaintiff, himself, would have to be deposed. 25. Given his status in the matter, giving a deposition is not a prejudice, but should be an expectation. 26. Denial of the request may, in fact, have more prejudice to the Plaintiff in that depending on the outcome of the trial in the matter, the Court's refusal to grant a reasonable extension of time within which to complete discovery, which would not result in prejudice to the Plaintiff or delay at trial, may create an appellate issue. 27. The August 18, 2014 Order, in addition to denying Defendant's request to take two depositions, also imposed a requirement to propound expert reports on or before September 5, 2014, 18 days after the Order's issuance and 15 days after its receipt. 28. The period of time afforded the Defendant for production of his final expert reports also encompasses a holiday weekend. {00714727;vl) 4 29. Although it is possible Defendant could comply with the September 5, 2014 deadline, the same will be extremely difficult and pose serious burden on his experts. 30. In determining the timeliness of expert production, the Court should examine the prejudice to the non -producing party. 31. This prejudice must be shown, not assumed. Green V. Const. Co. v. Dept. of Transp., 643 A.2d 1129 (Pa. Cmwlth. Ct. 1994). 32. In that trial in this matter is not to occur until March 23, 2015, no prejudice can befall the Plaintiff by having the production of the expert reports occur subsequent to September 5, 2014. 33. Four factors must be analyzed when determining if expert testimony should be excluded fir untimely production: (i) The extent of any actual prejudice or surprise suffered by the party against whom the expert testified; (ii) The ability of that party to cure the prejudice or surprise; (iii) The extent to which allowance of the testimony disrupted the orderly and efficient trial of the case or of other cases of the court; and (iv) The bad faith or willfulness of the party that has failed to comply with the order. Neil by Neil v. Lu, 530 A.2d 103, 109 (Pa. Super. Ct. 1987). 34. No actual prejudice shall be suffered by Plaintiff by allowing Defendant to produce his expert reports by September 19, 2014. 35. Defendant has repeatedly informed the Plaintiff of his intent to produce expert reports in a timely fashion after the conclusion of discovery. {00714727;v1} 5 36. Plaintiff shall have ample opportunity to produce supplemental reports prior to the deadlines for dispositive motions (11 days if the deadline is not moved back, approximately a month if it is). 37. Extension of the deadline will not cause any disruption to the orderly and efficient trial of this case set for March 23, 2015 or other cases of the Court. 38. Although the deadline of the Scheduling Order has passed, there is no evidence of bad faith or willfulness on the part of the Defendant. 39. The August 18, 2014 Order indicates that any dispositive motions are to be filed before October 1, 2014. This date is a carry over from the initial March 12, 2014 Scheduling Order and was selected with an expectation that trial would occur in February of 2015. 40. Now that trial is not occurring until the end of March of 2015, it would be possible to move the deadline for filing dispositive motions back until October 31, 2014, thus affording Defendant a more reasonable time to produce his expert reports and still provide Plaintiff with ample time to file supplemental responses. The Dispositive Motions, if any, would be set down for argument by November 28, 2014, with argument to occur on December 19, 2014. 41. It is recognized there is an administrative push to move older cases to resolution. However, this administrative goal should not prejudice the Defendant in this matter when the requested relief will not prejudice the Plaintiff nor delay resolution of the matter. WHEREFORE, Defendant respectfully requests that the Court reconsider its Order of August 18, 2014 and extend the period of time for which discovery can be completed until September 12, 2014, and Defendant's time frame within which to provide expert reports until September 19, 2014. {00714727;v1) 6 Date: August 26, 2014 (00714727;v1) Respectfully Submitted, GOLDBERG KATZMAN, P.C. Thom J. ebe , squire (ID 8853) 4250 Crums Mill Road, Suite 301 P.O. Box 6991 Harrisburg, PA 17112 (T) 717/234-4161 (F) 717/234-6808 tjw@goldbergkatzman.com 7 CERTIFICATE OF SERVICE On this 26th day of August, 2014, I certify that a copy of the foregoing was served upon the following parties of record by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Bradley D. Allison, Esquire 10 W. Penn Street, Suite 1 Bedford, PA 15522 Mark Mateya, Esquire Mateya Law Firm 55 West Church Avenue Carlisle, PA 17013 GOLDBERG KATZMAN, P.C. Th {00714727;v1} as J. Webers Esquire (ff 58853) GoldbergKatzman ATTORNEYS at LAW Email: tjw@goldbergkatzman.com August 26, 2014 VIA HAND DELIVERY Curt Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: Baker v. Williams — No. 2007-05475 P Dear Mr. Long: Enclosed for filing in the above -referenced matter is an original and one copy of Defendant's Motion for Reconsideration. Kindly file the original, returning one time -stamped copy to the messenger. Should you have any questions, please do not hesitate to contact me. ours, (1(9- omas J. Weber TJW/jlb Encl. cc: Bradley D. Allison, Esq. Mark Mateya, Esq. The Honorable M.L. Ebert, Jr. {00714837;v1} 4250 Crums Mill Road, Suite 301 I P.O. Box 6991 I Harrisburg, PA 17112 717-234-4161 I fax: 717-234-6808 I www.goldbergkatzman.com Plus convenient offices in downtown Harrisburg, Lancaster and Carlisle. d PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYk,VARIA BAKER, deceased, : 0 -4-- —' Plaintiffs mu) "' r;-- V. : CIVIL ACTION — LAW r<' : NO. 2007-05475 P CASEY J. WILLIAMS, D.M.D., Defendant : : JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S MOTION FOR RECONSIDERATION AND NOW, comes the Plaintiff(s), Paul W. Baker, individually and as Executor of the Estate of Nancy K. Baker, deceased, by and through his attorney, Bradley D. Allison, Esquire and files this Reply to Defendant's Motion for Reconsideration, incorporating herein by reference as if set forth at length the Motion for Protective Order, Response to Defendant's Motion for Extension of Discovery and Expert Witness Deadlines; and Motion in Limine previously filed by Plaintiff(s). 1-3. Admitted. 4-5. Admitted. 6. The averments of Paragraph 6 of Defendant's Motion are specifically denied. To the contrary, Plaintiff(s) is the only party to have taken any deposition; to have prepared and served any formal discovery; and to have produced any expert witness reports prior to and within the time frame required by Order of Court. Strict proof otherwise is demanded. 7. Admitted. 8. The averments of Paragraph 8 of Defendant's Motion contain a conclusion of law to which no response is required. To the extent that a response is • deemed required, the Court has already determined based on facts provided in the case that Defendant had more than ample time to engage in discovery. That decision is law of the case, as no new facts have been presented by Defendant to warrant changing or modifying the Court's Order. Strict proof otherwise is demanded. 9-10. Paragraphs 9 and 10 of Defendant's Motion contains a conclusion of law to which no response is required. 11-12.The averments of Paragraphs 11 and 12 of Defendant's Motion have already been previously answered by Plaintiff(s) in the filing(s) incorporated herein above. 13.Paragraph 13 of Defendant's Motion contains a conclusion of law to which no response is required. 14-15. Paragraphs 14 and 15 of Defendant's Motion contain conclusions of law to which no responses are required. 16-19. Paragraphs 16 through 19 of Defendant's Motion contain conclusions of law to which no responses are required. 20. The averments of Paragraph 19 of Defendant's Motion are specifically denied. To the contrary, Defendant never asked for any extension of time to complete discovery, despite being given approximately 21 separate dates to complete depositions and never responding to letters providing such opportunity within the time period set by Order of Court. It is specifically denied that it is the general practice in Central Pennsylvania for parties to ignore discovery deadlines and expert witness deadlines, particularly when a status conference is held upon motion with the Court to have deadlines established to move the case towards trial. Strict proof otherwise is demanded. 21. Paragraph 21 of Defendant's Motion contains a conclusion of law to which no response is required. 22. Denied. After reasonable investigation, Plaintiff(s) is without knowledge or information sufficient to form a belief as to the truth of the averment set forth in the first sentence of Paragraph 22 of Defendant's Motion; the same therefore are specifically denied, and strict proof thereof is demanded. By way of further response, Defendant's own actions belie the importance of the proposed depositions, as approximately 21 opportunities were provided for the same to occur with no response from the Defendant. Strict proof otherwise is demanded. As for the second sentence, it is admitted that Defendant could not informally contact such potential deponents; however, Defendant was aware of the ability to subpoena one of the witnesses, and Defendant could easily have noticed Plaintiff Paul Baker's deposition but failed to do so. Consequently, Defendant waived the ability to undertake such discovery. Strict proof otherwise is demanded. 23-24.The averments of Paragraphs 23 and 24 of Defendant's Motion have already been answered by Plaintiff(s) in prior filing(s) incorporated herein above. 25-26. Paragraphs 25 and 26 of Defendant's Motion contain conclusions of law to which no responses are required. 27. Admitted in part and denied. It is admitted that the August 18, 2014 Order of Court requires Defendant to provide his expert reports by September 5, 2014. It is specifically denied that such Order is an imposition upon Defendant; to the contrary, it is any extension of more than a month of the prior deadline imposed upon Defendant to provide his expert reports. Strict proof otherwise is demanded. 28. The averments of Paragraph 28 of Defendant's Motion are specifically denied as stated. It is admitted that the time extension includes a holiday weekend which precedes the deadline by at least four days. It is specifically denied that the Court Order at issue requires production of the Defendant's expert report(s) on the day after the holiday; rather, four (4) more days are granted for such report(s) to be provided. Moreover, it is irrelevant that a holiday is included in the time period, as it would give the Defendant and his expert(s) even more time to concentrate on completing the report(s). Strict proof otherwise is demanded. 29. Denied. After reasonable investigation, Plaintiff(s) is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in the latter portion of Paragraph 29 of Defendant's Motion; the same therefore are specifically denied, and strict proof thereof is demanded. 30-34. Paragraphs 30 through 34 of Defendant's Motion contain conclusions of law to which no responses are required. 35. The averments of Paragraph 35 are specifically denied. Other than letters attached to prior filings with this Court attempting to engage in discovery after the Court-imposed deadline, Defendant has not informed Plaintiff(s) of any such intent. Strict proof otherwise is demanded. 36-38. Paragraphs 36 through 38 of Defendant's Motion contain conclusions of law to which no response is required. 39. Admitted in part and denied in part. The first sentence of Paragraph 39 of Defendant's Motion is admitted. As for the remaining averments, Plaintiff(s) is without knowledge or information sufficient to form a belief as to whether the Court just carried the dispositive motion date forward to the August 18, 2104 Order or decided under the circumstances to establish such deadline once again. Strict proof thereof is demanded. 40-41.Paragraphs 40 and 41 of Defendant's Motion contain conclusions of law to which no responses are required. By way of further response, the undersigned is attached for jury selection and trial in Blair County, Pennsylvania from December 15 through 19, 2014 and would be unavailable on the date proposed for argument. WHEREFORE, Plaintiff(s) respectfully requests your Honorable Court to deny and dismiss Defendant's Motion for Reconsideration. Respectfully Submitted, LAW OFF OF BRAD EY D. ALLISON BY r.. •ley D. A 'son, Esquire P... I.D. No 80072 At •rney fir Plaintiff(s) 11 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 2nd day of September, 2014 by having a copy of same faxed to Attorney Weber noted below at (717) 234-6808 and by having a copy of same placed in the United States Mail, Postage Paid, addressed as follows: Thomas J. Weber, Esquire Goldberg, Katzman 4250 Crums Mill Road Suite 301 P.O. Box 6991 Harrisburg, PA 17112 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 17013 ,111")\t‘ r By -:r:dley D. lison, Esquire A orney for Plaintiff(s) 112 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PAUL W. BAKER, individually : IN THE COURT OF COMMON PLEAS OF And as Executor of Estate : CUMBERLAND COUNTY, PENNSYLVANIA Of NANCY K. BAKER, deceased : PLAINTIFF V. CASEY J. WILLIAMS, D.M.D. DEFENDANT : NO. 07-5475 CIVIL ORDER OF COURT -7; co c) AND NOW, this 4th day September, 2014, upon Defendant's Motion for Reconsideration, and the Plaintiff's Answer thereto; IT IS HEREBY ORDERED AND DIRECTED that the Motion is GRANTED in part and DENIED in part. The Defendant's Motion to Extend Discovery until September 12, 2014, is DENIED. The Defendant's request to have until September 19, 2014, to produce his expert reports is GRANTED. IT IS FURTHER ORDERED AND DIRECTED that the scheduling Order of March 12, 2014, is amended. Plaintiff shall file any rebuttal expert report on or before October 10, 2014. Any dispositive motions, if applicable shall be filed on or before October 20, 2014. These motions will be set down for argument on or before October 24, 2014. Argument on the motions will be held during the November 14, 2014, argument court. By the Court, '7Bradley Allison, Esquire Attorney for Plaintiff iomas Weber, Esquire Attorney for Defendant ,..-krark Mateya, Esquire bas PAUL W. BAKER, individually and as : IN THE COURT OF COMMON PLEAS OF, Executor of the ESTATE OF NANCY K. : CUMBERLAND COUNTY, PENNSYLVANIA BAKER, deceased, Plaintiffs, v. CASEY J. WILLIAMS, D.M.D., Defendant : CIVIL ACTION — LAW : NO. 2007-05475 P : JURY TRIAL DEMANDED PRAECIPE TO FILE PLAINTIFFS' REBUTTAL EXPERT REPORTS TO: CUMBERLAND COUNTY PROTHONOTARY Pursuant to the Order of Court dated September 4, 2014, kindly file the attached rebuttal expert reports on behalf of Plaintiff(s). Respectfully Submitted, LAW OFFICE OF BRADr Y D. ALLISIN ley D. ison, quire D. No 80072 Att rney for Plaintiffs 10 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 Randall K. Stuart, D.M.D. 902 Echo Vale Drive Bedford, Pa 15522 (814) 623-2217 October 7, 2014 Bradley Allison, Esq. 102 West Penn Street, STE 1 Bedford, PA 15522 In accordance with your request to evaluate the opinion rendered by Dr. Eric Shirley, I offer the following rebuttal opinion. Information in this opinion was obtained from the transcripts of the testimony given by Nancy Baker, Dr. Casey Williams and Dr. Frederic Hecht. In addition, the chart notes of Dr. Williams and Dr. Ronald Kovacs as well as Dr. Eric Shirley's opinion served as a reference in preparing this report. There are several points that Dr. Shirley makes in his opinion that I professionally disagree with. The first is that Dr. Shirley believes that because there is nothing in the written chart notes that indicates Dr. Williams knew how long Ms. Baker had been experiencing pain, this somehow exonerates Dr. Williams. I believe the opposite. There is no evidence in the chart notes or Ms. Baker's testimony that Dr. Williams ever asked the question during that initial appointment. It is my opinion that the first thing Dr. Williams should've asked was, "how long have you been experiencing pain in your tongue?". This is a very significant component of putting together a diagnosis. Ms. Baker was a sporadic patient at best. It is very significant that Ms. Baker made an appointment specifically for a lesion on her tongue when she otherwise rarely sought out dental treatment. Dr. Shirley states that it is within the "applicable standard of care" to believe that a small enamel fracture in combination with a space between teeth #'s i8 and 20 could cause the tongue lesion and associated pain. However, when the radiographic images are examined, this theory seems unlikely. The images I reviewed show a space between teeth #i8 and #20 of approximately 3-4 millimeters. That is only significant because that space had been present for almost 45 years. It is unreasonable to believe that a space that has been present for that long could all of a sudden start causing a lump on the tongue. As for the fracture of tooth #20, the images dated 7/31/07 show a small, class II composite resin restoration indicating that the original fracture was relatively small. Certainly not indicative of something large enough to cause pain for several months. Also, Dr. Williams never informs Ms. Baker that she should return in a couple weeks to re-evaluate the tongue after the irritation had been smoothed. Under normal circumstances, this is the standard protocol. Dr. Williams did suggest and I.O.E. but for the purposes of "determining needs for restorative tx". Nothing about her tongue. Dr. Shirley also points out that because Ms. Baker didn't complain between the April 12 and May 14 appointment that this is significant. I disagree. Ms. Baker was told by a dentist that she implicitly trusted that the problem she was having in her tongue was caused by a chipped tooth and a gap between two of her teeth. She was told that by fixing the chip and closing the space her tongue would get better. She had no reason to believe otherwise. Dr. Shirley also states that every mouth ulcer need not be sent for biopsy. While I agree with this statement generally, in this particular case, at that first appointment Dr. Williams had enough information available to suspect something other than a minor tooth problem. He should've asked more questions and informed Ms. Baker that while the fracture may be the problem, it could very well be something else and a follow-up appointment was important to make sure it wasn't something more serious. There is no evidence in the chart notes or in Ms. Baker's testimony that she was ever told it could be something other than a minor tooth problem. The next point in Dr. Shirley's opinion that I disagree with is the interpretation of the July 19, 2007 appointment. Ms. Baker made that emergency appointment specifically because of tongue pain. Dr. Shirley believes that because this was the first complaint made by Ms. Baker in a few months that somehow justifies Dr. Williams continued failure to refer. Once again, it is my opinion that Ms. Baker was still under the belief that a chipped tooth was the problem. She still had no reason to believe anything else. Ms. Baker thought a great deal of Dr. Williams as was her testimony. She trusted his judgement. During the July 19, 2007 appointment, Dr. Williams still is not suspicious of the tongue lesion and/or associated pain and suggests a three unit, fixed bridge to close a 45 year old, 4mm space. Once again, Ms. Baker was led to believe that this space was now the problem and this procedure would relieve her pain. Nothing in the notes or testimony would indicate that she or Dr. Williams suspected cancer. Over the next 4 weeks, Ms. Baker was scheduled for various appointments including scaling and root planing and then a lengthy and painful crown and bridge procedure. Chart notes indicate that a referral was made to Oral Surgeon, Dr. Frederic Hecht, on Aug 9, 2007 for evaluation of her tongue lesion. However, it is of significance that during Ms. Baker's testimony, she vehemently denies ever being referred to Dr. Hecht by Dr. Williams. It was her testimony that she sought out Dr. Hecht's services on her own. Finally, Dr. Shirley finds it significant that on Aug 23, 2007, Dr. Kovacs saw Ms. Baker and indicated that he "did not find the ulcer remarkable." Dr. Kovacs is by all accounts a qualified family physican. However, to someone with only basic knowledge of oral lesions, aphthous ulcers and squamous cell cancer can appear similar. Dr. Kovacs opinion on any lesion in Ms. Baker's mouth is irrelevant. In summary, I reiterate my findings and conclusions in my initial report. Had Dr. Williams asked the right questions and recognized the risk factors, he -could've realized that he was potentially dealing with something other than a chipped tooth and a small, long standing space between two teeth. It is for the above reasons that I believe that Dr. Williams deviated from the standard of care in the treatment of Nancy Baker. All opinions in this report are given with a reasonable degree of dental certainty. Dr. Randall K. Stuart RKS/las ASSOCIATED QTOLARYNGOLOGISTS OF PENNSYLVANIA, INC. Bradley D. Allison, Esq. 102 W. Penn Street, Ste. 1 Bedford, PA 15522 October 7, 2014 Dear Mr. Allison, JOHN A. FORNADLEY, MD, FACS Room J. LEVIN, MD, PACS ANDREW M. SHAPIRO, MD, FAAP JON B. ISAACSON, MD F. DONALD COOPEY, MD, FACS JAMES P. MALONE, MD, FACS KEVIN C. GORDON, PA -C JAMIE THOMPSON, PA -C KATHRYN M. MCNAMARA, AUD, FAAA ERICA D. COLT, ADD, FAAA SANDRA C. RABIN, ADD, FAAA SARA R. BARRON, AUD, FAAA JODY S. BURKHART, MA, CCC -SLP I am writing this letter in response to an expert opinion provided by Ronald H. Blum, MD regarding the treatment of Nancy Baker, a patient of mine whom I first started treating in late 2007. I have had the opportunity to review all of the office records pertinent including those of Dr. Williams, Dr. Hecht, Dr. Malcolm, and myself. I have also had the opportunity to review all of the provided depositions including those of the patient Nancy Baker, her dentist Casey Williams, DMD, and oral surgeon Frederick Hecht, DMD. The primary issue in this case is whether there was a delay in her diagnosis of oral cancer, and if so, whether this impacted her outcome ultimately. Dr. Blum, a Medical Oncologist, has stated that (1) there was not a meaningful delay in her diagnosis. Furthermore, he states that (2) her disease stage and ultimate outcome would not have been different even if the cancer had been diagnosed promptly when she presented to her dentist Dr. Williams. The first point is not debatable as the medical record clearly demonstrates an almost 6 month delay by Dr. Williams in referral and cancer diagnosis. Having reviewed all of the records provided, the patient had initially seen Dr. Williams, her dentist, in early April with a non-healing oral ulcer. She was then seen by him three more times regarding this lesion and was never referred for a biopsy. Every dentist is trained in how to inspect the entire oral cavity including the lips, cheeks, floor of mouth, and tongue during their treatment. Not recognizing that a non-healing ulcer is potentially cancer, particularly in a high-risk patient, constitutes negligence. She ultimately was evaluated by Dr. Hecht, an Oral Surgeon, who immediately biopsied the lesion and referred her to me for definitive management. This was not until late August 2007. This constitutes an almost 6 month delay in diagnosis by definition. The second issue is whether the delay in diagnosis made a difference in her cancer staging and clinical outcome. Here again, I disagree with Dr. Blum's assessment. It is a fundamental tenet of Oncology that the earlier the malignancy is caught and treated, the better the outcome. Furthermore, it is absurd for him to state that the patient already had regional' metastatic disease when she presented initially to her dentist in April 2007, which was well over 6 months prior to her definitive surgical management. Dr. Blum apparently is able to divine this with Medical Certainty somehow. His letter implies that it does not matter when she was diagnosed, as the aggressive biology of her disease had already pre- determined its outcome. She would have had three lymph nodes positive no matter how much earlier the primary malignancy was identified. In my opinion, if anything, the biology of her disease seemed to be somewhat favorable since there was no evidence of -cancer recurrence when she passed away, despite the advanced stage of disease when I treated her. It was the morbidity of the complex 875 POPLAR CHURCH ROAD, SUITE 320 • CAMP HILL, PA 17011 • (717) 763-7400 • FAX: (717) 763-4177 34 NORTHEAST DRIvE • HERSHEY, PA 17033 • (717) 835-1900 • FAX: (717) 835-0980 www.AskAOP.cona treatment, which included surgery and combined chemoradiation therapy because of her advanced stage due to delay in treatment, that was ultimately responsible for her demise. I recognize that there are disease-specific and site-specific differences in malignancies and their management. For example, some early low/intermediate-grade prostate cancers may be observed only for a period of time rather than being treated with surgery or radiation. This similarly occurs with certain well-differentiated thyroid carcinomas. Oral cancer does not fall into this category of malignancies that might be observed without detriment to the patient. Had she been diagnosed with a Stage I or II tongue cancer, and even some Stage III cancers (for example had there been metastatic disease in only one lymph node), she would have been treated with surgical management alone. The requirement of adjuvant Radiation Therapy oftentimes is the single factor which pushes a frail patient over the edge in their ability to overcome and ultimately survive their disease. The addition of Chemotherapy to Radiation therapy makes the regimen all the more toxic to the patient and difficult to manage overall. I reiterate within a reasonable degree of medical certainty that had this patient's disease been promptly diagnosed at an earlier stage, her treatment could have been less aggressive, better tolerated, and survivable. Sincerely, Roger J. Levin, MD, FACS CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 9th day of October, 2014 by having a copy of same faxed to Attorney Weber noted below at (717) 234-6808 and by having a copy of same placed in the United States Mail, Postage Paid, addressed as follows: By Thomas J. Weber, Esquire Goldberg, Katzman 4250 Crums Mill Road Suite 301 P.O. Box 6991 Harrisburg, PA 17112 Mark Mateya, Esquire Mateya Law Firm 55 W. Church Avenue Carlisle, PA 17013 adley D. Ilison, Esquire A torney fir Plaintiff(s) 1 f2 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 PRAECIPE FOR LISTING CASE FOR JURY TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case for a Jury Trial. CAPTION OF CASE Lentire caption must be stated in fulli PAUL W. BAKER, individually and as Executor of the Estate of NANCY K. BAKER, deceased (Plaintiff) vs. Casey J. Williams, D.M.D., (Defendant) vs. (check one) 111 Civil Action - Law F Appeal from arbitration El (other) No. 2007-05475 Civil Term The trial list will be called on February 24, 2015 and Pretrials will be held on March 11, 2015 (Briefs are due 5 days before pretrials) Trials commence on March 23, 2015 Indicate the attorney who will try case for the party who files this praecipe: Bradley D. Allison, Esquire Indicate trial counsel for other parties if known: Thomas J. Weber, Esquire Goldberg, Katzman 4250 Crums Mill Road Suite 301, P.O. Box 6991 Harrisburg, PA 17112 This case is ready for trial. Date: January 13, 2015 Signed: Print Na e Bradley D Allison, Esquire Attorney for: Plaintiff(s) . Jn *call.q5 PDfrITY (1. cp53 815'795