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HomeMy WebLinkAbout09-3051Jaime D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire ATLEE, HALL & BROOKHART, LLP 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Court I.D. Nos. 80448 & 200540 Attorney for Petitioners JEANNE E. SMITH, as Personal Representative for the ESTATE OF GARY SMITH, Deceased, Plaintiff, vs. CNH AMERICA, LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and WOLVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. DQ -305( l.»lucC, 1 e-c JURY TRIAL DEMANDED PETITION FOR ALLOWANCE OF SUBPOENA FOR DEPOSITION UNDER 42 PA.C.S.A. § 5326 Jeanne E. Smith, as Personal Representative for the Estate of Gary Smith, Deceased, Petitioner, by and through her attorneys, Atlee, Hall & Brookhart, LLP, respectfully petitions the Court as follows: 1. Jeanne E. Smith is the duly-appointed personal representative of the Estate of Gary Smith, deceased. 3 2. The above-captioned matter arises out of an accident which occurred on August 9, 2006, when a Case 90XT Skid Steer Rollover Protection System fell on Gary Smith, killing him. 3. The Case 90XT Skid Steer Rollover Protection System fell on Mr. Smith because it was defective. 4. On August 19, 2008, Defendant Case produced documents in response to Plaintiff's First Request for Production of Documents. 5. Contained in the documents was evidence of another similar incident involving a 90XT Ski Steer where the hydraulic cab assist arm had failed, causing injury. 6. These documents identified John Reiff of 140 High Road, Shippensburg, Pennsylvania, as the owner of the 90XT Skid Steer. 7. It is believed that information and/or testimony obtained from John Reiff will be relevant to Plaintiff's allegation that the 90XT Skid Steer was defectively designed. 8. Despite numerous requests by counsel for the Petitioner, John Reiff has refused to respond to Petitioner's discovery requests. 9. It now appears to Petitioner that discovery may only be completed by the issuance of a Subpoena and the taking of oral deposition. 10. On April 6, 2009, Petitioner obtained a Commission from the Circuit Court for the County of Oakland, Michigan for a subpoena to issue to the Commonwealth of Pennsylvania. This Commission is attached hereto and incorporated herein as Exhibit "A." 4 11. Under 42 Pa.C.S.A. § 5326, the Judicial Code provides authority for the courts of the Commonwealth of Pennsylvania to assist in securing depositions in Pennsylvania for use in proceedings pending in another state. 12. Petitioner requests that a subpoena to attend a deposition by counsel for Petitioner Jeanne E. Smith be issued on John Reiff. A copy of the subpoena to be issued is attached as Exhibit "B." WHEREFORE, Petitioner respectfully requests that this Honorable Court enter the attached Order approving the Commission issued by the Circuit Court of the County of Oakland, Michigan and requiring the deposition of John Reiff. Respectfully submtted: Dated: 5kt? V 'I ATLEE, HAI//& BR,96"T, By: ?"a' Jackson, Esquire Eri L. Kirman-Boyer, Esquire Att rneys for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I. D. Nos. 80448 & 200540 5 C-vL48 - Vin. '6, 2'N9 ? :190 HILBORN & HILBORN ^?d STATE OF MICHIGAN N0, 832 P. 3 IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND JEANNE E. SMITH, as Personal Representative for the ESTATE OF GARY SMITH, Deceased, 08-091802-NP COW" Plaintiff, JUDGE STEVEN N. ANDREWS -vs- &M'TH4EAN E, V CNH AMERICA CNH AMERICA, LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and WOLVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, Defendants. CRAIG E. HILBORN (P43661) KEVIN C. RIDDLE (P57435) HILBORN & HILBORN, P.C, 999 Haynes St., Suite 205 Birmingham, MI 48009 (248) 642-8350 WILLIAM D. SHAILOR (P33531) SECREST, WARDLE, P.C. Attorney for Defendant, Wolverine Tractor & Equipment Co. 30903 Northwestern Highway Farmington Hills, MI 48333 (248) 539-2851 THOMAS G. CARDELLI (P31728) ANTHONY F. CAFFREY, III (P60531) CARDELLI, LANFEAR & BUIKEMA, P.C. Attorneys for Defendants, CNH America, LLC, Case Corporation, and Case Construction Equipment, Inc. - - , ` - `- 32 Z W'-Lincol'n ' - - -' Royal Oak, MI 48067 (248) 544-1100 DANIEL J. LA FAVE MARK A. KIRCHER MARCUS A. WESTER QUARLES & BRADY, LLP Attorneys for Defendants, CNH America, LLC, Case Corporation, and Case _..?+Coristrr??tiotl-Egatprrrent;?lnc- , ?. 411 East Wisconsin Ave., Ste. 2040 Milwaukee, WI 53202 (414) 2775000 EX PARTE ORDER ISSUING COMMIS ION TO ISSUE SUBPOENA AND DIRECT WITNESS TO APPEAR F S TI N A? <. '?. 2') C9 ' ; ; V;A1? 'ILBORN & NILBORN N0. 332 P, 4 At a session of said Court held in the City of Pontiac, minty Xftk?i# of Michigan, op ?? . y ?osAv HON. LE(j CIRCUIT COURT JUDGE This matter having come before the Court, pursuant to Plaintiff's Ex Parte Motion, and the Court being otherwise fully advised in the premises; IT IS HEREBY ORDERED a commission shall issue requesting a State of Pennsylvania Court to honor said commission and issue the necessary legal order/subpoena to allow the parties to seek testimony and/or obtain documents for use in the above captioned matter, specifically John Reiff. LEO BOWMAN CIRCUIT COURT JUDGE 0 1 h r,tc4f O COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JEANNE E. SMITH, as Personal Representative 66r the ESTATE OF GARY SMITH, Deceased V. File No. CNH AMERICA LLC, a Delaware Corporation, CASE ODRPO TICN, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign. co ration and WOLVERINE TRACTOR & EQUIPMENT,06., a Michigan corporation SUBPOENA TO ATTEND AND TESTIFY TO: John Reiff 140 High Road Shippensburg, PA 17257 L You are ordered by the court to come to Comfort Suites Downtown Carlisle 10 S. Hanover St., Carlisle, PA 17013 (Specify Courtroom or other place) at Cumberland County, Pennsylvania, on June 3, 2009 at 10: 00 o'clock, A. M,. to testify on behalf of Gary Smith in the above case, and to remain until excused. 2. And bring with you the following: All documents in your possession relating to the 90XT Skid Steer. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Jaime D. Jackson, Esquire Address: 8 North Queen Street, 4th Fl. Lancaster, PA 17603 Telephone: 717-393-9596 Supreme Court ID # 80448 BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) CERTIFICATE OF SERVICE I hereby certify that I have this day caused a true and correct copy of the foregoing document, to be served upon the following persons by placing a copy of the said document in the United States mail, first class mail, directed to their office addresses as follows: CRAIG E. HILBORN (P43661) KEVIN C. RIDDLE (P57435) HILBORN & HILBORN, P.C. 999 Haynes St., Suite 205 Birmingham, MI 48009 THOMAS G. CARDELLI (P31728), ANTHONY F. CAFFREY, III (P60531) CARDELLI, LANFEAR & BUIKEMA, P.C. Attorneys for Defendants, CNH America, LLC, Case Corporation, and Case Construction Equipment, Inc. 322 W. Lincoln Royal Oak, MI 48067 WILLIAM D. SHAILOR (P33531) SECREST, WARDLE, P.C. Attorney for Defendant, Wolverine Tractor & Equipment Co. 30903 Northwestern Highway Farmington Hills, MI 48333 DANIEL J. LA FAVE MARK A. KIRCHER MARCUS A. WESTER QUARLES & BRADY, LLP Attorneys for Defendants, CNH America, LLC, Case Corporation, and Case Construction Equipment, Inc. 411 East Wisconsin Ave., Ste. 2040 Milwaukee, WI 53202 Dated: 5l1a?09 ATLEE, HALL)£18ROOKHART, LLP By: v ra.QJJaacrson, Esquire r Plaintiff een Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I.D. No. 80448 FLED"() , ,';F OF ?M'F 2999 MAY 13 PM 1: 37 rc, 1, 1? s. sa ?d. A,I-ly ,4 svs;.l eK ? ? 2sazl? aLf 'OVA.4!L. Jaime D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire ATLEE, HALL & BROOKHART, LLP 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Court I.D. Nos. 80448 & 200540 Attorney for Petitioners JEANNE E. SMITH, as Personal Representative for the ESTATE OF GARY SMITH, Deceased, Plaintiff, vs. CNH AMERICA, LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and WOLVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. l Defendants MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR ALLOWANCE OF SUBPOENA FOR DEPOSITION UNDER 42 Pa.C.S.A. § 5326 1. STATEMENT OF FACTS The above-captioned matter arises out of an accident which occurred on August 9, 2006, when a Case 90XT Skid Steer Rollover Protection System fell on Gary Smith, killing him. The Case 90XT Skid Steer Rollover Protection System fell on Mr. Smith because it was defective. On August 19, 2008, Defendant Case produced documents in response to Plaintiff's First Request for Production of Documents. Contained in the w documents was evidence of another similar incident involving a 90XT Ski Steer where the hydraulic cab assist arm had failed, causing injury. These documents identified John Reiff of 140 High Road, Shippensburg, Pennsylvania, as the owner of the 90XT Skid Steer. It is believed that information and/or testimony obtained from John Reiff will be relevant to Plaintiff's allegation that the 90XT Skid Steer was defectively designed. Despite numerous requests by counsel for the Petitioner, John Reiff has refused to respond to Petitioner's discovery requests. It now appears to Petitioner that discovery may only be completed by the issuance of a Subpoena and the taking of oral deposition. On April 6, 2009, Petitioner obtained a Commission from the Circuit Court for the County of Oakland, Michigan for a subpoena to issue to the Commonwealth of Pennsylvania. This Commission is attached hereto and incorporated herein as Exhibit "A." II. QUESTION PRESENTED Whether a Subpoena to Attend and Testify should be issued by this Court to John Reiff under 42 Pa.C.S.A. 5326, in accordance with the Commission issued by the Circuit Court for the County of Oakland, Michigan? Suggested Response: Yes. III. ANALYSIS Under 42 Pa.C.S.A. § 5326, the Judicial Code provides authority for the courts of the Commonwealth of Pennsylvania to assist in securing depositions in Pennsylvania for use in proceedings pending in another state. The Circuit Court for the County of Oakland, Michigan has requested such assistance in securing the deposition of John 2 14 Reiff, a resident of Cumberland County, Pennsylvania. See, Exhibit "A." Upon such a request, the Court may order the deposition of a Pennsylvania resident. 42 Pa.C.S.A. § 5326. IV. CONCLUSION WHEREFORE, Petitioner respectfully requests that this Honorable Court enter the attached Order approving the Commission issued by the Circuit Court of the County of Oakland, Michigan and requiring the deposition of John Reiff. Respectfully submitted: Dated:rJ`loL`09 ATLEE, HAL BRkH By: 4' YJackson, Esquire ErL. Kirman-Boyer, Esquire Attorneys for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I. D. Nos. 80448 & 200540 3 CERTIFICATE OF SERVICE I hereby certify that I have this day caused a true and correct copy of the foregoing document, to be served upon the following persons by placing a copy of the said document in the United States mail, first class mail, directed to their office addresses as follows: CRAIG E. HILBORN (P43661) KEVIN C. RIDDLE (P57435) HILBORN & HILBORN, P.C. 999 Haynes St., Suite 205 Birmingham, MI 48009 THOMAS G. CARDELLI (P31728) ANTHONY F. CAFFREY, III (P60531) CARDELLI, LANFEAR & BUIKEMA, P.C. Attorneys for Defendants, CNH America, LLC, Case Corporation, and Case Construction Equipment, Inc. 322 W. Lincoln Royal Oak, MI 48067 Dated: Cjtlakoct WILLIAM D. SHAILOR (P33531) SECREST, WARDLE, P.C. Attorney for Defendant, Wolverine Tractor & Equipment Co. 30903 Northwestern Highway Farmington Hills, MI 48333 DANIEL J. LA FAVE MARK A. KIRCHER MARCUS A. WESTER QUARLES & BRADY, LLP Attorneys for Defendants, CNH America, LLC, Case Corporation, and Case Construction Equipment, Inc. 411 East Wisconsin Ave., Ste. 2040 Milwaukee, WI 53202 ATLEE, HALL By: ra a li. Jackson, t:squire AMorney for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I.D. No. 80448 FiLEo " ,-Fil T . ; t T . ?Y CF T!-r F,.,, s 20p MA`s 13 PH 1: 3? CUM "UNTY SY? ?» ; ECKERT SEAMANS CHERIN & MELLOTT, LLC Mark E. Gebauer, Esquire (I.D. No. 79646) 213 Market Street, a Floor Harrisburg, PA 17101 717-237-6000 mqebauer@eckertseamans.com Attorneys for Defendant CNH America LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JEANNE E. SMITH, as personal Representative for the ESTATE OF GARY SMITH, Deceased, CIVIL TERM - LAW Plaintiff, : No. 09-3051 V. : JURY TRIAL DEMANDED CNH AMERICA LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and WOLVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, Defendants. CNH AMERICA LLC'S RESPONSE TO PLAINTIFF'S PETITION FOR DEPOSITION SUBPOENA PER COMMISSION ISSUED BY OAKLAND COUNTY, MICHIGAN CIRCUIT COURT CNH America LLC, by and through its attorneys Mark Gebauer and Eckert Seamans, Cherin & Mellott, LLC, responds to plaintiff's Petition which requests this Court to issue a deposition subpoena for a matter pending in the State of Michigan, Oakland County Circuit Court. fLO377492.1} CNH does not oppose the issuance of the requested subpoena. However, CNH disputes many of the averments in the Petition which unnecessarily seek to characterize the pending litigation, and therefore, CNH the makes the following responses to the paragraphs of the Petition: The averments of paragraph 1 of the Petition state legal conclusions requiring no response. 2. CNH denies the averments of paragraph 2, except to state that the subject litigation concerns an August 9, 2006, accident involving a Case 90XT Skid Steer Loader. 3. CNH denies the averments of paragraph 3, and states that no defect in the Loader caused or contributed to the subject accident. 4. Admitted. 5. CNH denies the averments of paragraph 5, and states that no defect in the Loader caused or contributed to the subject accident, and that no other accidents involving substantially similar facts and circumstances which could constitute "evidence" exist in the referenced materials. 6. CNH denies the averments of paragraph 6, except to state that Mr. John Reiff's name appeared in certain documents. 7. CNH denies the averments of paragraph 7, and incorporates by reference its responses to paragraphs 2, 3, 5, and 6, above. 8. CNH is without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 8. 2 9. CNH is without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 9. 10. The averments of paragraph 10 state legal conclusions requiring no response. 11. The averments of paragraph 11 state legal conclusions requiring no response. 12. The averments of paragraph 12 state legal conclusions requiring no response. CNH likewise denies and objects to the characterizations made in plaintiff's "Memorandum of Law" accompanying the Petition. However, to avoid unnecessary paperwork and filings with the Court, CNH will not (unless the Court directs it to) file its own Brief, but instead simply asserts herein its objections, and incorporates the responses set forth above. 3 WHEREFORE, CNH America LLC does not object to the issuance of the requested subpoena, but respectfully requests that the Court not incorporate, mention or utilize the averments of the Petition to which CNH objects, considering the responses and clarifications set forth above. Respectfully Mark E. Gebauer, Esquire I.D. No. 79646 Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8t' Floor Harrisburg, PA 17101 Telephone: 717-237-6052 May 15, 2009 Attorneys for CNH America LLC 4 CERTIFICATE OF SERVICE I certify that on this 15th day of May 2009, 1 served a copy of DEFENDANT CNH AMERICA LLC'S RESPONSE TO PLAINTIFF'S PETITION FOR DEPOSITION SUBPOENA via U.S. First-Class mail, postage prepaid, addressed to: Jamie D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire Atlee, Hall & Brookhart, LLP 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Thomas G. Cardelli, Esquire Anthony F. Caffrey, III, Esquire Cardelli, Lanfear & Buikema, P.C. 322 W. Lincoln Avenue Royal Oak, MI 48067 Daniel J. LaFave, Esquire Quarles & Brady, LLP 411 East Wisconsin Ave., Suite 2040 Milwaukee, WI 53202 Craig E. Hilbom, Esquire Kevin C. Riddle, Esquire Hilbom & Hilbom, P.C. 999 Haynes St., Suite 205 Birmingham, MI 48009 William D. Shailor, Esquire Secrest, Wardle, P.C. 30903 Northwestern Highway Farmington Hills, MI 48333 Attorneys for CNH America LLC 5 OF THIE 2909 MAY 18 PM 2: 5 2 . i Jaime D Jackson, Esquire Erica L. Kirman-Boyer, Esquire ATLEE, HALL & BROOKHART, LLP 8 North Queen Street P.O. Bo 449 Lancaste r, PA 17608-0449 Court I. . Nos. 80448 & 200540 Attorne for Petitioners JEANN E. SMITH, as Personal Represe tative for the ESTATE OF GARY SMITH Deceased, vs CNH A ERICA, LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and W LVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 09-3051 JURY TRIAL DEMANDED DED PETITION FOR ALLOWANCE OF SUBPOENA FOR DEPOSITION UNDER 42 PA.C.S.A. § 5326 E. Smith, as Personal Representative for the Estate of Gary Smith, , Petitioner, by and through her attorneys, Atlee, Hall & Brookhart, LLP, petitions the Court as follows: 1. Jeanne E. Smith is the duly-appointed personal representative of the Estate Of Gary Smith, deceased. 2. The above-captioned matter arises out of an accident which occurred on Augus? 9, 2006, when a Case 90XT Skid Steer Rollover Protection System fell on Gary Smith, killing him. 3. The Case 90XT Skid Steer Rollover Protection System fell on Mr. Smith because ?t was defective. 4j. On August 19, 2008, Defendant Case produced documents in response to ifps First Request for Production of Documents. Contained in the documents was evidence of another similar incident involvin? a 90XT Ski Steer where the hydraulic cab assist arm had failed, causing injury. These documents identified John Reiff of 140 High Road, Shippensburg, as the owner of the 90XT Skid Steer. It is believed that information and/or testimony obtained from John Reiff will be relevant to Plaintiff's allegation that the 90XT Skid Steer was defectively design . Despite numerous requests by counsel for the Petitioner, John Reiff has refused to respond to Petitioner's discovery requests. It now appears to Petitioner that discovery may only be completed by the issuanc of a Subpoena and the taking of oral deposition. 10. On April 6, 2009, Petitioner obtained a Commission from the Circuit Court r the County of Oakland, Michigan for a subpoena to issue to the Commonwealth of Pennsylvania. This Commission is attached hereto and incorporated herein is Exhibit "A." 2 1. Under 42 Pa.C.S.A. § 5326, the Judicial Code provides authority for the courts of the commonwealth of Pennsylvania to assist in securing depositions in Pennsyl ania for use in proceedings pending in another state. 2. Petitioner requests that a subpoena to attend a deposition by counsel for Jeanne E. Smith be issued on John Reiff. A copy of the subpoena to be issued ij attached as Exhibit "B." No Judge has ruled upon any other issue in the same or related matter. 4. Concurrence in this Petition was not sought because the Petition was by Mr. Reiff's refusal to respond to Plaintiff's discovery requests. Petitioner respectfully requests that this Honorable Court enter the atta?hed Order approving the Commission issued by the Circuit Court of the County of , Michigan and requiring the deposition of John Reiff. Respectfully submitted: Dated: ATLEE, HALL & BROOKHART, LLP ?J?/l.rt•(l? 13y. Jaime D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire Attorneys for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I.D. Nos. 80448 & 200540 3 CERTIFICATE OF SERVICE I document, the United CRAIG E. KEVIN C. HILBORN 999 Havne THOMAS ANTHON P.C. Attorneys LLC, Cas 322 W. Lij Royal Oak Dated: certify that I have this day caused a true and correct copy of the foregoing be served upon the following persons by placing a copy of the said document in mail, first class mail, directed to their office addresses as follows: MLBORN (P43661) WILLIAM D. SHAILOR (P33531) RIDDLE (P57435) SECREST, WARDLE, P.C. 4i HILBORN, P.C. Attorney for Defendant, Wolverine Tractor St., Suite 205 & Equipment Co. i, MI 48009 30903 Northwestern Highway Farmington Hills, MI 48333 3. CARDELLI (P31728) 'F. CAFFREY, III (P60531) DANIEL J. LA FAVE [, LANFEAR & BUIKEMA, MARK A. KIRCHER MARCUS A. WESTER ar Defendants, CNH America, QUARLES & BRADY, LLP Corporation, and Case Attorneys for Defendants, CNH America, n Equipment, Inc. LLC, Case Corporation, and Case Coln Construction Equipment, Inc. MI 48067 411 East Wisconsin Ave., Ste. 2040 Milwaukee, WI 53202 510ci ATLEE, HALL & BROOKHART, LLP By: / aime D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire Attorneys for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I. D. No. 80448 & 200540 1: 2 ECKERT SEAMANS CHERIN & MELLOTT, LLC Mark E. Gebauer, Esquire (I.D. No. 79646) 213 Market Street, a Floor Harrisburg, PA 17101 717-237-6000 mQebauer@eckertseamans.com Attorneys for Defendant CNH America LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JEANNE E. SMITH, as personal Representative for the ESTATE OF GARY SMITH, Deceased, CIVIL TERM - LAW Plaintiff, : No. 09-3051 V. JURY TRIAL DEMANDED CNH AMERICA LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and WOLVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, Defendants. CNH AMERICA LLC'S AMENDED RESPONSE TO PLAINTIFF'S AMENDED PETITION FOR DEPOSITION SUBPOENA PER COMMISSION ISSUED BY OAKLAND COUNTY, MICHIGAN CIRCUIT COURT CNH America LLC, by and through its attorneys Mark Gebauer and Eckert Seamans, Cherin & Mellott, LLC, responds to plaintiff's Amended Petition which requests this Court to issue a deposition subpoena for a matter pending in the State of Michigan, Oakland County Circuit Court. (LO379134.1) CNH does not oppose the issuance of the requested subpoena. However, CNH disputes many of the averments in the Amended Petition which unnecessarily seek to characterize the pending litigation, and therefore, CNH makes the following responses to the paragraphs of the Amended Petition: 1. The averments of paragraph 1 of the Amended Petition state legal conclusions requiring no response. 2. CNH denies the averments of paragraph 2, except to state that the subject litigation concerns an August 9, 2006, accident allegedly involving a Case 90XT Skid Steer Loader. 3. CNH denies the averments of paragraph 3, and states that no defect in the Loader caused or contributed to the subject accident. 4. Admitted. 5. CNH denies the averments of paragraph 5, and states that no defect in the Loader caused or contributed to the subject accident, and that no other accidents involving substantially similar facts and circumstances which could constitute "evidence" exist in the referenced materials. 6. CNH denies the averments of paragraph 6, except to state that Mr. John Reiff's name appeared in certain documents. 7. CNH denies the averments of paragraph 7, and incorporates by reference its responses to paragraphs 2, 3, 5, and 6, above. 8. CNH is without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph B. 2 9. CNH is without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 9. 10. The averments of paragraph 10 state legal conclusions requiring no response. 11. The averments of paragraph 11 state legal conclusions requiring no response. 12. The averments of paragraph 12 state legal conclusions requiring no response. 13. The averments of paragraph 13 are unclear, but CNH agrees that it is not aware of any Order from this Court regarding plaintiff's original Petition. 14. CNH is without knowledge or information sufficient to form a belief as to the truth of the averments in paragraph 14. CNH likewise denies and objects to the characterizations made in plaintiff's "Memorandum of Law" accompanying the Petition. However, to avoid unnecessary paperwork and filings with the Court, CNH will not (unless the Court directs it to) file its own Brief, but instead simply asserts herein its objections, and incorporates the responses set forth above. 3 WHEREFORE, CNH America LLC does not object to the issuance of the requested subpoena, but respectfully requests that the Court not incorporate, mention or utilize the averments of the Petition or Amended Petition to which CNH objects, considering the responses and clarifications set forth above and in CNH's original Response. Eckert Seamans Cherin & Mellott, 213 Market Street, 8th Floor Harrisburg, PA 17101 Telephone: 717-237-6052 June 3, 2009 Attorneys for CNH America LLC 4 CERTIFICATE OF SERVICE I certify that on this 3rd day of June 2009, 1 served a copy of DEFENDANT CNH AMERICA LLC'S AMENDED RESPONSE TO PLAINTIFF'S AMENDED PETITION FOR DEPOSITION SUBPOENA via U.S. First-Class mail, postage prepaid, addressed to: Jamie D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire Atlee, Hall & Brookhart, LLP 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Thomas G. Cardelli, Esquire Anthony F. Caffrey, III, Esquire Cardelli, Lanfear & Buikema, P.C. 322 W. Lincoln Avenue Royal Oak, MI 48067 Daniel J. LaFave, Esquire Quarles & Brady, LLP 411 East Wisconsin Ave., Suite 2040 Milwaukee, WI 53202 Craig E. Hilbom, Esquire Kevin C. Riddle, Esquire Hilbom & Hilbom, P.C. 999 Haynes St., Suite 205 Birmingham, MI 48009 William D. Shailor, Esquire Secrest, Wardle, P.C. 30903 Northwestern Highway Farmington Hills, MI 48333 ark E efauer, Esquire to evs for CNH America LLC 5 FILED--C; iRCI OF THE ; -O s f ONOTARY 2009 JUN -4 PM 1: 31 CUM8Ei;L "-,! i? COUNTY PENNSYLVANIA Jaime D. Jackson, Esquire Erica L. Kirman-Boyer, Esquire ATLEE, HALL & BROOKHART, LLP 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Court I. D. Nos. 80448 & 200540 Attorney for Petitioners JEANNE E. SMITH, as Personal Representative for the ESTATE OF GARY SMITH, Deceased, Plaintiff, vs. CNH AMERICA, LLC, a Delaware corporation, CASE CORPORATION, a foreign corporation, CASE CONSTRUCTION EQUIPMENT, INC., a foreign corporation, and WOLVERINE TRACTOR & EQUIPMENT CO., a Michigan corporation, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 04 GlutL l JURY TRIAL DEMANDED MAY 14 2009 4 ORDER AND NOW, this 0 day of T" At, , 2009, upon consideration of Plaintiff's Petition For Allowance Of Subpoena For Deposition Under 42 Pa.C.A. § 5326, it is hereby ORDERED AND DECREED that the Commission issued by the Circuit Court of the County of Oakland, Michigan is APPROVED, and that a Subpoena pursuant to Pa. R.C.P. 234.1 shall issue out of and under the seal of this court, directed to John Reiff, requiring him to appear for deposition by counsel for Jeanne E. Smith within 30 days of the issuance of the Subpoena. BY THE COURT: 2 ? ^t; t i{! r '_1i F _ ? ,?!,? U? .. .,w, 1 .? .. il?? Sheriffs Office of Cumberland County R Thomas Kline a ' at cuiultrr Edward L Schorpp Sheri r: 410 Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFFICE OF THE SKRIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/10/2009 12:45 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on June 10, 2009 at 1245 hours, he served a true copy of the within Subpoena, Order, Memorandum of law in support of petition for allowance of subpoena for deposition under 42 PA.C.S.A. 5326 and Amended petition for allowance of subpoena for deposition under 42 PA.C.S.A. 5326, upon the within named defendant, to wit: John Reiff, by making known unto Jeannine Reiff, daughter of defendant at 140 High Road Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $46.00 SO ANSWERS, June 11, 2009 R THOMAS LINE, SHERIFF puty Sheriff 2009-3051 Jeanne Smith V John Reiff r 1 S c- -n 7z 1a ? r GJ