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HomeMy WebLinkAbout01-0950EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants NOTICE You have been sued in Court. ff 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 CTkN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law I01 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants No. COMPLAINT This is an action for preliminary and permanent injunctive relief, and other damages arising out of Defendants', Michael Spotswood and Irene Spotswood, refusal to allow access to a home which had been rented by Plaintiffs, the condition which has caused serious harm to the minor Plaintiff as well as his parents. THE PARTIES 1. Plaintiffs, Pablo Adam and Anita Adam, are adult individuals residing at 114 Franklin Square, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendants, Michael Spotswood and Irene Spotswood, are adult individuals maintaining a permanent residence and domicile at 11 Southern Cross Drive, Boiling Springs, Cumberland County, Pennsylvania 17007, They are currently living temporarily in the Republic of Germany at the following address: Parkstr 20, 61118 Bad Vilbel, Germany. 3. Prior to the filing of this Complaint in equity, Plaintiffs have filed a Praecipe for Writ of Summons in a civil action in order to collect damages for the injuries to them and their minor child as a result of the condition of this premises; docketed to 01-716, Civil Term, 2001. JURISDICTION AND VENUE 4. Jurisdiction is based on the Pennsylvania Constitution, Article 5, Section 5; and 42 Pa.C.S.A. §931 (a), both of which confer broad original jurisdiction upon the Court of Common Pleas. 5. Defendants are domiciled in the State of Pennsylvania and maintain a permanent residence at the subject premises. 6. Defendants have removed themselves from this country and are temporarily living at the address noted above. 7. This Honorable Court has appropriate jurisdiction and venue in that all parties entered into this lease in Cumberland County, Pennsylvania, and the injury to Plaintiffs occurred in Cumberland County as well. FACTUAL ALLEGATIONS On or about September 16, 2000, Plaintiffs rented and physically moved into 11 Southern Cross Drive, Boiling Springs, Pennsylvania, which is owned by Defendants. 9. Shortly after moving into said premises, Plaintiffs noticed an unusual growth or mold and mildew appearing in various parts of the home. On information and belief, the home had been infected with a Stachybotrys mold and other unknown toxins and molds which eventually caused serious bodily injury to Plaintiffs' minor child. 10. On or about November 9, 2000, the Analytical Laboratory Service performed a mold test. This test suggested that upon initial review the mold present in the subject home was consistent with a description of Stachybotrys. 11. On or about November 12, 2000, Plaintiff, Andrew Phillip Adam ~ hereinafter referred to as "Andrew"), began coughing late in the afternoon and by early morning his fever was 103.5° to 104°. 12. On or about November 13, 2000, Andrew was seen by Dr. Hoffman at Carlisle Pediatrics who diagnosed Pneumonia and prescribed Zythromax. A chest x-ray was taken at this time. 13. On or about November 13, 2000, a second opinion was requested from Advanced Applied Sciences concerning the presence of Stachybotrys. At that time, the engineer performing same recommended that Plaintiffs vacate the premises. 14. On or about November 15, 2000, a second test conducted by Advanced Applied Sciences confirmed the presence of Stachybotrys. Plaintiffs were again advised to vacate the premises. 15. On or about November 21, 2000, Andrew's symptoms worsened. He was again examined by Carlisle Pediatrics, a second x-ray was taken and a diagnosis was made that the Pneumonia was spreading. The doctor prescribed Augmentin. 16. On or about December 6, 2000, Andrew began an episode of serious diarrhea. Related symptoms included low-grade fever, mouth pain and a rash. 17. On or about December 7, 2000, Advanced Applied Sciences confirmed the presence of Stachybotrys with the highest concentration of same in Andrew's room. 18. On or about December 15, 2000, Carlisle Pediatrics referred Andrew to Carlisle Hospital for a blood count, which indicated an unusually low white blood cell count for Andrew. 19. On or about December 16, 2000, Andrew developed a low-grade fever all evening and had to visit with the Carlisle Pediatrics where a urine test was performed. 20. On or about December 17, 2000, another blood test was ordered at the Carlisle Hospital and yet another blood test was ordered on December 18, 2000. The white blood count worsened and still no diagnosis was made. 21. On or about December 19, 2000, Andrew was examined by the Director of Pediatric Medicine at the Hershey Medical Center Clinic. X-rays and blood tests were taken. A tentative diagnosis of Neutropenia was made. 22. On or about December 2 l, 2000, due to a fever Andrew was brought to the emergency room at Hershey Medical Center at approximately 3:00 a.m. Intravenous therapy was attempted, However, after six (6) unsuccessful attempts, the attempt to conunence intravenous access was stopped. Andrew was admitted to the Hematology/Oncology ward at the Hershey Medical Center. 23. On or about December 21, 2000, at 2:00 p.m., Andrew underwent surgery to perform a Central Line procedure for blood count and intravenous access. Shortly thereafter another doctor performed a bone marrow procedure to test for Leukemia. 24. During December 21, 2000 through December 24, 2000, several other tests and blood counts were taken. A sonogram indicated Andrew was suffering from an enlarged spleen. 25. On or about December 24, 2000, Andrew was discharged from Hershey Medical Center with a prescription for Neupogen to assist stabilizing the white blood cell count. 26. From December 25, 2000 through December 28, 2000, Andrew received treatment through home nursing visits. 27. On or about December 26, 2000, Hershey Medical Center again did blood count tests indicating that the red blood count was progressively dropping as well. The blood count fluctuation remained undiagnosed at that point. 28. On or about January 15, 2001, Andrew was taken to the emergency room due to a fever and low Hemoglobin. He was treated and released. 29. On or about January 19, 2001, Andrew was referred to Children's Hospital in Philadelphia and several blood tests were taken. Tbe diagnosis was unknown at that time. A decision was made to collaborate in diagnosing Andrew's illness with Hershey Medical Center while performing all tests and evaluations at Hershey Medical Center. Upon arriving home from Philadelphia, Plaintiffs received a phone message that they should report to Hershey Medical Center Clinic as soon as possible because the test results from Children's Hospital may be consistent with Evan's Syndrome. 30. On or about January 20, 2001, at 10:00 a.m., Andrew was examined by a doctor at Hershey Medical Center and more blood tests were taken. The Hemoglobin count was very low. At this time the Chief of Hematology prescribed Prednazone to stimulate production of red blood count. Andrew became ill from the Prednazone, developed a fever and was admitted to Hershey Medical Center. 5 31. On or about January 20, 2001, at 4:00 p.m., a procedure was performed to have a temporary Central Line placed in his body. During this procedure he stopped breathing and he had to be intubated. During recovery he developed a fever of 104.5°. On or about January 22, 2001, a CT Scan was taken. He underwent his first blood 32. transfusion. 33. On or about January 23, 2001, Andrew underwent a second bone marrow procedure and second blood transfusion. 34. On or about January 24, 2001, Andrew's platelet count continued to be very low. He was also examined by the Pediatric Ophthalmology Department with a diagnosis of allergic conjunctivitis. Drops were prescribed for his eyes. He developed a rash on his back and neck. 35. On or about January 25, 2001, doctors advised Plaintiffs that Andrew is going to continue suffering with the attempt of the intravenous insertion and therefore a Med Port should be implanted through a surgical procedure to gain access to Andrew for blood and administration of medicines and transfusions. Blood tests, transfusions and monitoring would continue indefinitely. 36. On or about January 26, 2001, surgery began at 2:00 p.m. and a permanent Med Port was implanted. 37. On or about January 27, 2001, Andrew was discharged from Hershey Medical Center and Plaintiffs were instructed to visit Hershey Medical Center Clinic once a week for blood tests and examinations. 38. On or about January 31, 2001, Andrew's rash continued to develop and worsened to the point where on February 4, 2001, it became so serious that Andrew was taken to the 6 Hershey Medical Center emergency room. Dr. Neely, Chief of Hematology, examined Andrew on February 5, 2001, and indicated they had no idea of the origin of the rash and simply prescribed Benadryl and Hydrocortisone. 39. Plaintiffs consulted with Dr. Eckhardt Johanning, an acknowledged worldwide expert in the field of molds and other toxic ailments. He has consulted with the treating physicians and they agree that an examination of the premises would greatly help in a differential diagnosis in order to reach some conclusion as to the cause of this ailment and possibly help with the treatment of same. 40. Plaintiffs have requested from Defendants immediate access to the premises for testing and an environmental audit by letter dated January 16, 2001. This request has been denied, 41. Plaintiffs can obtain access to this property in the civil action for damages at anytime after forty-five (45) days after service has been made upon Defendants. However, Plaintiffs believe and therefore allege that the forty-five (45) day period will cause irreparable harm to them because of the worsening condition of the minor child and also the need to preserver any evidence on site. 42. Plaintiffs believe and therefore aver that they have no adequate remedy at law in order to obtain access to this property prior to the forty-five (45) day period. 43. The civil action was served in accordance with the Pennsylvania Long Ann Statute by sending a copy of same to Defendants at their address in the Republic of Germany, return receipt requested. 44. A courtesy copy of the Pmecipe for Writ of Summons as well as this Complaint in equity is being served on Defendants and their counsel, David Baric. 45. Plaintiffs believe and therefore aver that although they can ultimately obtain access to the subject property, Defendants have attempted to clean the interior of same. 46. Plaintiffs are threatened with immediate and irreparable harm because Andrew continues to be treated by Children's Hospital and Hershey Medical Center for serious and debilitating injuries. He has had eight (8) surgical procedures in the last two (2) months, including three (3) blood transfusions and two (2) bone marrow tests. All of these diagnostic studies including various x-rays and CT Scans were done in order to diagnose the drastic drop in his white blood cell count and as well as his red blood cell count. The doctors believe that the information will greatly aid in the diagnosis and treatment of same. 47. Immediate and irreparable harm will be sustained by Plaintiffs before the trial on the civil case at law because evidence may be further destroyed or not preserved as it existed at the time of the injury and the ability to mitigate damages by adequately diagnosing and treating Andrew are frustrated by the Defendants' refusal to allow immediate access. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment as follows: 1. Plaintiffs request a preliminary injunction and permanent injunction, restraining and enjoining: a. Defendants from interfering with an immediate environmental audit of the subject premises for purposes of preserving evidence and also mitigating damages by allowing a timely diagnosis and treatment of minor child; Date: ~/15'/~1 Money damages as the Court may deem appropriate; Reasonable attorney's fees and costs; and Such other relief as in law or equity may pertain. Respectfully submitted, ~an, Esquir~~ Attorney I.D. No. 38770 Attorney for Plaintiffs VERIFICATION I, ANITA ADAM, do hereby ce~ify that the statements made in the foregoing Complaint in equity are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants RULE TO SHOW CAUSE AND NOW, this day of ,2001, upon consideration of the verified Complaint in equity in this action and Plaintiffs' Petition for preliminary injunctive relief, it is hereby ORDERED that: 1. Defendants, Michael Spotswood and Irene Spotswood, show cause before the Court on the in Courtroom No. day of ,2001, at o'clock .m., , Cumberland County Courthouse, Carlisle, Pennsylvania, why a preliminary injunction should be not entered; 2. Plaintiffs shall cause copies of this Rule to Show Cause, the Complaint in equity, and the Petition for preliminary injunctive relief with its accompanying papers, to be served upon Defendants by facsimile transmission, e-mail, and International Registered Mail. BY THE COURT: EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants ORDER AND NOW, this day of ,2001, upon consideration of Plaintiffs' verified Complaint in equity, Plaintiffs' Petition for Preliminary Injunction and supporting affidavits, and the testimony presented, and it appearing to the Court that immediate and irreparable harm will be sustained by Plaintiffs before a trial can be held on the merits, it is ORDERED that Defendants, Michael Spotswood and Irene Spotswood, immediately make available the premises located at 11 Southern Cross Drive, in the City of Boiling Springs, Cumberland County, Pennsylvania, for purposes of examination and inspection by Plaintiffs and their expert, Dr. Eckardt Johanning. This exanfination and inspection shall allow adequate time for a complete investigation including, but not limited to, the taking of air samples, in order to determine the presence or absence of certain hazardous molds or toxins; and it is further ORDERED that Defendants be and are hereby enjoined from prohibiting Plaintiffs' experts from performing the necessary environmental audit as discussed above; and FURTHER, this Order is conditioned upon Plaintiffs' filing an approved bond in the amount of $ BY THECOURT: EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants : No. al-qs-o ~ : PLAINTIFFS' PETITION FOR PRELIMINARY INJUNCTION Plaintiffs, Pablo Adam and Anita Adam, in their own right and as Parents and Natural Guardians of Andrew Adam, by their undersigned counsel, petition this Court for a preliminary injunction pursuant to Pa.R.C.P. 1531, and set forth the following in support thereof: 1. Plaintiffs have filed a verified Complaint in equity, attached as Exhibit "A", alleging, inter alia, that the Defendants, Michael Spotswood and Irene Spotswood, have recklessly and negligently caused injury to them and their minor child as a result of the condition of a home rented by Plaintiffs from Defendants. 2. Plaintiffs' Complaint further alleges that it is necessary to obtain access to the property immediately in order to mitigate damages to the minor child and to preserve evidence. In support of same, Plaintiffs allege that the condition of the home, mainly the presence or absence of mycotoxins and molds, can be affected by the passage of time. Plaintiffs further allege that the diagnosis of the treating physicians for the minor child have requested information concerning any exposure to any type of mold or toxin. 3. Plaintiffs have requested from Defendants immediate access by letter dated January 16, 2001. This request had been denied. 4. Plaintiffs can obtain access to this property in the civil action for damages at anytime after forty-five (45) days after service has been made upon Defendants. However, Plaintiffs allege that the forty-five (45) day time period will cause irreparable harm to them because of the condition of the minor child and also the need to preserve evidence. 5. Plaintiffs' Complaint requests, inter alia, that this Court enjoin Defendants from denying them access to the home with their expert witness to take air samples and do a general environmental audit. 6. Although Plaintiffs can ultimately obtain right of access to subject property, Defendants have attempted to clean the interior of same. 7. Plaintiffs are respectfully asking this Court to allow immediate inspection and testing for the following reasons: a. Plaintiffs are threatened with immediate and irreparable harm because the minor child continues to be treated by Children's Hospital and Hershey Medical Center for serious and debilitating injuries. He has had several blood transfusions and bone marrow operations in order to diagnose the drastic drop in his white, red and platelet blood cell count as well as an enlarged spleen. The doctors believe that information which can be obtained from the subject home could greatly aid in the diagnosis and treatment of same. b. In relation to the foregoing, immediate and irreparable harm will be sustained by Plaintiffs before trial on the merits, because evidence may be further destroyed or not preserved as it existed at the time of injury and the ability to mitigate damages by adequately diagnosing and treating the minor child tendered by the Defendants' refusal to allow immediate access. WHEREFORE, Plaintiffs request, pursuant to Pa.R.C.P. 1531 (a), that a preliminary injunction forthwith be granted by this Court, in order to preserve the status quo and also to avoid immediate and irreparable harm until such time as this Court finally determines the rights of each party by: a. Enjoining Defendants from prohibiting Plaintiffs from entering premises irmnediately for purposes of testing and doing an environmental audit. Date: Edward M. Brennan, Esquire Attorney I.D. No. 38770 Attorney for Plaintiffs VERIFICATION I, PABLO Al)AM, do hereby certify that the statements made in the foregoing eeeic~n for PreHr~.n~r~ Injunction are flue and correct to the best of my knowledge and belief. I understand that false statements herdn are made subject to the penalties of 18 Pa.C.S,A. Section 4904, relating to unswom faJsitication to authorities. Date:_~/l~Z/O! EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants NO. Esquire, do hereby certify that I served a true and correct copy of the foregoing Plaintiffs' Petition for Preliminary Injunction, by depositing the same in the United States Mail, postage prepaid, in the Post Office at Pottsville, Pennsylvania, addressed to the following: Michael and Irene Spotswood 11 Southern Cross Drive Boiling Springs, PA 17007 Michael and Irene Spotswood Parkstr 20 61118 Bad Vilbel Germany David Baric, Esquire 17 West South Street Carlisle, PA 17013 ~E~squir~ Attorney I.D. No. 38770 Attorney for Plaintiffs Exhibit A EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants 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 ttds 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 2LibenyAvenue Carlisle. PA 17013 (717) 249-3166 EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-246 l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants No. COMPLAINT This is an action for preliminary and permanent injunctive mlieL and other damages arising out of Defendants', Michael Spotswood and Irene Spotswood, refusal to allow access to a home which had been rented by Plaintiffs, the condition which has caused serious harm to the minor Plaintiff as well as his parents. THE PARTIES 1. Plaintiffs, Pablo Adam and Anita Adam, am adult individuals residing at 114 Franklin Square, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendants, Michael Spotswood and Irene Spotswood, are adult individuals maintaining a permanent residence and domicile at 11 Southern Cross Drive, Boiling Springs, Cumberland County, Pennsylvania 17007. They are currently living temporarily in the Republic of Germany at the following address: Parkstr 20, 61118 Bad Vilbel, Germany. 3. Prior to the filing of this Complaint in equity, Plaintiffs have filed a Praecipe for Writ of Summons in a civil action in order to collect damages for the injuries to them and their minor child as a result of the condition of this premises; docketed to 0l-716, Civil Term, 2001. JURISDICTION AND VENUE 4. Jurisdiction is based on the Pennsylvania Constitution, Article 5, Sectio~n 5; and 42 Pa.C.S.A. §931 (a), both of which confer broad original jurisdiction upon the Court of Common Pleas. 5. Defendants are domiciled in the State of Pennsylvania and maintain a permanent residence at the subject premises. 6. Defendants have removed themselves from this country and are temporarily living at the address noted above. 7. This Horiorable Court has appropriate jurisdiction and venue in that all parties entered into this lease in Cumberland County, Pennsylvania, and the injury to Plaintiffs occurred in Cumberland County as well. FACTUAL ALLEGATIONS 8. On or about September 16, 2000, Plaintiffs rented and physically moved into 11 Southern Cross Drive, Boiling Springs, Pennsylvania, which is owned by Defendants. 9. Shortly after moving into said prentises, Plaintiffs noticed an unusual growth or mold and mildew appearing in various parts of the home. On information and I~elief, the home had been infected with a Stachybotrys mold and other unknown toxins and molds which eventually caused serious bodily injury to Plaintiffs' minor child. 10. On or about November 9, 2000, the Analytical Laboratory Service performed a mold test. This test suggested that upon initial review the mold present in the subject home was consistent with a description of Stachybotrys. 11. On or about November 12, 2000, Plaintiff, Andrew Phillip Adam (hereinafter referred to as "Andrew"), began coughing late in the afternoon and by early morning his fever was 103.5° to 104°. 12. On or about November 13, 2000, Andrew was seen by Dr. Hoffman at Carlisle Pediatrics who diagnosed Pneumonia and prescribed Zythromax. A chest x-ray was taken at this time. 13. On or about November 13, 2000, a second opinion was requested from Advanced Applied Sciences concerning the presence of Stachybotrys. At that time, the engineer performing same recommended that Plaintiffs vacate the premises. 14. On or about November 15, 2000, a second test conducted by Advanced Applied Sciences confirmed the presence of Stachybotrys. Plaintiffs were again advised to vacate the premises. 15. On or about November 21, 2000, Andrew's symptoms worsened. He was again examined by Carlisle Pediatrics, a second x-ray was taken and a diagnosis was made that the Pneumonia was spreading. The doctor prescribed Augmentin, 16. On or about December 6, 2000, Andrew began an episode of serious diarrhea. Related symptoms included low-grade fever, mouth pain and a rash. 17. On or about December 7, 2000, Advanced Applied Sciences confirmed the presence of Stachybotrys with the highest concentration of same in Andrew's room. 18. On or about December 15, 2000, Carlisle Pediatrics referred Andrew to Carlisle Hospital for a blood count, which indicated an unusually low white blood cell count for Andrew. 19. On or about December 16, 2000, Andrew developed a low-grade fever all evening and had to visit with the Carlisle Pediatrics where a urine test was performed. 20. On or about December 17, 2000, another blood test was ordered at the Carlisle Hospital and yet another blood test was ordered on December 18, 2000. The white blood count worsened and still no diagnosis was made. 21. On or about December 19, 2000, Andrew was examined by the Director of Pediatric Medicine at the Hershey Medical Center Clinic. X-rays and blood tests were taken. A tentative diagnosis of Neutropenia was made. 22. On or about December 21, 2000, due to a fever Andrew was brought to the emergency room at HerShey Medical Center at approximately 3:00 a.m. Intravenous therapy was attempted. However, after six (6) unsuccessful attempts, the attempt to commence intravenous access was stopped. Andrew was admitted to the Hematology/Oncology ward at the Hershey Medical Center. 23. On or about December 21, 2000, at 2:00 p.m., Andrew underwent surgery to perform a Central Line procedure for blood count and intravenous access. Shortly thereafter another doctor performed a bone marrow procedure to test for Leukemia. 24. During December 21, 2000 through December 24, 2000, several other tests and blood counts were taken. A sonogram indicated Andrew was suffering from an enlarged spleen. 25. On or about December 24, 2000, Andrew was discharged from Hershey Medical Center with a prescription for Neupogen to assist stabilizing the white blood cell count. 26. From December 25, 2000 through December 28, 2000, Andrew received treatment through home nursing visits. 27. On or about December 26, 2000, Hershey Medical Center again did blood count tests indicating that the red blood count was progressively dropping as well. The blood count fluctuation remained undiagnosed at that point. 28. On or about January 15, 2001, Andrew was taken to the emergency room due to a fever and low Hemoglobin. He was treated and released. 29. On or about January 19, 2001, Andrew was referred to Children's Hospital in Philadelphia and several blood tests were taken. The diagnosis was unknown at that time. A decision was made to collaborate in diagnosing Andrew's illness with Hershey Medical Center while performing all tests and evaluations at Hershey Medical Center. Upon arriving home from Philadelphia, Plaintiffs i'eceived a phone message that they should report to Hershey Medical Center Clinic as soon as possible because the test results from Children's Hospital may be consistent with Evan's Syndrome. 30. On or about January 20, 2001, at 10:00 a.m., Andrew was examined by a doctor at Hershey Medical Center and more blood tests were taken. The Hemoglobin count was very low. At this time the Chief of Hematology prescribed Prednazone to stimulate production of red blood count. Andrew became ill from the Prednazone, developed a fever and was admitted to Hershey Medical Center. 31. On or about January 20, 2001, at 4:00 p.m., a procedure was performed to have a temporary Central Line placed in his body. During this procedure he stopped breathing and he had to be intubated. During recovery he developed a fever of 104.5°. On or about January 22, 2001, a CT Scan was taken. He underwent his first blood 32. transfusion. 33. On or about January 23, 2001, Andrew underwent a second bone marrow procedure and second blood transfusion. 34. On or about January 24, 2001, Andrew's platelet count continued to be very low. He was also examined by the Pediatric Ophthalmology Department with a diagnosis of allergic conjunctivitis. Drops were prescribed for his eyes. He developed a rash on his back and neck. 35. On or about January 25, 2001, doctors advised Plaintiffs that Andrew is going to continue suffering with the attempt of the intravenous insertion and therefore a Med Port should be implanted through a surgical procedure to gain access to Andrew for blood and administration of medicines and transfusions. Blood tests, transfusions and monitoring would continue indefinitely. 36. On or about January 26, 2001, surgery began at 2:00 p.m. and a permanent Med Port was implanted. 37. On or about January 27, 2001, Andrew was discharged from Hershey Medical Center and Plaintiffs were instructed to visit Hershey Medical Center Clinic once a week for blood tests and examinations. 38. On or about January 31, 2001, Andrew's rash continued to develop and worsened to the point where on February 4, 2001, it became so serious that Andrew was taken to the 6 Hershey Medical Center emergency room. Dr. Neely, Chief of Hematology, examined Andrew on February 5, 2001, and indicated they had no idea of the origin of the rash and simply prescribed Benadryl and Hydrocortisone. 39. Plaintiffs consulted with Dr. Eckhardt Johanning, an acknowledged worldwide expert in the field of molds and other toxic ailments, He has consulted with the treating physicians and they agree that an examination of the premises would greatly help in a differential diagnosis in order to reach some conclusion as to the cause of this ailment and possibly help with the treatment of same. 40. Plaintiffs have requested from Defendants immediate access to the premises for testing and an environmental audit by letter dated January 16, 2001. This request has been denied. 41. Plaintiffs can obtain access to this property in the civil action for damages at anytime after forty-five (45) days after service has been made upon Defendants. However, Plaintiffs believe and th~erefore allege that the forty-five (45) day period will cause irreparable harm to them because of the worsening condition of the minor child and also the need to preserver any evidence on site. 42. Plaintiffs believe and therefore aver that they have no adequate remedy at law in order to obtain access to this property prior to the forty-five (45) day period. 43. The civil action was served in accordance with the Pennsylvania Long Arm Statute by sending a copy of same to Defendants at their address in the Republic of Germany, return receipt requested. 44. A courtesy copy of the Praecipe for Writ of Summons as well as this Complaint in equity is being served on Defendants and their counsel, David Baric, 45. Plaintiffs believe and therefore aver that although they can ultimately obtain access to the subject property, Defendants have attempted to clean the interior of same. 46. Plaintiffs am threatened with immediate and irreparable harm because Andrew continues to be treated by Children's Hospital and Hershey Medical Center for serious and debilitating injuries. He has had eight (8) surgical procedures in the last two (2) months, including three (3) blood transfusions and two (2) bone marrow tests. All of these diagnostic studies including various x-rays and CT Scans were done in order to diagnose the drastic drop in his white blood cell count and as well as his red blood cell count. The doctors believe that the information will greatly aid in the diagnosis and treatment of same. 47. Immediate and irreparable harm will be sustained by Plaintiffs before the trial on the civil case at law because evidence may be further destroyed or not preserved as it existed at the time of the injury arid the ability to mitigate damages by adequately diagnosing and treating Andrew are frustrated by the Defendants' refusal to allow immediate access. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment as follows: I. Plaintiffs request a preliminary injunction and permanent injunction, restraining and enjoining: a. Defendants from interfering with an immediate environmental audit of the subject premises for purposes of preserving evidence and also mitigating damages by allowing a timely diagnosis and treatment of minor child; Date: Money damages as the Court may deem appropriate; Reasonable attorney's fees and costs; and Such other relief as in law or equity may pertain. Respectfully submitted, Attorney I.D. No. 38770 Attorney for Plaintiffs VERIFICATION I, ANITA ADAM, do hereby certify that the statements made/n the foregoing Compla/nt/n equity are true and correct to the best ofmy knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom fa/sJfication to authorities. PABLO ADAM and ANITA : ADAM, in their own right : and as Parents and : Natural Guardians of : ANDREW ADAM, : Plaintiffs : V. : MICHAEL SPOTSWOOD and : IRENE SPOTSWOOD, : Defendants : IN THE COURT OF COMMON PLE~S OF CUMBERLAND COUNTY, PENNSY%~ANIA 01-0950 EQUITY IN RE: TRANSCRIPT (DF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Wednesday, February 21, 2001, in Courtroom Number Five. APPEARANCES: Edward M. Brennan, Esquire For the Plaintiffs David Baric, Esquire For the Defendants FOR THE ~EAINTIFF INDEX TO WITNESSES DIRECT CROSS REDIRECT RECROSS Dr. Andrew Steven Freiberg 10 15 21 24 1 2 3 4 5 ¥ 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 THE COURT: Baric. We have injunction -- I Good morning, Mr. Brennan, Mr. before us the petition for an emergency guess that's what it's called -- seeking affirmative remedy, of the -- the former residence And rather than and being allowed to test the residence of the plaintiffs. grant an ex parte injunction, because to grant the injunction is to moot the case, I wanted to have the opportunity to have Mr. Baric respond on behalf of his clients. I understand, Mr. Baric, that your clients have not been in contact because they're out of the country; is that correct? MR. BARIC: That is correct, Your Honor. I have been in contact with them through e-mail and telephone, but -- THE COURT: MR. BARIC: Oh, the wonders of technology. Isn't it wonderful, but I received word of this hearing at 7:30 this morning, and have not been able to contact them in the intervening period. THE COURT: you ready to proceed? MR. BRENNAN: Yes, bring the Court up to speed based on with counsel and the Court. THE COURT: Okay. So, Mr. Brennan, are Okay. Your Honor. If I may our earlier conference 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 MR. BRENNAN: I do have a return receipt signed by Irene Spotswood that she did receive the court papers in the Republic of Germany, to -- course, hearing. and I'll provide copies THE COURT: And that would have been, of the papers filed without us having scheduled this Since the papers got to my desk yesterday, I scheduled the hearing immediately. MR. BRENNAN: Yes, Your Honor. Yeah, in fairness, I could not -- I did call Mr. Baric after 5:00 and left a message, and he and I connected this morning, as the Court knows. G-u-s-i-c. Medical with an able to I did contact Dr. Mary Ellen Gusic, spelled She's the Director of Pediatrics at Hershey Center. I'm waiting for her to call back, Judge, approximate time this morning that she would be give us five to ten minutes to explain to the Court on, Judge. I normally but if she calls back. I do have a Freiberg who works under her, which I the need for the testing. I have my car phone would not do that, letter from a Dr. have provided counsel a copy with, and I'm sure she'll rely upon, as part of her testimony, where he discusses that getting this test would be helpful. There are a number of doctors involved in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 the treatment of primary physician, a pediatric oncologist, this boy at Hershey. She being the number of other doctors, such as the hematologist, Dr. Freiberg, et cetera. So I would call her. I time as we speak. THE COURT: Okay. just don't have an exact Mr. Baric, I understand you've not been in touch with understand your position to be that test is necessary for the treatment your client, but do I you do not think of this child? this MR. Your Honor, and, prior tests were were in possession of the property. addressed to Dr. Gusic, and I believe into question whether the testing BARIC: That is our position at present, in fact, as I alluded to previously, two done in the residence while the plaintiffs I've seen the letter that in itself calls is necessary. At least the indications from that letter are that the child is in a, quote, safe range in terms of his condition. that he needs to present condition. satisfied with obviously, but positions. At present the doctors don't even believe be seen every week, in terms of his In fact, they indicate that they're his progress at this point in time. We can get into that with the doctor, that goes to -- THE COURT: Okay. You'll be given the opportunity to Just so I understand the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cross-examine the doctor. MR. BARIC: THE COURT: hospitalized? several times, Exactly. Okay. The I thought he was -- MR. BRENNAN: Your Honor. He's been He's now on child is no longer hospitalized an outpatient basis. He goes to the same clinic at least once a week, sometimes more. If I could corament on these two prior tests, Your Honor. They were done by industrial hygienists who said to the Adams, we believe suggest you leave, which they did. other expert we discussed, who is this is stachybotrys. We Dr. Johanning, the also available around 11:30 to the man -- the the testing. I'm sure explain zhe nature of his tests, Your Honor, he's doctor, he's an M.D., who would actually do And I'm not a technical guy, Your Honor, so I'll misspeak in some way, but the way he described it to me, he has much more sophisticated devises that can detect what he calls microtoxins which may not be easily detected with the standard air sampling equipment, and the microtoxins, as he explained to me, is what they think may be causing the pulmonary related ailments. So other tests, yes, but now we have a medical doctor who will do the test, not an industrial 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hygienist, and that's the request, but he's not in the hospital, Judge, and I remember when we talked this morning I think you mentioned that you thought he was still in, and he is not, but he is seen on an outpatient basis on a weekly basis that kind of treatment team? Center? getting the stuff. THE COURT: With the treatment blood tests, the injections, and Is this expert involved in the team at Hershey Medical MR. BRENNAN: Yes. He's been talking to them, but because he's in New York City, he's not physically examined the child. THE COURT: I guess, Mr. Brennan, my question here is, has this expert been retained for purposes of treating this child or has this expert been retained for purposes of litigation? MR. BRENNAN: Ail right. I'll be really honest with you, Judge. He was obtained originally for purpuses of treating the child before I got involved. Mr. and Mrs. Adams can testify to that. Now, when I started to talk to him, I did I was really honest with him and said I'm filing suit, and I would need you to testify. So if it came to that, I would use him as an expert, but they will testify today they contacted him. I didn't. They contacted him on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their own for purposes of finding out what's going on with the illness or ailment. THE COURT: We don't think that the [acts are at issue that the Adams occupied the residence in question, and that the child is suffering from medical conditions. So I'm not sure we need to develop a record in that regard, do we, Mr. Baric? MR. BARIC: At this point in time obviously we're not admitting any causal connection or anything else, but I think the facts as pled at this point in time -- certainly they did reside there for some period. We will admit that. We really don't know anything in terms of the physical at limitations of the THE COURT: child. I guess what I'm trying to is I'm viewing this petition on an emergency basis get because it deals with the MR. BARIC: THE COURT: necessary for the treatment order that they be allowed to basis. If the need to treat the child. Correct. Okay. And if the test is of the child, I'm inclined to do it on this emergency the child, but is aimed at getting ammunition in then I'm not inclined to see it as an emergency, can be handled in due course through discovery. test isn't aimed at the treatment of a lawsuit, and that So that's 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 pretty much where we are today. Because this was set on an emergency basis, and because our time is limited, I'm going to want to limit the testimony to those particular issues. any idea when your doctors may be called? So do you have In fact, I her yet, but I can advise Mg. BRENNAN: Your Honor, I left a message. called three times. Apparently they can't get As soon as she calls me I left my cell phone. the Court what time. THE COURT: Did they give you a time frame? MR. BRENNAN: They thought later this Well, then we'll hear what the morning or early this afternoon. THE COURT: Okay. Early this afternoon poses a problem. MR. BRENNAN: Well, I told them too I would prefer late this morning or this morning. THE COURT: It may not be a question of prefer. It may Be a question of -- okay. MR. BRENNAN: I will call them again, Judge, when we recess. If I may, Your Honor, I agree, I would not ask for emergency relief if we're simply discovery. I realize that eventually I would get in there under the rules of civil procedure to do the testing, but I do believe, as I allege, that -- THE COURT: 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 treating physicians have to say. Okay. MR. BRENNAN: Your Honor, a call I'll contact your chambers. THE COURT: Okay. Good enough. as soon as I get Keep me posted. (Whereupon, a recess was taken at 10:20 Freiberg is (Whereupon, THE COURT: MR. BRENNAN: on the phone. court resumed at 10:44 a.m.) Is the doctor on the phone? Yes, Your Honor. Dr. I advised him prior to coming on the bench that he's on a speaker phone, present. swear you THE COURT: in. DR. DR. having been duly sworn, THE COURT: Mr. MR. and counsel's Okay. Doctor, we're going to as follows: FREIBERG: Okay. Whereupon, ANDREW STEVEN FREIBERG testified Brennan. BY MR. BRENNAN: Q Dr. your full name. A BRENNAN: Thank you, Your Honor. DIRECT EXAMINATION Freiberg, I need you briefly to state Okay. Andrew Steven, S-t-e-v-e-n, 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Freiberg, of Pennsylvania; is A Yes. Q Doctor, F-r-e-i-b-e-r-g. Q And you're a licensed physician in that correct? you're affiliated with Milton S. the State and my specialty familiar with Andrew Adam? Hershey Medical Center, correct? A Yes. Q Can you briefly, Doctor, tell us the position you hold at Hershey Medical? A I'm an associate professor, is pediatric hematology and oncology. Q Doctor, are you A Yes. Q Ail right. treatment team at Hershey Medical Center? A I am. Q All right. Doctor, the purpose today Doctor, are you part of his request we have the Adam family. Doctor, home. is a to get access to the former residence of So I'm going to direct my questions, to certain tests that we wish to perform in the Doctor, first let me ask if you've had contact with a Dr. Gusic, A Q A G-u-s-i-c? Yes, she works here also. And her position is what, Doctor? She also works in the Department of 11 2 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Pediatrics in -- they call it ambulatory pediatrics in the general pediatric clinic. Q Have you had occasion to talk to a Dr. Johanning concerning certain tests for the mold or virus referred to as stachybotrys? A Yes, I had one long conversation with him on the phone several weeks ago. Q Doctor, is it normal and customary for you to consult with other doctors in this type of case? A Yes. Q Ail right. Doctor, let's, if we can -- we made certain factual allegations in our petition as far as Andrew's course of treatment, which we're not going to have to go through, Doctor. It's not like testifying in front of a jury. Okay? A Okay. Q Just let me ask, first of all, Doctor, is he still being treated by you and the other physicians at Hershey? A Yes. Q Ail right. Doctor, the tests that Dr. Johanning suggested be done, do you have an opinion as to whether or not they would be helpful to you as a treating physician in your diagnosis and treatment of Andrew? A It might be helpful. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Doctor, could you explain to the Judge exactly the status of Andrew and how they may or may not be helpful. I know there's no guarantees, but I need you to explain why -- well, let me ask you, would you like to have these tests done? Doctor, A Yes. Q Ail right. Could you explain generally, why you would like to have the tests done? A In my conversation with Dr. Johanning, he explained to me some of what's known and what's not known about stachybotrys and the cause of the disease, and there's a lot more questions than answers. There are types of stachybotrys that do produce toxins, chemicals, that are known to affect -- are known to affect blood cells, and I think if we could find the type of mold he was exposed to produce some of these toxins, it might be able to direct our treatment a little bit better. Q this, and I wrote to Dr. Doctor, I'm probably going to mispronounce should advise I have a copy of a letter you Gusic. I'm going to ask you to define autoimmune pancytopenia? A Okay. Well, the body normally makes antibodies against things such as bacteria and viruses that are harmful. Sometimes those antibodies also attack the 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 bodies own cells, and that's called autoim~unity, where the body has immunity against itself. In autoimmune cytopenia the body makes antibodies against one or more blood cells, the blood cells being red cells, platelets, and white cells. And usually, sometimes, the body makes antibodies to more than one type. is red cells, levels of all In Andrew's case we antibodies against all three types platelets, and white three of these. Okay. Is your autoimmune pancytopenia? A Yes. Q And, these tests -- and think he's making of blood cells. That cells. So he has low tentative diagnosis then the again, Doctor, do you believe that I understand there's no guarantee, but will they help in your ongoing treatment of Andrew? A I think they might. I can't -- again, I can't say for sure. They may simply tell us that the stachybotrys was not involved, which might be useful. Q Okay. Now, Doctor, you're still treating Andrew. He's been in and out of the hospital, but is he seeing you on a regular basis now at the clinic? A Yeah, currently he sees me every week. We may decrease that to less often if he continues to do well, but he is getting medication from us. He gets shots, 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 currently I home. Q Doctor, just think two days a week, that his mother gives at The mother gives shots at home. Ail right. for the limited purposes of today's hearing, I've concluded my direct examination. Mr. Baric, the defense lawyer, will have an opportunity to cross-examine you, and that you you're fine. mouthpiece, Thank you, if the Court would have any questions, I only ask keep your voice up so we can all hear you. A Can you hear me okay? Q Right now, yes. Thank you. THE COURT: What's important, Doctor -- and It's important to speak directly into the and to speak clearly, but you're doing fine. Doctor. THE WITNESS: Okay. CROSS EXAMINATION Gcod morning, Doctor. My name is David BY MR. BARIC: Q Baric, and I represent the defendants in this action. They are the owners of the property that the Adams previously resided in for at least some period of time. Doctor, in connection with your Andrew, were you ever provided with test reports related to samplings of that former residence? A I'm looking through his chart. treatment of that 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Q Well, let me be specific. There was a report from a company called Analytical Laboratory Services, Inc. Did you ever see that report? A I have a report here, AASI? Q Okay. That's another report that I was going to refer to. That's the second report dated December 7th, 2000, from Advanced Applied Sciences, Inc.; is that correct? A I have that, and I'm looking for the date. Collection date, 11/15/20007 Q That may be the collection date. Do you have the report that was -- a written, typed report that was dated December 7th, 2000? A I have a three page report Applied Services, but no typed report. Q Okay. A Just report comments. Q AIl right. A It's a three page numbers on it. Q Ail right. A And at the end it that doesn't really tell -- that conclusions. Q All right. from Advance report with a lot of says report comments, but doesn't tell any Actually what I-'m referring 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is there that A Oh, I have December 7th, 2000. Yes. Directed to Pablo Adam? Yes. Correct? Ri ght. And at the end of that series of documents, a collection of microbiological analyses? A You mean the three page collection thing had talked about? Q Yes. A The report Q A Q A Q summary. Yes . Okay. Do you have that? I do have that. Okay. And have you reviewed that in connection with your treatment of Andrew? A I have. Q Alii right. A But I will say I did not understand it fully. It's not my specialty to know about different types of molds and fungus. Q Okay. Has your treatment and/or diagnosis of Andrew included, as part of your process, those 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 laboratory tests results, and the conclusions reached in that report? A They have not changed my treatment because of this report. Q All right. Doctor, we have in front of us a February 7th, 2001, letter that you directed to Dr. Gusic. Do you have that in front of you? A I don't actually because that was in our office, and it was faxed to you today. I have my earlier letter of January 17th, but the most recent one -- I mean recently when I wrote it, and I did type it it was pretty myself. © Okay. You're familiar or you you put into that letter? A I should be able to recall it, Q Ail right. In that document, indicate that Andrew, was well within the A Yes. Q at least as safe range. All right. You recall what yes. Doctor, you of February 7th, 2001, Was that your conclusion? also indicate in there that progress. Was that you were very satisfied with Andrew's your conclusion as of February 7th? A Yes. Q All right. letter that he need not see You also indicate in that you every week if he is 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 otherwise well. A Q A every week. Q A blood counts, but the blood counts. That was That's true. also your conclusion? All right. And -- That doesn't mean he doesn't need tests Right. We need blood counts. He comes here if he doesn't have any complaints, That's what I mean. for I get Q Doctor, in connection with -- or prior to writing this correspondence of February 7th, you had, I presume, come to a conclusion as to a treatment plan for Andrew; is that correct? A Yes. Q All right. And as part of that treatment plan, did you refer to the laboratory test results or incorporate those into your determination of what the treatment plan would be? A The treatment plan for autoimmune pancytopenia -- there are several choices, but it does usually include the underlying cause. Q Ail right. Is he continuing since you wrote the report of February 7th, 20017 A ?rogress meaning getting worse? Q No, I'm sorry. Getting better? not to progress 19 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 A He is getting better. Q All right. Have you changed the treatment plan for Andrew since February 7th, 20017 A No. I think I saw him last week in the meantime, and he was actually doing a little bit better. Q All right. A No. Actually I did change it. I think I changed him from three days a week shots to two days a week. Q Ail right. Do you currently consider Andrew's condition to be critical? that. this that plan? A No. I'm not exactly sure what you mean by Q Q is conjecture to he will continue Well, life threatening at this moment? No. Ail right. some extent, but do you anticipate to improve on the current treatment Do you anticipate -- and I know A Yes. If I had to predict, and I don't know for sure, but if I had to predict I think this is going to resolve by itself. Q Wonderful. A That's my guess. Q In your letter of February 7th you indicate 2O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 that this testing may possibly give you some additional information, and I believe from your direct examination it's your conclusion that you're not sure whether this additional testing will or will not advance either the treatment further or diagnosis; A Right. MR. BARIC: at this time. THE COURT: MR. BRENNAN: is that correct? All right. have nothing BY MR. BRENNAN: Q examination Any redirect, Mr. Yes, Your Honor. REDIRECT EXAMINATION Brennan? just want that there is stachybotrys, treatment modalities? A Well, what I would do Dr. Freiberg, based on your cross have just a few follow-up questions. Your letter of February 7th to Dr. Gusic, to make it clear, if the test would come back some sort of microtoxin caused by would that affect or could that affect your Johanning again and see if there's toxin directly. There may not be, is talk to Dr. I any way we can fight the but he's the expert, and if there's something -- if there's some way of attacking the toxin directly, then we may try it. Especially if Andrew's condition worsens. He was critical 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 several weeks ago. Q That was my question. any time? A Oh, yes. In fact, medical work just to draw blood from him. Was he critical at he still has indwelling draw blood because it was so hard to He's had two emergency IV~s put in. We were using very, letter. or safe. and considering using steroids, them. He needed a transfusion. very low blood counts, which is and we got away without He's had fever with life threatening. Q Doctor, For instance, he I would like to counsel read to you parts of the said still within normal range read you the entire sentence, ask you if you recall this? A I actually have the letter the computer now. Q Okay. Andrew's hemoglobin is slowly falling, but is still in the normal range. A Actually, I saw him last week, and it was higher. So it's rising now on it's own. Q C. kay. The next that he asked, and I'll quote, his, meaning Andrew's, platelet count is still low, but it is well in the safe range and is rising without specific therapy. Could you elaborate on that? A Right. We're not treating. We're not giving any treatments. So if that trend continues, that in front of me on 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 would be Q Doctor, what what him on his own getting better. If you would have had to use steroids, type -- would this be like a prednisone or type of steroid? A Iz would be prednisone by mouth, yes. Q Okay. And given Andrew's age, are there any potential risks ,or complications in prescribing prednisone? A There's a lot of short term side effects that are very uncomfortable, but do go away after you stop i't. There are some potential long term side effects, depending on how long you take the steroids. We would try not to have him on it for that long, but I have had patients term steroids. Q prescribed steroids with autoimmune cytopenia that have needed long Do you recall, at any time, was he in the course of his treatment at Hershey, and if so were there any side effects? A He did not get them. Actually he went to Philadelphia steroids. where they actually said that that would be treatment, and we decided to try without it, gotten away with it so far, use steroids. MR. BRENNAN: for another opinion, and they recommended I have a letter from the doctor in Philadelphia the recommended and we've but their recommendation was to Okay. Thank you, Doctor. I 23 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have nothing further. THE COURT: RECROSS BY MR. BARIC: Q Doctor, conversation with Dr. Any recross? EXAMINATION David Baric again. After your Johanning, did you go back and review the prior test reports from Analytical Laboratory Services and Advanced Applied Sciences, Inc.? A No, I don't think I have. Q Ail right. So even after he pointed out to you that there could be some conceivable connection to a some microtoxin, you didn't go back to stachybotrys or those reports? A No, and in looking over them now I'm not sure that would help. Has Dr. Johanning seen them? Q I don't know that. if needed, after you. MR. BRENNAN: Doctor. THE WITNESS: MR. BRENNAN: He's going to testify later, Excuse me? Dr. Johanning may testify know, what fungus, THE WITNESS: Okay. Okay. Because, you I'm not sure I'm capable of reading these. I think these are is a -- they're trying to locate the type of and he explained to me that there are toxins that 24 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are not normally tested in these tests, for. and I don't see any don't see any report of the toxins that he would test I think they know what kind of mold it is, but he said there are some do not. BY MR. BARIC: Q A Q types, some produce the toxins All right. That's what he wants to All right. Let me ask, and some with your determination of a diagnosis plan, it's my understanding then that you did not include as part of that determination the presence or potential exposure of Andrew to stachybotrys; is that presence or true? A test for. in connection then in the treatment No. That's correct. I treat this not knowing whether or not it's a mold or a virus -- anything could cause this. It's at this point unknown what caused it, and it may not matter. Q And it's my understanding then that -- at least as you've related to us, that the microtoxin that Dr. Johanning has indicated he would like to test for, is connected to or with stachybotrys? A Yes, that's my understanding. MR. BARIC: Ail right. Thank you. BY THE COURT: 25 1 2 3 4 5 6 ? 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 2~ 25 Q Doctor, this is Judge Guido speaking. Let me see if I understand what your position is. You're not sure what caused the condition for which you're treating this young man; is that correct? A Yes, that's correct. Q And do I understand that certainly stachybotrys moht may be a cause of this condition? A It may be. Okay. And do I understand you to say that if it turns out that there are -- that there is evidence in the premises that a certain type of stachybotrys that creates specific microtoxins is present, and you have that information, it might better enable you to direct your treatment of this young man? A If his condition worsens. To be honest, if his condition gets better on it's own then we'll continue to do what we're doing. Q Okay. I think I understand now. And you can't say that his condition isn't going to worsen though; is that correct? A get worse. Q A Ch, it may get worse. It may very possibly Okay. He~s THE COURT: still on medication for it. Okay. Thank you, Doctor. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Any follow-up on that? MR. BRENNAN: No, Your Honer. THE COURT: Okay. MR. BRENNAN: Thank you, Doctor. THE COURT: Thank you very much, Doctor. DR. FREIBERG: Ail right. Bye-bye. T~E COURT: Mr. Baric, explain to me the objections that you or your clients would have to having additional tests done if it might even remotely aid in the treatment of this young man? MR. BARIC: The objection I have principally is this, Your Honor. First of all, we know that there were two prior tests done when they were in possession of the property. The doctor has indicated that even though he had those tests, it made no difference to his treatment. THE COURT: I understand that, but he .that your now? certainly said if this child takes a turn for the worse, this test may be helpful. So how is that -- how is client going to be disadvantaged by allowing this test MR. BARIC: Well, one -- THE COURT: Because certainly they would be entitled to this test as part of routine discovery in an underlying action, would they not? MR. BARIC: At some point potentially. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Obviously, we have the right to object to further testing. THE COURT: I understand that you have the right to object zo that as being MR. BARIC: Duplicative and oppressive and burdensome and everything else. THE COURT: What I'm asking is how are your clients in Germany going to be burdened by allowing a physician to go into this home now to do tests? MR. BARIC: Principally, Your Honor, there's a new tenant in the property. THE COURT: Okay. MR. BARIC: And now you're going to have somebody coming in, throwing up testing equipment in the property. Certainly the new tenant is going to be interested in knowing what the person is there for, why they're testing, and what their determination is. THE COURT: We can handle that with a bond. MR. BARIC: Well, that was my thought, Your Honor. I indicated that to Mr. Brennan before. I indicated that -- and the information I have is that the tenant is on a one year lease. He has ten months remaining on the term of the lease at THE COURT: MR. BARIC: THE COURT: $1200.00 per month. Okay. And it's a principle concern. Are you prepared to post a bend 28 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 understanding just a day or pay for that as well. for $12,000.007 It's the worse case scenario. MR. BRENNAN: Worse, yes, Your Honor. As I said to counsel, if the Court so orders we will do that. We will not voluntarily agree to that at this point, but, yes, my client is willing to post a bond, but with the that, you know -- for instance, if it was so that he had to live in a hotel, they would testify later suitcase type But our expert, who will be willing to this morning, is saying it's basically a thing where he collects dust samples. We're not taking walls out. We're not, you know, doing anything major like that. But, yes, they're prepared to post a bond, but we're not -- by doing so, we don't want to say that look, if he leaves for any reason, that they automatically collect the remaining rent. THE COURT: Nobody says it's automatic. That's something that would be heard by the Court at that point in time. They would determine the basis for the leaving, damages. and whether or not there's a factual basis for MR. BARIC: In terms, Your Honor, of your our objection would be, let me also on the record that our other objection is as no more than an accelerated attempt to question as to what continue and have we interpret this 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 perhaps through didn't have achieve the typical means of discovery. THE COURT: But I explained to you if a basis for that, that I would deny that. the discovery they could otherwise achieve they I just heard a physician tell me that this young man's -- although it's a remote possibility, the possibility exists that this young man's life could hang in the balance, and with that in mind I'm going to air on the side of safety, if I can put the parties in the status quo by means of a bond. You've got a lease. You've got a written lease. If your tenant moves cut you're entitled to collect on that. If for some reason he's got -- if you've got a legitimate claim, the money will be posted. Your clients would be protected. HR. BARIC: I appreciate that, Your Honor, I can do is preserve what we believe to be our and all objections. THE COURT: I understand that, and then will enter the following order granting the temporary injunction. as painless add, go MR. Your Honor. Dc, we have any time frame? I want to the tenant as possible. BARIC: Yeah, and we will -- forward, to make it let me If you are going to permit the testing to we will be sending our own expert in. So we 3O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will need to coordinate our expert time as their's. THE COURT: Okay. I as quickly as possible. MR. BRENNAN: I have Your Honor, if I may add one thing. carrier involved, who I believe have Mr. Baric, Ail State. They also want come in, and I have no problem -- to go in at the same ask that that be done no problem with that, There is an insurance been in contact with to have their expert MR. BARIC: Well, that's the expert I'm referring to, Your Honor. THE COURT: if they want to get their expert in, I'm not going to Okay. All State's expert, but It's going to be within reason. The next week? I think a week would be this thing. MR. BARIC: BRENNAN: I to unduly delay MR. adequate. When I that he could move last talked to Dr. Johanning he felt quickly in a few days, but, again, would feel more comfortable, Judge, if we have 7 days get in and out. The only thing I would say is if their there at the same time, and their expert like the 8th or 9th day, that we have an if it's delayed because of them wanting expert wants to be can't get in until[ understanding that an expert on the premises at the same time, that we're allowed to do that. Otherwise I'll make sure we're within 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the time frame the Court sets. MR. BARIC: Well, then I'm going to ask for additional time. experts to be at the property, it a little bit more open than 7 days. HR. BRENNAN: It's their call, will do it in 7, but if they want their expert guy's there -- If it's a question of coordinating two then I think we better leave Judge. I when my THE COURT: Well, if it's an emergency I like to get it done as quickly as it can be done, and would I don't want to have the insurance company dragging their feet, obviously. It would seem to me that that's something counsel can work out. MR. BARIC: Sure. MR. BRENNAN: Yes. THE COURT: Does your doctor have a comfort 10 days in getting this done? MR. level with the BRENNAN: THE COURT: order: AND NOW, That would be fine, Okay. We'll enter the yes . this 21st day of February, 2001, following upon consideration of the Plaintiffs' verified complaint in equity and Plaintiffs' Petition for Preliminary Injunction, and after having heard testimony of a treating physician, it appears to the Court that inm~ediate and irreparable harm 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will be sustained by the Plaintiffs before trial can be held on the merits, and it is ordered and directed Defendants immediately make at 11 Southern Cross Drive, County, Pennsylvania, for purposes of examination and inspection by Plaintiffs' expert, Dr. Eckardt Johanning. It is further ordered that Dr. Johanning shall be accompanied by an expert named by the Defendants. Counsel for both parties can make these arrangements. Provided, however, that unless we order otherwise, this testing shall be completed within 10 days of today's date. The Plaintiffs are directed to file an approved bond in the amount of $12,000.00. THE COURT: Add to the paragraph dealing with the inspection: This adequate time for the stachybotrys mold and Appropriate notioe of that the available the premises located Boiling Springs, Cumberland examination and inspection shall allow complete investigation for the any toxins related thereto. the examination to be given to the a few things, Your Honor. indicate that there can be tenants so that they are inconvenienced as little as possible. MR. BARIC: Just I would ask that the order also no destructive testing done to the property. I don't want any drywall removed, which was done previously. Mr. 33 3 l0 ~3 2O ~2 Brennan test will be nothing more than putting instrument in the property, but I want THE COURT: Add to that in his correspondence to me has indicated that the a suitcase size it to be clear -- same paragraph: There shall be no destructive testing of the premises without further Order of Court. The Plaintiffs shall return the premises under the same condition it was in prior to the com/nencement of the'testing. THE COURT: Okay, gentlemen. Anything else? MR. BRENNAN: Your Honor, I just have a question. For purposes of the tenant, I would like to go through Mr. Baric's office for notice so it's not expected I would give him notice directly. THE COURT: I think that's the best way to handle it anyhow. Since you represent your olients, you're the best one to contact the tenant. question. MR. BARIC: I THE COURT: Okay. MR. BRENNAN: Your Honor, He will be posting the bond. will make the contact. I have another I get here very rarely, Your Honor. in this courthouse. Prothonotary? THE Actually It's been about five years since I was We, I assume, would post with the COURT: You post with the Prothonotary. a professional bond would be -- cash or a 34 1 2 3 5 6 8 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 2~ 25 professional bond would be acceptable. MR. BRENNAN: Okay. We next day or so. thing I ask is, premises. will do that in the We'll do it promptly. The only other cbviously, that we will not destroy ~he We assume that nothing will happen between now and the testing either, pleading or attempt to no other experts would appear, I would ask the Court to direct. THE COURT: You're not going to get into that there would be any further fleece the area other than normal -- SO remedial action. I presume remedial taken. You've indicated that to the MR. BRENNAN: Yes. THE COURT: If not on in chambers, but I would expect that action was already Court. the record, certainly in the spirit of this order that no further action be taken, at least until Dr. Johanning gets the opportunity to check for the microtoxins. HR. BARIC: We don't anticipate in the next seven to ten days that any work like that is going to be done. Let me add one other point, THE COURT: Well, certainly within the next ten days. Court MR. BARIC: Right. One other point that the raised, I would suggest or request if we can limit 35 1 2 3 4 7 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 the child. that this this case, placed on it done the use of the reports and the findings, at this point in time anyway, exclusively to the treatment and diagnosis of As the Court eluded to earlier, I'm concerned is really an attempt to accelerate discovery in and I'd like to see some kind of limitations would the use of this report. now, I would like to see THE COURT: I'm not they put it to right now? MR. BARIC: Well, I If that is why they want it limited to that use. sure -- what other use appreciate right now, but I guess what I'm saying is I don't want to open the door and indicate that I'm accepting any report that's done now or any determinations made by this subsequent civil litigation. THE COURT: I'm not MR. BARIC: THE COURT: purposes of the testing. expert in the asking you to do that. Okay. It's being used now for the I'm not going to preclude them from using it down the road. I'm just not that. You can address that at that point going to open or shut that door. HR. BARIC: still an open issue. THE COURT: MR. BRENNAN: going to do in time. I'm not I wanted to make sure that's Right. That's all I have, Your Honor. 36 1 2 4 5 6 8 9 10 11 12 13 15 16 17 18 19 2O 21 22 23 25 job, Counsel. THE COURT: (Whereupon, All right. Good enough. Good the proceedings concluded.} 37 CERTIFICATION contained the above same. I hereby certify that the proceedings are fully and accurately in the notes taken hy me on qause, and that this is a correct transcript of Michele A. Eline Official Court Reporter The the healing of the within matter directed to be filed. Date foregoing record of the proceedings on is hereby approved and Edward E. Guido, J. Ninth Judicial District 38 PABLO ADAM and ANITA ADAM, in their own right and as Parents and Natural Guardians of ANDREW ADAM, Plaintiffs MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0950 EQUITY IN RE: PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 21st day of February, 2001, upon consideration of the Plaintiffs' verified complaint in equity and Plaintiffs' Petition for Preliminary Injunction, and after having heard testimony of a treating physician, it appears to the Court that immediate and irreparable harm will be sustained by the Plaintiffs before trial can be held on the merits, and it is ordered and directed that the Defendants immediately make available the premises located at 11 Southern Cross Drive, Boiling Springs, Cumberland County, Pennsylvania, for purposes of examination and inspection by Plaintiffs' expert, Dr. Eckardt Johanning. This examination and inspection shall allow adequate time for the complete investigation for the Stachybotrys mold and any toxins related thereto. Appropriate notice of the examination to be given to the tenants so that they are inconvenienced as little as possible. premises without further Order of Court. shall return the premises under the same in prior to the commencement of the testing. It is further ordered that Dr. There shall be no destructive testing of the The Plaintiffs condition it was Johanning shall be accompanied by an expert named by the Defendants. Counsel for both parties can make these arrangements. Provided, however, that unless we order otherwise, this testing shall be completed within 10 days of today's date. file an The Plaintiffs are directed to approved bond in the amount of $12,000.00. Edward M. Brennan, Esquire For the Plaintiffs David Baric, Esquire For the Defendants :mae By the Court, Edward E. Guido, J. EDWARD M. BRENNAN, ESQUIRE Attorney-at-Law 101 South Centre Street - Suite 2 P.O. Box 930 Pottsville, PA 17901 (570) 628-2461 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY PABLO ADAM and ANITA ADAM, in their own right and as Parents and NattLral Guardians of ANDREW ADAM, Plaintiffs VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD, Defendants No. 01-950 Equity WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Plaintiffs, Pablo Adam and Anita Adam, in the above matter. Date: ,._~'//~Tt/~,7~ TO THEPROTHONOTARY: Attorney I.D. No. 38770 ENTRY OFAPPEARANCE Kindly enter my appearance on behalf of Plaintiffs, Pablo Adam and Anita Adam, in the above matter. Date: Da'co: Larry Bendesky, Esquire Saltz Mongeluzzi Barrett & Bendesky 1650 Market Street 34th Floor Philadelphia, PA 19103 Phone:215-496-8282 Linda M. Shick, Esquire Naftulin and Shick, P.C. 40 East Court Street Doylestown, PA 18901 Phone:215-348.5455 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PABLO ADAM and ANITA ADAM, et al VS. MICHAEL SPOTSWOOD and IRENE SPOTSWOOD : No. 01-0950 · Equity STIPULATION TO DISCONTINUE REQUIREMENT FOR BOND It is hereby stipulated by and between Linda M. Shick, Esquire, attorney for Plaintiffs Adam and David Baric, Esquire attorney for Defendants Spotswood, that: 1. After a hearing held on February 21, 2001, the Honorable Edward E. Guido entered an Order directing the Defendants to make the premises located at 11 Southern Cross Drive, Boiling Springs available for examination and inspection. 2. The said Order of February 21, 2001 also required the filing of an approved bond by the Plaintiffs in the amount of $12,000.00. 3. The Plaintiffs completed the examination and inspection per the Order of February 21, 2001. 4. There is no longer any reason to require the bond in the amount of $12,000.00. Whereby Plaintiffs and Defendants, by and through their respective attorneys agree that the requirement for bond is discontinued and request the Honorable Court to enter an Order acco~ingly. ../'DAVID BARIC, ESQUIRE Attorney for Defendants Attorney for Plaintiffs Ordered and Approved by the Court this ,~t day o~ ,2002. Edward E. Guido, J. NAFTULIN AND SHICK, P.C. ATTORNEYS AT LAW 40 EAST COURT STREET DOYLESTOWN, PA 1 8901 JEFFREY L. NAFTULIN' LINDA M, SHICK* eOF COUNSEL TOLL FREE: (800)560-3388 FAX: (215)348-4007 E-MAIL: THE~IIS 1997~AOL.COM WEB SITE: NAFTULIN-SHICK.COM August 2, 2002 The Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Adam v. Spotswood Cumberland County CCP No, 01-0950 Dear Judge Guido: Enclosed please find a Stipulation to Discontinue Requirement for Bond with regard to the above matter. Please be advised that all parties agree that there is no longer any need for a bond. If this meets with your approval, please enter the Stipulation as an Order of Court and return to my attention in the envelope provided. Thank you for your attention in this matter. Respectfully, Litda M. Shick LMS/eak Enclosures cc: David Badc, Esquire (w/enc.) Larry Bendesky, Esquire (w/enc.) Mr. and Mrs. Pablo Adam (w/enc.) EASTON (610)252.2525 + BETHLEHEM (6 ! 0)866-8555 +JIM THORPE (570)325-5664 · 5TROU DSBURG (570)42 !-6 ! 66