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HomeMy WebLinkAbout10-5125Date: 7/13/2010 Dauphin County User: LGARCIA Time: 11:$5 AM Complete Case History Page 1 of 3 Case: 2009-CV-14899-CV Randolph L Campbell vs. Norfolk Southern Railway Company, etal. Filed: 11 /9/2009 Subtype: Civil Physical File: Y Appealed: N Comment: Status History Pending 11 /9/2009 Closed 7/13/2010 Judge History Date Judge Reason for Removal 11/9/2009 No Judge, Administrative 3/26/2010 Dowling, Andrew H Current Payments Receipt Date Type Amount mCkENNA & Assoc 207899 11/9/2009 Civil Filing 132.00 Total 132.00 Plaintiff Name: Campbell, Randolph L SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys McKenna, Mark F (Primary attorney) Send Notices Defendant Name: Norfolk Southern Railway Company SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Mancos, Brian M (Primary attorney) Send Notices Date: 7/13/2010 Dauphin County Time: 11:5 AM Complete Case History Page 2 of 3 Case: 2009-CV-14899-CV Randolph L Campbell vs. Norfolk Southem Railway Company, etal. Defendant Name: Consolidated Rail Corporation SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Mancos, Brian M (Primary attorney) Send Notices Register of Actions 11/9/2009 New Civil Case Filed This Date. No Judge, Filing: Complaint Paid by: mCkENNA ~ No Judge, Assoc Receipt number: 0207899 Dated: 11/9/2009 Amount: $132.00 (Check) For: Campbell, Randolph I (plaintiff) Plaintiff: Campbell, Randolph I Attorney of No Judge, Record: Mark F McKenna Complaint filed. No Judge, 11/17/2009 Complaint: Sheriff's Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to Norfolk Southern Railway Company on 11/17/2009; Assigned to Dauphin Co Sheriffs Office. Service Fee of $78.00. Complaint: Sheriffs Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to. Consolidated Rail Corporation on 11 /17/2009; Assigned to Dauphin Co Sheriffs Office. Service Fee of $0.00. 12/4/2009 Burns, White 8~ Hickton, by Brian M. No Judge, Mancos, Esquire enters appearance on behalf of defendants, Norfolk Southern Railway Company and Consolidated Rail Corporation. See Praecipe, filed. Answer and New Matter, filed. No Judge, 12/28/2009 Plaintiffs Reply to New Matter, filed. No Judge, 3/9/2010 Defendants' motion to transfer venue No Judge, based on forum non conveniens pursuant to pa.r.c.p. 1006(d)(1), filed. Defendants' brief in support of motion to No Judge, transfer venue based on forum non conveniens pursuant to pa.r.c.p. 1006(d)(1), filed. User: LGARCIA Date: 7/13/2010 Dauphin County Time: 11:5 AM Complete Case History Page 3 of 3 Case: 2009-CV-14899-CV Randolph L Campbell vs. Norfolk Southern Railway Company, etal. Register of Actions 3/11/2010 Defendants' Motion to Transfer Venue Clark, Lawrence F. Jr. Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) will not be entertained. All parties are directed to Pennsylvania Rule of Civil Procedure 1006 (d)(1), which states a request to transfer venue must be sought by "ppetitio". The moving party is directed to review the rule referenced above and resubmit a filing in conformance with thet referenced rule to the Prothonotary's Office. See ORDER filed. Copies Dist By court 3/11/10 3/24/2010 Defendants' petition to transfer venue No Judge, based on forum non conveniens pursuant to pa.r.c.p. 1006(d)(1), filed. Defendants' brief in support of petition to No Judge, transfer venue based on forum non conveniens pursuant to pa.r.c.p. 1006(d)(1), filed. 3/26/2010 Judge assigned to case. Dowling, Andrew H 6/8/2010 Hearing scheduled for (Argument Dowling, Andrew H 07/07/2010 10:00 AM) (In Chambers) Upon consideration of the foregoing petition, it is hereby ordered that (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within 20 days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; (6) notice of the entry of this order shall be provided to all parties by the petitioner. See ORDER, tiled. Copies distributed 6/9/2010. 7/12/2010 Hearing result for Oral Argument held on Dowling, Andrew H 07/07/2010 10:00 AM: Hearing Held - Upon consideration of Defendants' Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and consideration of Plaintiffs failure to respond to Defendants' Petition or appear for oral argument on July 7, 2010, IT IS HEREBY ORDERED that Defendants' Petition is GRANTED and this matter is TRANSFERRED to Cumberland County, Pennsylvania for further proceedings. See ORDER, filed. Copies distributed 7/12/2010. 7/13/2010 AOPC MONTHLY CIVIL COURT Dowling, Andrew H STATISTICAL REPORT DATA User: LGARCIA A _ _ Transferred /Withdrawn (Civil Action ) ~ ~:, a. e, ~ ~ ~ ~~ ~ ` ._ IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, vs. Plaintiff, NORFOLK SOUTI~RN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION, Defendants. TO: DEFENDANTS You are hereby notified to plead to the enclosed COMPLAINT IN CIVIL ACTION within twenty (20) days from service hereof or a default judgment maybe entered against you. 1~~I~ID1~ ~ ASSOCIATES, P.C. CIVIL ACTION NU.: o~~ ~v 1~~~ C V TYPE OF PLEADING: COMPLAINT IN CIVIL ACTION ~. ,~-_ ~' FII,ED ON BEHALF OF: -~~ 4~ PLAINTIFF, RANOLDP$ ,_. ~~ CAMPBELL ~' ~~ . ` `~ .:-- ~~ ~ COUNSEL OF RECORD FOR~II ~ -~- PARTY: .. rn MARK F. McKENNA, ESQUIRE PA I.D. #30297 McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh PA 15219 (412) 471-6226 mmckenna(a,consolidated.vet JURY TRIAL DEMANDED BY:~ ~ ` " Mark F. McKenna., Esquire Attorneys for Plaintiff ~ i IN THE COURT OF COMMON PLEAS FOR DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, CIVIL ACTION Plaintiff, CASE # vs. ~,~c~ C U l ~~ q~ c V NORFOLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION Defendants. NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) DAYS after this Complaint and notice are served, by entering a written appeazance personally or by an attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You aze warned that if you failed 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 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 THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY BAR ASSOCIATION 213 North Front Street Harrisburg, Pennsylvania (717)232-7536 COMPLAINT IN CIVIL ACTION AND NOW, comes the Plaintiff, RANDOLPH L. CAMPBELL, by and through his attorneys, MCKENNA & ASSOCIATES, P.C., and files the following Complaint in Civil Action and in support thereof avers as follows: 1. The Plaintiff, RANDOLPH L. CAMPBELL, (hereinafter referred to as "Plaintiff'), is an adult-individual who resides at 2323 Ritner Highway, Carlisle, PA 17015. 2. The Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, (hereinafter referred to as "Defendant") is a Virginia Corporation that conducts and transacts business throughout the Commonwealth of Pennsylvania, and is involved in the movement of freight in interstate commerce and foreign commerce. 3. That all times relevant hereto, the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, is involved and does maintain a principal place of business in the Commonwealth of Pennsylvania, including Dauphin County, Pennsylvania. 4. CONSOLIDATED RAIL CORPORATION (CONRAIL) is a Pennsylvania Corporation, conducting and doing business in and about Dauphin County, Pennsylvania, and is and was, at all times relevant hereto, engaged in interstate commerce in and throughout the several states of the United States as a common carrier by rail, and for that purpose, operated locomotives, railroad cars and transacted substantial business in and about Dauphin County, Pennsylvania. 5. At all times relevant hereto, Plaintiff, RANDOLPH L. CAMPBELL, herein was and is employed by the Defendants, Norfolk Southern Railway Company and Conrail, as an employee, h..s 4_ as the term is defined under Section 45 U.S.C. § 51, and as such was engaged by th~befeants -a - _ to perform duties in the furtherance of its business interest and movement of frei ~.~ -ac int~stat~ - ~ ~T. and foreign commerce by Defendants. z'` ~ ' _ _ ~ -_ :,~ ' o .. -,c a~ 6. At all times relevant hereto, Defendants acted by and through their agents, servants or employees who were acting within the scope of their respective employment. 7. The acts of omission and commission causing injuries to the Plaintiff, RANDOLPH L. CAMPBELL, were done by the Defendants, their agents, servants, workmen and/or employees, acting within the course and scope of their employment with and under the direct and exclusive control of the Defendants herein named. 8. Ali of the property, equipment and operations involved in Plaintiff, RANDOLPH L. CAMPBELL'S injury were owned and/or under the direct and exclusive control of the Defendants, or any of its agents, servants, workmen and/or employees as predecessors in interest the defendants herein named. 9. During Plaintiff, RANDOLPH L. CAMPBELL's entire working career and while working within the course and scope of his employment for Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was injured due to the unsafe and inadequate working conditions. 10. This action arises under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. 11. Throughout Plaintiff, RANDOLPH L. CAMPBELL'S employment, Plaintiff, R.ANDOLPH L. CAMPBELL, while working within the scope of his employment for Defendants herein named, as a maintenance of way worker, was continuously and repeatedly required to perform repetitive, forceful and awkward motions utilizing his lower extremities which included excessive kneeling, squatting, stooping and bending; and was required to walk on uneven and unstable surfaces and to get on and off of moving equipment which caused the Plaintiff, RANDOLPH L. CAMPBELL, to sustain severe and permanent injury to his lower extremities, including, but not limited to, his knees, hips and back. l2. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects of exposing his lower extremities to repetitive, forceful, and awkward motions. 13. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unawaze of the dangerous effects of excessive walking, kneeling, bending, squatting, stooping, and bending, twisting, turning of the lower extremities. 14. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unawaze of the dangerous effects to his lower extremities from walking and working on uneven and unstable surfaces and the harmful effects of getting on and off of moving equipment. 15. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unawaze that any and all of above mentioned exposures and/or conditions could cause severe and permanent injuries to his lower extremities. 16. Throughout Plaintiff RANDOLPH L. CAMPBELL's employment with Defendants, said Defendants knew, or in the exercise of proper diligence should have known, of the presence and existence of the aforementioned dangers within Plaintiff, RANDOLPH L. CAMPBELL's working environment. 17. The injuries and damages to Plaintiff, RANDOLPH L. CAMPBELL being complained of were directly and proximately caused by the negligence of the Defendants, their agents, servants or employees while acting within the nature and scope of their employment for the Defendants in the following respects: a. in violating the Federal Employers' Liability Act; b. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with a reasonably safe place to work; c. in requiring Plaintiff, RANDOLPH L. CAMPBELL, to perform repetitive, forceful and awkward motions utilizing his lower extremities which also involved excessive kneeling, squatting, stooping ,bending, twisting and turning; d. in requiring Plaintiff, RANDOLPH L. CAMPBELL, to repeatedly walk and work on dangerous, uneven and unstable surfaces; e. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with the proper protective equipment; f. in failing to warn Plaintiff, RANDOLPH L. CAMPBELL, of the dangers posed by the aforementioned work activities; g. in failing to periodically inspect and/or test its workplace; h. in allowing unsafe practices to become standard practice; I. in failing to properly train, educate and/or warn Plaintiff of the hazards in the workplace; j. in failing to comply with existing federal and state statutes and safety regulations; k. in failing to comply with its' own rules, work practices and procedures; 1. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with adequate manpower to safely do his job; m. in failing to provide proper tools and equipment; n. in assigning Plaintiff, RANDOLPH L. CAMPBELL, to work beyond his physical and medical capabilities; o. in failing to provide proper medical supervision and care; p. ~ in failing to comply with State and Federal Safety Regulations, including OSHA standazds; q. in failing to monitor the work place; r. in failing to take precautions to prevent repeated injuries to Plaintiff, RANDOLPH L. CAMPBELL'S extremities including his knees, ligaments ,bone and joints; s. in failing to provide a safe place to work or provide for Plaintiff, RANDOLPH L. CAMPBELL'S safety when Defendants knew and were awaze that the Plaintiff, RANDOLPH L. CAMPBELL, suffered injury to his knees, ligaments, bone and joints; t. in knowing and awaze that the Plaintiff, RANDOLPH L. CAMPBELL, had sustained injuries to his right and left knees and joints; u. in failing to provide proper splints or braces; v. in failing to take any precautions to provide for Plaintiff, RANDOLPH L. CAMPBELL's safety, thereby continually subjecting Plaintiff, RANDOLPH L. CAMPBELL, to continuous excessive stress, repetitive motions and vibrations, causing injury to Plaintiff, RANDOLPH L. CAMPBELL's knees in aggravation of these conditions after Defendants knew or should have known of Plaintiff, RANDOLPH L. CAMPBELL's injuries; w. in continually requiring Plaintiff, RANDOLPH L. CAMPBELL, to work and be exposed to the hazazds stated above, thereby, directly and proximately causing Plaintiff, RANDOLPH L. CAMPBELL'S injuries. x. ` in failing to adjust, alter, counter weigh or counter balance the tools and equipment; y. in failing to employ or hire a trained ergonomist to test, monitor, educate and produce Plaintiff, RANDOLPH L. CAMPBELL with a safe place to work; and z. in failing to provide proper ballast and walking surface. 18. As a direct and proximate result of the aforementioned negligence of the Defendants or any of its agents, servants, workmen and/or employees, the Plaintiff, RANDOLPH L. CAMPBELL, has suffered cumulative trauma and repetitive stress to his lower extremities, bones, ligaments, and joints, which has resulted in the following damages and/or injuries, some or ail of which may be permanent; a. advanced DJD, of the right and left knee with decreased range of motion; b. anticipated knee surgery; c. bilateral hip osteoarthritis; d. hip surgery; e. low back pain and osteoarthritis f. pain and tenderness in all the above affected areas. 19. As a further direct and proximate result of the negligence and/or careless conduct of Defendants or any of its agents, servants, workmen and/or employees, Plaintiff, RANDOLPH L. CAMPBELL, has in the past and may in the future sustain the following damages: a. loss of enjoyment of life; b. change of lifestyle; c. loss of wages and fringe benefits; d. loss of earning capacity; e. ~ medical expenses; f. pain and suffering; g. mental anguish; h, personal financial loss; and I. continuing pain and disability. 20. Plaintiff, RANDOLPH L. CAMPBELL, did not contribute to any of these injuries. 21. To the extent, if any, the Plaintiff has apre-existing condition affecting his knee or lower extremities, the Plaintiff will show that such condition or conditions were aggravated by the conduct of the Defendants as described above. WHEREFORE, Plaintiff, RANDOLPH L. CAMPBELL, respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendants, together with costs and disbursements of this action in an amount in excess of compulsory arbitration limits. JURY TRIAL DEMANDED espectfully submitted, MARK F. McKENNA, ESQ. Attorneys for Plaintiff, RANDOLPH L. CAMPBELL McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412)471-6226 VERIFICATION I am the Plaintiff in this matter and am represented by counsel. I have furnished to my counsel factual information upon which the foregoing is based. To the extent that it is based on the factual information provided to counsel, I verify that those facts are true and correct to the best of my knowledge, information and belief. However, the language is that of counsel and, to the extent that it goes beyond the factual information which I have provided to counsel. I have relied upon counsel in making this verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: ~, < ~ ~H~ ~ ~ ' ~ Sr m'~ ~'~-. MaR ~ ~ane~n~der Charles E. Sheaffer ~ ;~~: Chief Deputy William T. Tully ~ Michael W. Rinehart Solicitor Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick sheriff Commonwealth of Pennsylvania RANDOLPH CAMPBELL VS County of Dauphin NORFOLK SOUTHERN RAILWAY COMPANY Sheriff s Return No. 2009-CV-14899-CV And now: NOVEMBER 17, 2009 at 10:30:00 AM served the within COMPLAINT upon CONSOLIDATED RAIL CORPORATION by personally handing to JENNIFER SMITH 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 2704 COMMERCE DR HBG PA 17110 CUSTOMER SERVICE ASSOC Deputy: R HOPKINS Plaintiff: RANDOLPH CAMPBELL Sheriffs Costs: $78 11/16/2009 So Answers, ~.- p ~.. /~ -~ G~~~~ ,-~ = s~~ .~~ M1. c, Sheriff of Dauphin County, Pa. ;~ ,:- -_, .~ ~. _. - :~,: -~; crl rn r~~ i R, 4 1 ~~~ ~ ~ , ~ J ~ ~ ~ as ~ ai ~; ''°~ ~. Mary Jane Snyder Charles E. Sheaffer Real Estate Depu ; ~; Chief Deputy William T. Tully ~ ~ Michael W. Rinehart Solicitor Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania RANDOLPH CAMPBELL VS County of Dauphin NORFOLK SOUTHERN RAILWAY COMPANY Sheriff s Return No. 2009-CV-14899-CV And now: NOVEMBER 17, 2009 at 10:30:00 AM served the within COMPLAINT upon NORFOLK SOUTHERN RAILWAY COMPANY by personally handing to JENNIFER SMITH 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 2704 COMMERCE DR HBG PA 17110 CUSTOMER SERVICE ASSOC So Answers, Deputy: R HOPKINS Plaintiff: RANDOLPH CAMPBELL Sherii~s Costs: $78 11/16/2009 ~, t y IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH H. CAMPBELL, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. CIVIL DIVISION NO: 2009-CV-14899-CV PRAECIPE FOR APPEARANCE ~~~ _ e.--~ CODE: 5 FELA r~' . Filed on behalf of _ --~ Defendants, Norfolk Southern m' . `•~'' Railway Company and Consolidated Rail Corporation Counsel of Record for these Parties: Brian M. Mancos, Esquire Pa. I.D. #89720 BURNS, WHITE & HICKTON Firm #828 Four Northshore Center 106 Isabella Street Pittsburgh, Pa. 15212 (412) 995-3000 JURY TRIAL DEMANDED ~' .. r THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, )CIVIL DIVISION PLAINTIFFS, )CASE NO. 2009-CV-14899-CV VS. ) )PRAECIPE FOR APPEARANCE NORFOLK SOUTHERN RAILWAY ) COMPANY and CONSOLIDATED RAIL ) CORPORATION, ) )JURY TRIAL DEMANDED `-- ~w DEFENDANTS. ) ~~~ "; ~ ._ ~~ . PRAECIPE FOR APPEARANCE .~ ; - . TO: PROTHONOTARY DAUPHIN COUNTY ttt Kindly enter my Appearance on behalf of Defendants, NORFOLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION, in the above-entitled action. BURNS, WHITE & HICKTON By if~ . rian M. Mancos, Esquire PA ID#89720 Attorney for Defendants, Norfolk Southern Railway Company and Consolidated Rail Corporation ~" ~~ CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of December 2009, a copy of the within was served on all counsel of record, via first class mail postage prepaid: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 By rian M. Mancos, Esquire Attorney for Defendants. ~~ ~. /~ IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH H. CAMPBELL, PLAINTIFF, CIVIL DIVISION NO: 2009-CV-14899-CV VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. ANSWER AND NEW MATTER ,~... ;..w, ~~, ., <-~ CODE: 5 FELA ; ~ ~ ~ ~. .~~ - Filed on behalf of _ `= Defendants, Norfolk Southeria~-; ~ Railway Company and --K; ~ Consolidated Rail Corporation Counsel of Record for these Parties: Brian M. Mancos, Esquire Pa. I.D. #89720 BURNS, WHITE & HICKTON Firm #828 Four Northshore Center 106 Isabella Street Pittsburgh, Pa. 15212 (412) 995-3000 JURY TRIAL DEMANDED THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, PLAINTIFFS, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, CIVIL DIVISION NO: 2009-CV-14899-CV ANSWER AND NEW MATTER JURY TRIAL DEMANDED DEFENDANTS. ) i `:~ °_ ANSWER AND NEW MATTER ~, . AND NOW COME Defendants, Norfolk Southern Railway Company and Consolidated Rail Corporation, by their attorneys Burns, White & Hickton, file the following Answer and New Matter to Plaintiff s Complaint: ANSWER 1. Admitted as to residence. 2. Admitted. e-r~ ,~"? f ...!.,._ cn 3. It is admitted that Norfolk Southern Railway Company is involved in and does maintain a principal place of business in the Commonwealth of Pennsylvania. The remaining allegations of Paragraph 3 are denied. 4. Admitted in part and denied in part. It is admitted that Consolidated Rail Corporation was a common carrier by rail between the periods April 1, 1976, and June 1, 1999, Consolidated Rail Corporation did not conduct any railroad operations in any areas { J other than the Detroit Metropolitan area and the Northern New Jersey and Southern New Jersey-Philadelphia azeas. 5. Defendants aze without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Pazagraph 5 of Plaintiff s Complaint. All said allegations are denied. 6. Defendants aze without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Pazagraph 6 of Plaintiff s Complaint. All said allegations aze denied. 7. Defendants aze without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Pazagraph 7 of Plaintiff s Complaint. All said allegations aze denied. 8. All of the allegations contained in Pazagraph 8 of Plaintiffs Complaint aze denied. 9. All of the allegations contained in Pazagraph 9 of Plaintiffs Complaint aze denied. 10. The allegations contained in Pazagraph 10 of Plaintiffs Complaint constitute a conclusion of law to which no response is necessary. To the extent a response is deemed necessary, all of the allegations contained in Pazagraph 10 of Plaintiff s Complaint are specifically denied in their entirety. 11. All of the allegations contained in Paragraph 11 of Plaintiff's Complaint aze specifically denied in their entirety. 2 12. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 12 of Plaintiffs Complaint. All said allegations are denied. 13. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Pazagraph 13 of Plaintiffs Complaint. All said allegations aze denied. 14. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Pazagraph 14 of Plaintiffs Complaint. All said allegations aze denied. 15. Defendants aze without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 15 of Plaintiffs Complaint. All said allegations aze denied. 16. All of the allegations contained in Paragraph 16 of Plaintiff s Complaint aze denied. 17. All of the allegations contained in Pazagraph 17 of Plaintiff s Complaint, through and including subparagraphs (a) through (z) are specifically denied in their entirety. 18. All of the allegations contained in Pazagraph 18 of Plaintiff s Complaint, through and including subpazagraphs (a) through (f) are specifically denied in their entirety. 19. All of the allegations contained in Paragraph 19 of Plaintiff s Complaint, through and including subpazagraphs (a) through (i) aze specifically denied in their entirety. 3 20. All of the allegations contained in Paragraph 20 of Plaintiff s Complaint are denied. 21. All of the allegations contained in Paragraph 21 of Plaintiff s Complaint are denied in their entirety. NEW MATTER By way of further response to the entirety of Plaintiff's Complaint, Defendants set forth the following New Matter: 22. Venue of the instant action is improper in that Plaintiff resides in and/or his alleged cause of action arose in a County and/or State other than Dauphin County, Pennsylvania, and hence, this cause of action should be dismissed. 23. Defendants, believe and therefore aver, that all of Plaintiff s claims are barred by applicable statutes of limitation. Accordingly, Defendants hereby plead all applicable statutes of limitation as a complete bar to the entirety of Plaintiff s claims. 24. While denying that the Plaintiff sustained the injuries and/or damages as alleged, if it would ultimately be proven that the Plaintiff did sustain the damages and/or injuries in the fashion alleged, Defendants believe and therefore aver that Plaintiffs own contributory negligence may have and/or did contribute, in a substantial way, to the happening and/or occurrence of the alleged injuries. And, accordingly, Defendants plead Plaintiff s contributory negligence in diminution of any award Plaintiff may ultimately receive. 25. While denying that the Plaintiff sustained the damages as alleged, Defendants believe and therefore aver that any damages the Plaintiff may ultimately be entitled to recover from these Defendants may or are possibly limited in scope by the 4 provisions of the Federal Employers' Liability Act, and said recovery may be limited as to those damages specifically annunciated therein. Accordingly, in the event said act is applicable, all sections of Plaintiffs Complaint seeking damages other than those provided for in the Federal Employers' Liability Act fail to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. Alternatively, all said sections of Plaintiffs' Complaint should be stricken. 26. Consolidated Rail Corporation did not exist prior to April 1, 1976. 27. Accordingly, all sections of Plaintiffs Complaint seeking recovery for incidents, which occurred prior to April 1, 1976, fail to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 28. Plaintiffs Complaint, as to these Defendants, fails to state a valid cause and/or causes of action upon which relief may be granted and should be dismissed. 29. Defendants hereby plead the defense of release to all of Plaintiff's claims alleged herein. 30. Defendants would further show that Plaintiff's alleged injuries and damages were caused, in whole or in part, by pre-existing conditions, or other contributory or concurrent conditions or factors, including events occurring prior or subsequent to the occurrence made the basis of Plaintiff s claim against Defendants. 31. This Court lacks jurisdiction of the person of Defendants, Consolidated Rail Corporation and Norfolk Southern Railway Company, pursuant to 45 U.S.C. §56, in that Plaintiff s cause of action did not arise in the within jurisdiction. 32. While denying any liability whatsoever to Plaintiff, on any grounds, Defendant believes and therefore avers that it would nevertheless be entitled to a set off, against any claim asserted by Plaintiff, of such sums which have been paid by or funded by this Defendant on behalf of Plaintiff, including, but not limited to, all amounts Defendant contributed to the Railroad Retirement Board for any and all sickness and/or disability or other benefits enuring in favor of the Plaintiff. WHEREFORE, Defendants, Consolidated Rail Corporation and Norfolk Southern Railway Company, demand that the Plaintiff s action be dismissed and that they be permitted to recover the costs of defending this action. JURY TRIAL DEMANDED. Respectfully submitted, BURNS, WHITE & HICKTON By rian M. Mancos, Esquire Attorney for Defendants, Norfolk Southern Railway Company Consolidated Rail Corporation NOTICE TO PLEAD TO: PLAINTIFF You are hereby notified to file a written reply to the enclosed New Matter within twenty (20) days of service hereof or a judgment may be entered against you. By ~~ Brian M. Mancos, squire Attorney for Defendants 6 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of December 2009, a copy of the within ANSWER AND NEW MATTER was served via first class mail, postage prepaid on Counsel for Plaintiff addressed as follows: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 BURNS, WHITE & HICKTON By i~~' ~ rian M. Mancos, squire Attorney for Defendants 7 VERIFICATION I verify that the averments of fact made in the foregoing ANSWER AND NEW MATTER are true and correct based upon my personal knowledge, information and belief. I understand that the averments of fact in said document are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. L. Keit Lambert Manager, Occupational Claims 4, ~ a« A a ~ ~ `~ IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, CIVIL ACTION Plaintill; NO.: 2009-CV-14899-CV TYPE OF PLEADING: vs. PLAINTIFF' S REPLY TO NEW MATTER NORFOLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION, Defendants. FILED ON BEHALF OF: PLAINTIFF, RANOLDPH L. CAMPBELL COUNSEL OF RECORD FOR THIS PARTY: MARK F. McKENNA, ESQUIRE PA I.D. #30297 McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh PA 15219 (412) 4?1-6226 mmckenna(a~ consolidated. net JURY TRIAL DEMANDED c -~ -v ~_ 2~ Z C'a ~~ 2 --! -C 0 rn c-~ N ao tJ! N v~ (~ ...-, --~ -*? z -^~ c-~ O~i?'~ ~ ~"'~ ~. ~ r~. s u 4 IN THE COURT OF COMMON PLEAS FOR DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH H. CAMPBELL, CIVIL ACTION Plaintiff, CASE NO.: 2009-CV-14899-CV vs. NORFOLK SOUTHERN RAILWAY COMPANY AND ~ ©o~ CONSOLIDATED RAIL CORPORATION ~~ r" ~ 'i nn Defendants. s~ ~ ~ o a PLAINTIFF'S REPLY TO NEW MATTER ~ ~ ~ COMES NOW, the Plaintiff, RANDOLPH H. CAMPBELL, by counsel, and files he following Reply to New Matter and avers as follows: RESPONSE TO NEW MATTER 22. Paragraph 22, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 23. Paragraph 23, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 24. Paragraph 24, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 25. Paragraph 25, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 26. Paragraph 26, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 27. Paragraph 27, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 28. Paragraph 28, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 29. Paragraph 29, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 30. Paragraph 30, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 31. Paragraph 31, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. 32. Paragraph 32, is a conclusion of law which no responsive pleading is required. To the extent that a responsive pleading is required, said allegations are denied. WHEREFORE, Plaintiff RANDOLPH H. CAMPBELL respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendants, together with costs and disbursements of this action in an amount in excess of compulsory arbitration limits. Res ectfully submitted, MCK CIATES, P.C. MARK F. McKENNA, ESQUIRE Attorney for Plaintiff VERIFICATION I, Mark F. McKenna, Esquire, counsel for Plaintiff herein, deposes and says that I am counsel for Plaintiff in this matter; that I am authorized to make this Verification on behalf of Plaintiff; that the facts set forth in the foregoing Reply to New Mather are true and correct, not of my own knowledge, but from information supplied to me by Plaintiff; that the purposes of this Verification are to expedite the litigation; and that a Verification by Plaintiff will be furnished if requested. This statement is made subject to the penalties of 18Pa.C.S. Section 4904 relating to unsworn falsification to authoritie . Date: o~ MARK F. McKENNA .. ±MAGED BURNS, WHITE & HICKTON BY: BRIAN M. MANGOS, ESQ. Pa. I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 RANDOLPH L. CAMPBELL, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. o ~ ~ z= ~ ~~~ ~~ ~ . ~~ . ~ ~ ~ ~~ ~. ATTORNEYS FOR DEFENDANTS NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION DAUPHIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO: 2009-CV-14899-CV JURY TRIAL DEMANDED DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO TRANSFER VENUE BASED ON FORUMNON CONVENIENS PURSUANT TO Pa. R.C.P. 1006(d)(1) AND NOW, come Defendants, Consolidated Rail Corporation ("Conrail") and Norfolk Southern Railway Company ("NSRC"), by and through their attorneys, Burns White & Hickton, LLC, and file the within Brief in Support of Motion to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and in support thereof, aver the following: f .1 ~ ~+`. ~ r~ ~ .r.- ,.. ~„~~ ~ ~ ~} •• .r ~„~ I. PROCEDURAL HISTORY Plaintiff initiated the above action on November 9, 2009, by filing a Complaint against Defendants, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et seq. See, Plaintiff's Complaint attached to Defendants' Motion as Ex. "A". In his Complaint Plaintiff alleges that, within the course and scope of his employment, he was exposed to repetitive, forceful and awkward motions utilizing his lower extremities that caused him to sustain severe and permanent injuries to his knees, hips, and back. See, Ex. "A" at ¶11. In his Complaint, Plaintiff alleges that the acts of omission and commission causing his injuries were done by the Defendants, their agents, servants, workmen and/or employees acting in the course and scope of their employment with and under the direct and exclusive control of the Defendants. See, Ex. "A" at ¶7. II. STATEMENT OF FACTS Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. See, Ex. "A" at ¶1; see also, Plaintiff s Response to Defendants' Request for Admissions attached to Defendants' Motion as Ex. "B", at ¶¶27-29; see also, Plaintiff's Answers to Defendants' Lower Extremity Disorder Interrogatories attached to Defendants' Motion as Exhibit "C", at ¶1. Plaintiff s residence in Carlisle, Pennsylvania is approximately twenty-seven (27) miles from Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania, which is approximately athirty-three (33) minute drive. However, Plaintiff's residence is approximately five (5) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a nine (9) minute drive. See, Ex. "A" at ¶1; Ex. "B" at ¶¶30-33; see also, a true and correct copy of Mapquest 2 Driving Directions from Cazlisle, Pennsylvania to Hazrisburg, Pennsylvania attached to Defendants' Motion as Ex. "D". Plaintiff began his cazeer with Defendant Conrail as amaintenance-of--way employee working out of Olean, New York in May of 1976 and was employed by Conrail until May 31, 1999.1 Thereafter, Plaintiff became an employee of Defendant NSRC on June 1, 1999 where he worked out of Olean, New York until September of 2006. See, Ex. "B" at ¶¶2, 13; see also, Ex. "C" at ¶2. Plaintiff admits that he first bid for a position with Defendant NSRC in Harrisburg, Pennsylvania in September of 2006. See, Ex. "B" at ¶14. Plaintiff admits that he next bid for a position with Defendant NSRC in Mount Holly Springs, Pennsylvania in January of 2007. See, Ex. "B" at ¶17. Thus, Plaintiff admits that he was only employed by Defendant NSRC in Dauphin County, Pennsylvania from September of 2006 until January of 2007, or a total of four (4) months. See, Ex. "B" at ¶¶14, 17. Plaintiff further admits that he was employed by Defendant NSRC in Cumberland County, Pennsylvania from January of 2007 until July of 2009, or a total of approximately two and one-half (2.5) years. See, Ex. "B" at ¶17; see also, Ex. "C" at ¶2. Plaintiff's most recent place of employment in Mount Holly Springs, Cumberland County, Pennsylvania is approximately twenty-eight (28) miles from Harrisburg and is approximately athirty-four (34) minute drive. However, Mount Holly Springs is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Cazlisle, Pennsylvania, which is approximately a ten (10) minute drive. See, a true and correct copy of Mapquest Driving Directions from Mount Holly Springs, Pennsylvania to Harrisburg, 1 It should be noted that the nature of Conrail's business changed significantly as of June 1, 1999. On June 1, 1999, Conrail became a switching and terminal railroad, conducting railroad operations in the limited geographical areas of Detroit, Michigan; Northern New Jersey; and Southern New Jersey/Philadelphia. 3 Pennsylvania attached to Defendants' Motion as Exhibit "E"; see also, Ex. "B" at ¶¶19-23. Plaintiff further admits that he has never resided in Dauphin County, Pennsylvania. See, Ex. Plaintiff has only identified one treating physician, Dr. David Maish, as an individual likely to have knowledge regazding his alleged injuries. This treating physician is located in Hershey, Dauphin County, Pennsylvania. See, Ex. "B" at ¶¶34-36; see also, Ex. "C" at ¶¶20, 22- 25. However Plaintiffs other known medical treatment during the latter part of his railroad career was received at Cazlisle Internal Medicine, located in Cumberland County, Pennsylvania. See, Affidavit of L. Keith Lambert attached to Defendants' Motion as Exhibit "F". As Plaintiff is claiming injuries resulting from his duties at work, Defendants intend to call Plaintii~s supervisors and co-workers, who aze familiaz with Plaintiffs job duties and requirements, to testify at trial. See, Ex. "F". Defendants further believe and therefore aver that Plaintiff has not identified any co-worker witness who lives or works in Dauphin County and who has direct personal knowledge of Plaintiff's work activities that aze alleged to have occurred in Cumberland County, Pennsylvania. See, Ex. "B" at ¶37; see also, Ex. "F". Based on the Affidavit of L. Keith Lambert, it would also be unduly burdensome to replace those employees/witnesses who possess knowledge of Plaintiff's claim, if said individuals were required to travel to Harrisburg, Pennsylvania, in terms of expense and time away from work. It would further be a burden for Defendants to transport these individuals to Harrisburg, Pennsylvania for the trial and also pay their wages and expenses for the duration of the time spent at trial. See, Ex. "F". Moreover, the expense associated with transporting a 4 Dauphin County jury for a view of Plaintiff's workplace in Cumberland County argues against venue in Dauphin County.2 T'he only connection that this case has to Dauphin County stems from the fact that Plaintiff was employed by Defendant NSRC in Dauphin County for approximately four (4) months, and one of Plaintiff's treating physicians is located in Dauphin County. In short, Defendants aver that Cumberland County is the site of Plaintiff s most recent workplace; Plaintiff only worked out of Dauphin County for approximately four (4) months; Plaintiff resides in Cumberland County; Plaintiff has never resided in Dauphin County; Plaintiff's known medical treatment during the latter part of his raikoad career was received in Cumberland County; and most of the co-worker witnesses with direct personal knowledge of Plaintiff's work conditions or alleged injuries are located in Cumberland County. Based on the foregoing, Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company respectfully request that this Honorable Court grant Defendants' Motion, and transfer the within matter to Cumberland County, Pennsylvania for further proceedings. III. STATEMENT OF QUESTIONS INVOLVED A. Is an alternate forum available to Plaintiff, thereby making a transfer of venue possible? PROPOSED ANSWER: Yes. Based on Plaintiff's residence, his most recent work location and the location of his treating physicians, Cumberland County is available as a proper forum. z Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer based on forum non corrveniens. It is beyond dispute that an analysis of this factor clearly weighs in favor of transfer. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 5 B. Have Defendants met their burden of demonstrating that Plaintiff's choice of forum in Dauphin County is oppressive or vexatious to the Defendants? PROPOSED ANSWER: Yes. Based on the evidence of record, Plaintiff s choice of forum is both oppressive and vexatious, thereby permitting this Court to find that venue is improper in Dauphin County. IV. ARGUMENT A. AN ALTERNATE FORUM IS AVAILABLE TO PLAINTIFF, MAKING TRANSFER OF VENUE BASED ON FORUM NON CONVENIENS PURSUANT TO PA.R.C.P. RULE 1006(d)(1) POSSIBLE. Prior to an analysis pursuant to the doctrine of forum non conveniens, the court must first determine whether the proposed transferee forum is an available, alternative forum. See, Wood v E. I. du Pont de Nemours and Co., 829 A.2d 707, 712 (Pa.Super. 2003). Pa.R.C.P. 2179 states that a personal action against a corporation or similar entity may be brought in the county where the cause of action arose. In this case, it is undisputed that Plaintiff s cause of action arose as a result of alleged work-related injuries which occurred while employed by Defendant NSRC in Mount Holly Springs, Cumberland County, Pennsylvania. Therefore Cumberland County was, and still is, available to Plaintiff as a proper forum, and Plaintiff will not be prejudiced by a transfer of venue should Defendants' Motion be granted. B. DEFENDANTS' PETITION FOR CHANGE OF VENUE PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1006(d)(1) SHOULD BE GRANTED WHEREAS PLAINTIFF'S CHOICE OF FORUM IS OPPRESSIVE AND/OR VEXATIOUS. This Court is vested with discretion in considering whether to transfer an action to a more appropriate venue pursuant to Pa.R.C.P. 1006(d)(1), which provides: 6 For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. Pa.R.C.P. 1006(d)(1). The doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See, Zappala v Brandolini Property Management, Inc., 909 A.2d 1272, 1283 (Pa. 2006). Furthermore, a defendant may file a petition challenging the plaintiff's choice of forum on the basis of forum non conveniens, and request a transfer of the action, at any time during the proceedings. See, id., 909 A.2d at 1282. A plaintiffls choice of forum is given great weight and a defendant has the burden of asserting a challenge to the plaintiff's choice of venue. See, id, at 1281. However, Rule 1006 not only articulates where the plaintiff may bring the action, but also provides bases upon which a defendant may challenge the plaintiff's chosen forum, including forum non conveniens. See, id. Thus, the right of a plaintiff to choose a forum is not absolute, whereas the forum non conveniens provision inserted into Rule 1006(d) was intended as a necessary counterbalance. See, Wills v Kaschak, 617 A.2d 37, 38 (Pa.Super. 1992). As a result, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue under Rule 1006(d). See, Hosiery Corporation ofAmerica, Inc. v Rich, 476 A.2d 50, 51 (Pa.Super. 1984). In Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997), the Pennsylvania Supreme Court established guidelines to determine whether transfer of venue is proper, based on forum non conveniens, under Rule 1006(d)(1). The Cheeseman Court held that a petition to transfer venue pursuant to Rule 1006(d)(1) "should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant." See, Cheeseman, 701 A.2d at 162 (emphasis 7 added). The defendant may show that the plaintiff's choice of forum is vexatious by establishing with facts on record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. See, id. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses and other sources of proof, or to the ability to conduct a view of premises involved in the dispute. See, id. Therefore, even if a plaintiff's choice of forum is technically proper at the outset, the trial court is still vested with discretion to transfer the action to another county if defendant meets his burden of proving that the forum is oppressive or vexatious. See, Zappala, 909 A.2d at 1283. 1. Plaintiff s Chosen Forum of Dauphin County is Oppressive. An analysis pursuant to the doctrine of forum non conveniens implicitly vests considerable discretion in the trial court to balance the azguments of the parties, consider the level of prior court involvement, and consider whether the forum was designed to harass the defendant. See, id; see also, Cheeseman, 701 A.2d at 162. In cases factually similaz to the case sub judice, the Pennsylvania Superior Court affirmed the transfer of matters from Philadelphia County, while interpreting the standazd set forth in Cheeseman. In Dulaney v Consolidated Rail Corp., 715 A.2d 1217 (Pa. Super. 1998), the plaintiff brought suit in Philadelphia County under the FELA for an injury he allegedly sustained while working for the railroad in Ohio. The trial court in Dulaney transferred venue to Allegheny County based on forum non conveniens where the defendant established that trial in Philadelphia County would have been oppressive. The defendant demonstrated, with facts on the record, that: (1) the accident occurred in Ohio; (2) plaintiff resided in West Virginia; (3) plaintiff worked out 8 of Conrail's Allegheny County office; and (4) all of the witnesses to the accident and plaintiff s medical providers resided in Ohio, West Virginia, and Western Pennsylvania. See, Dulaney, 715 A.2d at 1218. The trial court found that the only connection to Philadelphia County was the fact that Conrail did business there, and that this was not enough to hold venue in that location. See, id., at 1219. The court held the defendant demonstrated that a trial in Philadelphia County, plaintiff s chosen forum, was oppressive, and determined that trial in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof. See, id. In Wood v E. I. du Pont de Nemours and Co., supra, the Superior Court affirmed the trial court's transfer of venue of Plaintiff s personal injury action from Philadelphia County to Bradford County. In this case, defendant demonstrated that the action would be more conveniently located in Bradford County and would provide easier access to sources of proof whereas the alleged injury occurred in Bradford County and none of the parties, or fact and medical witnesses, were located in Philadelphia County. See, Wood, 829 A.2d at 709. In addition, defendant demonstrated that many of the critical defense witnesses, including defendant's employees, would be forced to travel over 190 miles to attend trial in Philadelphia. See, id, at 713. Furthermore, this case was particularly appropriate for a jury view, in light of factual disputes surrounding the condition of pavement on the date in question. See, id. The Wood Court held that transfer of venue was appropriate where the trial court determined that these factors "established oppressiveness and vexatiousness, and not merely inconvenience." See, id , at 714. 9 In Mateu v Stout, 819 A.2d 563 (Pa. Super. 2003), the Superior Court affirmed the trial court's transfer of venue of Plaintiff's personal injury action from Philadelphia County to Delawaze County. In this case, defendant demonstrated that the action would be more conveniently located in Delawaze County and would provide easier access to sources of proof whereas: (1) Plaintiff resided in Delawaze County; (2) the alleged injury occurred in Delawaze County; and (3) all of the fact and medical witnesses were located in Delawaze County. See, Mateu, 819 A.2d at 564. The Mateu Court held that litigation of the action in Delawaze County would provide easier access to the sources of proof, namely to the witnesses, to plaintiff's own medical expert, plaintiff s medical records, and the site of the accident. See, id , at 567. In Borger v Murphy, 797 A.2d 309 (Pa.Super.), appeal denied 808 A.2d 568 (Pa. 2002), venue in Philadelphia County was determined to be oppressive so as to require transfer of venue of a medical malpractice action against a doctor located in Lehigh County. In this case the plaintiff admitted at his deposition that all of the witnesses who could testify regazding damages were located in Lehigh County. It was determined that trial in Philadelphia County would burden the doctor's medical practice in Lehigh County, as he would have been required to travel eighty miles each way in order to attend trial. Similar to Dulaney, Wood, Mateu, and Borger, the injuries in this matter aze alleged to have occurred in another jurisdiction, namely Cumberland County. Plaintiff's co-workers, most of whom are located in Cumberland County, will be called to testify in this case regarding Plaintiff's job duties, job requirements, and railroad safety practices. They would be forced to incur substantial expense in the form of missed work, time away from home, and additional monetary costs associated with travel from their respective homes in Cumberland County in order to attend trial in Harrisburg. 10 Defendants anticipate that trial of this matter will last approximately 8 to 10 days. Therefore, if Defendant NSRC's Cumberland County-based employees are required to be "on call," or otherwise available for trial for an extended period of time in Harrisburg, over 28 miles from their current job assignments, this will unduly disrupt NSRC's day-to-day railroad operations. The testimony of Plaintiff s co-workers is critical and necessary to Defendants' defense of this case, and Defendants anticipate that they will call one or more of these fact witnesses at trial. Furthermore, NSRC's Manager of Occupational Claims, L. Keith Lambert, has attested that trial in Harrisburg would likely be unduly burdensome for NSRC's current. employees, and for the railroad in general. See, Ex. "F".3 Plaintiff has admitted in his Response to Defendants' Requests for Admissions that he spent approximately four (4) months of his railroad career working out of Dauphin County, Pennsylvania, and spent approximately two and one-half (2.5) years working out of Cumberland County, Pennsylvania. See, Ex. "B", at ¶¶14, 17. As such, more of the facts underlying Plaintiff's claims in this action are alleged to have occurred in Cumberland County, Pennsylvania, and any additional fact witnesses will reside in this area as well. It would be burdensome for NSRC to transport those employees/witnesses to Harrisburg for trial, and also to pay their wages and expenses for their time spent at trial. Additionally, NSRC will be required to replace those individuals, or continue operations without them for the duration of trial. See, Ex. "F". s Defendants anticipate that Plaintiff will attempt to argue that Defendants failed to meet their burden because they did not present affidavits from all of their proposed witnesses detailing the hardship they would suffer by traveling to Philadelphia. However, it is well-established that Cheeseman and Pa.R.C.P. 1006(d) do not require any particular form of proof. All that is required is that the moving party present a sufficient factual basis for the petition. See, Wood v E.I. du Pont de Nemours and Co., 829 A.2d at 714. 11 Plaintiff s treating physicians also possess information relevant to his alleged injury, and will likely testify at trial. Only one of these individuals, Dr. David Maish, is located in Dauphin County. See, Ex. "B" at ¶¶34-36. Atrial in Harrisburg would require Plaintiff s other medical providers to travel a longer distance to provide live testimony, which would not only disrupt their schedules, but would force the requesting party to suffer significant financial expense. Further, as Plaintiff asserts that his alleged injuries aze attributable to his work conditions, the Court may choose to have the jury view Plaintiff's work premises in order to aid the decision- making process. Such a visit would cause undue hazdship if this matter were to remain in Dauphin County.4 In the instant case, Plaintiff resides in Cumberland County, Plaintiff has never resided in Dauphin County, the majority of the alleged injuries occurred in Cumberland County, Plaintiff only worked out of Dauphin County for approximately four (4) months, and most of the fact and medical witnesses aze located in Cumberland County, Pennsylvania. Accordingly, Defendants respectfully request that this Court find that Dauphin County, Pennsylvania constitutes an oppressive forum and grant Defendants' Motion to Transfer Venue. 2. Plaintiff s Chosen Forum of Dauphin County is Vexatious. A chosen forum is considered vexatious when the facts on the record indicate that the plaintiff s choice of forum was designed to hazass the Defendants, even at some inconvenience to the plaintiff himself. See, Cheeseman, 701 A.2d at 162. In Graham v Laidlaw Transit, Inc., a Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer, based on forum non conveniens. It is beyond dispute that analysis of this factor in this case clearly weighs in favor of transfer. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 12 i 44 Pa. D. & C.4th 493 (2000), the trial court granted defendant's motion to transfer venue from Allegheny County to Erie County observing that Plaintiff's choice of forum in Allegheny County' would result in a round trip for the plaintiff of approximately six (6) to seven (7) hours, as the plaintiff was from Erie, Pennsylvania, and that such evidence showed that the plaintiff's choice of forum was vexatious due to its inconvenience to the plaintiff. Instantly, Plaintiff lives in Cumberland County, Pennsylvania and will have to travel over one hour, round trip, to be present for trial in Harrisburg, as opposed to twenty (20) minutes round trip for trial in Carlisle, Pennsylvania. See, Exs. "B" and "D". Following the Court's holding in Graham, the fact that Plaintiff chose to file suit in Harrisburg, even at his own expense and inconvenience, may be considered evidence that he chose this forum in order to cause inconvenience and expense to Defendants, as most of the witnesses and sources of proof lie in Cumberland County, Pennsylvania. Accordingly, Defendants respectfully request that this Court fmd that Dauphin County constitutes a vexatious forum and grant Defendants' Motion to Transfer Venue. V. CONCLUSION Defendants have established that trying this matter in Dauphin County would be oppressive and/or vexatious, thus satisfying the requirements for transfer of venue based on forum non conveniens, as set forth in Cheeseman, supra. Specifically, Defendants have established that the forum of Dauphin County is oppressive in this case, as the Plaintiff resides in Cumberland County, the majority of the alleged injuries occurred in Cumberland County; most of the relevant fact and medical witnesses are located in Cumberland County; and it would pose a burden upon all parties and witnesses should trial be held in Harrisburg. Moreover, there is 13 also evidence that Plaintiff s choice to bring this action in Dauphin County is vexatious due to the fact that venue in Hamsburg constitutes a hardship to Defendant, even at an obvious inconvenience to Plaintiff. Based on the foregoing, Defendants respectfully request that this Honorable Court grant Defendants' Motion to Transfer Venue Based on Forum Non Conveniens Pursuant To Pa.R.C.P. 1006(d)(1), and transfer this matter to Cumberland County, Pennsylvania for further proceedings. Respectfully submitted, BURNS, WHITE & HICKTON ~i~~~~ By: Bean . Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company 14 CERTIFICATE OF SERVICE I hereby certify that on the ~ day of Mazch, 2010, a true and correct copy of the within Defendants' Brief in Support of Motion to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1), was served on all counsel of record via regular mail, addressed as follows: H. Keith Moore, Esquire CRANWELL, MOORE & EMICK P.O. Box 11804 Roanoke, VA 24022 Mazk F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies, Suite 500 Pittsburgh, PA 15219-1314 Respectfully submitted, BURNS, WHITE & HICKTON B ~/~~G' 6 Y• --_ Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company ^~~ ~~ `~`[ ~.. d Q RANDOLPH L. CAMPBELL, Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION, Defendants F'Ip~ 1 1 2 IN THE COURT OF COMMON PLEAS "` LVAI~ DAUPHIN COUNTY, PENNSY o a ~ NO. 2009 CV 14899-CV ~ a -v o m= ~ z =-n z -- ~ o ~ CIVIL ACTION -LAW Z = D~-°T,o ~ w ~ ~ ~ -t ORDER AND NOW THIS ~ day of March, 2010, Defendants' Motion to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) will not be entertained. All parties are directed to Pennsylvania Rule of Civil Procedure 1006 (d)(1), which states a request to transfer venue must be sought by "petition." The moving party is directed to review the rule referenced above and resubmit a filing in conformance with the referenced rule to the Prothonotary's Office. BY THE COURT: DISTRIBUTION: Lawrence F`.~lark, Jr., Civil Cal~q(dar Judge Brian M. Mancos, Esquire, Four Northshore Center, 106 Isabella Street, Pittsburgh, PA 15212 Mark F. McKenna, Esquire, 436 Blvd. of the Allies, Ste. 500, Pittsburgh, PA 15219 M ~ 0 0 .o ca ~°o ~~' =Z `~ 0~~ ~ G ..[ ..G "' J BURNS, WHITE & HICKTON BY: BRIAN M. MANGOS, ESQ. Pa. I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 RANDOLPH L. CAMPBELL, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. ATTORNEYS FOR DEFENDANTS NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION DAUPHIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO: 2009-CV-14899-CV JURY TRIAL DEMANDED DEFENDANTS' MOTION TO TRANSFER VENUE BASED ON FORUMNON CONVENIENS PURSUANT TO PA.R.C.P. 1006(d)(11 AND NOW, come Defendants, Consolidated Rail Corporation ("Conrail") and Norfolk Southern Railway Company ("NSRC"), by and through their attorneys, Burns White & Hickton, LLC, and file the within Motion to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and in support thereof, aver the following: _ t7'^ c~ .. ^^ v ,_ • ~. '- h L:: ~ .~. ~~ • ~ d,'~}` ~ Ci E•=;: t,. .~.. FACTS 1. Plaintiff initiated the above action on November 9, 2009, by filing a Complaint against Defendants, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et seq. See, Plaintiff s Complaint attached hereto as Ex. "A". 2. In his Complaint Plaintiff alleges that, within the course and scope of his employment, he was exposed to repetitive, forceful and awkward motions utilizing his lower extremities that caused him to sustain severe and permanent injuries to his knees, hips, and back. See, Ex. "A" at ¶11. 3. In his Complaint, Plaintiff alleges that the acts of omission and commission causing his injuries were done by the Defendants, their agents, servants, workmen and/or employees acting in the course and scope of their employment with and under the direct and exclusive control of the Defendants. See, Ex. "A" at ¶7. 4. Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. See, Ex. "A" at ¶1; see also, Plaintiff's Response to Defendants' Request for Admissions attached hereto as Ex. "B", at ¶¶27-29; see also, Plaintiffs Answers to Defendants' Lower Extremity Disorder Interrogatories attached hereto as Exhibit "C", at ¶1. 5. Plaintiff's residence in Carlisle, Pennsylvania is approximately twenty-seven (27) miles from Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania, which is approximately athirty-three (33) minute drive. However, Plaintiffs residence is approximately five (5) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a nine (9) minute drive. See, Ex. "A" at ¶1; Ex. "B" at ¶¶30-33; see also, a true and correct copy of Mapquest Driving Directions from Carlisle, Pennsylvania to Harrisburg, Pennsylvania attached hereto as Ex. "D". 2 6. Plaintiff began his career with Defendant Conrail as amaintenance-of--way employee working out of Olean, New York in May of 1976 and was employed by Conrail until May 31, 1999.1 Thereafter, Plaintiff became an employee of Defendant NSRC on June 1, 1999 where he worked out of Olean, New York until approximately September of 2006. See, Ex. "B" at ¶¶2, 13; see also, Ex. "C" at ¶2. 7. Plaintiff admits that he first bid for a position with Defendant NSRC in Harrisburg, Dauphin County, Pennsylvania in September of 2006. See, Ex. "B" at ¶14. 8. Plaintiff admits that he next bid for a position with Defendant NSRC in Mount Holly Springs, Cumberland County, Pennsylvania in January of 2007. See, Ex. "B" at ¶17. 9. Thus, Plaintiff admits that he was only employed by Defendant NSRC in Dauphin County, Pennsylvania from September of 2006 until January of 2007, or a total of approximately four (4) months. See, Ex. "B" at ¶¶14, 17. 10. Plaintiff further admits that he was employed by Defendant NSRC in Cumberland County, Pennsylvania from January of 2007 until July of 2009, or a total of approximately two and one-half (2.5) years. See, Ex. "B" at ¶17; see also, Ex. "C" at ¶2. 11. Plaintiff's most recent place of employment in Mount Holly Springs, Cumberland County, Pennsylvania is approximately twenty-eight (28) miles from Harrisburg and is approximately athirty-four (34) minute drive. However, Mount Holly Springs is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a ten (10) minute drive. See, a true and correct copy of 1 It should be noted that the nature of Conrail's business changed significantly as of June 1, 1999. On June 1, 1999, Conrail became a switching and terminal railroad, conducting railroad operations in the limited geographic areas of Detroit, Michigan; Northern New Jersey; and Southern New Jersey/Philadelphia. 3 f 1 Mapquest Driving Directions from Mount Holly Springs, Pennsylvania to Harrisburg, Pennsylvania attached hereto as Exhibit "E"; see also, Ex. "B" at ¶¶19-23. 12. Plaintiff further admits that he has never resided in Dauphin County, Pennsylvania. See, Ex. "B", at ¶¶24-26. 13. Plaintiff has only identified one treating physician, Dr. David Maish, as an individual likely to have knowledge regarding his alleged injuries. This treating physician is located in Hershey, Dauphin County, Pennsylvania. See, Ex. "B" at ¶¶34-36; see also, Ex. "C" at ¶¶20, 22-25. 14. However Plaintiffs other known medical treatment during the latter part of his railroad career was received at Carlisle Internal Medicine, located in Cumberland County, Pennsylvania. See, Affidavit of L. Keith Lambert attached hereto as Exhibit "F". 15. As Plaintiff is claiming injuries resulting from his duties at work, Defendants intend to call Plaintiff s supervisors and co-workers, who are familiar with Plaintiff's job duties and requirements, to testify at trial. See, Ex. "F". 16. Defendants further believe and therefore aver that Plaintiff has not identified any co-worker witness who lives or works in Dauphin County and who has direct personal knowledge of Plaintiff's work activities that are alleged to have occurred in Cumberland County, • - Pennsylvania. See, Ex. "B" at ¶37; see also, Ex. "F". 17. Based on the Affidavit of L. Keith Lambert, it would also be unduly burdensome to replace those employees/witnesses who possess knowledge of Plaintiffs claim, if said individuals were required to travel to Harrisburg, Pennsylvania, in terms of expense and time away from work. It would further be a burden for Defendants to transport these individuals to 4 t z Harrisburg, Pennsylvania for the trial and also pay their wages and expenses for the duration of the time spent at trial. See, Ex. "F" 18. Moreover, the expense associated with transporting a Dauphin County jury for a view of Plaintiff s workplace in Cumberland County argues against venue in Dauphin County.2 19. The only connection that this case has to Dauphin County stems from the fact that Plaintiff was employed by Defendant NSRC in Dauphin County for approximately four (4) months, and one of Plaintiff s treating physicians is located in Dauphin County. 20. In short, Defendants aver that Cumberland County is the site of Plaintiff's most recent workplace; Plaintiff only worked out of Dauphin County for approximately four (4) months; Plaintiff resides in Cumberland County; Plaintiff has never resided in Dauphin County; Plaintiff's known medical treatment during the latter part of his railroad career was received in Cumberland County; and most of the co-worker witnesses with direct personal knowledge of Plalntiffls work conditions or alleged injuries are located in Cumberland County. 21. As a result, Defendants request that this Court transfer this matter to Cumberland County, Pennsylvania for further proceedings. MOTION TO TRANSFER 22. This Court is vested with discretion in considering whether to transfer an action to a more appropriate venue pursuant to Pa.R.C.P. 1006(d)(1), which provides: For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. s Although Defendants have not determined that a site visit by the jury will be necessazy during trial, the Pennsylvania courts have cleazly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer based on forum non conveniens. It is beyond dispute that an analysis of this factor clearly weighs in favor of transfer. See, Cheeseman v Lethal Exterminators, InG, 701 A.2d 156 (Pa. 1997). 5 f 1 23. A defendant may file a petition challenging the plaintiff s choice of forum on the basis of forum non conveniens, and request a transfer of the action, at any time. See, Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272, 1282 (Pa. 2006); Pa.R.C.P. 1006(d)(1). 24. The doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See, id, 909 A.2d at 1283. 25. A plaintiff's choice of forum is given great weight and a defendant has the burden of asserting a challenge to the plaintiff s choice of venue. See, id , at 1281. 26. However, the right of a plaintiff to choose a forum is not absolute, whereas the forum non conveniens provision inserted into Rule 1006(d) was intended as a necessary counterbalance. See, Wills v %aschak, 617 A.2d 37, 38 (Pa.Super. 1992). 27. Furthermore, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue under Rule 1006(d). See, Hosiery Corporation of America, Inc. v Rich, 476 A.2d 50, 51 (Pa.Super. 1984). 28. A petition to transfer venue pursuant to Rule 1006(d)(1) should not be granted unless the defendant meets his burden of demonstrating, with detailed. information on the record, that the plaintiff s chosen forum is oppressive or vexatious to the defendant. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156, 162 (Pa. 1997). 29. The defendant may show that the plaintiffs choice of forum is vexatious by establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. See, id. 30. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would 6 ~ s provide easier access to witnesses and other sources of proof, or to the ability to conduct a view of premises involved in the dispute. See, id. 31. Pursuant to Pa.R.C.P 2179(a}(3), a personal action against a corporation or similar entity may be brought in the county where the cause of action arose. In this case, it is undisputed that more of the facts and exposures alleged by Plaintiff in his Complaint are alleged to have occurred in Cumberland County, Pennsylvania than in Dauphin County, Pennsylvania. Thus, venue would have been proper in Cumberland County had Plaintiff filed his Complaint there. 32. However, Plaintiff chose to bring this action in the Court of Common Pleas of Dauphin County, which is more than twenty-two (22) miles from the Court of Common Pleas of Cumberland County where: (1) Plaintiff resides; (2) most of Plaintiffs co-workers who would have personal knowledge of Plaintiff's work activities are located; (3) the site of Plaintiffs last workplace is located; and (4) Plaintiff's family .physician is located. Therefore, trial in Cumberland County would provide easier access to witnesses and other sources of proof. See, Cheeseman, supra; see also, Wood v E.I. du Pont de Nemours and Co., 829 A.2d 707 (Pa.Super. 2003); Mateu v Stout, 819 A.2d 563 (Pa.Super. 2003). 33. Plaintiff s choice of forum: (1) is both oppressive and vexatious as the record is clear that venue in Dauphin County will cause undue hardship to all parties and witnesses, including Plaintiffs co-workers and medical providers; (2) appears to be aimed at inconveniencing Defendants since Defendants will have the undue burden of transporting employees to Harrisburg for trial as well as finding replacements for employees who will be away from work; and (3) meant to harass Defendants even at some inconvenience to himself. See, id.; see also, Graham v Laidlaw Transit, Inc., 44 Pa.D.&C.4th 493 (Pa.Com.Pl. 2000). 7 s 34. It is axiomatic that this case is more easily litigated in the county where Plaintiff resides, where more of the witnesses are located, and where Plaintiff's most recent alleged exposures took place. The fact that Plaintiff has filed this case in another venue, where these elements are lacking, and the only connection is that Plaintiff worked in Dauphin County for approximately four (4) months and one of his treating physicians is located there, constitutes sufficient proof that the chosen venue is "oppressive" and/or "vexatious," and that a transfer of venue is required. See, Dulaney v Consolidated Rail Corp., 715 A.2d 1217 (Pa.Super. 1998). 35. If this matter were to remain in Dauphin County, Defendants, Plaintiff, most of the known witnesses with direct personal knowledge of Plaintiff's work activities in Cumberland County, and some of Plaintiff's medical providers would be forced to incur additional unnecessary expenses due to the time, travel, and lodging required to transport witnesses to Harrisburg for trial -expenses that would be largely eliminated if this matter were tried in Cumberland County. 36. In this case, even though venue is proper in this Court, the aforementioned factors make it clear that Dauphin County constitutes an inconvenient forum, Plaintiff's choice thereof is oppressive and/or vexatious to Defendants, and it would be against the interests of parties and witnesses for this case to remain there. Accordingly, Defendants move for this Court to transfer this cause of action to the Cumberland County Court of Common Pleas. 37. Plaintiff will not be prejudiced by a change of venue, as Cumberland County clearly constitutes an available, and less oppressive and vexatious, alternative forum. 38. For any and all of the reasons set forth above, and in Defendants' Brief in Support which is incorporated herein as if more fully set forth, the Defendants request that this Court transfer this matter to Cumberland County, Pennsylvania for further proceedings. 8 4 WHEREFORE, based on the foregoing, Defendants Consolidated Rail Corporation and Norfolk Southern .Railway Company respectfully request that this Honorable Court grant Defendants' Motion, and transfer the within matter to Cumberland County, Pennsylvania for further proceedings. Respectfully submitted, BURNS, WHITE & HICKTON y: Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company 9 c IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, CIVII. ACTION Plaintiff, C.v ~ ,1 ~ ~ 7 ~ - ~1/' NO. pC~ TYPE OF PLEADING: vs. COMPLAINT IN CIVII. ACTION NORFOLK SOUTI~RN RAILWAY FILED ON BEHALF OF: COMPANY and CONSOLIDATED PI,AIIVTiFF, RANOLDPH L. RAIL CORPORATION, CAMPBELL Defendants. COUNSEL OF RECORD FOR THIS PARTY: MARK F. McKENNA, ESQUIltE PA I.D. #30297 McI~NNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 540 Pittsburgh PA 1 SZ 19 (412) 471-6226 tnrnckenna(~consolidated. net BURY TRIAL DEMANDED TO: DEFENDANTS You are hereby notified to plead to the enclosed COMPLAINT IN CIVIL ACTION within twenty (20) days from service hereof h,. or a default judgment maybe entered ~' ,. against you. ~ -c; SOCIATES, P.C. ~" ~ u y - r. B y- i. ~.. Mark F. McKenna, Esquire = Attorneys far Plaintiff "` d, p~ ~~C~ ~ IrU ~~ 1 5 2009 irI THE COURT OF COIVIlVION PLEAS FOR DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL,, CIVIL ACTION Plaintiff, CASE # vs. NORFOLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION Defendants. NOTXCE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) DAYS after this Complaint and notice are served, by entering a written appearance personally or by an attor~y, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you failed 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 aay claim or relicf requested by the plaintiff. You may lose money or properly or other rights important to you. DAUPHIN COUNTY BAR ASSOCIATION 2 t 3 North Front Street Harrisburg, Pennsylvania (71'~ 232-7536 COMPLAINT IN CIVIL ACTION AND NOW, comes the Plaintiff, RANDOLPH L. CAMPBELL, by and through his attorneys, MCKENNA & ASSOCIATES, P.C., and files the following Complaint in Civil Action and in support thereof avers as follows: 1. The Plaintiff, RANDOLPH L. CAMPBELL, (hereinafter referred to as "Plaintiff ~, is an adult-individual who resides at 2323 Ritner Highway, Carlisle, PA 17015. 2. The Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, (hereinafter referred to as "Defendant's is a Virginia Corporation that conducts and transacts business throughout the Commonwealth of Pennsylvania, and is involved in the movement of freight in interstate commerce and foreign commerce. 3. That all times relevant hereto, the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, is involved and does maintain a principal place of business in the Commonwealth of Pennsylvania, including Dauphin County, Pennsylvania. 4. CONSOLIDATED RAIL CORPORATION (CONRA.iL) is a Pennsylvania Corporation, conducting and doing business in and about Dauphin County, Pennsylvania, and is and was, at all times relevant hereto, engaged in interstate conunerce in and througiwut the several states of the United States as a common carrier by rail, and for that purpose, operated locomotives, railroad cars and transacted substantial business in and about Dauphin County, Pennsylvania. 5. At all times relevant hereto, Plaintiff, RANDOLPH L. CAMPBELL, herein was and is employed by the Defendants, Norfolk Southern Railway Company and Conrail, as an employee, as the term is defined under Section 45 U.S.C. § 51, and as such was engaged by the Defendants to perform duties in the furtherance of its business interest and movement of freight in interstate and foreign commerce by Defendants. 4 } 6. At all times relevant hereto, Defendants acted by and through their agents, servants or employees who were acting within the scope of their respective employment. 7. The acts of emission and commission causing injuries to the Plaintiff, RANDOLPH L. CAMPBELL, were done by the Defendants, their agents, servants, workmen and/or employees, acting within the course and scope of their employment with and under the direct and exclusive control of the Defendants herein named_ 8. All of the property, equipment and operations involved in Plaintiff, RANDOLPH L. CAMPBELL's injury were owned and/or under the direct and exclusive control of the Defendants, or any of its agents, servants, workmen and/or employees as predecessors in interest the defendants herein named. 9. During Plaintiff, RANDOLPH L. CAMPBELL's entire working career and while. working within the course and scope of his employment for Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was injured due to the unsafe and inadequate working conditions. 10. This action arises under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. 11. Throughout Plainti#ly RANDOLPH L. CAMPBELL's employment, Plaintiff, RANDOLPH L. CAMPBELL, while working within the scope of his employment for Defendants herein named, as a maintenance of way worker, was continuously and repeatedly required to perform repetitive, forceful and awkward motions utilizing his lower extremities which included excessive kneeling, squatting, stooping and bending; and was required to walk on uneven and unstable surfaces and to get on and off of moving equipment which caused the Plaintiff, RANDOLPH L. CAMPBELL, to sustain severe and permanent injury to his Mwer extremities, including, but not limited to, his knees, hips and back. s } 12. Throughout his employment with Defendants, Plaintiff, R.ANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects of exposing his lower extremities to repetitive, forceful, and awkward motions. 13. Throughout his employment with Defendants, Plaintiff, 1tANDOLPH L. CAMPBELL, was cantinuously unaware of the dangerous effects of excessive walking, kneeling, bending, squatting, stooping, and bending, twisting, turning of the lower extremities. 14. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects to his lower extremities from walking and working on uneven and unstable surfaces and the harmful effects of getting on and off of moving equipment. 15. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware that any and all of above mentioned exposures and/or conditions could cause severe and permanent injuries to his lower extremities. 16. 'Throughout Plaintiff RANDOLPH L. CAMPBELL's employment with Defendants, said Defendants knew, or in the exercise of proper diligence should have known, of the presence and existence of the aforementioned dangers within Plaintiff, RANDOLPH L. CAMPBELL's working environment. 17. The injuries and damages to Plaintifly RANDOLPH L. CAMPBELL being complained of were directly and proximately caused by the negligence of the Defendants, their agents, servants or employees while acting within the aature and scope of their employment for the Defendants in the following respects: a. in violating the Federal Employers' Liability Act; i , ,, b. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with a reasonably safe place to work; c. in requiring Plaintiff, ItANDOLPH L. CAMPBELL, to perform repetitive, forceful and awkward motions utilizing his lower extremities which also involved excessive kneeling, squatting, stooping ,bending, twisting and turning; d: in requiring Plaintiff, ItANDOLPH L. CAMPBELL, to repeatedly walk and work on dangerous, uneven and unstable surfaces; e. ' in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with the proper protective equipment; f. in failing to warn Plaintiff, RANDOLPH L. CAMPBELL, of the dangers posed by the aforementioned work activities; g. in failing to periodically inspect and/or test its workplace; h. in allowing unsafe practices to become standard practice; I. in failing to properly train, educate and/or warn Plaintiff of the hazards in the workplace; j. in failing to comply with existing federal and state statutes and safety regulations; k. in failing to comply with its' own rules, work pnictices and procedures; 1. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with adequate manpower to safely do his job; m. in failing to provide proper tools and equipment; n, in assigning Plaintiff, RANDOLPH L. CAMPBELL, to work beyond his physical and medical capabilities; o. in failing to provide proper medical supervision and care; r p. in failing to comply with State and Federal Safety Regulations, including OSHA standards; q. in failing to monitor the work place; r. in failing to take precautions to prevent repeated injuries to Plaintiff, RANDOLPH L. CAMPBELL'S extremities including his knees, ligaments ,bone and joints; s. in failing to provide a safe place to work or provide for Plaintiff, RANDOLPH L. CAMPBELL'S safety when Defendants knew and were aware that the Plaintiff, RANDOLPH L. CAMPBELL, suffered injury to his knees, ligaments, bone and joints; t. in knowing and aware that the Plaintiff, RANDOLPH L. CAMPBELL, had sustained injuries to his right and left knees and joints; u. in failing to provide proper splints or braces; v. in failing io take any precautions to provide for Plaintiff, RANDOLPH L. CAMPBELL's safety, thereby continually subjecting Plaintiff, RANDOLPH L. ' CAMPBELL, to continuous excessive stress, repetitive motions and vibrations, causing injury to Plaintiff, RANDOLPH L. GAMPBELL's knees in aggravation x of these conditions after Defendants knew or should have known of Plaintiff, RANDOLPH L. CAMPBELL's injuries; w. in continually requiring Plaintiff, RANDOLPH L. CAMPBELL, to work and be exposed to the hazards stated above, thereby, directly and proximately causing Plaintiff, RANDOLPH L. CAMPBELL'S injuries. 3 7 x. in failing to adjust, alter, counter weigh or counter balance the tools and equipment; y. in failing to employ or hire a trained ergonomist to test, monitor, educate and produce Plaintiff, ItANDOLPH L. CAMPBELL with a safe place to work; and z. in failing to provide proper ballast and walking surface. l8. As a direct and proximate result of the aforementioned negligence of the Defendants or any of its agents, servatrts, workmen and/or employees, the Plaintiff, RANDOLPH L. CAMPBELL, has suffered cumulative trauma and repetitive stress to his lower extremities, bones, ligaments, and joints, which has resulted in the following damages and/or injuries, some or all of which may be permanent; a. advanced DJD, of the right and left knee with decreased range of motion; b. anticipated knee suugery; c. bilateral hip osteoarthritis; d. hip surgery; e, low back pain and osteoarthritis f. pain and tenderness in all the above affected areas. 19. As a further direct and proximate result of the negligence and/or careless conduct of Defendants or any of its agents, servants, workmen and/or employees, Plaintiff, RANDOLPH L. CAMPBELL, has in the past and may in the future sustain the following damages: a. loss of enjoyment of life; b. change of lifestyle; c. loss of wages and fringe benefits; d. loss of earning capacity; ~ 4 } e. medical expenses; f. pain and suffering; g. mental anguish; h. personal financial toss; and I. continuing pain and disability. 20. Plaintiff, RANDOLPH L. CAMPBELL, did not contribute to any of these injuries. 21. To the extent, if any, the Plaintiff has apre-existing condition affecting his knee or lower extremities, the Plaintiff will show that such condition or conditions were aggravated by the conduct of the Defendants as described above. WI-TEREPORE, Plaintiff, RANDOLPH L. CAMPBELL, respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendants, together with costs axxl disbursements of this action in an amount in excess of compulsory arbitration limits. JURY TRIAL DEMANDED espectfully submitted, ~ _~`. f MARK F. McKENNA, ESQ. Attorneys for Plaintiff, RANDOLPH L. CAMPBELL McKENNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-6226 y~~ICATION I am the Plaintiff in this matter and am represented by counsel I have furnished to my counsel factual information upon which the foregoing is based. To the extent that it is based on the factual information provided to counsel, I verify that those facts are true and connect to the best of my knowledge, information and belief. However, the language is that of counsel and, to the extent that it goes beyond the factual information which I have provided to counsel. I have relied upon counsel in making this verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: ~ IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, CIVIL DIVISION Plaintiff, v. No. 2009-CV-14899-CV NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATI0IV, Defendants. JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANTS' REQUEST FOR ADMISSIONS Plaintiff, Randolph L. Campbell, by undersigned counsel, hereby serves the following Responses to Defendants' Request for Admissions as follows: Admit that Plaintiff previously worked for the Defendants within the State of New York. RESPONSE: The Plaintiff admits that throughout his career working for the Maintenance of Way crew for both Norfolk Southern and Conrail, the Plaintiff did work in the Commonwealth of Pennsylvania, as well as the State of New York. 2. Admit that, when Plaintiff worked for the Defendants in the State of New York, he worked primarily out of Olean, New York. RESPONSE: Plaintiff admits that while his headquarters was in Olean, New York, the work he performed on the Maintenance of Way included work on a territory that extended half into the State of New York and half into the Commonwealth of Pennsylvania. While the Plaintiff worked out of Olean, New York he performed work in both the State of New York and the Commonwealth of 3. Admit that Olean, New York is approximately two-hundred twenty-five (225} miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania. RESPONSE: Admitted. 4. Admit that the amount of travel time in a motor vehicle from Olean, New York to the Court of Common Pleas of Dauphin County, Pennsylvania is approximately four and one half (4.5) hours. RESPONSE: Admitted. 5. Admit that Olean, New York is approximately thirty (30) miles from the Supreme Court of Cattaraugus County, located in Little Valley, New York. RESPONSE: Admitted. 6. Admit that the amount of travel time in a motor vehicle from Olean, New York to the Supreme Court of Cattaraugus County, New York is approximately forty (40) minutes. RESPONSE: Admitted. 7. Admit that, when Plaintiff worked for the Defendants in the State of New York, he resided at 87 Madison Street, Wellsville, New York 14895. RESPONSE: Admitted. ~ ,. 8. Admit that Wellsville, New York is over one-hundred ninety (190} miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania. RESPONSE: Admitted. 9. Admit that the amount of travel time in a motor vehicle from Olean, New York to the Court of Common Pleas of Dauphin County, Pennsylvania is approximately four (4) hours. RESPONSE: Admitted. 10. Admit that Wellsville, New York is approximately ten (10) miles from the Supreme Court of Allegany County, located in Belmont, New York. RESPONSE: Admitted. 11. Admit that the amount of travel time in a motor vehicle from Wellsville, New York to the Supreme Court of Allegany County, New York is approximately fifteen (15) minutes. RESPONSE: Admitted. 12. Admit that Plaintiff did not work in Pennsylvania prior to September of 2006. RESPONSE: Denied. Throughout his career working for the Maintenance of Way Department of both Conrail and Nortolk Southern, the Plaintiff worked in both the State of New York and the Commonwealth of Pennsylvania. 13. Admit that Plaintiff did not bid for a job in Pennsylvania with Defendant Nortolk Southern until September of 2006. RESPONSE: Admitted. 14. Admit that Plaintiff did not bid for a job in Harrisburg, Pennsylvania with Defendant Norfolk Southern until September of 2006. RESPONSE: Admitted. 15. Admit that Plaintiff does not now work for Defendant Norfolk Southern in Harrisburg, Pennsylvania. RESPONSE: Plaintiff admits that he does not now work for Defendant Norfolk Southern in any capacity at any location because he has been unable to perform any work due to his injuries. Plaintiff has worked for Defendant Nortolk Southern in the past in Harrisburg, Pennsylvania. 16. Admit that Plaintiff does not now work for Defendant Nortolk Southern in Dauphin County, Pennsylvania. RESPONSE: Plaintiff admits that he does not now work for the Defendant Norfolk Southern at any location because he is unable to work due to his injuries. Plaintiff admits that he has worked in the past for Defendant Norfolk Southem in Dauphin County, Pennsylvania. 17. Admit that Plaintiff bid for a job in Mt. Holly Springs, Pennsylvania with Defendant Nortolk Southern in January of 2007. RESPONSE: Admitted. 18. Admit that Plaintiff currently works for Defendant Norfolk Southern out of Mt. Holly Springs, Pennsylvania. RESPONSE: Plaintiff denies that he currently works for the Defendant Norfolk Southern out of Mt. Holly Springs, Pennsylvania. Plaintiff currently does not work anywhere for Defendant Norfolk Southern because he has been unable to work due to his injuries. 19. Admit that Mt. Holly Springs, Pennsylvania is located in Cumberland County, Pennsylvania. RESPONSE: Admitted. 20. Admit that Mt. Holly Springs, Pennsylvania is approximately twenty-eight (28) miles from the Court of Common Pleas of Dauphin County, Pennsylvania, located in Harrisburg, Pennsylvania. RESPONSE: Admitted. 21. Admit that the amount of travel time in a motor vehicle from Mt. Holly Springs, Pennsylvania to the Court of Common Pleas of Dauphin County, Pennsylvania is approximately thirty-four (34) minutes. RESPONSE: Admitted. 1 • f 22. Admit that Mt. Holly Springs, Pennsylvania is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania. RESPONSE:. Admitted. 23. Admit that the amount of travel time in a motor vehicle from Mt. Holly Springs, Pennsylvania to the Court of Common Pleas of Cumberland County, Pennsylvania is approximately ten (10) minutes. RESPONSE: Admitted. 24. Admit that Plaintiff does not now reside, nor has ever resided, within Dauphin County, Pennsylvania. RESPONSE Admitted. 25. Admit that Plaintiff has never maintained a permanent residence within .Dauphin County, Pennsylvania. RESPONSE: Admitted. 26. Admit that Plaintiff does not now own, nor has he ever owned, any real estate or other property within Dauphin County, Pennsylvania. RESPONSE: Admitted. I • t 27. Admit that Plaintiff currently resides within Cumberland County, Pennsylvania. RESPONSE: Admitted. 28. Admit that Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Pennsylvania 17015 RESPONSE: Admitted. 29. Admit that Carlisle, Pennsylvania is located within Cumberland County, Pennsylvania. RESPONSE: Admitted. 30. Admit that Carlisle, Pennsylvania is approximately twenty-three (23) miles from the Court of Common Pleas of Dauphin County, Pennsylvania, located in Harrisburg, Pennsylvania. RESPONSE: Admitted. 31. Admit that the amount of travel time in a motor vehicle from Carlisle, Pennsylvania to the Court of Common Pleas of Dauphin County, Pennsylvania is approximately thirty (30) minutes. RESPONSE: Admitted. 32. Admit that the Court of Common Pleas of Cumberland County is located in Carlisle, Pennsylvania. RESPONSE: Admitted. 33. Admit that the amount of travel time in a motor vehicle from Plaintiff s residence in Carlisle, Pennsylvania. to the Court of Common Pleas of Cumberland County, Pennsylvania is approximately nine (9) minutes. RESPONSE: Admitted. 34. Admit that Plaintiff has never received medical treatment from any physician practicing medicine within Dauphin County, Pennsylvania. RESPONSE: Denied. Plaintiff s two hips were replaced at Hershey Medical Center which is located in Dauphin County, Pennsylvania. Also, Plaintiff has been treated by Dr. David Maifsh for his hip injuries. Dr. Maifsh's office is also located in Dauphin County, Pennsylvania. 35. Admit that Plaintiff has never received medical treatment from any physician practicing medicine within Dauphin County, Pennsylvania for his alleged injuries resulting from his employment with the Defendants. RESPONSE: Denied. Plaintiff s two hips were replaced at Hershey Medical Center which is located in Dauphin County, Pennsylvania. Also, Plaintiff has been treated by Dr. David Maifsh for his hip injuries. Dr. Maifsh's office is also located in Dauphin County, Pennsylvania. 36. Admit that Plaintiffs alleged injuries resulting from his employment with the Defendants were never diagnosed by any physician practicing medicine within Dauphin County, Pennsylvania. RESPONSE: Denied. Plaintiff s two hips were replaced at Hershey Medical Center which is located in Dauphin County, Pennsylvania. Also, Plaintiff has been treated by Dr. David Maifsh for his hip injuries. Dr. Maifsh's office is also is also located in Dauphin County, Pennsylvania. 37. Admit that Plaintiff will not call any resident of Dauphin County, Pennsylvania as a witness with direct personal knowledge of Plaintiff s alleged work exposures at the trial of this matter. RESPONSE: Plaintiff denies this Request. Plaintiff may call co workers and supervisors who reside in Dauphin County, Pennsylvania to testify as to his work activities in Dauphin County, Pennsylvania and elsewhere. 38. Admit that Plaintiff will not conduct a site inspection within Dauphin County, Pennsylvania in connection with this action. RESPONSE: Plaintiff denies this Request. Plaintiff may conduct a site inspection of the Defendants' work activities in Dauphin County, Pennsylvania. 39. Admit that Plaintiff will pay for his own travel expenses to Harrisburg, Pennsylvania, if Defendants request the same, in order to be deposed by the Defendants in connection with the instant action. RESPONSE: Plaintiff objects to this Admission Request since it is beyond the purpose and scope of discovery in general and admissions in particular. Plaintiff, however, will note that Defendant is not responsible for any of the travel costs of the Plaintiff if the litigation activities take place in the location where the lawsuit is filed. 40. Admit that Plaintiff will pay for his own travel expenses to Harrisburg, Pennsylvania, if Defendants request the same, in order to be medically examined by a doctor selected by Defendants for the purposes of the instant litigation. RESPONSE: Plaintiff objects to this Admission Request since it is beyond the purpose and scope of discovery in general and admissions in particular. Plaintiff, however, will note that Defendant is not responsible for any of the travel costs of the Plaintiff if the litigation activities take place in the location where the lawsuit is filed. 41. Admit that Plaintiff will pay for his own travel expenses to Harrisburg, Pennsylvania in order to attend any conference at which Plaintiff s presence is requested in connection with the instant action. RESPONSE: Plaintiff objects to this Admission Request since it is beyond the purpose and scope of discovery in general and admissions in particular. Plaintiff, however, will note that Defendant is not responsible for any of the travel costs of the Plaintiff if the litigation activities take place in the location where the lawsuit is filed. 42. Admit that Plaintiff will pay for his own travel expenses to Harrisburg, Pennsylvania to attend the trial of this matter. RESPONSE: Plaintiff objects to this Admission Request since it is beyond the purpose and scope of discovery in general and admissions in particular. Plaintiff, however, will note that Defendant is not responsible for any of the travel costs of the Plaintiff if the litigation activities take place in the location where the lawsuit is filed. 43. Admit that it would be more convenient for the parties and/or witnesses if this action was pending in either Cattaraugus County or Allegany County, New York. RESPONSE: Objection. This request of the Defendant calls for a legal conclusion. Without waiving this objection, Plaintiff states that this action will be more conveniently tried in Dauphin County, Pennsylvania, as opposed to courts in the State of New York because Dauphin County is much closer to the Plaintiff, and any witnesses that he may call, then the. Courts in the State of New York. This includes the Plaintiffs treating orthopedic surgeon who performed bilateral hip replacements on the Plaintiff and who practices in Dauphin County and performed these surgeries in Dauphin County. Also, the medical records, which are the most pertinent to this case, are in Dauphin County, Pennsylvania. 44. Admit that it would be more convenient for the parties and/or witnesses if this action was pending in Cumberland County, Pennsylvania. RESPONSE: Objection. This request of the Defendant calls for a legal conclusion. Without waiving this objection, the Plaintiff states that the trial of this matter will be more conveniently held in Dauphin County, Pennsylvania, as opposed to Cumberland County, Pennsylvania. As stated above, the Plaintiff was partially injured in Dauphin County, Pennsylvania when he worked there for the Defendants. Also, as stated above, the Plaintiffs treating orthopedic surgeon and the hospital where his bilateral hip replacements where performed are all in Dauphin County, Pennsylvania, along with all the relevant medical records of the Plaintiff. Respectfully submitted, RAN~O, . BELL Of Counsel Mark F. McKenna, Esq. MCKENNA & ASSOCIATES 436 Blvd. Of the Allies, Suite 500 Pittsburgh, PA 15219-1314 H. Keith Moore, Esq. CRANWELL, MOORE & EMICK P.O. Box 11804 Roanoke, VA 24022 CERTIFICATE OF SERVICE I hereby certify that on the ~1h day of H , 2010, a copy of the foregoing Plaintiffs Response to Defend s' Request or Admissions was mailed, by United States Mail, postage prepaid, to: Brian M. Mancos, Esq. Burns, White & Hickton Four Northshore Center 106 Isa ella Street Pittsburg , PA 5212 Of Counsel ~ ,, VERIFICATION I, Mark F. McKenna, Esquire, Of Counsel for Randolph L. Campbell, Plaintiff, herein, depose and say that I am counsel for Defendant in this matter; that I am authorized to make this Verification on behalf of Plaintiff; that the facts set forth in the foregoing Responses to Defendants' Request for Admissions are true and correct, not of my own knowledge, but from information supplied to me by Plaintiff; that the purposes of this Verification are to expedite the litigation; and that a Verification by Plaintiff will be furnished if requested. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authoritie . ,~ /a Date MARK F. McKENNA, ESQUIRE ^ • z IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, ) CIVIL DIVISION Plaintiff ) NO. 2009-CV-14899-CV v. NORFOLK SOUTHERN RAILWAY COMPANY, ET AL., Defendants. JURY TRIAL ENDORSED HEREON PLAINTIFF'S ANSWERS TO DEFENDANTS' LOWER EXTREMITY DISORDER INTERROGATORIES COMES NOW the Plaintiff, Randolph L. Campbell, and responds to Defendants' Lower Extremity Disorder Interrogatories and respectfully submits as follows: INTERROGATORIES 1. Please state your: a) Fuli name; b) All other names by which you have ever been known; c) Date of birth; d) Social Security Number; e) Railroad identification number; f) Current address; g) Present spouse's name; and h) Any former spouse's name. ANSWER: a) Randolph Lee Campbell b) Randy c) June 20, 1950 d) 065-38-9975 e) 0895377 f) 2323 Ritner Highway, Carlisle, Pennsylvania 17015 g) Brenda Campbell h) None. 2. Please state in chronological order each railroad by which you have been employed and provide the following information: a) The date on which you were hired by each railroad; b) The date on which your service with each railroad terminated; c) Your craft, position, or occupation with each railroad; d) The geographical location of your employment with each railroad; e) Hours worked per day; f) Days worked per week; g) Months worked per year; and h) The full name of all of your supervisors during each period of railroad employment. ANSWER: Conrail a) May 3, 1976 b) June 1, 1999 (Norfolk Southern took over) c) Trackman, Machine Operator and Track Foreman d) Cuba, New York , e) 8 hours a day f) 5 - 7 days a week g) Approximately 8 months a year (after furloughs) at the beginning and then 12 months at the end. h) There were many throughout my career, but some that I remember are: Ken Anderson, Dan Beasley, Steve Arnold and Jim Harris Norfolk Southern a) June 1, 1999 b) Present (on sick leave) c) Trackman and Track Foreman d} Harrisburg, Pennsylvania (continuously from 10/06 to July 13, 2009) e) 50-60 hours a week f) 5 - 7 days a week g) 12 months a year h) There were many throughout my career, but some that I remember are: Rick Kilpatrick, Rob Hegge and Bill Calvert 3. For each railroad employer identified in the immediately preceding Interrogatory, describe in detail any task(s) performed during the course of your employment which require you to crawl, squat, kneel, or sit. Include in your response the following particulars: a) A description of each task; b) How long you are/were required to maintain that position; c) Identify any power equipment that exposes your lower extremities to vibration; d) The working environment present while assuming the identified position; e) Identify the tools and/or equipment you must use while in one of these positions and describe the task; and f) State whether you must manipulate pedals or levers with your feet. ANSWER: a) In the job of a trackman and track foreman, the Plaintiff was constantly squatting, stooping, kneeling, bending and crawling in his work. In his work as a trackman and track foreman, Plaintiff was required to take out ties and install ties, take out rail and install rail, including cutting rail. He was also required to gauge rail, set spikes, move rail and tear out crossings and pick up scrap. Plaintiff was also required to carry heavy tools and equipment. b) As stated above, Plaintiff was constantly required, while pertorming the tasks listed above, to squat, kneel, stoop, bend and crawl. c) Plaintiff was required to use power hand tools and to ride on equipment which exposed his lower extremities to vibrations. d) Plaintiff was in production mode all the time, he was also required to walk on uneven and sloped ground in all types of weather, including weather that caused muddy conditions. e) Various hand tools, hydraulic wrenches, spike pullers, drills, impact wrenches, t-wrenches, relay saws and rail saws. f) I did not have to manipulate pedals or levers with my feet. 4. Please describe any awkward or uncomfortable positions you are required to place your lower extremities in (this Interrogatory is designed to elicit the Plaintiffs subjective opinion regarding awkward or uncomfortable positions). ANSWER: Throughout his career, Plaintiff was required to lift and cant' heavy objects with his lower extremities which put his lower extremities in awkward and unnatural positions. Plaintiff was required to walk and work on uneven and unstable surfaces. Plaintiff was required to constantly squat, kneel, stoop, bend and sometimes craw to perform the work tasks listed in Plaintiffs Answer No. 3. 5. Please state each period of non-railroad employment, including self-employment, employment prior to railroad employment, post-railroad employment, and employment concurrent with railroad employment, and, in chronological order, provide the following particulars. a) The commencement date and termination date for each period of non-railroad employment; b} The nature of the business conducted by the employer; c) Your craft, position, or occupation with each non-railroad employer; d) The address of each non-railroad employer; e) Each and every permanent or temporary duty to which you were assigned, including in your answer the date on which each duty commenced, the date on which each duty terminated, and a description of the nature of the duties assigned at each duty station; f) The hours worked per day, days worked per week, and months worked per year for each non-railroad employer; g) A detailed description of any tasks performed that required you to crawl, kneel, squat, or sit; h) Identify tools and equipment you must use while in these positions and describe the task; and i) A description of any awkward or uncomfortable position for your lower extremity. ANSWER: After I graduated from high school in 1967 and before I started to work at the railroad in 1976, I had a few odd jobs. I worked as an usher in a theater and then I worked the assembly line at Bird's Eye Food in 1970 for about 5 months. I was a janitor at a high school for about a year. I also worked at a pattern shop in Bolivar, New York for about a year during a iay off from the railroad in 1998, but got laid off from that job. Additionally, in 1997, for approximately 8 months I worked at Plumber Hands Appliance Service in Wellsville, New York changing gas meters. 6. Has there been any increase or decrease in the number of employees who perform the same or similar employment duties as you? If so, please state the following particulars: a) The number of employees performing the same or similar task to which you are assigned immediately prior to an increase or decrease in work force; b) The number of employees performing the same or similar tasks to which you are assigned immediately after the increase and/or decrease in work force; c) The number of employees performing the same or similar tasks to which you are assigned at present. ANSWER: When I first started working at the railroad, there would be 10-12 men on a gang as the years went by, they decreased the size of a gang to on 3 or 4 men. 7. Has there been any increase or decrease in the production rate required of employees who perform the same or similar tasks to you? If so, please provide the following particulars: a) The date on which any change in production rates was implemented; and b) If production quotas have been established, the particulars of any production quotas to which you are subject. ANSWER: We had the same production rate only with less men. In appoximately 2000, the manpower to do the jobs were cut, but we kept the same production rate sa it required us to do more work. $. Please state the full name of your immediate supervisors at the time of any change in work force or production rates described in response to interrogatories Numbers 6 and 7, above, and at the time you first began experiencing the symptoms of which you are presently complaining. ANSWER: The Plaintiff does not recall who his supervisor was during the various cuts in manpower. However, he thinks that Rob Hegge was his supervisor in 2000 when there was a large cut in manpower. Bill Calvert was the Plaintiffs supervisor when he first began experiencing problems with his hips. Mr. Calvert was the Plaintiffs supervisor from approximately February 2007 until the Plaintiff went out of work to have his hips replaced on July 13, 2009. 9. Have you ever made any complaints to your supervisors and/or union representatives about the tools and/or equipment you use in pertorming your employment duties, working condition, or work methods? If so, please state the following particulars: a) The nature of the complaint; b) The date on which each such complaint was made; c) The identity of the person to whom such complaint was made; d) Whether such complaint was oral or in writing; and e) If such complaint was in writing, the custodian of the written complaint. ANSWER: Plaintiff made complaints to his various supervisors about the cuts in manpower and also made complaints to his supervisors about the inadequacy of the tools that he was required to work with. Plaintiff believes. that he made these oral complaints to both Mr. Rob Hegge and Mr. Bill Calvert among others. 10. Do you contend that any of the tools and/or equipment furnished by Defendant are defective and/or inadequate for the performance of your employment duties? If so, please provide the following particulars: a) Identify the tool and/or equipment; b) State the frequency of your use of such tool and/or equipment; c) Provide a detailed description of the operation of the tool and/or equipment is inadequate and/or equipment; and d) State your reason(s) for contending that such tool and/or equipment is inadequate and/or defective. ANSWER: In addition to the inadequate manpower discussed above, the Plaintiff was also not famished with adequate tools to perform the job. He was not famished with a back hoe until late in his career to remove and put in ties. Before being famished with a back hoe late in his career, Plaintiff was required to put in ties and take out ties by hand with only the help of a tie tong. Also, Plaintiff was not provided with a boom truck until late in his career to lift the rail. Before that time, Plaintiff was required to lift the rail by hand with only the help of a rail tong. Plaintiff was also not provided with a high rail truck to drive to the areas of track where his crew had to work. Had the Plaintiff been provided with a high rail truck, he would not have had to cant' the heavy equipment for long distances from the regular truck to the place on the track where the work had to be done. 11. Do you contend that any work method(s) and/or working conditions(s) at the railroad have contributed, in whole or in part, to your condition as stated in your Complaint? If so, please provide a description of the work methods} and/or working condition(s) that you contend have contributed, in whole or in part, to your condition as stated in your Complaint. ANSWER: Plaintiff would not have developed the injuries in his hips if he was provided with adequate manpower to perform the job. He also would not have developed the injuries in his hips if he would have been provided with adequate equipment to perform the job, including being provided with a back hoe to put in and take out ties and a boom truck to put in and take out rail. In addition, Plaintiff was required to carry heavy equipment over sloped and uneven surfaces. Had Plaintiff been provided a boom truck, he would not have had to carry such heavy equipment over such long distances. Also, if Plaintiff had been provided with a high rail truck, he would not have had to cant' the heavy equipment again over the uneven and sloped surtaces for long distances. 12. Please state whether you presently engage in or have ever engaged in the following activities, the number of years or months you engaged in the activity(ies), and the frequency that you engage in the activity(ies): a) Walking, speed walking, jogging, running and marathoning; ~ t 1 b) Roller blading, roller skating, or ice skating; c) Backpacking or mountain or rock climbing; d) Gardening, farming, or yard work; e) Track and field events; f) Football; g) Soccer; h) Dancing (recreational, ballet, jazz, tap, etc.); i) Basketball; j) Golf; k) Tennis; I) Bicycling; m) Racquetball or other racquet sport; n) Baseball or softball; o) "Aerobics" dance/exercise; _ P) Skiing; q) Conditioning exercise involving weight lifting, push-ups, pull- ups, rowing or jumping rope;. and r) Gymnastics: ANSWER: a) I now walk on a tread mill for therapy for my two replaced hips. b) No. c) I did a little hiking when I was much younger. d) 1 used to have a push mower, but now use a riding mower to do my yard work. e) I did track and field when f was approximately 17 years old. f) I played football in school when t was approximately 16 years old. g) No. h) No. i) I last played basketball recreationally in in 1982 j) 1 have played maybe one time in the last two years. k) When I was approximately 24 or 25 years old, I played tennis recreationally. I) I rode a bike up until about the age of 25 years old. m} No. n) I played softball in the 1970s. o) No, p) No. q) I lifted weights occasionally when I was a little younger. r) No. 13. Please state whether you presently have or have ever had at any time during the past the following medical conditions: a) Diabetes; b) Osteoarthritis and/or rheumatoid arthritis; c) Thyroid dysfunction; d) Gout; e) Neck injury; f) Spinal disease/injury (i.e., spinal stenosis}; g) Calcium deposits, tumors, cysts, or broken/displaced bones in the lower extremities; h) Lumbar spine injuryldisease (i.e. herniated disc, ruptured disc); i) Obesity; j) Hemodialysis/kidney disease; k) Alcoholism; I) Vascular disease; m) Phlebitis/thrombophlebitis/varicose veins; n) Hemophilia; o) Any and all prior surgery to the lower extremities; p) Liver disease; q) Lupus; r) Morton's toe neuroma, or tarsal tunnel syndrome; s) Bony spurs and/or abnormalities of the hip, knee, foot, ankle, or toes; and t) Ganglia in the lower extremities; u) Deformities or abnormalities in the lower extremities; and v) Difficulties in walking (i.e., bowlegged, feet turned inwards) ANSWER: a) No. b) I have arthritis in my knees and hips. c} No. d) I have an occasional flair up of gout. e) I hurt my neck at work in 1982. See answer to Intenrogatory No. 15. f) I hurt my back while working for the railroad in 1979 and again in 1980. See answer to Interrogatory No. 15. g) I broke each of my ankles twice while in high school. h) Yes. i) No. j) No, k) No. I) No. m) No. n} No. o) None except the recent hip replacement surgeries. p) No. q) No. r) No. s) No. t) No. u) No. v) No. 14. If your answer to any subpart of the immediately preceding Interrogatory is in the affirmative, please state the following particulars: (a) The onset date of any disease and/or condition and the period over which you have suffered from any such disease and/or condition; (b) Whether you sought medical attention as a result of any such disease and/or condition; (c) The name and address of any treating physician who rendered treatment for any such disease and/or condition; (d) The dates on which any medical treatment for such disease and/or condition was rendered; (e) The exact nature of medical treatment for any such disease and/or condition; (f) Whether any diagnostic tests were performed and, if so, the nature of such tests, the results thereof, and the name and address of the person or institution who performed them and the present custodian of the records of such tests; (g) Whether any medications were administered either by a physician, an institution, or by you in an attempt to cure and/or alleviate any such conditions and identif)r the medications administered or used; (h) Whether surgical intervention was required in an attempt to cure or alleviate any such disease and/or condition, and, if so, the name and address of the physician who performed such surgery and the name and address of the institution at which such surgery was performed; and {i) The residual effect, if any, of any such disease and/or condition. ANSWER: See answer to Interrogatory No. 15. 15. Please state whether you have ever sustained any traumatic injury, including a burn, laceration, contusion, broken or displaced bone, crush injury, puncture wound, or amputation, to your lower extremities. If so, please provide the following particulars; a) The date upon which each such injury was sustained; b) The particular body part injured; c) The cause of such injury; d) A complete description of the nature and extent of such injury; e) Whether you sought medical treatment as a result thereof; f) The date of such treatment; g) The nature of such treatment; h) The name and address of any physician and/or institution providing such treatment; i) Whether any diagnostic tests were performed, and, if so, the nature of such tests and the results thereof; j} The name and address of any physician or institution pertorming diagnostic tests; k) Whether surgery was required in the treatment of such injuries, and, if so, the name and address of the physician who performed such surgery and the name and address of the physician who performed such surgery and the name and address of the institution at which such surgery was performed; and I) The residual effects, if any, of such injury. ANSWER: I broke each of my ankles twice while in high school, but have no residual effects from those injuries. I was in a car accident in 1968 and received injuries to my left knee and back. 1 was in the hospital for a couple of days as a result of these injuries. I was in a car accident in approximately 1973, when I received an injury to my ankle and cuts on my face. t went to the emergency room and had stitches put in on the cuts on my face. In approximately 1976, I was in another accident while riding in a railroad bus. At this time, I went to the emergency room with a sprained injury to my arm. In 1978, I sustained an injury to my back while manually tamping. I believe I was sent to the railroad doctor and did not receive any further treatment. In approximately 1979, (received aright-knee injury while working. Again, I believe that I went to the railroad doctor and did not receive any further treatment after that. In 1980, I hurt my back while moving rail. I believe at this time I was also sent to the railroad doctor and do not recall whether or not {received any further treatment to my back as a result of this last injury. At that time, I think my back did bother me for awhile after this 1980 injury. 16. As of the date on which your Complaint was filed, state whether you were suffering from any pre-existing lower extremity disorders and/or nerve entrapment syndromes and/or degenerative joint disease and/or "repetitive strain injuries" and/or "cumulative trauma disorders," and, if so, please state the following particulars {refer to Defendant's instructions for definitions of "repetitive strain injuries" a~d"`~umulative trauma disorders). a} A complete description of the nature and extent of your pre- existing condition; b} The extent to which you are disabled, wholly or partially, as a result of your pre-existing condition; c) Whether you are or have been treated for your pre-existing condition, and, if so, a description of the nature of the treatment, frequency of the treatment, and the name and address of the treating physician and/or institution; d) The expected progression of the pre-existing condition, in the absence of any aggravating causes; and e) Whether your pre-existing condition is permanent ANSWER: Plaintiff objects to this question because it is so vaguely worded that Plaintiff does not understand what is meant by "pre-existing condition when his Complaint was filed." Plaintiff also objects to this question because it calls for a medical opinion. At the time the Plaintiffs Complaint was filed, Plaintiff suffered from cumulative trauma hip problems caused by his work activfies on the railroad. If these injuries are being considered pre-existing conditions that existed at the time that the Plaintiff filed his Complaint in 2009 by the Defendant, #hen the Plaintiff will contend, as stated in the Complaint, that the Defendant's work activities caused and aggravated these injuries. 17. Please state whether you suffer from any of the following symptoms; a} Numbness in your lower extremities; b) Prickling sensation in your lower extremities; c) Tingling sensation in your lower extremities; d) Burning sensation in your lower extremities; e) Aching sensation in your lower extremities; f} Pain in your lower extremities; g) Tenderness upon touch in the lower extremities; h) Pain upon particular movements; i) Nocturnal awakening; and j) Weakness of the muscles in the lower extremity. ANSWER: After my hip replacement surgeries, I now suffer from leg spasms in my right leg from time-to-time. 1 get woken up at night with these spasms and every morning because of the art~cial hips it is painful with my first movements of the morning and I do have weakness in the muscles of my lower extremities. Before my hip replacement surgeries, 1 experienced severe pain in both my hips. 18. If your answer to any subpart of the immediately preceding Interrogatory is in the affirmative, please provide the following particulars: a) The lower extremity(ies) affected; b) Factors that aggravate your symptoms; c) Whether you experience your symptoms constantly or intermittently; d) Specifically where you experience each symptom identified above (i.e., back of ankle, top of thigh, bottom of big toe, etc.); e) Whether any of your symptom(s) radiate into other parts of your lower extremities, lower back, or neck, and, if so, please describe the extent to which your symptom(s) radiate to other areas of your body; f) The onset date of each symptom(s); and g) Was the onset of symptoms of a gradual or acute nature? ANSWER: See answer to Interrogatory No. 17. 19. Please state whether you have been subjected to nerve conduction studies, electromyography, x-rays, computerized tomography, or magnetic resonance imaging relevant to the condition alleged in your Complaint. If so, please identify the physician or institution administering such testing and provide the address of the physician or institution administering such testing and provide the address of the of the physician or institution and the date on which such testing was conducted. ANSWER: See X-ray and imaging studies which are contained in the attached medical records. 20. Please state whether any physician, health care professional, or other person has advised you that you have a lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive stress injury" and/or a "cumulative trauma disorder?" If so, please provide the following particulars: a) The identity and address of any such physician, health care professional, or other person; b) Whether such statement was oral or in writing; c) If such statement was in writing, please provide the present custodian of such writing; and d) State the content of such oral or written statement. ANSWER: Plaintiff has been diagnosed with bilateral hip arthritis by Dr. David R. Maish. The Plaintiff first saw Dr. Maish in 2009. At that time, Dr. Maish also performed bilateral hip replacement surgeries on the Plaintiff. Dr. Maish's office is located at 30 Hope Drive, Hershey, Pennsylvania 17033. See attached medical records. 21. State whether you have been examined by a physician or institution pursuant to instructions or arrangements made by an attorney. If your answer is in the affirmative, please provide the following particulars: a) The identity and address of each physician or institution; b) The date of each examination; c) Whether any of the examining physicians or institutions submitted a report to you and/or your attomey; d) The date of any such report; and e) The custodian of any such report. ANSWER: No. 22. Have you sought medical attention from any physician or institution, including physical therapy, for a lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive strain injury" and/or a "cumulative trauma disorder?" If your answer is in the affirmative, please provide the following particulars: a) The identity and address of any physician or institution from whom you have sought medical attention; and b) The date on which any such treatment was rendered. ANSWER: In 2009, I saw Dr. David R. Maish for hip pain in both my hips. Dr. Maish is located at 30 Hope Drive, Hershey, Pennsylvania 17033. Dr. Maish diagnosed me with osteoarthritis in both my hips. Dr. Maish also performed left hip replacement surgery on me in August 2009. He also performed right hip replacement surgery on me in December 2009. Both right and left hip replacements were performed at the Milton S. Hershey Medical Center in Hershey, Pennsylvania. See attached medical records {Plaintiff has requested, but has not received the medical records from the right hip replacement surgery which was just performed in December. Once Plaintiff receives this information, it will be forwarded to the Defendant. The medical records concerning the left hip replacement which was performed in August are attached hereto). 23. Please state whether you are presently being treated on a regular basis by any physician, health care .professional, chiropractor, or physical therapist in an attempt to alleviate and cure your condition. If so, please state the identity and address of any such provider, the dates of any such treatment, and who had paid for such treatment. ANSWER: See answer to Interrogatory No. 22. 24. Please state whether any physician, health care professional, chiropractor, physical therapist, psychiatrist, or psychologist has recommended any future treatment in an attempt to cure or alleviate your condition. If so, please provide the identity and address of the health care professional recommending any future therapy, including in your response the probable expense of any such future treatment. ANSWER: Dr. Maish has not mentioned any future treatment or surgeries since he has performed the bilateral hip replacements. 25. Please state whether any physician or other health care professional has recommended that you undergo any surgical procedure(s) in the future in an attempt to cure or alleviate your condition. If so, please state the following: a) The identity and address of the person(s) recommending the surgery; b) The probable date(s) on which you will undergo the surgery; c) The estimated cost of the surgery; d} The time, if any, that you expect to be absent from your employment; e) The nature of the surgery recommended. ANSWER: See answer to Interrogatory No. 24. 26. Please state whether you have undergone any surgery in an attempt to cure or alleviate a lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive strain injury" and/or a "cumulative trauma disorder." If so, please provide the following particulars: a) Which extremity on which surgery was performed; b) The date on which the surgery was performed; c) The identity of the surgeon(s); d) Identify the health care institution at which your surgery or surgeries were performed, including the address of the institution; e) Whether the surgery relieved your symptom; f) Whether any of your symptoms have re-occurred subsequent to any surgery; g) Whether you have experienced any post-surgical complications of any nature whatsoever and, if so, the details of your complications. ANSWER: Bilateral total hip replacements. See attached medical records. 27. State whether you have been or are presently suffering from any physical ailment or infirmity of any nature whatsoever not alleged to have been caused by Defendant, and if so, please state the following particulars: a) A complete description of the nature and extent, including the duration and permanency, of any such condition, including in your answer all past and present symptoms; b) The date upon which the symptoms of any such ailment or infirmity first appeared; c) The date any such ailment or infirmity was diagnosed; d) Whether you have received or are receiving any medical treatment for such ailment or infirmity; e) The identity and address of each treating physician, institution, or therapist; f} The dates of any such treatment; g) The nature of any such treatment; h) Whether any diagnostic tests have been performed, and, if so, the nature of such tests, the results thereof, the identity and address of the physician, institution, or therapist who performed them, and the identity and address of the present custodian of the records thereof; i) Whether any medications have been administered by any physician, institution, therapist, or by you for any such ailment or infirmity, including in your answer the identity of any such medications and the dates on which you have been medicated; and j) Whether you are disabled, whether temporarily partially disabled, temporarily totally disabled permanently partially disabled, or permanently totally disabled, as a result of such ailment or infirmity. ANSWER: Slight high cholesterol. See attached medical records and answers to previous Interrogatories. 28. Please state whether you have lost any eamings as a result of the condition of which you complain in your Complaint. If so, please state the amount of your loss and the period over which you have lost eamings as a result of your condition. ANSWER: Yes. Plaintiff last worked on July 13, 2009, when he went out of work to have both of his hips replaced. The last four years that the Plaintiff worked, he made approximately $72,000.00 a year. The Plaintiff, before he went out of work for his injuries, planned to work until age 65. Plaintiff could not have retired at age 60 because he would not have had 30 years of service at that time. Plaintiff will claim lost wages and benefits from July 13, 2009, when he went out work, until June 20, 2015, when he would be 65-years old. This is approximately 6 years of lost wages for approximately $432,000.00. At a time closer to trial, Plaintiff will retain an economist to calculate a more precise economic lost wages and lost benefits. 29. Please identify each and every witness whom you intend to call on your behalf at the trial of this action, including in your answer the following particulars: a) The full name of each such witness and any other name by which any such witness is now or has been known; b) The business address and telephone number of any such witness; and c) The residence address and telephone number of each witness. ANSWER: At this time, Plaintiff does not know who he will call as witnesses in this matter. Plaintiff will agree to exchange a witness list with the Defendant at a time closer to trial. 30. Please produce a copy of any flyer, advertisement, letter or any other solicitation for any screening, testing or presentation that plaintiff attended sponsored by any law firm or union for the types of injuries for which plaintiff is making a claim. ANSWER: Plaintiff has not such documents. Re pectfully submitted, RAN PBELL Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 Counsel for Plaintiff CERTIFICAT OF SERVICE I hereby certify that on t day of , 2010, a copy of the foregoing Plaintiffs Answers to Defendants' Lower Extremity isorder Interrogatories~and Request for Production of Documents was mailed, by United States Mail, postage prepaid, to: Brian M. Mancos, Esquire Burns, White & Hickton Four Nort shore Center 106 Is bella St. Pittsburgh, 521 , Of Counsel J X U Page 1 of 2 Harrisburg, PA 17101-2005 27.13 miles -about 33 minutes 2323 Ritner Hwy, Carlisle, PA 17015-9398 Notes Trip to 101 Market St 1. Start out going NORTHEAST on RITNER HWY / US-11 go 2.1 mi toward MCALLISTER CHURCH RD. ~~ _. 2. Turn RIGHT onto ALLEN RD / PA-465. go 0.5 mi ~~ 3. Merge onto 1-81 N via the ramp on the LEFT toward CA go 14.8 mi RLISLE. 4. Merge onto PA-581 E /HARRISBURG EXPY via EXIT 59 toward PA-581 E 1 CAMP HILL ! US 11 go 7.7 mi . - '~`, 5. PA-581 E /HARRISBURG EXPY becomes I-83 N. go 0.3 mi 6. Take EXIT 42 toward LEMOYNE. go 0.1 mi ->~ 7. Turn SLIGHT RIGHT onto S 3RD ST. go 0.4 mi ~''`~ 8. Turn RIGHT onto MARKET ST. go 0.4 mi T .~,. 9. MARKET ST becomes MARKET ST BRIDGE. go 0.7 mi 10. MARKET ST BRIDGE becomes MARKET ST. go 0.0 mi 11.101 MARKET ST is on the RIGHT. go 0.0 mi http://www.mapquest. com/print 1/19/2010 ^ 101 Market St, Harrisburg, PA 1 71 01-2005 Total Travel Estimate :27.13 miles -about 33 minutes Route Map Hiae Page 2 of 2 MST w. ~~, . k ._ _ ___. __ ~,.._ o azoo m"~ fi'dYLPt?t"~ TC}f~ . i. 96D0~f~t 1 ''~ °` ° Enola _.. „a ~ . w . _„ p-. _., 100 1ltiirtzviita - ~ -ti ~ ~f , ~4 ~ , . ~ "`~ Wormiaysburp ~~ ~. ;~.. _ _... ...; Camp 1•I~iI1 ,~Nqw King etown Q - ~r~ #~S "'~'~ `~ ~ R !_ A N D Green j e farms rt ° ~ Meaha ntcsbur ~ ~ :3 = . 11 ~ - . ~ ~` ~~' - ~641~ t~ ~..,> ` ~ s ,~'~, ~,{o ~ ~. ~11 ' ~,~ i 5 ~,, ~ L3 nb~rrt . , 48~ ~, -- ~~ ~ Bnnling Springs o1PAttiam8~irova. ~ O .- ~~~ ~ ~f ~ ZUU9 MapQuest Irep. A±lagr Data ~ 2C14f9 N7IYTEQ or RND Ali rights reserved. Use subject to License/Coavrioht ~ Mao Legend Directions and maps are informational only. We make no warranties on the accuracy of their content, road conditions or route usability or expeditiousness. You assume all risk of use. MapQuest and its suppliers shall not be liable to you for any loss or delay resulting from your use of MapQuest. Your use of MapQuest means you agree to our Terms of Use http://www.mapquest. com/print 1/19/2010 ^ . 0 27.76 miles -about 34 minutes Mount Holly Springs, PA ~~ Notes Trip to Harrisburg, PA Page 1 of 2 ® 1. Start out going EAST on W BUTLER ST toward N BALTIMORE AVE / PA-34. go 0.0 mi `~: 2. Turn LEFT onto N BALTIMORE AVE ! PA-34. Continue to fallow PA-34. go 4.8 mi ~,~~> 3. Merge onto I-81 N toward HARRISBURG. go 20.3 mi 4. Take the US-22 W / US-322 W I US-22 E exit, EXIT 678- A, #oward LEWISTOWN /STATE COLLEGE 1 PA-230 E / __ go 0.2 mi HARRISBURG /CAMERON ST. "[''~°s : 5. Merge onto US-22 E via EXIT 67A toward HARRISBURG / PA-230 /CAMERON ST. go 1.5 mi -:,~, 6. Turn SLIGHT RIGHT onto MACLAY 3T. go 0.4 mi _. -~ : 7. Turn LEFT onto N 7TH ST. go 0.6 mi ® 8. Welcome to HARRISBURG, PA. go 0.0 mi Harrisburg, PA Total Travel Estimate :27.76 miles -about 34 minutes Route Map Hide __ __ __ http://www.mapquest. com/print 1/19/2010 ^ .. Page 2 of 2 IMIA~RKI~ST, .,~ O~ "~ o~ azoa m 9~~0 r~~ _~ _. , _ ~ _ !~ ~ ~4uMtmrtd' ~ ft 322 i _ ... .,a ... ~nola ,.. . .._ _..,.- . ~s4 ` ' HARRI~BUR 22 ~ 581 1Normleysbury~ ~ ,~~~ ,o Hog~etown Q -- . ~ ~ '~ k~ ~ <.~~¢~r~' `' ' #~x E , ~~a~ 1(]ngatown ~=,~ .. ~ C~mR 11 58 `~ .~s t3 , ..... °~ z_ in~ 1 ~ ~ ^~''~~~{ ~.,,"^~,ti_ Machanicabur , =C~: ~ 'YV~atfi~Id F 8 i ~ ~ .. ~ ~~y ~ hr Carlisl ~ r a s tdl r ~ cs ~~" " '~, ~ ~ q ~ 1.~ -:5 ~ t ~~ "^ _.. i ~- ~~.CLII S~ ~101At ~ 6~} - ff _.._ t ? ~~`he tri tC~' to i5 iaabu rn 8 ' 1~4 ~Bvi&aQ Springs. _ oYWiiiama ~rova 15 ~. '~ 8 `J _ . 8. 20t)9 hiap~Ckl~t Inc. '~ Map i?ieta ?a 2049 NIAYTEQ-dr~ ANIa Ail rights reserved Use subjec t to licenseiCgpvriaht ~ Map Legend Directions and maps are informational only. We make no warranties on the accuracy of their content, road conditions or route usability or expeditiousness. You assume all risk of use. MapQuest and its suppliers shall not be liable to you for any loss or delay resulting from your use of MapQuest. Your use of MapQuest means you agree to our Terms of Use http://www.mapquest.com/print 1/19/2010 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, PLAINTIFF, VS. CIVIL DIVISION NO: 2009-CV-14899-CV NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. JURY TRIAL DEMANDED AFFIDAVIT OF L. KEITH LAMBERT My name is L. Keith Lambert. I am over the age of 18, capable of making this Affidavit, and have personal knowledge of, and could testify competently to, the facts herein stated: 1. I am currently Manager of Occupational Claims for Norfolk Southern Corporation. In that capacity, I have responsibilities in connection with legal claims involving Defendant Consolidated Rail Corporation and Defendant Norfolk Southern Railway Company ("NSRC"). 2. Upon information and belief, Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. 3. Upon information and belief, after January of 2007 Plaintiff worked out of Mount Holly Springs, Pennsylvania, located in Cumberland County. Prior to that time, Plaintiff worked out of Harrisburg, Dauphin County, Pennsylvania, briefly from September of 2006 until January of 2007. Prior to September of 2006, Plaintiff worked out of Olean, New York. 4. Upon information and belief, the majority of Plaintiff s most recent co-workers work out of Mount Holly Springs, Pennsylvania, located in Cumberland County. In addition, upon information and belief, the Plaintiff s co-workers and/or supervisors that are expected to testify reside in and azound Cumberland County, Pennsylvania. 5. Those employees who will be witnesses at trial would be required to spend an extended amount of time in Harrisburg, Pennsylvania and away from work. Their absence would be unduly burdensome to Defendant NSRC, as Defendant NSRC would be required to have other employees fill these jobs. Defendant NSRC would also have to transport these witnesses to Philadelphia, Pennsylvania for trial and pay their wages and expenses for the duration of the time spent at trial. 6. Additionally, following Plaintiff's relocation to Cumberland County in 2006, all but one of Plaintiff's known primary medical providers aze located within Cumberland County, Pennsylvania. Plaintiff's known healthcaze providers during the latter part of his cazeer include: • Cazlisle Internal Medicine, Carlisle, Cumberland County, Pennsylvania • Dr. Robert F. Pellegrino, Carlisle, Cumberland County, Pennsylvania • Dr. David Maish, Hershey, Dauphin County, Pennsylvania 7. Further, it is anticipated that the trial of this matter will last between 8-10 days, likely causing disruption to Defendant NSRC's day-to-day operations and diminishing its effectiveness to service those customers who choose to transport their goods by rail. If trial were conducted in a forum in closer proximity to the site where the employee witnesses aze employed, in this instance Cumberland County, Pennsylvania, the aforementioned disruption would be reduced considerably. .~ ~ STATE OF VIRGINIA CITY OF NORFOLK SS. L. Keith Lambert Manager of Occupational Claims Norfolk Southern Corporation Subscribed and sworn to before me, a Notary Public, this ~ ~ day of ~~, 2010. e. My commission expires: Notary MMN1- C. MITT C+oeiMh ~ ~o z7+iu ~~.°~ ;~ `~ ~,p ~~ ~.` ITtM . ~ YNrl~1 ~Nd44 rtDbN oNpav ro ,r~o.wno~nmo~ t~socs ~ rot . ~t •.,~c~xt na-utmnw3 ~ { IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, PLAINTIFF, VS. CIVIL DIVISION NO: 2049-CV-14899-CV NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of 2010, upon consideration of Defendants' MOTION TO TRANSFER VENUE BASED ON FORUM NON CONVENIENS PURSUANT TO Pa.R.C.P. 1006(d)(1), it is hereby ORDERED, ADJUDGED, and DECREED that Defendants' Motion is GRANTED and this matter is TRANSFERRED to Cumberland County, Pennsylvania for further proceedings. BY THE COURT: J. COPIES TO: Mark F. McKenna, Esq. 436 Blvd of the Allies, Suite 500 Pittsburgh, PA 15219 Phone: (412) 471-6226 Fax: (412) 471-6658 mcklaw@consolidated.net Counsel for Plaintiff Brian M. Mancos, Esq. Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Phone: (412) 995-3000 Fax: (412) 995-3300 bmmancos@bwhllc.com Counsel for Defendants a.. , t CERTIFICATE OF SERVICE I hereb certi that on the ~ y fy $ day of March, 2010, a true and correct copy of the within Defendants' Motion to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1), was served on all counsel of record via regulaz mail, addressed as follows: H. Keith Moore, Esquire CRANWELL, MOORS & EMICK P.O. Box 11804 Roanoke, VA 24022 Mazk F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies, Suite 500 Pittsburgh, PA 15219-1314 Respectfully submitted, BURNS, WHITE & HICKTON By: ,,._ Bnan . Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company ~~~ '~~/ MAR ~ ~ ~~~~ 1 Y~ '^.~ ~ ~ V W I RECEIVED t/ OFFICE Of PROTHONOTARY BURNS, WHITE & HICKTON BY: BRIAN M. MANGOS, ESQ. Pa. I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 RANDOLPH L. CAMPBELL, ?010 MAR 24 AM !!= 54 DAUF`~~~~i COUNTY t ENNA ATTORNEYS FOR DEFENDANTS NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION DAUPHIN COUNTY COURT OF COMMON PLEAS PLAINTIFF, VS. CIVIL DIVISION NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. NO: 2009-CV-14899-CV JURY TRIAL DEMANDED DEFENDANTS' BRIEF IN SUPPORT OF PETITION TO TRANSFER VENUE BASED ON FORUMNON CONVENIENS PURSUANT TO Pa RCP 1006(d)(1) AND NOW, come Defendants/Petitioners, Consolidated Rail Corporation ("Conrail") and Norfolk Southern Railway Company ("NSRC"), by and through their attorneys, Burns White & Hickton, LLC, and file the within Brief in Support of Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and in support thereof, state the following: T I. PROCEDURAL HISTORY Plaintiff/Respondent initiated the above action on November 9, 2009, by filing a Complaint against Defendants, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et seq. See, Plaintiff s Complaint attached to Defendants' Petition as Ex. "A". In his Complaint Plaintiff alleges that, within the course and scope of his employment, he was exposed to repetitive, forceful and awkward motions utilizing his lower extremities that caused him to sustain severe and permanent injuries to his knees, hips, and back. See, Ex. "A" at ¶11. In his Complaint, Plaintiff alleges that the acts of omission and commission causing his injuries were done by the Defendants, their agents, servants, workmen and/or employees acting in the course and scope of their employment with and under the direct and exclusive control of the Defendants. See, Ex. "A" at ¶7. II. STATEMENT OF FACTS Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. See, Ex. "A" at ¶1; see also, Plaintiff's Response to Defendants' Request for Admissions attached to Defendants' Petition as Ex. "B", at ¶¶27-29; see also, Plaintiff s Answers to Defendants' Lower Extremity Disorder Interrogatories attached to Defendants' Petition as Exhibit "C", at ¶1. Plaintiff's residence in Carlisle, Pennsylvania is approximately twenty-eight (28) miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania, which is approximately a thirty-three (33) minute drive. However, Plaintiff's residence is approximately five (5) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a nine (9) minute drive. See, Ex. "A" at ¶l; Ex. "B" at ¶¶30-33; see also, a true and correct copy of Mapquest 2 t ~ 7 Driving Directions from Carlisle, Pennsylvania to Harrisburg, Pennsylvania attached to Defendants' Petition as Ex. "D". Plaintiff began his career with Defendant Conrail as amaintenance-of--way employee working out of Olean, New York in May of 1976 and was employed by Conrail until May 31, 1999.1 Thereafter, Plaintiff became an employee of Defendant NSRC on June 1, 1999 where he worked out of Olean, New York until September of 2006. See, Ex. "B" at ¶¶2, 13; see also, Ex. "C" at ¶2. Plaintiff admits that he first bid for a position with Defendant NSRC in Harrisburg, Pennsylvania in September of 2006. See, Ex. "B" at ¶14. Plaintiff admits that he next bid for a position with Defendant NSRC in Mount Holly Springs, Pennsylvania in January of 2007. See, Ex. "B" at ¶17. Thus, Plaintiff admits that he was only employed by Defendant NSRC in Dauphin County, Pennsylvania from September of 2006 until January of 2007, or approximately four (4) months. See, Ex. "B" at ¶¶14, 17. Plaintiff further admits that he was employed by Defendant NSRC in Cumberland County, Pennsylvania from January of 2007 until July of 2009, or approximately two and one-half (2.5) years. See, Ex. "B" at ¶17; see also, Ex. "C" at ¶2. Plaintiff's most recent place of employment in Mount Holly Springs, Cumberland County, Pennsylvania is approximately twenty-eight (28) miles from Harrisburg and is approximately athirty-four (34) minute drive. However, Mount Holly Springs is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a ten (10) minute drive. See, a true and correct copy of Mapquest Driving Directions from Mount Holly Springs, Pennsylvania to Hamsburg, Pennsylvania attached to Defendants' Petition as Exhibit "E"; see also, Ex. "B" at ¶¶19-23. 1 It should be noted that the nature of Conrail's business changed significantly as of June 1, 1999. On June 1, 1999, Conrail became a switching and terminal railroad, conducting railroad operations in the limited geographical areas of Detroit, Michigan; Northern New Jersey; and Southern New Jersey/Philadelphia. 3 Plaintiff further admits that he has never resided in Dauphin County, Pennsylvania. See, Ex. Plaintiff has only identified one treating physician, Dr. David Maish, as an individual likely to have knowledge regarding his alleged injuries. This treating physician is located in Hershey, Dauphin County, Pennsylvania. See, Ex. "B" at ¶¶34-36; see also, Ex. "C" at ¶¶20, 22- 25. However Plaintiffs other known medical treatment during the latter part of his railroad career was received at Carlisle Internal Medicine, located in Cumberland County, Pennsylvania. See, Affidavit of L. Keith Lambert attached to Defendants' Petition as Exhibit "F". As Plaintiff is claiming injuries resulting from his duties at work, Defendants intend to call Plaintiffs supervisors and co-workers, who aze familiaz with Plaintiffs job duties and requirements, to testify at trial. See, Ex. "F". Defendants further believe and therefore aver that Plaintiff has not identified any co-worker witness who lives or works in Dauphin County and who has direct personal knowledge of Plaintiff s work activities that are alleged to have occurred in Cumberland County, Pennsylvania. See, Ex. "B" at ¶37; see also, Ex. "F" Based on the Affidavit of L. Keith Lambert, it would also be unduly burdensome to replace those employees/witnesses who possess knowledge of Plaintiff's claim, if said individuals were required to travel to Harrisburg, Pennsylvania, in terms of expense and time away from work. It would further be a burden for Defendants to transport these individuals to Harrisburg, Pennsylvania for the trial and also pay their wages and expenses for the duration of the time spent at trial. See, Ex. "F". Moreover, the expense associated with transporting a 4 Dauphin County jury for a view of Plaintiff's workplace in Cumberland County argues against venue in Dauphin County.2 The only connection that this case has to Dauphin County stems from the fact that Plaintiff was employed by Defendant NSRC in Dauphin County for approximately four (4) months, and one of Plaintiffs treating physicians is located in Dauphin County. In short, Defendants aver that Cumberland County is the site of Plaintiffs most recent workplace; Plaintiff only worked out of Dauphin County for approximately four (4) months; Plaintiff resides in Cumberland County; Plaintiff has never resided in Dauphin County; Plaintiff s known medical treatment during the latter part of his railroad career was received in Cumberland County; and most of the co-worker witnesses with direct personal knowledge of Plaintiff s work conditions or alleged injuries aze located in Cumberland County. Based on the foregoing, Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company respectfully request that this Honorable Court grant Defendants' Petition, and transfer the within matter to Cumberland County, Pennsylvania for further proceedings. III. STATEMENT OF QUESTIONS INVOLVED A. Is an alternate forum available to Plaintiff, thereby making a transfer of venue possible? PROPOSED ANSWER: Yes. Based on Plaintiff s residence, his most recent work location and the location of his treating physicians, Cumberland County is available as a proper forum. z Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer based on forum non corrveniens. It is beyond dispute that an analysis of this factor clearly weighs in favor of transfer. See, Cheeseman v Lethal F_xterminators, Inc., 701 A.2d 156 (Pa. 1997). S B. Have Defendants met their burden of demonstrating that Plaintiffs choice of forum in Dauphin County is oppressive or vexatious to the Defendants? PROPOSED ANSWER: Yes. Based on the evidence of record, Plaintiff s choice of forum is both oppressive and vexatious, thereby permitting this Court to find that venue is improper in Dauphin County. IV. ARGUMENT A. AN ALTERNATE FORUM IS AVAILABLE TO PLAINTIFF, MAI~NG TRANSFER OF VENUE BASED ON FORUM NON CONVENIENS PURSUANT TO PA.RC.P. RULE 1006(d)(1) POSSIBLE. Prior to an analysis pursuant to the doctrine of forum non conveniens, the court must first determine whether the proposed transferee forum is an available, alternative forum. See, Wood u E. I. du Pont de Nemours and Co., 829 A.2d 707, 712 (Pa.Super. 2003). Pa.R.C.P. 2179 states that a personal action against a corporation or similar entity may be brought in the county where the cause of action arose. In this case, it is undisputed that Plaintiffs cause of action arose as a result of alleged work-related injuries which occurred while employed by Defendant NSRC in Mount Holly Springs, Cumberland County, Pennsylvania. See, Ex. "A". It is also undisputed that Plaintiff currently resides in Carlisle, Cumberland County, Pennsylvania. See, Ex. "A". Therefore Cumberland County was, and still is, available to Plaintiff as a proper forum, and Plaintiff will not be prejudiced by a transfer of venue should Defendants' Petition be granted. B. DEFENDANTS' PETITION FOR CHANGE OF VENUE PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1006(d)(1) SHOULD BE GRANTED WHEREAS PLAINTIFF'S CHOICE OF FORUM IS OPPRESSIVE AND/OR VEXATIOUS. This Court is vested with discretion in considering whether to transfer an action to a more appropriate venue pursuant to Pa.R.C.P. 1006(d)(1), which provides: 6 For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. Pa.R.C.P. 1006(d)(1). The doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See, Zappala v. Brandotini Property Management, Inc., 909 A.2d 1272, 1283 (Pa. 2006). Furthermore, a defendant may file a petition challenging the plaintiff's choice of forum on the basis of forum non conveniens, and request a transfer of the action, at any time during the proceedings. See, id., 909 A.2d at 1282. A plaintiff's choice of forum is given great weight and a defendant has the burden of asserting a challenge to the plaintiff's choice of venue. See, id, at 1281. However, Rule 1006 not only articulates where the plaintiff may bring the action, but also provides bases upon which a defendant may challenge the plaintiff s chosen forum, including forum non conveniens. See, id. 'Thus, the right of a plaintiff to choose a forum is not absolute, whereas the forum non conveniens provision inserted into Rule 1006(d) was intended as a necessary counterbalance. See, Wills v. Saschak, 617 A.2d 37, 38 (Pa.Super. 1992). As a result, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue under Rule 1006(d). See, Hosiery Corporation ofAmerica, Inc. v Rich, 47b A.2d 50, 51 (Pa.Super. 19$4). In Cheeseman v. Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997), the Pennsylvania Supreme Court established guidelines to determine whether transfer of venue is proper, based on forum non conveniens, under Rule 1006(d}(1). The Cheeseman Court held that a petition to transfer venue pursuant to Rule 1006(d}(1) "should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant." See, Cheeseman, 701 A.2d at 162 (emphasis 7 added). The defendant may show that the plaintiff's choice of forum is vexatious by establishing with facts on record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. See, id. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses and other sources of proof, or to the ability to conduct a view of premises involved in the dispute. See, id. Therefore, even if a plaintiff's choice of forum is technically proper at the outset, the trial court is still vested with discretion to transfer the action to another county if defendant meets his burden of proving that the forum is oppressive or vexatious. See, Zappala, 909 A.2d at 1283. 1. Plaintiff's Chosen Forum of Dauphin County is Oppressive. An analysis pursuant to the doctrine of forum non conveniens implicitly vests considerable discretion in the trial court to balance the arguments of the parties, consider the level of prior court involvement, and consider whether the forum was designed to harass the defendant. See, id; see also, Cheeseman, 701 A.2d at 162. In cases factually similar to the case sub judice, the Pennsylvania Superior Court affirmed the transfer of matters from Philadelphia County, while interpreting the standard set forth in Cheeseman. In Dulaney v. Consolidated Rail Corp., 715 A.2d 1217 (Pa. Super. 1998), the plaintiff brought suit in Philadelphia County under the FELA for an injury he allegedly sustained while working for the railroad in Ohio. The trial court in Dulaney transferred venue to Allegheny County based on forum non conveniens where the defendant established that trial in Philadelphia County would have been oppressive. The defendant demonstrated, with facts on the record, that: (1) the accident occurred in Ohio; (2) plaintiff resided in West Virginia; (3) plaintiff worked out 8 ti of Conrail's Allegheny County office; and (4) all of the witnesses to the accident and plaintiff s medical providers resided in Ohio, West Virginia, and Western Pennsylvania. See, Dulaney, 715A.2dat1218. The trial court found that the only connection to Philadelphia County was the fact that Conrail did business there, and that this was not enough to hold venue in that location. See, id., at 1219. The court held the defendant demonstrated that a trial in Philadelphia County, plaintiff's chosen forum, was oppressive, and determined that trial in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof. See, id. In Wood v. E. I. du Pont de Nemours and Co., supra, the Superior Court affirmed the trial court's transfer of venue of Plaintiff's personal injury action from Philadelphia County to Bradford County. In this case, defendant demonstrated that the action would be more conveniently located in Bradford County and would provide easier access to sources of proof whereas the alleged injury occurred in Bradford County and none of the parties, or fact and medical witnesses, were located in Philadelphia County. See, Wood, 829 A.2d at 709. In addition, defendant demonstrated that many of the critical defense witnesses, including defendant's employees, would be forced to travel over 190 miles to attend trial in Philadelphia. See, id, at 713. Furthermore, this case was particularly appropriate for a jury view, in light of factual disputes surrounding the condition of pavement on the date in question. See, id. The Wood Court held that transfer of venue was appropriate where the trial court determined that these factors "established oppressiveness and vexatiousness, and not merely inconvenience." See, id , at 714. 9 In Mateu v Stout, 819 A.2d 563 (Pa. Super. 2003), the Superior Court affirmed the trial court's transfer of venue of Plaintiff's personal injury action from Philadelphia County to Delaware County. In this case, defendant demonstrated that the action would be more conveniently located in Delaware County and would provide easier access to sources of proof whereas: (1) Plaintiff resided in Delawaze County; (2) the alleged injury occurred in Delaware County; and (3) all of the fact and medical witnesses were located in Delawaze County. See, Mateu, 819 A.2d at 564. The Mateu Court held that litigation of the action in Delawaze County would provide easier access to the sources of proof, namely to the witnesses, to plaintiff's own medical expert, plaintiff s medical records, and the site of the accident. See, icy, at 567. In Borger v. Murphy, 797 A.2d 309 (Pa.Super.), appeal denied 808 A.2d 568 (Pa. 2002), venue in Philadelphia County was determined to be oppressive so as to require transfer of venue of a medical malpractice action against a doctor located in Lehigh County. In this case the plaintiff admitted at his deposition that all of the witnesses who could testify regarding damages were located in Lehigh County. It was determined that trial in Philadelphia County would burden the doctor's medical practice in Lehigh County, as he would have been required to travel eighty miles each way in order to attend trial. Similar to Dulaney, Wood, Mateu, and Borger, the injuries in this matter are alleged to have occurred in another jurisdiction, namely Cumberland County. Plaintiff s co-workers, most of whom are located in Cumberland County, will be called to testify in this case regazding Plaintiff s job duties, job requirements, and railroad safety practices. They would be forced to incur substantial expense in the form of missed work, time away from home, and additional monetary costs associated with travel from their respective homes in Cumberland County in order to attend trial in Harrisburg. 1.0 ., Defendants anticipate that trial of this matter will last approximately 8 to 10 days. Therefore, if Defendant NSRC's Cumberland County-based employees. are required to be "on call," or otherwise available for trial for an extended period of time in Harrisburg, over 28 miles from their current job assignments, this will unduly disrupt NSRC's day-to-day raikoad operations. The testimony of Plaintiffs co-workers is critical and necessary to Defendants' defense of this case, and Defendants anticipate that they will call one or more of these fact witnesses at trial. Furthermore, NSRC's Manager of Occupational Claims, L. Keith Lambert, has attested that trial in Hamsburg would likely be unduly burdensome for NSRC's current employees, and for the railroad in general. See, Ex. "F".3 Plaintiff has admitted in his Response to Defendants' Requests for Admissions that he spent approximately four (4) months of his railroad career working out of Dauphin County, Pennsylvania, and spent approximately two and one-half (2.5) years working out of Cumberland County, Pennsylvania. See, Ex. "B", at ¶¶14, 17. As such, more of the facts underlying Plaintiffs claims in this action aze alleged to have occurred in Cumberland County, Pennsylvania, and more additional fact witnesses will reside in this area as well. It would be burdensome for NSRC to transport those employees/witnesses to Harrisburg for trial, and also to pay their wages and expenses for their time spent at trial. Additionally, NSRC will be required to replace those individuals, or continue operations without them for the duration of trial. See, Ex. "F". 3 Defendants anticipate that Plaintiff will attempt to azgue that Defendants failed to meet their burden because they did not present affidavits from all of their proposed witnesses detailing the hazdship they would suffer by traveling to Philadelphia. However, it is well-established that Cheeseman and Pa.R.C.P. 1006(d) do not require any particulaz form of proof. All that is required is that the moving party present a sufficient factual basis for the petition. See, Wood v E.I. du Pont de Nemours and Co., 829 A.2d at 714. 11 Plaintiff s treating physicians also possess information relevant to his alleged injury, and will likely testify at trial. Only one of these individuals, Dr. David Maish, is located in Dauphin County. ,See, Ex. "B" at ¶¶34-36. Atrial in Harrisburg would require Plaintiff's other medical providers to travel a longer distance to provide live testimony, which would not only disrupt their schedules, but would force the requesting parry to suffer significant financial expense. Further, as Plaintiff asserts that his alleged injuries are attributable to his work conditions, the Court may choose to have the jury view Plaintiff's work premises in order to aid the decision- making process. Such a visit would cause undue hardship if this matter were to remain in Dauphin County.4 In the instant case, Plaintiff resides in Cumberland County, Plaintiff has never resided in Dauphin County, the majority of the alleged injuries occurred in Cumberland County, Plaintiff only worked out of Dauphin County for approximately four (4) months, and more of the fact and medical witnesses are located in Cumberland County, Pennsylvania. Accordingly, Defendants respectfully request that this Court fmd that Dauphin County, Pennsylvania constitutes an oppressive forum and grant Defendants' Petition to Transfer Venue. 2. Plaintiff's Chosen Forum of Dauphin County is Vexatious. A chosen forum is considered vexatious when the facts on the record indicate that the plaintiff's choice of forum was designed to harass the Defendants, even at some inconvenience to the plaintiff himself. See, Cheeseman, 701 A.2d at 162. In Graham v. Laidtaw Transit, Inc., a Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer, based on forum non corrveniens. It is beyond dispute that analysis of this factor in this case clearly weighs in favor of transfer. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 12 44 Pa. D. & C.4th 493 (2000), the trial court granted defendant's petition to transfer venue from Allegheny County to Erie County observing that Plaintiff's choice of forum in Allegheny County would result in a round trip for the plaintiff of approximately six (6) to seven (7) hours, as the plaintiff was from Erie, Pennsylvania, and that such evidence showed that the plaintiff's choice of forum was vexatious due to its inconvenience to the plaintiff. Instantly, Plaintiff lives in Cumberland County, Pennsylvania and will have to travel over one hour, round trip, to be present for trial in Harrisburg, as opposed to twenty (20) minutes round trip for trial in Carlisle, Pennsylvania. See, Exs. "B" and "D". Following the Court's holding in Graham, the fact that Plaintiff chose to file suit in Harrisburg, even at his own expense and inconvenience, may be considered evidence that he chose this forum in order to cause inconvenience and expense to Defendants, as most of the witnesses and sources of proof lie in Cumberland County, Pennsylvania. Accordingly, Defendants respectfully request that this Court find that Dauphin County constitutes a vexatious forum and grant Defendants' Petition to Transfer Venue. V. CONCLUSION Defendants have established that trying this matter in Dauphin County would be oppressive and/or vexatious, thus satisfying the requirements for transfer of venue based on forum non conveniens, as set forth in Cheeseman, supra. Specifically, Defendants have established that the forum of Dauphin County is oppressive in this case, as the Plaintiff resides in Cumberland County, the majority of the alleged injuries occurred in Cumberland County; more of the relevant fact and medical witnesses are located in Cumberland County; and it would pose a burden upon all parties and witnesses should trial be held in Harrisburg. Moreover, there is 13 also evidence that Plaintiff s choice to bring this action in Dauphin County is vexatious due to the fact that venue in Harrisburg constitutes a hardship to Defendant, even at an obvious inconvenience to the Plaintiff. Based on the foregoing, Defendants respectfully request that this Honorable Court grant Defendants' Petition to Tzansfer Venue Based on Forum Non Conveniens Pursuant To Pa.R.C.P. 1006(d)(1), and transfer this matter to Cumberland County, Pennsylvania for further proceedings. Respectfully submitted, BURNS, WHITE & HICKTON By: -~ Brian M. Marcos, Esquire PA I.D. No. 89720 Four Northshore Center 146 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation and Norfolk Southern Railway Company 14 r CERTIFICATE OF SERVICE cd I hereby certify that on the p~ day of March, 2010, a true and correct copy of the within Defendants' Brief in Support of Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1), was served on all counsel of record via regular mail, addressed as follows: H. Keith Moore, Esquire CRANWELL, MOORE & EMICK P.O. Box 11804 Roanoke, VA 24022 Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies, Suite 500 Pittsburgh, PA 15219-1314 Respectfully submitted, BURNS, WHITE & HICKTON Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for DefendantslPetitioners Consolidated Rail Corporation arx~ Norfolk Southern Railway Company Y a AGED ~~-~- RECEIVED ~ al: Fslc~ o~ , PRa i ~~;;~Na~iAR1 X010 P~~R 24 Ali I I ~ 53 DAU`~pENNADNTY BURNS, WHITE & HICKTON BY: BRIAN M. MANGOS, ESQ. Pa. I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 RANDOLPH L. CAMPBELL, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. ATTORNEYS FOR DEFENDANTS NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION DAUPHIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO: 2009-CV-14899-CV JURY TRIAL DEMANDED DEFENDANTS' PETITION TO TRANSFER VENUE BASED ON FORUMNON CONVENIENS PURSUANT TO PA.R.C.P.1006(d)(1) AND NOW, come Defendants/Petitioners, Consolidated Rail Corporation ("Conrail") and Norfolk Southern Railway Company ("NSRC"), by and through their attorneys, Burns White & Hickton, LLC, and file the within Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and in support thereof, aver the following: t FACTS 1. Plaintiff/Respondent initiated the above action on November 9, 2009, by filing a Complaint against Defendants, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et seq. See, Plaintiff s Complaint attached hereto as Ex. "A". 2. In his Complaint Plaintiff alleges that, within the course and scope of his employment, he was exposed to repetitive, forceful and awkward motions utilizing his lower extremities that caused him to sustain severe and permanent injuries to his knees, hips, and back. See, Ex. "A" at ¶11. 3. In his Complaint, Plaintiff alleges that the acts of omission and commission causing his injuries were done by the Defendants, their agents, servants, workmen and/or employees acting in the course and scope of their employment with and under the direct and exclusive control of the Defendants. See, Ex. "A" at ¶7. 4. Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. See, Ex. "A" at ¶1; see also, Plaintiff s Response to Defendants' Request for Admissions attached hereto as Ex. "B", at ¶¶27-29; see also, Plaintiffs Answers to Defendants' Lower Extremity Disorder Interrogatories attached hereto as Exhibit "C", at ¶l . 5. Plaintiff's residence in Cazlisle, Pennsylvania is approximately twenty-eight (28) miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania, which is approximately a thirty-three (33) minute drive. However, Plaintiff's residence is approximately five (5) miles from the Court of Common Pleas of Cumberland County, located in Cazlisle, Pennsylvania, which is approximately a nine (9) minute drive. See, Ex. "A" at ¶1; Ex. "B" at ¶¶30-33; see also, a true and correct copy of Mapquest Driving Directions from Cazlisle, Pennsylvania to Harrisburg, Pennsylvania attached hereto as Ex. "D". 2 6. Plaintiff began his career with Defendant Conrail as amaintenance-of--way employee working out of Olean, New York in May of 1976 and was employed by Conrail until May 31, 1999.1 Thereafter, Plaintiff became an employee of Defendant NSRC on June 1, 1999 where he worked out of Olean, New York until approximately September of 2006. See, Ex. "B" at ¶¶2, 13; see also, Ex. "C" at ¶2. 7. Plaintiff admits that he first bid for a position with Defendant NSRC in Harrisburg, Dauphin County, Pennsylvania in September of 2006. See, Ex. "B" at ¶14. 8. Plaintiff admits that he next bid for a position with Defendant NSRC in Mount Holly Springs, Cumberland County, Pennsylvania in January of 2007. See, Ex. "B" at ¶17. 9. Thus, Plaintiff admits that he was only employed by Defendant NSRC in Dauphin County, Pennsylvania from September of 2006 until January of 2007, or approximately four (4) months. See, Ex. "B" at ¶¶14, 17. 10. Plaintiff further admits that he was employed by Defendant NSRC in Cumberland County, Pennsylvania from January of 2007 until July of 2009, or approximately two and one- half (2.5) years. See, Ex. "B" at ¶17; see also, Ex. "C" at ¶2. 11. Plaintiff s most recent place of employment in Mount Holly Springs, Cumberland County, Pennsylvania is approximately twenty-eight (28) miles from Harrisburg and is approximately athirty-four (34) minute drive. However, Mount Holly Springs is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a ten (10) minute drive. See, a true and correct copy of 1 It should be noted that the nature of Conrail's business changed significantly as of June 1, 1999. On June 1, 1999, Conrail became a switching and terminal raikoad, conducting railroad operations in the limited geographic areas of Detroit, Michigan; Northern New Jersey; and Southern New Jersey/Philadelphia. 3 r ` Mapquest Driving Directions from Mount Holly Springs, Pennsylvania to Hamsburg, Pennsylvania attached hereto as Exhibit "E"; see also, Ex. "B" at ¶¶19-23. 12. Plaintiff further admits that he has never resided in Dauphin County, Pennsylvania. See, Ex. "B", at ¶¶24-26. 13. Plaintiff has only identified one treating physician, Dr. David Maish, as an individual likely to have knowledge regazding his alleged injuries. This treating physician is located in Hershey, Dauphin County, Pennsylvania. See, Ex. "B" at ¶¶34-36; see also, Ex. "C" at ¶¶20, 22-25. 14. However Plaintiffs other known medical treatment during the latter part of his railroad cazeer was received at Carlisle Internal Medicine, located in Cumberland County, Pennsylvania. See, Affidavit of L. Keith Lambert attached hereto as Exhibit "F". 15. As Plaintiff is claiming injuries resulting from his duties at work, Defendants intend to call Plaintiff s supervisors and co-workers, who are familiaz with Plaintiff's job duties and requirements, to testify at trial. See, Ex. "F" 16. Defendants further believe and therefore aver that Plaintiff has not identified any co-worker witness who lives or works in Dauphin County and who has direct personal knowledge of Plaintiff s work activities that aze alleged to have occurred in Cumberland County, Pennsylvania. See, Ex. "B" at ¶37; see also, Ex. "F". 17. Based on the Affidavit of L. Keith Lambert, it would also be unduly burdensome to replace those employees/witnesses who possess knowledge of Plaintiff's claim, if said individuals were required to travel to Harrisburg, Pennsylvania, in terms of expense and time away from work. It would further be a burden for Defendants to transport these individuals to 4 r Harrisburg, Pennsylvania for the trial and also pay their wages and expenses for the duration of the time spent at trial. See, Ex. "F". 18. Moreover, the expense associated with transporting a Dauphin County jury for a view of Plaintiff's workplace in Cumberland County azgues against venue in Dauphin County.2 19. The only connection that this case has to Dauphin County stems from the fact that Plaintiff was employed by Defendant NSRC in Dauphin County for approximately four (4) months, and one of Plaintiff s treating physicians is located in Dauphin County. 20. In short, Defendants aver that Cumberland County is the site of Plaintiff s most recent workplace; Plaintiff only worked out of Dauphin County for approximately four (4) months; Plaintiff resides in Cumberland County; Plaintiff has never resided in Dauphin County; Plaintiff's known medical treatment during the latter part of his raikoad cazeer was received in Cumberland County; and most of the co-worker witnesses with direct personal knowledge of Plaintiff's work conditions or alleged injuries aze located in Cumberland County. 21. As a result, Defendants request that this Court transfer this matter to Cumberland County, Pennsylvania for further proceedings. PETITION TO TRANSFER VENUE 22. This Court is vested with discretion in considering whether to transfer an action to amore appropriate venue pursuant to Pa.R.C.P. 1006(d)(1), which provides: For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. s Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer based on forum non conveniens. It is beyond dispute that an analysis of this factor clearly weighs in favor of transfer. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 5 r 23. A defendant may file a petition challenging the plaintiff's choice of forum on the basis of foracm non conveniens, and request a transfer of the action, at any time. See, Zappala v Brandolini Property Management, Inc., 909 A.2d 1272, 1282 (Pa. 2006); Pa.R.C.P. 1006(d)(1). 24. The doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See, id, 909 A.2d at 1283. 25. A plaintiff s choice of forum is given great weight and a defendant has the burden of asserting a challenge to the plaintiff s choice of venue. See, id, at 1281. 26. However, the right of a plaintiff to choose a forum is not absolute, whereas the forum non conveniens provision inserted into Rule 1006(d) was intended as a necessary counterbalance. See, Wills v Saschak, 617 A.2d 37, 38 (Pa.Super. 1992). 27. Furthermore, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue under Rule 1006(d). See, Hosiery Corporation of America, Inc. v Rich, 476 A.2d 50, 51 (Pa.Super. 1984). 28. A petition to transfer venue pursuant to Rule 1006(d)(i) should not be granted unless the defendant meets his burden of demonstrating, with, detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156, 162 (Pa. 1997). 29. The defendant may show that the plaintiff's choice of forum is vexatious by establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. See, id. 30. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would 6 r provide easier access to witnesses and other sources of proof, or to the ability to conduct a view of premises involved in the dispute. See, id. 31. Pursuant to Pa.R.C.P 2179(a)(3), a personal action against a corporation or similar entity may be brought in the county where the cause of action azose. In this case, it is undisputed that more of the facts and exposures alleged by Plaintiff in his Complaint aze alleged to have occurred in Cumberland County, Pennsylvania than in Dauphin County, Pennsylvania. Thus, venue would have been proper in Cumberland County had Plaintiff filed his Complaint there. 32. However, Plaintiff chose to bring this action in the Court of Common Pleas of Dauphin County, which is more than twenty-two (22) miles from the Court of Common Pleas of Cumberland County where: (1) Plaintiff resides; (2) more of Plaintiff s co-workers who would have personal knowledge of Plaintiff's work activities aze located; (3) the site of Plaintiffs last workplace is located; and (4) Plaintiffs family physician is located. Therefore, trial in Cumberland County would provide easier access to witnesses and other sources of proof. See, Cheeseman, supra; see also, Wood v E.I. du Pont de Nemours and Co., 829 A.2d 707 (Pa.Super. 2003); Mateu v. Stout, 819 A.2d 563 (Pa.Super. 2003). 33. Plaintiff s choice of forum: (1) is both oppressive and vexatious as the record is cleaz that venue in Dauphin County will cause undue hazdship to all parties and witnesses, including Plaintiffs co-workers and medical providers; (2) appears to be aimed at inconveniencing Defendants since Defendants will have the undue burden of transporting employees to Harrisburg for trial as well as finding replacements for employees who will be away from work; and (3) meant to harass Defendants even at some inconvenience to ~ himself. See, id.; see also, Graham v Laidlaw Transit, Inc., 44 Pa.D.&C.4th 493 (Pa.Com.Pl. 2000). 7 34. It is axiomatic that this case is more easily litigated in the county where Plaintiff resides, where more of the witnesses aze located, and where Plaintiff's most recent alleged exposures took place. The fact that Plaintiff has filed this case in another venue, where these elements aze lacking, and the only connection is that Plaintiff worked in Dauphin County for approximately four (4) months and one of his treating physicians is located there, constitutes sufficient proof that the chosen venue is "oppressive" and/or "vexatious," and that a transfer of venue is required. See, Dulaney v Consolidated Rail Corp., 715 A.2d 1217 (Pa.Super. 1998). 35. If this matter were to remain in Dauphin County, Defendants, Plaintiff, most of the known witnesses with direct personal knowledge of Plaintiff s work activities in Cumberland County, and some of Plaintiffs medical providers would be forced to incur additional unnecessary expenses due to the time, travel, and lodging required to transport witnesses to Harrisburg for trial -expenses that would be lazgely eliminated if this matter were tried in Cumberland County. 36. In this case, even though venue is proper in this Court, the aforementioned factors make it cleaz that Dauphin County constitutes an inconvenient forum, Plaintiff's choice thereof is oppressive and/or vexatious to Defendants, and it would be against the interests of the parties and witnesses for this case to remain there. Accordingly, Defendants petition this Court to transfer this cause of action to the Cumberland County Court of Common Pleas. 37. Plaintiff will not be prejudiced by a change of venue, as Cumberland County cleazly constitutes an available, and less oppressive and vexatious, alternative forum. 38. For any and all of the reasons set forth above, and in Defendants' Brief in Support which is incorporated herein as if more fully set forth, the Defendants request that this Court transfer this matter to Cumberland County, Pennsylvania for further proceedings. 8 s WHEREFORE, based on the foregoing, Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company respectfully request that this Honorable Court grant Defendants' Petition, and transfer the within matter to Cumberland County, Pennsylvania for further proceedings. Respectfully submitted, BURNS, WHITE & HICKTON ,~° ~. By: .~. Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation and Norfolk Southern Railway Company 9 r IIY THE COURT OF COMMON PLEAS OF DAUPHIlY COUNTY, PENNSYLVAN01 RANDOLPH L. CA11+II'BELL, CIVII. ACTION Plaintiff, cv. Jul ~g 9'-~.~/ NO.: TYPE OF PLEADING vs. COMPLAINT IN CIVIL ACTION NORFOLK SOUTHERN RAII.WAY FILED ON BEHALF OF: COMPANY and CONSOLIDATE© Pte, BANOLDPH L. RAIL CORPORATION, CAMPBELL Defendants. COUNSEL OF RECORD FOR THIS PARTY: MARK F. McICENNA, ESQiJIItE PA I_D. #30297 McI~NNA & ASSOCIATES, P.C. 43b Boulevard ofthe Allies Suite 500 Pittsburgh PA 15219 (412) 471-6226 mmckenna(a~consolidated. net JURY TR><AL DEMANDED TO: DEFENDANTS You are hereby notified to plead to the enclosed COMPLAIIVT 1N C1ViL ACTION wittnn twenty (20) days from service hereof ~.;. or a default judgment maybe entered ~' against you ~ ASSOCIATES, P.C. ` ' .u T. ~ T~ B Y 7: ..» Mark F. McKen~, Esquire =` Attorneys for Plainfaff -` a, p~ D~C~ ~ ~u v 1 9 2009 iN THE COURT OF COMMON PLEAS FOR DAUPHIN COUNTY, PENNSYLVANIA RANDOLPEi L. CAMPBELL, CIVIL ACTION Plaintiff, CASE # vs. NOIt'!R'OLIG SOUTHERN RAILWAY COMPANY and CONSOLIDA'T'ED RAIL CORPORATION Defendants. NOTICE TO DEFEND YOU HAVE BEEN SUED 1N COURT. ff you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20} DAYS a#ter this Complaint and notice are served, by entering a written appearance personally or by an attorney, and filing in writing with the Court your defenses or objections to the claerns set forth against you. You are warned that if you failed 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 claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. t ASSOCIATION t Street sylvania S36 COMPLAINT IN CIVIL ACTIflN AND NOW, comes the Plaintiff, RANDOLFH L. CAMPBELL, by and through his attorneys, MCKENNA & ASSOCIATES, P.C., and tiles the following Complaint in Civil Action and in support thereof avers as follows: 1. The Plaintiff, RANDOLPH L. CAMPBELL, (hereinafter referred to as "Plaint?'), is an adult-individual who resides at 2323 Ritner Highway, Carlisle, PA 17015. 2. The Defendan, NORFOLK SOUTHERN RAILWAY COMPANY, (hereinafter referred to as "Defendant's is a Virginia Corporation that conducts and transacts business throughout the Commonwealth of Pennsylvania, and is involved in the movement of freight in interstate commerce and foreign commerce. 3. That all times relevant hereto, the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, is involved and does maintain a principal place of business in the Commonwealth of Pennsylvania, including Dauphin County, Pennsylvania. 4. CONSOLIDATED RAIL CORPORATION (CONRAIL) is a Pem~sylvania Corporation, conducting and doing business in and about Dauphin County, Pennsylvania, and is and was, at all times relevant hereto, engaged in interstate commerce in and throughout the several states of the United States as a common cagier by rail, and for that pt~e, operated locomotives, railroad cars and transacted substantial business in and about Dauphin County, Pennsylvania. 5. At all times relevant hereto, Plaintiff RA.NDOLPH L. CAMPBELL, herein was and is employed by the Defendants, NorfoUc Southern Railway Company and Conrail, as an employee, as the term is defused under Section 45 U.S.C. § 51, and as such was engaged by the Defendants to perform duties in the furtherance of its business irrterest and movement of freight in interstate and foreign commerce by Defendants_ ~ r 6. At at[ times relevant hereto, Defendants acted by and through their agents, servants or employees who were acting within the scope of their respective employment. 7. The acts of omission and commission causing injuries to the Plaintiff, RANDOLPH L. CAMPBELL, were done by the Defendants, their agents, servants, workmen and/or employees, acting within the course and scope of their employment with and under the direct and exclusive control of the Defendants herein named. 8. All of the property, equipment and operations involved in Plaintiff, R.ANDOLPH L. CAMPBELL's injury were owned and/or under the direct and exclusive control of the Defendants, or any of its agents, servants, workmen and/or employees as predecessors in interest the defendants herein named. 9. During Plaintiff, R.ANDOLPH L. CAMPBELL's entire working career and while working within the course and scope of his employment for Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was injured due to the unsafe and inadequate working conditions. i 0. This action arises under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. I1. Throughout Plainti#~ RANDOLPH L. CAMPBELL's employment, PlaintifF, RANDOLPH L. CAMPBELL, while working within the scope of his employment for Defendants herein named, as a maintenance of way worker, was continuously and repeatedly required to perform repetitive, forceful and awkward motions utilizing his lower extremities which included excessive kneeling, squatting, stooping and bending; and was required to walk on uneven and unstable surfaces and to get on and off of moving equipment which caused the Plaintiff, 1tANDOLPH L. CAMPBELL, tv sustain severe and permanent injury to his lower extremities, including, but not limited to, his knees, hips and back. 12. Throughout his employment with Defendants, Plaintiff, 1tANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects of exposing his lower extremities to repetitive, forceful, and awkward motions_ 13. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects of excessive walking, kneeling, bending, squatting, stooping, and bending, twisting, funning of the lower extremities. 14. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects to his tower extremities from walking and working on uneven and unstable surfaces and the harmful effects of getting on and off of moving equipment. 15. Throughout his employment with Defendants, Plaintiff, RATTDOLPH L. CAMPBELL, was continuously unaware that any and all of above (mentioned exposures and/or conditions could cause severe and permanent injuries to his lower extremities. 16. Throughout Plaintiff RANDOLPH L. CAMPBELL's employment with Defendants, said Dependants knew, or in the exercise of proper diligence should have known, of the presence and existence of the aforementioned dangers within Plaintiff, RANDOLPH L. CAMPBELL's working environment. 17. The injuries and damages to Plaintil~ RANDOLPH L. CAMPBELL being complained of were directly and proximately caused by the negligence of the Defendants, their agents, servants or employees while acting within the nature and scope of their employment for the Defendants in the following respects: a. in violating the Federal Employers' Liability Act; + 'M b. in failing to provide Plaintiff, ItANDOLPH L. CAMPBELL, with a reasonably safe place to work; c. in requiring Plaintiff, RANDOLPH L. CAMPBELL, to perform repetitive, forceful and awkward motions utilizing his lower extremities which also involved excessive kneeling, squatting, stooping ,bending, twisting and turning; d: in requiring Plaintiff, RANDOLPH L. CAMPBELL, to repeatedly walk and work on dangerous, uneven and unstable surfaces; e. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with the proper protective equipment; f. in failing to warn Plaintiff, }2ANDOLPH L. CAMPBELL, of the dangers posed by the aforementioned work activities; g. in failin to eriodicall uos g p y ' pest and/or test its workplace; h. in allowing unsafe practices to become standard practice; I. in failing to properly train, educate and/or warn Plaintiff of the hazards in the workplace; j. in failing to comply with existing federal and state statutes and safety regulations; k. in failing to comply with its' own rules, work practices and procedures; 1. in failing to provide Plaintiff, RANDOGPH L. CAMPBELL, with adequate manpower to safely do his job; m. in failing to provide proper tools and equipment; n. in assigning Plaintiff, RANDOLPH L. CAMPBELL, to work beyond his physical and medical capabilities; o. in failing to provide proper medical supervision and care; p. in failing to comply with State and Federal Safety Regulations, including OSHA standards; q. in failing to monitor the work place; r. in failing to take precautions to prevent repeated injuries to Plaintiff, RANDOLPH L. CAMPBELL's extremities including his knees, ligaments ,bone and joints; s. in failing to provide a safe place to work or provide for Plaintiff, RANDOLPH L. CAMPBELL'S safety when Defendants knew and were aware that the Plaintiff, RANDOLPH L. CAMPBELL, suffered injury to his knees, ligaments, bone and joints; t. in knowing and aware that the Plaintiff, RANDOLPH L. CAMPBELL, had sustained injuries to his right and left knees and joints; u. in failing to provide proper splints or braces; v, in failing to take any precautions to provide for Plaintiff, RANDOLPH L. CAMPBELL'S safety, thereby continually subjecting Plaintiff, RANDOLPH L. CAMPBELL, to continuous excessive stress, repetitive motions and vibrations, causing injury to Plaintiff, RANDOLPH L. CAMPBELL'S knees in aggravation A of these conditions after Defendants knew or should have known of Plaintiff, RANDOLPH L. CAMPBELL's injuries; w. in continually requiring Plaintiff, R.ANDOGPH L. CAMPBELL, to work and be exposed to the hazards staied above, thereby, directly aad proximately causing Plaintiff, RANDOLPH L. CAMPBELL'S injuries. . .. x. in failing to adjust, alter, counter weigh or counter balance the tools and eRuiprnent; y. in failing to employ or hire a trained ergonomist to test, monitor, educate and produce Plaintiff,ltANDOLPH L. CAMPBELL with a safe place to work; and z. in failing to provide proper lxllast and walking surface. L S. As a direct and proximate result of the aforementioned negligence of the Defendants oc any of its agents, servants, workmen and/or employees, the Plaintiff, RANDOLPH L. CAMPBELL, has suffered cumulative trauma and repetitive stress to his lower extremities, bones, Iigarnents, and joints, which has resulted in the following damages and/or injuries, some or all of which may be permanent; a. advanced DJD, of the right and left knee with decreased range of motion; b. anticipated knee surgery; c. bilateral hip osteoarthritis; d. hip surgery; e. low back pain and osteoarthritis f. pain and tenderness in all the above affected areas. 19. As a further direct and proximate result of the negligence and/or careless conduct of Defendants or any of its agents, servants, workmen and/or employees, Plaintiff, RANDOLPH L. CAMPBELL, has in the past and may in the future sustain the following damages: a. loss of enjoyment of life; • b. change of lifestyle; c. loss of wages and fringe benefits; d. loss of earning capacity; e. medical expenses; f. pain and suffering; g. mental anguish; h. personal financial loss; and I. continuing pain and disability. 20. Plaintiff, RANDOLPH L. CAMPBELL, did not contribute to any of these injuries. 21. To the extent, if any, the Plaintiff has apre-existing condition affecting his knee or lower extremities, the Plaintiff will show that such condition or conditions were aggravated by the conduct of the Defendants as described above. WEIEREFORE, Plaintiff, RANDOLPH L. CAMPBELL, respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendants, together with costs and disbursements of this action in an amount in excess of compulsory arbitration limits. JURY TRIAL DEMANDED pectfully submitted, I MARK F. McKENNA, ESQ. Attorneys for Plaintiff, RANDOLPH L. CAMPBELL McKENNA dt ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 471-5226 61107/2010 09:94 4124715658 PA(~ 03lOr0 MC~hq~lA A950CIATES IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RAN©OLPH L. CAMPBELL, } Plaintiff, ) v. ~ ) NORFOLK St?UTHERN RAILWAY ) COMPANY AND CQNSOLIDATED ) RAIL CORPCIR~-T10N, } Defendants. ) CIVIL DIVISIQN No. ~009~CV~?4899-CV .FURY TRIAL REMANDED PI.AIPITIFF'S RE3PON9E TO DEFENDAN'CS' REQUEST FIR ADMISSION l~falntifif, Randolph L. Campbell, by undersigned counsel, hereby serves the following Responses to Defendants' Request for Admissions es follows: 1. Admit that Plaintiff previously worked for the Defendants within the State of New York. g~NSe The Plaintiff admits that throughout his carte working fur the Maintenance of Way crew for both Norfolk Southern and Conrail, the Plaintiff did work in the Commonwealth of Pennsyhrartia, as welt as the S#ate of New York. 2. Admit that, when Plaintiff worked 'for the Defendants 1n the State of New York, he warfced primarily out of Olean, New York RESPONSE Plaintiff admits that while his headquarters wes in Olean, New York, the work he per#ormed ,o,n tip Matnberr~ce of Way included work on a territory that extended hall into the State of New York and hall into the Commonwealths df Permsyivania. Whil® the Plaintiff worked out of Olean, New York he performed work in boat the State of New York and tine Comrnvr~tiMealth of Pennsylvania. 01 / 07/ 2010 09:04 4124716658 MCI~J~B~IA ASSOCIATES PAt~ 04/ DAD 3. Admit that t7lean, New York is approximately two-hundred twenijt five (~25) miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania RESPONSE: Admitted. 4. Admit that the amount oi: travel flme in a motor vehicle from Olean, New York to the Cour# of Common Pleas of pa~uphin County, Pennsylvania is approximately fr~ur and one t~tatf (~.5) hours. RESPQ__I~SE: Admitted. 5. Admit that Olean, view York is epprrndmately thirty (30) miles from the $uprerrte Court of Ca~faugus County, located in Little Valley, New York ESpUN~` ~: Admitted. . 6_ Admit that the amount of travel time in a rno#or vehicle Pram Olean, New YorEE~ta the Supreme Court of Ca#laraugus Coul'tty, New York is approximately forty (40) mincrtes. RESPO S ' Admitted. 7_ Admit that, when Plainfrlf worked far the nefendants in the Ste#e of New York, he resided at 87 Madi~n Street, WeUsvliie, Navy York 1895. R PO VSE: Admitted. 01/07/2010 09:04 4124716658 MCI~vA ASSOCIATES PAt~ e5/prD 8, Admit that Wellsville, New Yarlc is over ors-hundred ninety (1 ~) mites from the Court ai' Common Pleas of Dauphin County, located in Harrisburg, Pertnsytvar~-ia. R~SPCINSE: Adm'rkted. g, Admit that the amount'of travel time In a motor vel'{ide from Olean, hlew York i~a the Court of Common Pleas of Dauphin County, Pennsylvania is approximaitefy four (4) hours. RESPONSE: Admitted. 10. Admit that Wellsvipe, New York is approximately ten (10) miles from the Supreme Court o'f A-llegeny County, localted in Belmorrt, New York. RESPO ~:. Admitted. 11. Admit that the amount of travel time irr a motor vehicle from 1Neilsville, New York to the Supreme Court of Allegany Cerny, hlew York is approximately fifteen (15) minutes. R $POMSE• Admitted. 12. Admit that Plaintiff did rwt work in Pennsylvania prior to September of 2006. ~tESPONSE: 01/07/2019 09:04 4124716658 h~hINA ASSOCIATES PAt~ e6IDrD Denied. Throughout his carte working for the Maintenance of Way Department of bath Conrail and Norfolk SQU#hem, the Plaintiff worked in both the State of New York and the Commonwealth ~ Pennsylvania. 'I S. Admit that Plaintiff did not bid for a job in Pennsylvania with Defendant Norfolk Southem until 5epternber' of 2006. RE !~O SE, Admitted. 14. Admi# that Plaintiff did not bid far a job in Hamsburg, Pennsylvania with Defendant NorE'oik Sau#herrt until September of 2006. R~4PQNSE: Admitted. 15. Admit #hat Plaintiff does not nQw work far pefendan# Norfolk Southem in Harrisburg, Pennsylvania. ~ESP~NS~ Plaintiff admits that he does not now work for pe~fendant Norfolk Sou#hem in any cxapadty ak any Ioc~tion because tre has been unable #a perform any work due to his injuries. Plaintiff has worked far Defendant Nartolk Southern in the past in Harrisburg, Permsylvania. 16. Admit that Plaintiff does not now work far Defendsrrt Nortolk Sauthem in Dauphin County, Pennsylvania. RESPONSE:- Plaintiff admits that he does not now work for' #'tie Defendan# Norfolk Southern at any iac~tion bec®use he is unable #o work due•to his injuries. Plaintiff admits that he has worked in the past far Defendant Norfolk So~athenl in Dauphin County, Pennsylvania. 47. Admit that Plaintiff bid for a job in Nlt. Holly Springs, i~ennsylvania with Defendan# Norfolk Southern in January of 2007'. 01/07/2018 09:04 4124716658 ~ESPaNSE: Admitted. Mc~rwa ass~za~s Paces e7/p~D 1 S. Admit that Plaintiff currently works for Defendant Norfolk Southern out of l1At. iioliy Springs, Pennsylvania. P plaintiff denies that he currently works for the Defendant Norf+~lk Southefn out of lVlt. Nally Springs, Pennsylvania. Plaintiff ourrer~ly does ndt wank anywhere for Defendant Nortolk Scwthem because ha has been unable to work due to his injuries. 19. Admit that Mt. Wally Springs, Pennsyivani~ is looted in Cumberland County, Pennsylvania. t~.ESPaNS~. i Admitted. 2q. Admit tha# Mt. rally Springs, Pennsylvania is app~cimately twenty-eight (28) miles from the Court of Common Pleas a# Dauphin County, Pennsylvania, located in Harrisbutg, Pennsylvania_ ~~~ Admitted. 21. Admit that the amount of travel in a motor vehide from Mt Haliy Springs, Pennsylvania to the Court of Common Pleas of Dauphin County, ~'ennsylvanla is approximately thirty-Four (34) minutes. l~E3PaPlSE: Adrt-i#ted. 81!07!2010 09:04 4124716658 MCI~NNNA ASSOCIATES PAGE esfp~D 22. Admit thak Nlt. Holly Springs, Pennsylvania is approximately six (6} miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania. RESP4 SE: admitted. ~~_ Admit that the amount of travel time in a motor vehicle from lint. Holly Springs; Pennsylvania to the Court of Common Pleas of Cumberland County, Pennsylvania is appr'oxirr~tely ten (10) minutes. RESPONSE: Admitted. ~4, Admit that Pla~inti~ does no# now reside, nor has ever resided, within Dauphin County, Pennsylvania, R SPO SE Admitted. 25. Admit that PlaintiEP has never mair~#ained a pem~nen# residence within Dauphin County, Pann~rlvanie. RESPONSE: Admitted. 26. Admit tha# Plaintlf~ does riot now own, nor hag he ever owned, any real estate or other property within Dauphin County, P~nsylvania RESPONSE Admitted. A1/07/2010 09:04 4124716658 McKENNa ass~Ia1ES PAGE 89/O~D 27. Admit that Plaintiff currer~fiJy resides within Cumberland County, Pennsylvania. i3ESPQNSE: Admitted. 28. Admit tha# Plaintiff currently resides sit 2323 Rimer Higi'tway, Carlisle, Pennsylvania 97015 RESPI~NSE: Admitted. 2g. Admit that Carlisle, Pennsylvania is ioca#ed within Cumberland County, Pennsylvania. RESPQNSE: Admitted. 3U. Admit that Carlisis+, Pennsyhania is ~proxirrr$#ely twer~#y~hree (23) miles from the Court of Common Pleas of Dauphin County, Pennsylvania, located in Harrisburg, Pennsylvania. EiE3PONSE: Admi##ad. 31. Admit that the amount of travei time in a ma#or vehicie from Carlisle, Pennsylvania to the Court of Common Pieas of Uauphln County, Pennsylvania is approximately thirty (30) minutes. RESPUId$E: Admitted. 01!07/2010 09:04 4124716658 MCfCE=h~IA ASSOCIATES PAGE 18/QED 32. Admit that the Court of Commas Pleas Qf Cumberland County is located in Carlisle, Pennsylvania. RESPONSE: Admitted. 3S. Admit that the atnaunt of tra~vei time in a motor vehicle from Plaintiff's residence in Carlisle, Pennsylvania to the Court of Common Rleas afi Cumberland County, Pennsylvania is approximately nine (9) minutes. RESPONSE:- Admitted. 34. Admit that PtairltifE has never received medical treatment from any physician practicing medidne within Dauphin Caun#y, Pennsylvania. RESPONSE: Denied. Plaintiffs two hips were replaced at Hershey Medical Center which is iaoatsd in Dauphin County. Pennsylvania. Also, Plaintiff has been treated by >ar_ David AAaii'sh for his hip injuries. Dr. Maifsh's office is also located in Dauphin County, Pe~nnsyivania. 35. Admit that Plain#iff has never received medical treatment from any physician practicing rn~liane within Dauphin County, Pennsylvania ficr his alleged injuries resulting from his employmerrt with the Defendants. RESPQ~~: Denied.. Piaintifi's two hips were replied at Hershey M~ical Center which is located in pauphin County, Pennsylvania. Also, Plaintiff has been treated by Dr. i~aNid iNaifsh for his hip injuries. Dr. Maifsh's atf'ice is also ideated in Dauphin County, Pennsylvania. 01/07!2010 09:04 4124716658 MCi<EhU~IA ASSOCIATES PAt~ 11/p~D 43. Admit that it would be mare convenient for the parties andlar witnesses if this action was pending in either Cattard+~gus Cour~y or Allegany County, New York. Ri=SPCA Abjection. This request of the Defendant c;alis for a legal conclusion. Without waiving this objection, Plaintiff states that this action will be more conveniently tried in Dauphin Country, Pennsylvania, as opposed to courts in the State of Nen+v York because Dauphin County la much closer to the Plaintiff, and any witnesses that he may call, then the Courts in the State of New York. This includes the Plaintiff's treating orthopedic surgeon who performed bilateral hip replaca3ments on the Platntifif and who prsckices in Dauphin County and performed these surgeries in Dauphin County. Also, the medical records, whisth are the most pertinent to this ~, are in Dauphin Country, Pennsylvania. ~l4_ Admit that it vWuld tie more convenient for the parties and/or witnesses if this action was pending in Cumberland County, Pennsylvania. RESPAN Objection. This request of the Def~dant calls for a legal conclusion. 1Nithout waiving this objection, the Plaintiff states that #~e trial of this matter will be more conv~iently held in Dauphin County, Pennsylvania, as opposed to Cumberland County, Pennsylvania. As sued above, the Ptalntrff was partially injured in pauphin County, Pennsylvania when he worked there for the Defer'tdants. Also, as stated above, the Plaintiff's treating orthopedic surgeon and the hospital where his bilateral hip replac~emer~#s where peri<orrned are all in Dauphin County, Pennsylvania, along with all the relevant medical records of the Plaintlfii. 01/07/2010 09:04 4124716656 MbC11 ASSOCIATES PAGE I2tDr(a Respectfully submitted, ~-riQol,~i~-L7c BEi,L ~ , ," ~~ Cif Counse) Merit F. McKernrta, Esq. MC1~Nh1A & ASStJCIATES 43f> Blvd. Qf the Allies, Suite 50b Pitkstxrrgh, PA 15219-1314 H. Kei#ft Moore, Esq. CRANWELL, MOQRE ~ EMicK P.O. Box 11804 Roanoke, WA 24022 CERTIFICATE ~F SERVICE 1 hereby certify that on the ~ ~' day ~ ~ 201 p, a copy of the foregoing Plaintiff's Response to Qe'Ee 'Request or Admissions vwds mt~iled, by Urrited States Mail, postage prepaid, to. Brlart M. MarxAS, Esq. Bums, White ~ Hickton Four Narthshore Center 108 { Ile Street P'ittsbur'gh, PA ,~ 5212 ~, (3f Counsel 01 f 87f 2818 89: 84 4124716b58 MCKEhAJfa ASSOCIATES PA(~ 13f ~~D V~F~C~TI~,N I,1Vlark i! .1vlcKemna, Esquire, Qf Counsel for Randolph L. Camoplrelt, Plemtii~ herein, d~aose and say that t am coransel £ar Defendant ~ this matbsic', ti~at x am ~d bo make this Verifiica~ton att behalf of Plaimtiff; that the facts set forth in the fvregoi~ ~es~nses to mefenidantts' ~iegaes# far A,dmissiuns are trae and correct, not of my awn knowledge, bnt from.. pafoxmatiom s~npp~ied. to me by Plaintiffs that the pwcposes of this Veri$tcationt are to ~ the litigation; and that a V~r~ificabiac~ by PtaiatifE' with be furnished if requested.. 'I"biis stateme~ut is made subject to #te penalties of 18 Pa C.S. Sec[~ion. 4904 relating to rmswora falsificariam to authoxxti ~~ /,~/v Date Iti~ F. McKENNA,, ESQUIRE ' IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, ~ ) CIVIL DIVISION Plaintiff ~ ) NO.2009-CV-14899-CV v. NORFOLK SOUTHERN RAILWAY COMPANY, ET AL., Defendants. t JURY TRIAL ENDORSED HEREON PLAINTIFF'S ANSWERS TO DEFENDANTS' LOWER EXTREMITY DISORDER INTERROGATORIES COMES NOW the Plaintiff, Randolph L. Campbell, and responds to Defendants' Lower Extremity Disorder inten-ogatories and respectfully submits as follows: INTERROGATORIES 1.. Please state your: a) Fu[I name; b) Afl other names by which you have ever been known; c) Date of birth; d) Social Security Number; e} Railroad identification number; . ~ f) ~ Current address; g) Present spouse's name; and h) Any former spouse's name. ANSWER: a) i b) c) d) e) g) . h) Randolph Lee Campbell Randy June 20, 1950 065-38-9975 0895377 2323 Ritner Highway, Carlisle, Pennsylvania 17015 Brenda Campbell None. 2. Please state in chronological order each railroad by which you have been employed and provide the following information: a) The date on which you were hired by each railroad; b) The date on which your service with each railroad .terminated; c) Your craft, position, or occupation with each railroad; d) ~ The geographical location of your employment with each railroad; e} Hours worked per day; f) Days worked per week; g) Months worked per year; and h) The fuel name of all of your supervisors during each period of railroad employment. ANSWER: Conrail ----.~- 'a) May 3, 1976 b) June 1, 1999 (Norfolk Southern took over) c) Trackman, Machine Operator and Track Foreman d) Cuba, New~York e) 8 hours a day f) 5 - 7 days a week g) Approximately 8 months a year (after furloughs) at the beginning and then 12 months at the end. h) There were many throughout my career, but some that 1 remember are: Ken Anderson, Dan Beasley, Steve Arnold and Jim Harris Norfolk Southern a) June 1, 1999 b) - Present (on sick leave) c) Trackman and Track Foreman d) Harrisburg, Pennsylvania (continuously from 10/06 to July 13, 2009) e) ~ 50-60 hours a week f) 5 - 7 days a week - g) 12 months ayear - h) ~ There were many throughout my career, but some that I remember are: Rick Kilpatrick, Rob Hegge and Bill Calvert 3. For each railroad employer identified in the immediately preceding Interrogatory, describe in detail any task(s) performed during the course of your employment which require you to crawl, squat, kneel, or sit. Include~in your response the following particulars: a) A description of each task; b) How long you are/were required to maintain that position; c) Identify any power equipment that exposes your lower extremities to vibration; d) The working environment present while assuming the identified position; - e) Identify the tools and/or equipment you must use while in one of these positions and describe the task; and f) State whether you must manipulate pedals or levers with your feet. ANSWER: a) In the job of a trackman and track foreman, the Plaintiff was constantly squatting, stooping, kneeling, bending and crawling in his work. In his work as a trackman and track foreman; Plaintiff was required to take out ties and install ties, take out rail and install rail, including cutting rail. He was also required to gauge rail, set spikes, move rai! and tear out crossings and pick up scrap. Plaintiff was also required to carry heavy tools and equipment. b) As stated above,~Piaintiff was constantly required, while performing the tasks listed above, to squat, kneel, stoop, bend and crawl. c) Plaintiff was"required to use power hand tools and to ride on equipment which exposed his lower extremities to vibrations. d) Plaintiff was in production mode all the time, he was also required to walk on uneven and sloped ground in ali types of weather, including weather that caused muddy conditions. . e) Various hand tools, hydraulic wrenches, spike pullers, drills, impact wrenches, t-wrenches, relay saws and rail saws. f) ~ I did not have to manipulate pedals or levers with my feet. 4. Please describe any awkward or uncomfortable positions you are required to place your lower extremities in (this Interrogatory is designed to elicit the Plaintiffs subjective opinion regarding awkward or uncomfortable positions). ANSWER: Throughout his career, Plaintiff was required to lift and cany heavy objects with his lower extremities which put his lower extremities in awkward and unnatural positions. Plaintiff was required to walk and work on uneven and unstable surfaces. Plaintiff was required to constantly squat, kneel, stoop, bend and sometimes craw to perform the work tasks listed in Plaintiffs Answer No. 3. ' 5. Please state each period of non-railroad employment, including self-employment, employment prior to railroad employment, post-railroad employment, and employment concurrent with railroad employment, and, in chronological order, provide the following particulars. a) The commencement date and termination date for each period of non-railroad employment; b) The nature of the business conducted by the employer; c) Your craft, position, or occupation with each non-railroad employer, r d) The address of-each non-railroad employer, e) Each and' every permanent or temporary duty to which you were assigned, including in your answer the date on which each duty commenced, the date on which each duty terminated, and a description of the nature of the duties assigned at each duty station; f) The hours worked per day, days worked per week, and months worked per year for each non-railroad employer; g) A detailed description of any tasks performed that required . you to crawl, kneel, squat, or sit; h) Identify tools and equipment you must use while in these . positions and describe the task; and i) A description of any awkward or uncomfortable position for ' your lower extremity. ANSWER: After I graduated from high school in 1967 and before I started to work at the railroad in 1976, I had a few odd jobs. I worked as an usher in a theater and then I worked the assembly line at Bird's Eye Food in 1970 for about 5 months. I was a janitor at a high school for about a year. I also worked at a pattern shop in Bolivar, New York far about a year during a lay off from the railroad in 1998, but got laid off from that job. Additionally, in 1997, for approximately 8 months I worked at Plumber Hands Appliance Service in Wellsville, New York changing gas meters. 6. Has there been any increase or decrease in the number of employees who perform the same or similar employment duties as you? If so, please state the following parpculars: a) The number of employees performing the same or similar task to which you are-assigned immediately prior to an increase or decrease in work force; b) The number of employees performing the same or similar tasks to which you are assigned immediately after the increase and/or decrease in work force; c) The number of employees performing the same or similar . tasks to which you are assigned at present. ANSWER: When I first started working at the railroad, there would be 10-12 men on a gang as the years went by, they decreased the size of a gang to on 3 or 4 men. 7. Has there been any increase or decrease in the production rate required of employees who perform the same or similar tasks to you? If so, please provide the following particulars: a) The date on which any change in production rates was implemented; and b) If production quotas have been established, the particulars of any production quotas to which you are subject: ANSWER: We had the same production rate only with less men. In appoximately 2000, the manpower to do the jobs were cut, but we kept the same .production rate so it required us to do more work. 8. Please state the full name of your immediate supervisors at the time of any change in work force or production rates described in response to interrogatories Numbers 6 and 7, above, and at the time you first began experiencing the symptoms of which you are presently complaining. ANSWER: The Plainfrff does not recall who his supervisor was during the various cuts in manpower. However, he thinks that Rob Hegge was his supervisor in 2000 when there was a large cut in manpower. Bill Calvert was the Plaintiffs supervisor when he first began experiencing problems with his hips. Mr. Calvert was the Plaintiffs supervisor from approximately February 2007 until the Plaintiff went out of work to have his hips replaced on July 13, 2009. -9. Have you ever made any complaints to your supervisors and/or union representatives about the tools and/or equipment you use in performing your employment duties, working condition, or work methods? If so, please state the following particulars: . a) The nature of the complaint; . b) The date on which each such complaint was made; c) The idenfity of the person to whom such complaint was made; d) Whether such complaint was oral or in writing; and e) If such complaint was in writing, the custodian of the written complaint. ANSWER: Plaintiff made complaints to his various supervisors about the cuts in manpower and also made complaints to his supervisors about the inadequacy.of the tools that he was required to work with. Piairitiff believes that he made these oral complaints to both Mr. Rob Hegge and Mr. Bill Calvert among others. ~ . 10. Do you contend that any of the tools and/or equipment furnished by Defendant are~defective and/or inadequate for the performance of your employment duties? If so, please provide the following particulars: a) Identify the tool and/or equipment; b) State the frequency of your use of such tool and/or .equipment; . c) Provide a detailed description of the operation of the tool and/or equipment is inadequate and/or equipment; and d) State your reason(s) for contending that such tool and/or equipment is inadequate and/or defective. ANSWER: In addition to the inadequate manpower discussed above, the Plainfiff was also not fumished with adequate tools to perform the job. He was not furnished with a back hoe until late in his career to remove and put in ties.' Before being fumished with a back hoe late in his~career, Plaintiff was required to put in ties and take out ties by hand with only the help of a tie . tong. Also, Plaintiff was not provided with a boom truck until late in his career to lift the rail. Before that time, Plaintiff was required to lift the rail by hand with only the help of a rail tong. Plaintiff was also not provided with a high rail truck to drive to the areas of track where his crew had to work. Had the Plaintiff been provided with a high rail truck, he uvouid not have had to carry the heavy equipment for long distances from the regular truck to the place on the track where the work had to be done. 11. Do you contend that any work method(s) and/or working conditions(s) at the railroad have contributed, in whole or in part, to your condition as stated in your Complaint? If so, please provide a description of the work method(s) and/or working condition(s) that you contend have contributed, in whole or in part, to your condition as stated in your Complaint. ANSWER: Plaintiff would not have developed the injuries in his hips if he was provided with adequate manpower to perform the job. He also would not have developed the injuries in his hips if he would have been provided with adequate equipment to perform the job, including being provided with a back hoe to put in and take out ties and a boom truck to put in and take out rail. In addition, Plaintiff was required to carry heavy equipment over sloped and uneven surfaces. Had Plaintiff been provided a boom truck, he would not have had to carry such heavy equipment over such long distances. Also, if Plaintiff had been provided with a high rail truck, he would not have had to carry the heavy equipment again over the uneven and sloped surfaces for long distances. 12. Please state whether you presently engage in or have ever engaged in the following activities, the number of years or months you engaged ih the activity(ies), and the frequency that you engage in the activity(ies): a) Walking, speed walking, jogging, running and marathoning; b) Roller blading, roller skating, or ice skating; c) Backpacking or mountain or rock climbing; d) Gardening, farming, or yard work; e) Track and field events; . f) Football; g) Soccer, h) Dancing (recreational, ballet, jazz; tap, etc.); i) Basketball; ~ ~ . . j) Golf; k) Tennis; t) Bicycling; m) Racquetball or other racquet sport; n) Baseball or softball; . o) °Aerobics° dance/exercise; p) Skiing; q) Conditioning exercise involving weight lifting, push-ups, pull- ups, rowing or jumping rope; and r) Gymnastics: ANSWER: a) 1 now walk on a tread mill for therapy for my two replaced hips. b) No. c) I did a little hiking when I was much younger. d) I used to have a push mower, but now use a riding mower to do my yard work. e) I did track and field when I was approximately 17 years old. f) I played football in school when I was approximately 16 years old. g) No. h) No. i) I last played basketball recreationally in in 1982 j) I have played maybe one time in the last two years.. . k) When_ I was approximately 24 or 25 years old, I played tennis recreationally. I) 1 rode a bike up until about the age of 25 years otd: m) No. n) I played. softball in the 1970s. o) No. . p) No. q) I lifted weights occasionally when I was a little younger. r) No. 13. Please state whether you presently have or have ever had at any time during the past the following medical conditions: a) Diabetes; b) ~ Osteoarthritis and/or rheumatoid arthritis; c) Thyroid dysfunction; d) Gout; e) Neck injury; f) ~ Spinal disease/injury (i.e., spinal stenosis); g) Calcium deposits, tumors, cysts, or broken/displaced bones in the lower extremities; h) Lumbar spine injuryldisease (i.e. herniated disc, ruptured disc); i) Obesity; j) Hemodialysis/kidney disease; k) Alcoholism; l) Vascular disease; m) Phlebitis/thrombophlebitis/varicose veins; n) Hemophilia; o) Any and all prior surgery to the lower extremities; p) Liver disease; q) Lupus; r) ~ Morton's toe neuroma, or tarsal tunnel syndrome; s) Bony spurs and/or abnormalities bf the hip, knee, foot, ankle, or toes; and t) Ganglia in the lower extremities; u) Deformfies or abnormalities in the lower extremities; and v) Difficulties in walking (i.e., bowlegged, feet turned inwards). ANSWER: a) No. ~ . b) 1 have arthritis in my knees and hips. c) No. d) I have an occasional flair up of gout. e) I hurt my neck at work in 1982. See answer to Interrogatory No. 15. f) ~I hurt my back while working for the railroad in 1979 and again in 1980. See answer to Inter%gatory No. 15. g) I broke each of my ankles twice while in high school. h) Yes. i) No. j) No. k} No. 1} No. ~ . m) No. n) No. o} None except the recent hip replacement surgeries. p) No. . q) No. r) No.. s) No. t) No. u) No. v) No. 14. If your answer to any subpart of the immediately preceding Interrogatory is in the affir-native, please state the following particulars: (a) The onset date of any disease and/or condition and the period over which you have suffered from any such disease and/or condition; (b) Whether you sought medical attention as a result of any such disease and/or condition; (c) The name and address of any treating physician who rendered treatment for any such disease and/or condition; (d) The dates on which any medical treatment for such disease and/or condition was rendered; (e) The exact nature of medical treatment for any such disease and/or condition; (f) Whether any diagnostic tests were performed and, ff so, the nature of such tests, the results thereof, and the name and address of the person or institution who performed them and the present custodian of the records of such tests; {g) Whether any medications were administered either by a physician,-an institution, or by you in an attempt to cure and/or alleviate any such conditions and identify the medications administered or used; (h) Whether surgical intervention was required ~in an attempt to cure or alleviate any such disease andlor condition, and, if so, the name and address of the physician who performed such surgery and the name and address of the institution at which such surgery was performed; and (i) The residual effect, if any, of any such disease and/or condition. ANSWER: See answer to Interrogatory No. 15. 15. Please state whether you have ever sustained any traumatic injury, including a bum, laceration, contusion, broken or displaced bone, crush injury, puncture wound, or amputation, to your lower extremities. if so, please provide the following particulars; . - a) The date upon which each such injury was sustained; b) The particular body part injured; c) The cause of such injury; d) A complete description of the nature and extent of such injury; - - e) Whether you sought medical treatment as a result thereof; f) The date of such treatment; g) The nature of such treatment; h) The name and address of any physician and/or institution providing such treatment; i) Whether any diagnostic tests were performed, and, if so, the . nature of such tests and the results thereof; j) ~ The name and address of'any physiaan or institution performing diagnostic tests; k) Whether surgery was required in the treatment of such injuries, and, if so, the name and address of the physician who performed such surgery and the name and address of the physician who performed such surgery and the name and address of the institution at which such surgery was performed; and I) The residual effects, if any, of such injury. ANSWER: I broke each of my ankles twice while in high school, but have no residual effects from those injuries. I was in a car accident in 1968 and received injuries to my left knee and back. I was in the hospital for a couple of days as a result of these . injuries. I was in a car accident in approximately 1973, when I received an injury to my ankle and cuts on my face. I went to the emergency room and had stitches put in on the cuts on my face. In approximately 1976, I was in another accident while riding in a railroad bus. At this time, I went to the emergency room with a sprained injury to my arm. In 1978, I sustained an injury to my back while manually tamping. I believe t was sen# to the railroad doctor and did not receive any further treatment. In approximately 1979, (received aright-knee injury while working. Again, , I believe that I went to the railroad doctor and did not receive any further treatment after that. ,In 1980, I hurt my back while moving rail. I believe at this time I was also sent to the railroad doctor and do not recall whether or not I received any further treatment to my back as a result of this last injury. At that time, I think my back did bother me for awhile after this 1980 injury. 16. As of the date on which your Complaint was filed, state whether you were suffering from any pre-existing lower extremity disorders and/or nerve entrapment syndromes and/or degenerative joint disease and/or "repetitive strain injuries" and/or "cumulative trauma disorders," and, if so, please state the following particulars (refer to Defendant's instructions for definitions of "repetitive strain injuries" and "cumulative trauma disorders). a) A complete description of the nature and extent of your pre- existing condition; b) The extent to which you are disabled, wholly or partially, as a result of your pre-existing condition; c) Whether you are or have been trea#ed for your pre-existing condition, and, if so, a description of the nature of the treatment, frequency of the treatment, and the name and address of the treating physician and/or institution; d) The expected progression of the pre-existing condition, in the absence of any aggravating causes; and e) Whether your pre-existing condition is permanent. ANSWER: Plaintiff objects to this question because it,is so vaguely worded that Plaintiff does-not understand what is meant by "pre-existing condition when his Complaint was filed." Plaintiff also objects to this question because it calls for a medical opinion. At the time the Plaintiffs Complaint was filed, Plaintiff suffered from cumulative trauma hip problems caused by his work activities on the railroad.. If these injuries are being considered pre-existing conditions that existed at the time that the Plaintiff filed his Complaint in 2009 by the Defendant, then the Plaintiff will contend, as stated in the Complaint, that the Defendant's work activities caused and aggravated these inj~lries. 17. Please state whether you suffer from any of the following symptoms; a) Numbness in your lower extremities; b) Prickling sensation in your lower extremities; c) ~ Tingling sensation in your lower extremities; d) Burning sensation in your lower extremities; e) Aching sensation in your lower extremities; f) Pain in your lower extremities; g) Tenderness upon touch in the lower extremities; h) Pain upon particular movements; i) Nocturnal awakening; and j) Weakness of the muscles in the lower extremity. ANSWER: _ After my hip replacement surgeries, I now suffer from leg spasms in my right leg from time-to-time. 1 get woken up at night with these spasms and every morning because of the artificial hips it is painful with my first movements of the morning and I do have weakness in the muscles of my lower extremities. ~ ! Before my hip replacement surgeries, i experienced severe pain in both my hips. 18. If your answer to any subpart of the immediately preceding . Interrogatory is in the affirmative, please provide the following particulars: a) The lower extremity(ies) affected; b) Factors that aggravate your symptoms; c) Whether you experience your symptoms constantly or intermittently; d) Specifically where you experience each symptom identified above (i.e., back of ankle, top'of thigh, bottom of big toe, etc. ); e) Whether any of your symptom(s) radiate into other parts of your lower extremities, lower back, or neck, and, if so, please describe the extent to which your symptoms} radiate to other areas of your body; f) The onset date of each symptoms}; and g)"~ Was the onset of symptoms of a gradual or acute nature? ANSWER: See answer to Interrogatory No. 17. 19. Please state whether you have been subjected to nerve conduction studies, electromyography, x-rays, computerized tomography, or magnetic resonance imaging relevant to the condition alleged in your Complaint. If so, please identify the physician or institution administering such testing and provide the address of the physician or institution administering such testing and provide the address of the of the physician or ins#itution and the date on which such testing was conducted. ANSWER: See X-ray and imaging studies which are contained in the attached medical records. 20. Please state whether any physician, health care professional, or an other person has advised you that you have a lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive stress injury" and/or a "cumulative trauma disorder?" If so, please provide the following particulars: a) The identity and address of any such physician, health care professionar, or other person; b) Whether such statement was oral or in writing; c} If such statement was in writing, please provide the present custodian of such writing; and d) State the content'of such oral or written statement. ANSWER: Plaintiff has been diagnosed with bilateral hip arthritis by Dr. David R. Maish: The Plaintiff first saw Dr. Maish in 2009. At that time, Dr. Maish also pertonned bilateral hip replacement surgeries on the Plaintiff. Dr. Maish's office is located at 30 Hope Drive, Hershey, Pennsylvania 17033. See attached medical records. 21. State whether you have been examined~by a physician or institution pursuant to instructions or arrangements made by an attorney. If your answer is in the affirmative, please provide the following particulars: . a) The identity and address of each physician or institution; b) The date of each examination; c) Whether any of the examining physicians or institutions submitted a report to you and/or your attorney; d) The date of any such report; and e) The custodian of any such report. ANSWER: No. 22. Have you sought medical attention from any physician or institution, iricluding physical therapy, for a lower extremity disorder and/.or a nerve entrapment syndrome and/or a degenerative joint disease and/or a °repefitive strain injury" and/or a "cumulative trauma disorder?" If your answer is in the affirmative, please provide the following particulars: a) The identity and address of any physician or institution from . whom you have sought medical attention; and b) The date on which any such treatment was rendered. ANSWER: In 2009, I saw Dr. David R. Maish for hip pain in both my. hips. ~Dr. Maish is located a# 30 Hope Drive, Hershey, Pennsylvania 17033. Dr. Maish diagnosed me with osteoarthritis in both my hips. Dr. Maish also performed left hip replacement surgery on me in August 2009. He also performed right hip replacement surgery on me in December 2009. Both right and left hip replacements were performed at the Milton S. Hershey Medical Center in Hershey, Pennsylvania. . See attached medical records (Plaintiff has requested, but has not received the medical records from the right hip replacement surgery which was just pertormed in December. Once Plaintiff receives this information, it will be forwarded to the Defendant. The medical records concerning the left hip replacement which was pertormed in August are attached hereto). 23. Please state whether you are presently being treated on a regular basis by any physician, health care professional, chiropractor, or physical therapist in an attempt to alleviate and cure'your condition. If so, please state the identity and address of any such provider, the dates of any such treatment, and who had paid for such treatment: ANSWER: ~ - See answer to Interrogatory No. 22. 24. Please state whether any physician, health care professional, chiropractor, physical therapist, psychiatrist, or psychologist has recommended any future treatment in an attempt to cure or alleviate your condition. If so, please provide the identity and address of the health care professional recommending any future - therapy, including in your response the probable expense of any such future treatment. ANSWER: Dr. Maish has not mentioned any future treatment or surgeries since he ' - has pertormed the bilateral hip replacements. - - 25. Please state whether any physician or other health care professional has recommended that you undergo any surgical procedure(s) in the future in an attempt to cure or alleviate your condition. If so, please state the following: a) The identity and address of the person{s) recommending- the . surgery; b) The probable date(s) on which you will undergo the surgery; c) The estimated cost of the surgery; d) The time, if any, that you expect to be absent from your employment; - e) The nature of the surgery recommended. ANSWER: See answer to Interrogatory No. 24. 26. Please state whether you have undergone any surgery in an attempt to cure or alleviate a lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive strain injury" and/or a "cumulative~trauma disorder." If so, please provide the following particulars: a) Which extremity on which surgery~was performed; b) The date on which the surgery was performed; c) The identity of the surgeon(s); d) "Identify the health care institution at which your surgery or surgeries were performed, including the address of the institution; e) Whether the surgery relieved your symptom; f) Whether any of your'symptoms have re-occurred subsequent to any surgery; g) Whether you have experienced any post-surgical . complications of any nature whatsoever and, if so, the details of your complications. ANSWER: Bilateral total hip replacements. See attached medical records. 27. State whether you have been or are presently suffering from any physical ailment or infirmity of any nature whatsoever not alleged to have been caused by Defendant, and if so, please state the following particulars: a) A complete description of the nature and extent, including the duration and permanency, of any such condition, including in your answer all past and present symptoms; b) The date upon which the symptoms of any such ailment or infirmity first appeared; c) The date any such ailment or infirmity was diagnosed; d) Whether you have received or are receiving any medical . treatment for such ailment or infirmity; e) .The identity and address of each treating physician, institution, or therapist; f) The dates of any such treatment; g) The nature of any such treatment; " h) Whether any diagnostic tests have been performed, and, if ' so, the nature of such tests, the results thereof, the identity and address of the physician, institution, or therapist who performed them, and the identity and address of the present custodian of the records thereof; - i) Whether any medications have been administered by any physician, institution, therapist, or by you for any such ailment or infirmity, including in your answer the identity of any such medications and the dates on which you have been medicated; and j) Whether you are disabled, whether temporarily partially disabled, temporarily totally disabled.permanently partially ' disabled, or permanently totally disabled, as a result of such ailment or infirmity. . ANSWER: Slight high cholesterol. See attached medical records and answers to previous .Interrogatories. 28. Please state whether you have lost any eamings as a result of the condition of which you complain in your Complaint. If so, please state the amount of your toss and the period over which you have lost eamings as a result of your condition. ANSWER: Yes. Plaintiff last worked on July 13, 2009, when he went out of work to have both of his hips replaced. The last four years that the Plaintiff . worked, he made approximately $72,000.00 a year. The Plaintiff, before he went out of work for his injuries, planned to work until age 65. Plaintiff could not have retired at age 60 because he would not have had 30 years of service at that time. Plaintiff will claim lost wages and benefits from July 13, 2009, when he went out work, until June 20, 2015, when he would be 65-years old. This is approximately 6 years of lost wages for approximately $432,000.00. At a time closer to trial, Plaintiff will retain an economist to calculate a more precise economic.lost wages and lost benefits. 29. Please identify each and every witness whom you intend to calf on your behalf at the trial of this action, including in your answer the following particulars: a) The full name of each such witness and any other name by which any such witness is now or has been known; b) The business address and telephone number of any such witness; and c) The residence address and telephone number of each. witness. ANSWER: At this time,Plaintiff does not know who he will call as witnesses in this matter. Plaintiff will agree to exchange a witness list with the Defendant at a time closer to trial. 30. Please produce a copy of any flyer, advertisement, letter or any other solicitation for any screening, testing or presentation that plaintiff attended sponsored by any law firm or union for the types of injuries for which plaintiff is making a claim. ANSWER: Plaintiff has not such documents. Respectf~illy submitted, RANQOLPH L. CAMPBELL By: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on the day of ~ , 2010, a copy of the~foregoing Plaintiffs Answers to Defendants' Lower Extremity Disorder Interrogatories and Request for Production of Documents was mailed, by United States. Mail, postage prepaid, to: Brian M. Mancos, Esquire Bums, White & Hickton Four Northshore Center 106 Isabella St. Pittsburgh, PA 15212 Of Counsel Page 1 of 2 0 ~~~,~ Trip to Harrisburg, PA 28.06 miles • about 33 minutes Notes 2323 Ritner Hwy, Carlisle, PA 17015-9398 ® 1. Start out going NORTHEAST on RITNER HWY / US-11 toward MCALLISTER CHURCH RD. go 2.1 mi 2. Turn RIGHT onto ALLEN RD / PA-465. go 0.5 mi 3. Merge onto I-81 N via the ramp on the LEFT toward CARLISLE. o 22,7 mi g 4. Take the US-22 W 1 US-322 W ! US-22 E exit, EXIT 676- A, toward LEWISTOWN /STATE COLLEGE ! PA-230 E I HARRISBURG !CAMERON ST. go 0.2 mi 5. Merge onto US-22 E via EXIT 67A toward HARRISBURG J PA-230 I CAMERON ST. go 1.5 mi 6. Turn SLIGHT RIGHT onto MACLAY ST. `~ 7. Tum LEFT onto N 7TH ST. 8. Welcome to HARRISBURG, PA. Harrisburg, PA Total Travel Estimate :28.06 miles -about 33 minutes Route Map Hide http : //www. mapquest. com/print go 0.4 mi go 0.6 mi go 0.0 mi 3/17/2010 Page 2 of 2 .. ,HIS ? `.. z j ,u ~ ~, ''. S 4 ~A pN;AYtEQ rsi ANDS _.._. Directions and maps are informational only. We make no warranties on the accuracy of their content, road conditions or route usability or expeditiousness, You assume all risk of use. MapQuest and its suppliers shall not be liable to you for any loss or delay resulting from your use of MapQuest. Your use of MapQuest means you agree to our Terms of Use i http://www.mapquest.com/print 3/17/2010 ~ Notes Trip to Harrisburg, PA 27.76 miles -about 34 minutes ::, ,::,: Mount Holly Springs, PA Page 1 of 2 ® 1. Start out going EAST on W BUTLER ST toward N BALTIMORE AVE ! PA-34. go 0.0 mi _ r,',~~ "~~~ _ __. 2. Turn LEFT onto N BALTIMORE AVE / PA-34. Continue to follow PA-34. o 4.8 mi ~~ 3. Merge onto I-81 N toward HARRISBURG. go 20.3 mi 4. Take the US-22 W / US-322 W ! US-22 E exit, EXIT 67B- A, toward LEWISTOWN i STATE COLLEGE / PA-230 E / HARRISBURG /CAMERON ST. go 0.2 mi 5. Merge onto US-22 E via EXIT 67A toward HARRISBURG / PA-230 I CAMERON ST. go 1.5 mi 6. Tum SLIGHT RIGHT onto MACLAY ST. go 0.4 mi _. .. _ . 7. Turn LEFT onto N 7TH ST. go 0.6 mi 8. Welcome to HARRISBURG, PA. go 0.0 mi _ .. . 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"~"~ Y~ G~rrtr?r PbitPf ffiiaafi~ `~ ~ F4 f. ~ ,:: ,Y M Oata~ +b '"'"`,~ 2Q1Q ~~~eif Inc. a ~ Y R.~ ~ ap '20ipN;r1YTEQ~xa~r AND Ail rights reserved Us ~ ject to Licancnrrnnvrinhr ~ Map Legend Directions and maps are informational only. We make na warranties on the accuracy of their content, road conditions or route usability or expeditiousness. You assume ail risk of use. MapQuest and its suppliers shall not be liable to you for any loss or delay resulting from your use of Map4uest. Your use of MapQuest means you agree to our Terms of Use http: //www.mapquest. com/print 3/17/2010 { t IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, ) CIVIL DIVISION PLAINTIFF, VS. NORFOLK SOUTHERN RAII.WAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. NO: 2009-CV-14899-CV JURY TRIAL DEMANDED AFFIDAVIT OF L. KEITH LAMBERT My name is L. Keith Lambert. I am over the age of 18, capable of making this Affidavit, and have personal knowledge of, and could testify competently to, the facts herein stated: 1. I am currently Manager of Occupational Claims for Norfolk Southern Corporation. In that capacity, I have responsibilities in connection with legal claims involving Defendant Consolidated Rail Corporation and Defendant Norfolk Southem Railway Company ("NSRC'~. 2. Upon information and belief, Plaintiff currently resides at 2323 Ritner Highway, Cazlisle, Cumberland County, Pennsylvania 17015. 3. Upon information and belief, after January of 2007 Plaintiff worked out of Mount Holly Springs, Pennsylvania, located in Cumberland County. Prior to that time, Plaintiff worked out of Harrisburg, Dauphin County, Pennsylvania, briefly from September of 2006 until January of 2007. Prior to September of 2006, Plaintiff worked out of Olean, New York., 4. Upon information and belief, the majority of Plaintiff's most recent co-workers work out of Mount Holly Springs, Pennsylvania, located in Cumberland County. In addition, upon information and belief, the Plaintiffs co-workers and/or supervisors that aze expected to testify reside in and around Cumberland County, Pennsylvania. 5. Those employees who will be witnesses at trial would be required to spend an extended amount of time in Harrisburg, Pennsylvania and away from work. Their absence would be unduly burdensome to Defendant NSRC, as Defendant NSRC would be required to have other employees fill these jobs. Defendant NSRC would also have to transport these witnesses to Philadelphia, Pennsylvania for trial and pay their wages and expenses for the duration of the time spent at trial. 6. Additionally, following Plaintiff s relocation to Cumberland County in 2006, all but one of Plaintiff's known primary medical providers are located within Cumberland County, Pennsylvania. Plaintiffis known healthcaze providers during the latter part of his cazeer include: • Cazlisle Internal Medicine, Carlisle, Cumberland County, Pennsylvania • Dr. Robert F. Pellegrino, Carlisle, Cumberland County, Pennsylvania • Dr. David Maish, Hershey, Dauphin County, Pennsylvania 7. Further, it is anticipated that the trial of this matter will last between 8-10 days, likely causing disruption to Defendant NSRC's day-to-day operations and diminishing its effectiveness to service those customers who choose to transport their goods by rail. If trial were conducted in a forum in closer proximity to the site where the employee witnesses aze employed, in this instance Cumberland County, Pennsylvania, the aforementioned disruption would be reduced considerably. STATE OF VIRGINIA ) SS. CITY OF NORFOLK ) °~/ L. Keith ambert Manager of Occupational Claims Norfolk Southern Corporation Subscribed and sworn to before me, a Notary Public, this ~8~day of 2010. e. d~ My commission expires: t c. Hm ~ry IubNC Colrwnarnv~ilh of VN~pNMo ! 279242 M,r carrewwor- Pacal~~s Mo,r S1. 2011 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, PLAINTIFF, NORFOLK SOUTHERN.RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS ORDER VS. CIVIL DIVISION NO: 2009-CV-14899-CV 2010, upon consideration of the AND NOW, this day of JURY TRIAL DEMANDED foregoing petition, it is hereby ordered that (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within (5) azgument shall be held on the Dauphin County Courthouse; and in Courtroom of (6) notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT: DISTRIBUTION: days of this date; J. Mark F. McKenna, Esq., 436 Blvd. of the Allies, Ste. 500, Pittsburgh, PA 15219 Brian M. Mancos, Esq., Four Northshore Center, 106 Isabella Street, Pittsburgh, PA 15212 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, PLAINTIFF, VS. CIVIL DIVISION NO: 2009-CV-14899-CV NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of 2010, upon consideration of Defendants' PETITION TO TRANSFER VENUE BASED ON FORUM NON CONVENIENS PURSUANT TO Pa.R.C.P. 1006(d)(1), it is hereby ORDERED, ADJUDGED, and DECREED that Defendants' Petition is GRANTED and this matter is TRANSFERRED to Cumberland County, Pennsylvania for further proceedings. BY THE COURT: DISTRIBUTION: J. Mark F. McKenna, Esq., 436 Blvd. of the Allies, Ste. 500, Pittsburgh, PA 15219 Brian M. Mancos, Esq., Four Northshore Center, 106 Isabella Street, Pittsburgh, PA 15212 _, CERTIFICATE OF SERVICE I hereb certi that on the ~ Y fy o~ 3 day of March, 2010, a true and correct copy of the within Defendants' Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.RC.P. 1006(d)(1), was served on all counsel of record via regular mail, addressed as follows: H. Keith Moore, Esquire CRANWELL, MOORE & EMICK P.O. Box 11804 Roanoke, VA 24022 Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies, Suite 500 Pittsburgh, PA 15219-1314 Respectfully submitted, BURNS, WHITE & HICKTON /~~`~"I Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation and Norfolk Southern Railway Company T ti t ; IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. CIVIL DIVISION N0:2009-CV-14899-CV JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of 2010, upon consideration of Defendants' PETITION TO TRANSFER VENUE BASED ON FORUM NON CONVENIENS PURSUANT TO Pa.R.C.P. 1006(d)(1), it is hereby ORDERED, ADJUDGED, and DECREED that Defendants' Petition is GRANTED and this matter is TRANSFERRED to Cumberland County, Pennsylvania for further proceedings. BY THE COURT: DISTRIBUTION: J. Mark F. McKenna, Esq., 436 Blvd. of the Allies, Ste. 500, Pittsburgh, PA 15219 Brian M. Mancos, Esq., Four Northshore Center, 106 Isabella Street, Pittsburgh, PA 15212 i ~. CERTIFICATE OF SERVICE I hereb certi that on the ~ y fY a~ 3 day of March, ZO 10, a true and correct copy of the within Defendants' Petit~n to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. I006(d)(1), was served on all counsel of record via regular mail, addressed as follows: H. Keith Moore, Esquire CRANWELL, MOORS & EMICK P.O. Box 11804 Roanoke, VA 24022 Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies, Suite 500 Pittsburgh, PA 15219-1314 Respectfully submitted, BURNS, WHITE & HICKTON Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106' Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation and Norfolk Southern Railway Company ` ~. t r ~ N 0 ~ _ ~ ~. Q ."~, ~ ~~~ s..~ ~ ~ . ~ ~ ~ n o~ C7 C'f1 , ~~ ~~. '.~ 0 BURNS, WHITE & HICKTON BY: BRIAN M. MANGOS, ESQ. Pa. I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 RANDOLPH L. CAMPBELL, PLAINTIFF, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS. ATTORNEYS FOR DEFENDANTS NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION DAUPHIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO: 2009-CV-14899-CV JURY TRIAL DEMANDED DEFENDANTS' PETITION TO TRANSFER VENUE BASED ON FORUMNON CONVENIENS PURSUANT TO PA.R.C.P. 1006(d)(1) AND NOW, come Defendants/Petitioners, Consolidated Rail Corporation ("Conrail") and Norfolk Southern Railway Company ("NSRC"), by and through their attorneys, Burns White & Hickton, LLC, and file the within Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and in support thereof, aver the following: FACTS 1. Plaintiff/Respondent initiated the above action on November 9, 2009, by filing a Complaint against Defendants, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et seq. See, Plaintiff s Complaint attached hereto as Ex. "A". 2. In his Complaint Plaintiff alleges that, within the course and scope of his employment, he was exposed to repetitive, forceful and awkward motions utilizing his lower extremities that caused him to sustain severe and permanent injuries to his knees, hips, and back. See, Ex. "A" at ¶11. 3. In his Complaint, Plaintiff alleges that the acts of omission and commission causing his injuries were done by the Defendants, their agents, servants, workmen and/or employees acting in the course and scope of their employment with and under the direct and exclusive control of the Defendants. See, Ex. "A" at ¶7. 4. Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. See, Ex. "A" at ¶1; see also, Plaintiffs Response to Defendants' Request for Admissions attached hereto as Ex. "B", at ¶¶27-29; see also, Plaintiff's Answers to Defendants' Lower Extremity Disorder Interrogatories attached hereto as Exhibit "C", at ¶1. 5. Plaintiff s residence in Carlisle, Pennsylvania is approximately twenty-eight (28) miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania, which is approximately athirty-three (33) minute drive. However, Plaintiffs residence is approximately five (5) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a nine (9) minute drive. See, Ex. "A" at ¶l; Ex. "B" at ¶¶30-33; see also, a true and correct copy of Mapquest Driving Directions from Carlisle, Pennsylvania to Harrisburg, Pennsylvania attached hereto as Ex. "D". 2 6. Plaintiff began his career with Defendant Conrail as amaintenance-of--way employee working out of Olean, New York in May of 1976 and was employed by Conrail until May 31, 1999.1 Thereafter, Plaintiff became an employee of Defendant NSRC on June 1, 1999 where he worked out of Olean, New York until approximately September of 2006. See, Ex. "B" at ¶¶2, 13; see also, Ex. "C" at ¶2. 7. Plaintiff admits that he first bid for a position with Defendant NSRC in Harrisburg, Dauphin County, Pennsylvania in September of 2006. See, Ex. "B" at ¶14. 8. Plaintiff admits that he next bid for a position with Defendant NSRC in Mount Holly Springs, Cumberland County, Pennsylvania in January of 2007. See, Ex. "B" at ¶17. 9. Thus, Plaintiff admits that he was only employed by Defendant NSRC in Dauphin County, Pennsylvania from September of 2006 until January of 2007, or approximately four (4) months. See, Ex. "B" at ¶¶14, 17. 10. Plaintiff further admits that he was employed by Defendant NSRC in Cumberland County, Pennsylvania from January of 2007 until July of 2009, or approximately two and one- half (2.5) years. See, Ex. "B" at ¶17; see also, Ex. "C" at ¶2. 11. Plaintiff's most recent place of employment in Mount Holly Springs, Cumberland County, Pennsylvania is approximately twenty-eight (28) miles from Harrisburg and is approximately athirty-four (34) minute drive. However, Mount Holly Springs is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a ten (10) minute drive. See, a true and correct copy of ~ It should be noted that the nature of Conrail's business changed significantly as of June 1, 1999. On June 1, 1999, Conrail became a switching and terminal railroad, conducting railroad operations in the limited geographic areas of Detroit, Michigan; Northern New Jersey; and Southern New Jersey/Philadelphia. 3 • ~ Mapquest Driving Directions from Mount Holly Springs, Pennsylvania to Harrisburg, Pennsylvania attached hereto as Exhibit "E"; see also, Ex. "B" at ¶¶19-23. 12. Plaintiff further admits that he has never resided in Dauphin County, Pennsylvania. See, Ex. "B", at ¶¶24-26. 13. Plaintiff has only identified one treating physician, Dr. David Maish, as an individual likely to have knowledge regarding his alleged injuries. This treating physician is located in Hershey, Dauphin County, Pennsylvania. See, Ex. "B" at ¶¶34-36; see also, Ex. "C" at ¶¶20, 22-25. 14. However Plaintiffs other known medical treatment during the latter part of his railroad career was received at Carlisle Internal Medicine, located in Cumberland County, Pennsylvania. See, Affidavit of L. Keith Lambert attached hereto as Exhibit "F". 15. As Plaintiff is claiming injuries resulting from his duties at work, Defendants intend to call Plaintiff's supervisors and co-workers, who are familiar with Plaintiffs job duties and requirements, to testify at trial. See, Ex. "F". 16. Defendants further believe and therefore aver that Plaintiff has not identified any co-worker witness who lives or works in Dauphin County and who has direct personal knowledge of Plaintiff s work activities that are alleged to have occurred in Cumberland County, Pennsylvania. See, Ex. "B" at ¶37; see also, Ex. "F" 17. Based on the Affidavit of L. Keith Lambert, it would also be unduly burdensome to replace those employees/witnesses who possess knowledge of Plaintiffs claim, if said individuals were required to travel to Harrisburg, Pennsylvania, in terms of expense and time ,away from work. It would further be a burden for Defendants to transport these individuals to 4 Harrisburg, Pennsylvania for the trial and also pay their wages and expenses for the duration of the time spent at trial. See, Ex. "F". 18. Moreover, the expense associated with transporting a Dauphin County jury for a view of Plaintiff's workplace in Cumberland County argues against venue in Dauphin County.2 19. The only connection that this case has to Dauphin County stems from the fact that Plaintiff was employed by Defendant NSRC in Dauphin County for approximately four (4) months, and one of Plaintiff's treating physicians is located in Dauphin County. 20. In short, Defendants aver that Cumberland County is the site of Plaintiff's most recent workplace; Plaintiff only worked out of Dauphin County for approximately four (4) months; Plaintiff resides in Cumberland County; Plaintiff has never resided in Dauphin County; Plaintiff's known medical treatment during the latter part of his railroad career was received in Cumberland County; and most of the co-worker witnesses with direct personal knowledge of Plaintiff's work conditions or alleged injuries are located in Cumberland County. 21. As a result, Defendants request that this Court transfer this matter to Cumberland County, Pennsylvania for further proceedings. PETITION TO TRANSFER VENUE 22. This Court is vested with discretion in considering whether to transfer an action to a more appropriate venue pursuant to Pa.R.C.P. 1006(d)(1), which provides: For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. s Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer based on forum non corrveniens. It is beyond dispute that an analysis of this factor clearly weighs in favor of transfer. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 5 23. A defendant may file a petition challenging the plaintiff s choice of forum on the basis of forum non conveniens, and request a transfer of the action, at any time. See, Zappala v Brandolini Property Management, Inc., 909 A.2d 1272, 1282 (Pa. 2006); Pa.R.C.P. 1006(d)(1). 24. The doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See, id , 909 A.2d at 1283. 25. A plaintiff s choice of forum is given great weight and a defendant has the burden of asserting a challenge to the plaintiff s choice of venue. See, id , at 1281. 26. However, the right of a plaintiff to choose a forum is not absolute, whereas the forum non conveniens provision inserted into Rule 1006(d) was intended as a necessary counterbalance. See, Wills v. %aschak, 617 A.2d 37, 38 (Pa.Super. 1992). 27. Furthermore, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue under Rule 1006(d). See, Hosiery Corporation of America, Inc. v Rich, 476 A.2d 50, 51 (Pa.Super. 1984). 28. A petition to transfer venue pursuant to Rule 1006(d)(1) should not be granted unless the defendant meets his burden of demonstrating, with, detailed information on the record, that the plaintiff s chosen forum is oppressive or vexatious to the defendant. See, Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156, 162 (Pa. 1997). 29. The defendant may show that the plaintiff's choice of forum is vexatious by establishing with facts on the record that the plaintiff s choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. See, id. 30. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would 6 « , provide easier access to witnesses and other sources of proof, or to the ability to conduct a view of premises involved in the dispute. See, id. 31. Pursuant to Pa.R.C.P 2179(a)(3), a personal action against a corporation or similar entity may be brought in the county where the cause of action arose. In this case, it is undisputed that more of the facts and exposures alleged by Plaintiff in his Complaint are alleged to have occurred in Cumberland County, Pennsylvania than in Dauphin County, Pennsylvania. Thus, venue would have been proper in Cumberland County had Plaintiff filed his Complaint there. 32. However, Plaintiff chose to bring this action in the Court of Common Pleas of Dauphin County, which is more than twenty-two (22) miles from the Court of Common Pleas of Cumberland County where: (1) Plaintiff resides; (2) more of Plaintiff's co-workers who would have personal knowledge of Plaintiff's work activities are located; (3) the site of Plaintiff's last workplace is located; and (4) Plaintiff's family physician is located. Therefore, trial in Cumberland County would provide easier access to witnesses and other sources of proof. See, Cheeseman, supra; see also, Wood v E.I. du Pont de Nemours and Co., 829 A.2d 707 (Pa.Super. 2003); Mateu v. Stout, 819 A.2d 563 (Pa.Super. 2003). 33. Plaintiff's choice of forum: (1) is both oppressive and vexatious as the record is clear that venue in Dauphin County will cause undue hardship to all parties and witnesses, including Plaintiffs co-workers and medical providers; (2) appears to be aimed at inconveniencing Defendants since Defendants will have the undue burden of transporting employees to Harrisburg for trial as well as finding replacements for employees who will be away from work; and (3) meant to harass Defendants even at some inconvenience to himself. See, id.; see also, Graham v Laidlaw Transit, Inc., 44 Pa.D.&C.4th 493 (Pa.Com.Pl. 2000). 7 34. It is axiomatic that this case is more easily litigated in the county where Plaintiff resides, where more of the witnesses are located, and where Plaintiff's most recent alleged exposures took place. The fact that Plaintiff has filed this case in another venue, where these elements are lacking, and the only connection is that Plaintiff worked in Dauphin County for approximately four (4) months and one of his treating physicians is located there, constitutes sufficient proof that the chosen venue is "oppressive" and/or "vexatious," and that a transfer of venue is required. See, Dulaney v Consolidated Rail Corp., 715 A.2d 1217 (Pa.Super. 1998). 35. If this matter were to remain in Dauphin County, Defendants, Plaintiff, most of the known witnesses with direct personal knowledge of Plaintiff s work activities in Cumberland County, and some of Plaintiffs medical providers would be forced to incur additional unnecessary expenses due to the time, travel, and lodging required to transport witnesses to Harrisburg for trial -expenses that would be largely eliminated if this matter were tried in Cumberland County. 36. In this case, even though venue is proper in this Court, the aforementioned factors make it clear that Dauphin County constitutes an inconvenient forum, Plaintiff's choice thereof is oppressive and/or vexatious to Defendants, and it would be against the interests of the parties and witnesses for this case to remain there. Accordingly, Defendants petition this Court to transfer this cause of action to the Cumberland County Court of Common Pleas. 37. Plaintiff will not be prejudiced by a change of venue, as Cumberland County clearly constitutes an available, and less oppressive and vexatious, alternative forum. 38. For any and all of the reasons set forth above, and in Defendants' Brief in Support which is incorporated herein as if more fully set forth, the Defendants request that this Court transfer this matter to Cumberland County, Pennsylvania for further proceedings. 8 f ~, WHEREFORE, based on the foregoing, Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company respectfully request that this Honorable Court grant Defendants' Petition, and transfer the within matter to Cumberland County, Pennsylvania for further proceedings. Respectfully submitted, BURNS, WHITE & HICKTON •~ By: .~ Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation and Norfolk Southern Railway Company 9 4 , t 7 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAl1~BELL, CIVII. ACTION /1~~ ~p p Plaintiff, NO.. ~~ - ~~ -~ ~ 7 4 7 ~' ~,~ vs. TYPE OF PLEADING. COMPLAINT IN CIVII. ACTION NORFOLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORP{}RATION, Defendants. TO: DEFBNDANTS You are hexeby notified to plead to the encbsed COMPLAINT 1N CML ACTION within twenty (20) days from service hereof or a default judgment may be entered against You. ASSOCIATES, P.C. HY:~' ~ ;~ 'r---- Mark F. McKenna, Esquire Attorneys for Plaintiff FII,ED ON BEHALF OF: PLAINTIFF, RANOLDPH L. CAMPBELL COUNSEL OF RECORD FOR THIS PARTY: Mt1RK F. McKENNA, ESQUIRE PA I_D. #30297 McI~;NNA & ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 PittsMugh PA 15219 (412) 471-6226 mmckenna(t~consolidated net JURY TRIAL DEMANDED r:. :.~ -~; r•, • ~ _ u ~- ~~ ~- _.. ,_ o -< on ~~ v ~ 9 2009 e ~: IrI 'CAE COURT OF COMMON (LEAS FOR DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, CTVIL ACTION Plaintiff, CASE # vs. NOI~OLK SOUTHERN RAILWAY COMPANY and CONSOLIDATED RAIL CORPORATION Defendants. NOTICE T4 DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) DAYS after this Complaint and notice are serued, by entering a written appearance personally or by an 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 failed to ~ 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 claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. DAUPHIN COUNTY BAR ASSOCIATION 2 t 3 North Front Street Harrisburg, Peruisylvania (71'n 232-7536 COMPLAINT IN CIVIL ACTIflN AND NOW, comes the Plaintiff, RANDOLPH L. CAMPBELL, by and through his attorneys, MCKENNA & ASSOCIATES, P.C., and tiles the following Complaint in Civil Action and in support thereof avers as follows: 1. The Plaintiff, RANDOLPH L. CAMPBELL, (hereinafter referred to as "Plaintitl~, is an adult-individual who resides ai 2323 Ritner Highway, Carlisle, PA 17015. 2. The Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, (hereinafter referred to as "Defendant's is a Virginia Corporation that conducts and transacts business throughout the Commonwealth of Pennsylvania, and is involved in the movement of freight in interstate commerce and foreign commerce. 3. That all times relevant hereto, the Defendant, NORFOLK SOUTHERN RAILWAY COMPANY, is involved and does maintain a principal place of business in the Commonwealth of Pennsylvania, including Dauphin County, Pennsylvania. 4. CONSOLIDATED RAIL CORPORATION (CONRAIL) is a Pennsylvania Corporation, conducting and. doing business in and about Dauphin County, Pennsylvania, and is and was, at all times relevant hereto, engaged in interstate conunerce in and throughout the several states of the United States as a common carrier by rail, and for that pi>~e, operated locomotives, railroad cars and transacted substantial business in and about Dauphin County, Pennsylvania. 5. At all times relevant hereto, Plaintiff, RANDOLPH L. CAMPBELL, herein was and is employed by the Defendants, NorfoUc Southern Railway Compaay and Conrail, as an employee, as the term is defined under Section 45 U.S.C. § 51, and as such was engaged by the Defendants to perform duties in the furtherance of its business interest and movement of freight in interstate and foreign commerce by Defendants. 6. At all times relevant hereto, Defendants acted by and through their agents, servants or employees who were acting within the scope of their respective employment. 7. The acts of omission and commission causing injuries to the Plaintiff, RANDOLPH L. CAMPBELL, were done by the Defendants, their agents, servants, workmen and/or employees, acting within the course and scope of their employment with and under the direct and exclusive control of the Defendants herein named_ 8. All of the property, equipment and operations involved in Plaintiff, RAI+IDOLPH L. CAMPBELL's injury were owned and/or under the direct and exclusive control of the Defendants, or any of its agents, servants, workmen and/or employees as predecessors in interest the defendants herein named. 9. During Plaintiff, RANDOLPH L. CAMPBELL's entire working career and while. working within the course and scope of his employment for Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was injured due to the unsafe and inadequate working conditions. 10. This action arises under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. 11. Throughout Plainti#ly RANDOLPH L. CAMPBELL's employment, Plaintiff, RANDOLPH L. CAMPBELL, while working within the scope of his employment for Defendants herein named, as a maintenance of way worker, was continuously and repeatedly required to perform repetitive, fot~ceful and awkward motions utilizing his lower extremities which included excessive kneeling, squatting, stooping and bending; and was required to walk on uneven and utbstable surfaces and to get on and off of moving equipment which caused the Plaintiff, RANDOLPH L. CAMPBELL, to sustain severe and permanent injury to his lower extremities, including, but not limited to, his knees, hips and back. 12. Throughout his employment with Defendants, Plaintiff, 1tANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects of exposing his lower extremities to repetitive, forceful, and awkward motions. 13. Throughout his employment with Defendants, Plaintiff, ItANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects of excessive walking, kneeling, bending, squatting, stooping, and bending, twisting, turning ofthe lower extremities. 14. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware of the dangerous effects to his tower extremities from walking and working on uneven and unstable surfaces and the harmful effects of getting on and off of moving equipment. 15. Throughout his employment with Defendants, Plaintiff, RANDOLPH L. CAMPBELL, was continuously unaware that any and all of above mentioned exposures and/or conditions could cause severe and permanent injuries to his lower extremities. 16. Throughout Plaintiff ItANDOLPH L. CAMPBELL's employment with Defendants, said Defendants knew, or in the exercise of proper diligence should have known, of the presence and existence of the aforementioned dangers within Plaintiff, RANDOLPH L. CAMPBELL's working environment. 17. The injuries and damages to Plaintiff, RANDOLPH L. CAMPBELL being complained of were directly and proximately caused by the negligence of the Defendants, their agents, servants or employees while acting within the nature and scope of their employment for the Defendants in the following respects: a. in violating the Federal Employers' Liability Act; ~ 1 b. in failing to provide Plaintiff, IZANDOLPH L. CAMPBELL, with a reasonably safe piece to work; c. in requiring Plaintiff, RANDOLPH L. CAMPBELL, to perform repetitive, forceful and awkward motions utilizing his lower extremities which also involved excessive kneeling, squatting, stooping ,bending, twisting and turning; d: in requiring Plaintiff, R.ANDOLPH L. CAMPBELL, to repeatedly walk and work on dangerous, uneven and unstable surfaces; e. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with the proper protective equipment; f. in failing to warn Plaintiff, R.ANDOLPH L. CAMPBELL, of the dangers posed by the aforementioned work activities; g. in failing to peniodicalty inspect and/or test its workplace; h. in allowing unsafe practices to become standard practice; I. in failing to properly train, educate and/or warn Plaintiff of the hazards in the workplace; j. in failing to comply with existing federal and state statutes and safety negutations; k. in failing to comply with its' owe rules, work practices and procedures; I. in failing to provide Plaintiff, RANDOLPH L. CAMPBELL, with adequate manpower to safely do his job; m. in failing to provide proper tools and equipment; n. in assigning Plaintiff, RANUOLPH L. CAMPBELL, to work beyond his physical and medical capabilities; o. in failing to provide proper medical supervision and care; ~a p. in failing to comply with State and Federal Safety Regulations, including OSHA standards; q. in failing to monitor the work place; r. in failing to take precautions to prevent repeated injuries to Plaintiff, RANDOLPH L. CAMPBELL's extremities including his knees, ligaments ,bone and joints; s. in failing to provide a safe place to work or provide for Plaintiff, RANDOLPH L. CAMPBELL'S safety when Defendants knew and were aware that the Plaintiff, R,ANDOLPH L. CAMPBELL, suffered injury to his knees, ligaments, bone and joints; t. in knowing and awaze that the Plaintiff, RANDOLPH L. CAMPBELL, had sustained injuries to his right and left knees and joints; u. in failing to provide proper splints or braces; v. in failing to take any precautions to provide for Plaintiff, RANDOLPH L. CAMPBELL'S safety, thereby continually subjecting Plaintiff, RANDOLPH L. CAMPBELL, to continuous excessive stress, repetitive motions and vibrations, causing injury to Plaintiff, RANDOLPH L. CAMPBELL'S knees in aggravation z of these conditions after Defendants knew or should have known of Plaintiff, RANDOLPH L. CAMPBELL's injuries; w. in continually requiring Plaintiff, RANDOLPH L. CAMPBELL, to work and be exposed to the hazards stated above, thereby, directly and proximately causing Plaintiff, RANDOLPH L. CAMPBELL'S injuries. aw } ~ ~ x. in failing to adjust, alter, counter weigh or counter balance the tools and equipment; y. in failing to employ or hire a trained ergonomist to test, monitor, educate and produce Plaintiff, ItANDOLPH L. CAMPBELL with a safe place to work; and z. in failing to provide proper ballast and walking surface. l8. As a direct and proximate result of the aforementioned negligence of the Defendants or any of its agents, servants, workmen and/or employees, the Plaintiff, RANDOLPH L. CAMPBELL, has suffered cumulative trauma and repetitive stress to his lower extremities, bones, ligaments, and joints, which has resulted in the following damages and/or injuries, some or all of which may be permanent; a. advanced DJD, of the right and left knee with decreased range of motion; b. anticipated knee surgery; c. bilateral hip osteoarthritis; d. hip surgery; e, low back pain and osteoarthritis f. pain and tenderness in all the above affected areas. 19. As a further direct and proximate result of the negligence and/or careless conduct of Defendants or any of its agents, servants, workmen and/or employees, Plaintiff, RANDOLPH L. CAMPBELL, has in the past and may in the future sustain the following damages: a. loss of enjoyment of life; • b. change of lifestyle; c. loss of wages and fringe benefits; d. loss of earning capacity; e. medical expenses; f. pain and suffering; g. mental anguish; h. personal futat-cial loss; and I. continuing pain and disability. 20. Plaintiff, RANDOLPH L. CAMPBELL, did not contribute to any of these injuries. 21. To the extent, if any, the Plaintiff has apre-existing condition affecting his knee or lower extremities, the Plaintiff will show that such condition or conditions were aggravated by the conduct of the Defendants as described above. WHEREFORE, Plaintiff, RANDOLPH L. CAMPBELL, respectfully requests that judgment be entered in favor of the Plaintiff and against the Defendants, together with casts and disbursements of this action in an amount in excess of compulsory arbitration limits. JURY TRIAL DEMANDED espectfully submitted, MARK F. McKENNA, ESQ. Attorneys for Plaintiff, RANDOLPH L. CAMPBELL McKE1VNA 8t ASSOCIATES, P.C. 436 Boulevard of the Allies Suite 500 Pittsburgh, PA 15219-1314 (412) 47i-6226 01/07/2010 09:04 4124716658 PAGE 03/Dry MC~tENNA ASSOCIATES IN THE COURT aF COMMCN PLEAS OF DAUPHtI+I COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, } ) Plaintiff, ) ) v. ) NORFOLK SOUTHERN RAILWAY ) COMPANY AND CONSOLIDATED ) RAII, CORPQRATION, ) } pefendarrts. ) CIVIL D11/ISION No. ~OOA-C1~~t489g-C11 JURY TRIAL ptMANDED f?6AIN77FP'$ RE$PQNSE TQ DEFENDANTS' REQUEST FIyR ADMtSSiON~ Plaintiff, Randolph L. Campbell, by undersigned counsel, hereby series the following Responses to Defendants' Request for Admissions as follows: 1. Admit that Plaintiff previously worker! for' the Defendants within the State aF New York. R,_,E PO S The Ptairttlff admits that throughout his career work+ng for the fVlairrtenance of way crew for both Norfolk Southern and Conrail, the I~laintifl: did work in the Commonwealth of Pennsyivani2r, a4s well as the S#ate of New Yortc. 2. Admit that, when Plaintiff worked for fhe defendants in the S#a~te of New Yank, he worked primarily out of Olean, Nevv York_ RESPONSE: PlairrtifF admits that while his headquarters was in Olean, New York, the work he performed on the Mainfiertance of Warar included work an a territory that exteaded half rota the State of New York and half into the Commonwealth ofi Pennsylvania. While the Plaintiff worked out of Olean, New York he pertanlled work in both the Statra of New York and the Comrnfratth of Pennsylvania. ,01/07/2010 09:04 4124716b58 MCA ASSOCIATES PAGE e4~prD 3. Admit that Olean, New York is approximately twa-hundred twenty five (~25) mites from the Cacrrt of Common Pleas of Dauphin County, iac:ated in Harrisburg, Pennsyivania_ . RESPONSE: Admitted. 4. Admit that the amount of travel time in a motor' vehide from Olean, New York to the Court of CrSmmon Pleas of Dauphin County, Pennsylvania is approximately four ar~d one half (4.5) hours. ~QNSE Admitted. 5. Admit that Olean, New York is approximately thirty (30) miles from the Supreme Court of Cattaraugus County, located in Little Vagey, New York. RESpQNSE: Admitted_ 6. Admit that the amourrt of travel time in a motor vehicle from Olean, New York to the Supreme Court of Catlaraugus CourttY, Nov York is approximately forty (d0) minutes. RE P~,C~NS~: Admitted. 7. Admit that, whein Plaintiff wanted for the nel`endarrts in the State of Alew York, he resided at 87 Madison S#ree#, Weilsvilfe, New Yank 14895. RESPONSE: Admitted; . 01/07/2018 09:04 4124716658 MCi~1VNA ASSOCIATES PACE 05lDr0 8. Admit that Wellsville, New York is aver one-hundred ninety (190) miles from the Court of Common Pleas oaf Dauphin County, located in Harrisburg, Per~nsytvania. R'~fJNSE: Admitted. 9. Admit that the amount 'of travel time in a motor vehicle from Glean, New York to the Gourt of Common Pleas of dauphin County, Pennsylvania is approximaitety four {4) hours. RES.Pt)NSE: Admitted. 10. Admit that Wellsville, New York is approximately ten (10) miles from the Supreme Court of Allegany County, located in Belmont, Ne+nr York. RESPONSE: Admitted. 11. Admit that the amount of fravei #ime in a'motor vehicle from Wellsville, New York to the Supreme Court of Allegany County, Mew York is approximately fifteen ('[ 5) minutes. RESPONSE: Admitted. ' 12. Admit that Piatnftff did not work in Penrxsylvenia prior to September of 2006. RESPONSE: 01/07/2010 09:04 4124716658 ntc~tA ASS~IATES PAGE e6/D~D Denied. Throughout his careerwatlang for the M~ntenance of Way Department of both Conrail and NarFolk Sou#hem, the Piaintiff worked in both the State Crf New York and the Gommorr+realttr of Pennsylvania. 13. Admit that Plaintiff did not bid for a job in Pennsylvania with Defendant Norfolk Southem until September of 2006. fdESf~'ONSE: Admitt~- 14. Admi# that Pleirrtiff did not bid far a job in Harrisburg, P®nnsylvania with Defend~rtt Nar!'oik Sauifrem until September cff 2006. RESPONSE Admitted. 16. Admit that Plaintiff does not now work far pefendant Norfolk Southem in Harrisburg, Pennsylvania. RESPONSE: Plaintiff admits that he does not now work fOr pefendant Norfolk Southem in any capacity at any locaition because he has been unable ~ petfotm any work due to his injuries. Rlaintiff has worked for Daferrd®nt Nortalk Southern in the past in Harrisburg, Pennsylvania. 16. Admit that Plaintiff does not rrQw work far Defendant Nortolk Southern in Dauphin County, Pennsylvania. Sf'0 E: Plaintiff admits that he does not now work for the Defesndart# Norfolk Southern at any iac~tion laeoeuse he is unable to wale due~to his in)uries. PiaintFfF admits that he has worked in the pest far Defendant Norfolk Southern in Dauphin County, Pennsylvania_ 17. Admit that Plaintiff bid far a job in 1VIt. Holly Springs, Pennsylvania with Defendant Noririlk Southern in January of 2007. 01/07/2010 09:04 4124716658 I`iES~dNSE: Admitted. MCI~IA ASSOCIATES PAGE a7~paD 1 S. Admit that Plaintiff currerrtly works for Defendant 11(otfollc Southern out of IVIt. Holly Springs, Pennsylvania. Plaintiff denies that he currently vwrks for the Defendant Norfolk Southern out of F1ll#. Holly Springs, Pennsylvania. Plaintiff currently does rrdt work anywhere for Defendant Norfolk Southern because he has been unable to work due to his injuries. 19. Admit that iNt. Wolly Springs, Pennsylvania is located in Cumberland County, Pennsylvania. RESPONSE:. Admitted. 2U. Admit that iVlt. illy Springs, Pennsylvania is appro~amately twenty-eight (26) miles from the Court of Common Pleas of dauphin County, Pennsylvania, Located in Harrisburg, Pernsylvania_ RESPONSE:. Admitted. 21. Admit that the amount of travel #irrna in a motor vehid®from IVIt. Holly Springs, Pennsylvania to the Court of Common Pleas of Dauphin Caurlty, Pennsylvania is approximately thirty four (34) minutes. RESPONSE: Admitted. ,01/07/2010 09:04 4124716658 MCI~hINA AS~CIATES PAGE 08/~~i) 22. Admit #hs# N#t. Holly Springs, Pennsylvania is approxima#ely six (6) miles from the Court of Common Pleas of Cumberland County, (oc:ated in Carlisle, Pennsylvania. i~ESPONSE: Admitted. 23_ Admit that the amount of travel time In a moor vehicle from Nlt_ Holly Springs; Pennsyivania to the Court of Common Pleas of Cumberland County, Pennsylvania is appro~mateh- ten (10} minutes. RESPONSE: Admitted. ~4, Adrnit tha# Plaintiff does na# naw reside, nor has ever resided, within Dauphin County, Pennsylvania, RE$Pt,~NS.E Admitted. 25. Admit that Plaintiff has never main#ainerJ a permanent residence within Dauphin County, Pennsylvania. RE$PON E: Admitted. 26. Admit that Plein#1ft does not now own, nor has he ever owned, any resi estate or other property within Dauphin County, Pennsylvania. RESPONSE Admitted_ ~ A 01/07/2010 09:04 4124716658 MCI~NhW ASSOCIATES PA(~ e9ip~D 27. Admit that Plaintiff currently resides within Cumberland County, Pennsylvania. RESPONSE: Admitted. 28. Admit that Plaintiff pmer~tly resides at 2323 Rimer' Highway, Carlisle, Pennsylvania 9 7015 RESPONSE: Admitted. 29. Admit that Carlisle, Pennearlvania is loca#ed within Cumberland County, Pennsylvania. p.~. Admitted_ 3Q. Admit that Carlisle, Pennsylvania is approximefiely tvven#y-d'a~ee (23) miles from the Court of Common Pleas of Dauphin County, Pennsylvania, located in Harrisburg, Pennsylvania. RESPONSE: Admitted. 3'1. admit that the amount of travel tirrte in a mafior vehicle from Carlisle, pennsylvaniit to the Court of Common Pleas of Dauphin County, Pennsylvania is approximately thirty (3U~ minutes. RESPONSE: Admitted. 01/0712010 09:04 4124716658 MCKEh~IA ASSOCIATES PAGE 10/0rD 32. Admit that the Court of Gammas Pleas of Cumberland County is loc2ded in Carlisle, Pennsylvania. RESPONSE: Admitted. 33. Admit that the amount of b'avel time in a molar vehide from Piain#ifF's residence in Gerlisle, Pennsylvania to the Caurk of Commas Pleas of Cumberland County, Pennsylvania is approximately nine (9) minutes. RESPONSE: Admitted. 34. Admit that Plaintit has never received medical treatment front any physican practicing medicine within Dauphin County, Pennsylvania. RESPONSE: Denied. Plaintiffs two hips were replaaec! at Hershey Medical Center which is located in Dauphin County. Pennsylvania. Also. Plaintiff has beers treated bI- pr. David Maiish for his hip injuries. l~r_ Maifsh's ofFice is also located in Dauphin County, Pennsylvania. 35. Admit that Plaiintiff has never rec+eiv~ medical treatm®rrt from any physician practicing medidne within Dauphin County, Pennsylvania i+or his affeged injuries resulting from his employment with the Defendants. R~SPON E: Denied.. Plaintiiir's two hips were replaced at Hershey Medical Center which is looted in l]auphin County, Pennsylvania. Also, Plaintiff has been treated by Dr. David Maifsh for his hip injuries. Dr. Maifsh's office is also located in Dauphin Gourtfy, Pennsylvarria_ 81/07/2016 09:04 4124716658 I~CKENNA ASSOCIATES PAt~ 11/DrD 43_ Admit that it would i~ more convenient for the parties and/or Witnesses if this action was pending in either Cattaraugus County or Allegany County, New York. i~SP~NSE: Objection. "Phis request rsf the Defendant calls for a legal cxmdusion. Without waiving this abj~on, Plaintiff states that this action will be rr~re canvc~nientiy tried in i]auphin County, Pennsylv~ia, as opposed to courts in the State of New York because Dauphin County is mLtch closer to the Plaintiff, and any witnesses that he may tail, then the Courts in the State of NeW York This includes the Piaintrft's treating orthapectia surgeon who performed bilat~l hip replacements on the Plaintiff end who practices in Dauphin County and performed these surgeries in Dauphin County. Also, the medical records, which are the most pertinent to this case, are in Dauphin County, Pennsylvania. ~4_ Admit that it would be more convenient for' the parties and/or witnesses if this action was pending in Cumberland County, Pennsylvania. RESPOND Objection. This request of the Defendant c$Ifs for a legal conclusion. Without waiving this objection, the Plaintiff states that the trial cf this matter will be more conveniently held in Dauphin County, Pennsylvania, es oppQSed to Cumberland County, Pennsylvania. As s#ated shave, the PlaintifF was partially injured in Dauphin County, pennsyhrania when he worked there far the Defendants. Also, as stated above, the Plaintiff's treating orthopedic surgeon and the hospital where his bila#eral hip . repfacemen#ss where performed are ell in Dauphin County, Pennsylvania, along with all the relevant medical records of the Plaintiff. 01/07/2010 09:04 4124716658 MCI~NhW ASSOCIATES PAGE 12~paD Respectfully submi#tcd, Rq~p4p BELL ,, Qf Ct~unsel Mark F. McKenna, Esq. MCf~NNA & ASSQCIATES 436 Bled. Of the Aliies, Suite 500 Pi#sburgh, PA 15219-1314 I-I. iceiti, Moore, Esq. CRANWELL, MOORS ~ FJUIICK P.O. Box 111304 Roanoke, VA 222 CERTIFICATE OF SERVICE 1 hereby Y that on the ~ ~ day aF 201 G, a ~Y of the foregoing PlaintrPPs Response to Dew s' Request or Admissions was mailed, by United States Mail, postage prepaid, ta: Brian All. Mancxas, Esq. Burns, White ~ Hicktan Four I~arthsh~re Center 106 Isa 11e Street PittsburgPA ~ 5212 ~. CrF Counsel • e 01/07/2010 09:04 4124716658 MCI~AJ~q ASSOCIATES V~F~~A,TI(3N PAGE 13/(~rD I, Nlerk F. Iv1cKel;na, Esquire, Uf Counsel for Randolph L. C,amphell, P18uttt~ hereixt, depose and say that I am. counsel fvr Defendant ~ this xnaxtetr, that I am autharxi~ed tv naa~Ce this Vei~ication rnn behalf of Plaino~tiff; that the fe~cts set fvttl- in the foregoing lteaponses to A~feutian~ta' ~equeat for A,dmiissions ere true az~d. correct, nvt of mY own lmawXedge, but from inafrnrmetion supplied tv me by 1'laini~iff; that the putpvses of this Veti£tcation are to ate the litzgativn; and that a Verifc~6ian by I'iavadiff wi.Il be furnished if requested. 'I'b`is statement is naiade subject to the pen~tres of l8 Pa C.S, Secfivn. 4904 relati~ ~ tmswarn faisificatiam to author~itt --,-~.. /b "'~-- Date __ M~K F. McI~ENNA,, ESQU[RE E IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, ) CIVIL DIV1SlON Plaintiff ~ ) N0.2009-CV-14899-CV v. NORFOLK SOUTHERN RAILWAY COMPANY, ET AL., Defendants. JURY TRIAL ENDORSED HEREON PLAINTIFF'S ANSWERS TO DEFENDANTS' LOWER EXTREMITY DISORDER INTERROGATORIES COMES NOW the Plaintiff, Randolph L. Campbell, and responds to Defendants' Lower Extremity Disorder Interrogatories and respectfully submits as follows: INTERROGATORIES 1. Plea se state your: a) Futl name; b) All other names by which you have ever been known; c) Date of birth; d} Social Security Number; e) Railroad identification number; f) Current address; g) Present spouse's name; and h) Any former spouse's name. ANSWER: t a) b) c) d) e) 9) . h} Randolph Lee Campbell Randy June 20, 1950 065-38-9975 0895377 2323 Ritner Highway, Carlisle, Pennsylvania 17015 Brenda Campbell None. 2. Please state in chronological order each railroad by which you have been employed and provide the following information: a) The date on which you were hired by each railroad; b} The date on which your service with each railroad .terminated; c) Your craft, position, or occupation with each railroad; d) ~ The geographical location of your employment with each railroad; e) Hours worked per day; f) Days worked per week; g) Months worked per year; and h) The full name of all of your supervisors during each period of railroad employment. ANS1~lER: Con-,rte . 'a) May 3, 1976 b) June 1, 1999 (Norfolk Southern took over) c) Trackman, Machine Operator and Track Foreman d) Cuba, New-York e} 8 hours a day f) 5-7daysaweek g) Approximately 8 months a year (after furloughs) at the beginning and then 12 months at the end. h) There were many throughout my career, but some that I remember are: Ken Anderson, Dan Beasley, Steve Arnold and Jim Harris Norfolk Southern a) June 1, 1999 b) Present (on sick leave) c) Trackman and Track Foreman d) Harrisburg, Pennsylvania (continuously ftom 10/06 to July 13, 2009) e) 50-60 hours a week f) 5 - 7 days a week g) 12 months a year h) ~ There were many throughout my career, but some that I remember are: Rick Kilpatrick, Rob Hegge and Bill Calvert 3. 1=or each railroad employer ident~ed in the immediately preceding Interrogatory, describe in detail any task(s) performed during the course of your employment which require you to crawl, squat, kneel, or sit. Include'in your response the following particulars: a) A description of each task; b) How long you are/were required to maintain that position; c) Identify any power equipment that exposes your lower extremities to vibration; d) The working environment present while assuming the identified position; e) Identify the tools and/or equipment you must use while in one of these positions and describe the task; and f) State whether you must manipulate pedals or levers with your feet. ANSWER: a) in the job of a trackman and track foreman, the Plain#iff was constantly squatting, stooping, kneeling, bending and crawling in his work. In his work as a trackman and track foreman; Plaintiff was required to take out ties and install ties, take out rail and install rail, including cutting rail. He was also required to gauge rail, set spikes, move rail and tear out crossings and pick up scrap. Plaintiff was also required to carry heavy tools and equipment. b) As stated above, Plain#iff was constantly required, while performing the tasks listed above, to squat, kneel, stoop, bend and crawl. c) Plaintiff was required to use power hand tools and to ride on equipment which exposed his lower extremities to vibrations. d) Plaintiff was in production mode all the time, he was also required to walk on uneven and sloped ground in all types of weather, including weather that caused muddy conditions. e) Various hand tools, hydraulic wrenches, spike pullers, drills, impact wrenches, t-wrenches, relay saws and rail saws. f) ~ I did not have to manipulate pedals or levers with my feet. 4. Please describe any awkward or uncomfortable positions you are required to place your lower extremities in (this Interrogatory is designed to elicit the Plaintiff's subjective opinion regarding awkward or uncomfortable positions). ANSWER: Throughout his career, Plaintiff was required to lift and carry heavy objects with his lower extremities which put his lower extremities in awkward and unnatural positions. Plaintiff was required to walk and work on uneven and unstable surfaces. Plaintiff was required to constantly squat, kneel, stoop, bend and sometimes craw to perform the work tasks listed in Plaintiffs Answer No. 3. 5. Please state each period of non-railroad employment, including self-employment, employment prior to railroad employment, post-railroad employment, and employment concurrent with railroad employment, and, in chronological order, provide the following particulars. a) The commencement date and termination date for each period of non-railroad employment; b) The nature of the business conducted by the employer; c) Your craft, position, or occupation with each non-railroad employer; i d) The address of each non-railroad employer; e) Each and every permanent or temporary duty to which you were assigned, including in your answer the date on which each duty commenced, the date on which each duty terminated, and a description of the nature of the duties assigned at each duty station; f) The hours worked per day, days worked per week, and months worked per year for each non-railroad employer; g) A detailed description of any tasks performed that required you to crawl, kneel, squat, or sit; h) Identify tools and equipment you must use while in these positions and describe the task; and i) A description of any awkward or uncomfortable position for your lower extremity. ANSWER: After I graduated from high school in 1967 and before I started to work at the railroad in 1976, I had a few odd jobs. I worked as an usher in a theater and then 1 worked the assembly line at Bird's Eye Food in 1970 for about 5 months. I was a janitor at a high school for about a year. I also worked at a pattern shop in Bolivar, New York for about a year during a lay off from the railroad in 1998, but got laid off from that job. Additionally, in 1997, for approximately 8 months I worked at Plumber Hands Appliance Service in Wellsville, New York changing gas meters. 6. Has there been any increase or decrease in the number of employees who perform the same or similar employment duties as you? If so, please state the following particulars: a) The number of employees performing the same or similar task to which you' are assigned immediately prior to an increase or decrease in work force; b) The number of employees performing the same or similar tasks to which you are assigned immediately after the increase and/or decrease in work force; c) The number of employees performing the same or similar tasks to which you are assigned at present. ANSWER: When I first started working at the railroad, there would be 10-12 men on a gang as the years went by, they decreased the size of a gang to on 3 or 4 men. 7. Has there been any increase or decrease in the production rate required of employees who perform the same or similar tasks to you? If so, please provide the following particulars: a) The date on which any change in production rates was implemented; and b) If production quotas have been established,. the particulars of any production quotas to which you are subject: ANSWER: We had. the same production rate only with less men. In appoximately 2000, the manpower to do the jobs were cut, but we kept the same .production rate so it required us to do more work. 8. Please state the full name of your immediate supervisors at the time of any change in work force or production rates described in response to interrogatories Numbers 6 and 7, above, and at the time you first began experiencing the symptoms of which you are presently complaining. ANSWER: The Plaintiff does not recall who his supervisor was during the various cuts in manpower. However, he thinks that Rob Hegge was his supervisor in 2000 when there was a large cut in manpower. Bill Calvert was the Plaintiffs supervisor when he first began experiencing problems with his hips. Mr. Calvert was the Plaintiff's supervisor from approximately February 2007 until the Plaintiff went out of work to have his hips replaced on July 13, 2009. -9. Have you ever made any complaints to your supervisors and/or union representatives about the tools and/or equipment you use in performing your employment duties, working condition, or work methods? If so, please s#ate the following particulars: a) The nature of the complaint; . b) The date on which each such complaint was made; c) The identity of the person to whom such complaint was made; d) Whether such complaint was oral or in writing; and e) if such complaint was in writing, the custodian of the written complaint. ANSWER: Plaintiff made complaints to his various supervisors about the cuts in manpower and also made complaints to his supervisors about the inadequacy.of the tools that he was required to work with. Plaintiff believes that he made these oral complaints to both Mr. Rob Hegge and Mr. Bill Calvert among others. 10. Do you contend that any of the tools and/or equipment furnished by Defendant are defective and/or inadequate for the performance of your employment duties? If so, please provide the following particulars: a) Identify the toot and/or equipment; b) State the frequency of your use of such tool and/or .equipment; . c) Provide a detailed description of the operation of the tool and/or equipment is inadequate and/or equipment; and d) State your reason(s) for contending that such tool and/or equipment is inadequate and/or defective. ANSWER: In addition to the inadequate manpower discussed above, the Plaintiff was also not furnished with adequate tools to perform the job. He was not furnished with a back hoe until late in his career to_ remove and put in ties. Before being fumished with a back hoe late in his career, Plaintiff was required to put in ties and take out ties by hand with only the help of a tie tong. Also, Plaintiff was not provided with a boom truck until late in his career to lift the rail. Before that time, Plaintiff was required to lift the rail by hand with only the help of a rail tong. Plaintiff was also not provided with a high rail truck to drive to the areas of track where his crew had to work. Had the Plaintiff been provided with a high rail truck, he would not have had to carry the heavy equipment for long distances from the regular truck to the place on the track where the work had to be done. 11. Do you contend that any work method(s) and/or working conditions(s) at the railroad have contributed, in whole or in part, to your condition as stated in your Complaint? If so, please provide a description of the work method(s) and/or working condition(s) that you contend have contributed, in whole or in part, to your condition as stated in your Complaint. ANSWER: Plaintiff would not have developed the injuries in his hips if he was provided with adequate manpower to perform the job. He also would not have developed the injuries in his hips if he would have been provided with adequate equipment to perform the job, including being provided with a back hoe to put in and take out ties and a boom truck to put in and take out rail. In addition, Plaintiff was required to carry heavy equipment over sloped and uneven surfaces. Had Plaintiff been provided a boom truck, he would not have had to carry such heavy equipment over such long distances. Also, if Plaintiff had been provided with a high rail truck, he would not have had to carry the heavy equipment again over the uneven and sloped surfaces for long distances. 12. Please state whether you presently engage in or have ever engaged in the following- activities, the number of years or months you engaged in the activity(ies), and the frequency that you engage in the activity(ies): a) Walking, speed walking, jogging, running and marathoning; b) Roller blading, roller skating, or ice skating; c) Backpacking or mountain or rock climbing; d) Gardening, farming, or yard work; e) Track and field events; f) Football; g) Soccer; h) Dancing (recreational, ballet, jazz; tap, etc.); i) Basketball; j) Golf; k) Tennis; I) Bicycling; m) Racquetball or other racquet sport; n} Baseball or softball; . o) "Aerobics" dance/exercise; p) Skiing; q) Conditioning exercise involving weight lifting, push-ups, pull- ups, rowing or jumping rope; and r) Gymnastics: ANSWER: a) I now walk on a tread mill for therapy for my two replaced hips. b} No. c} I did a little hiking when I was much younger. d) I used to have a push mower, but now use a riding mower to do my yard work. e) I did track and field when I was approximately 17 years old. f) I played football in school when I was approximately 16 years old. g) No~ h) No. . i) I last played basketball recreationally in in 1982 j) I have played maybe one time in the last two years. k) When i was approximately 24 or 25 years old, I played tennis recreationally. I) I rode a bike up until about the age of 25 years old. m) No. n) I played softball in the 1970s. o) No. p) No. q) I lifted weights occasionally when I was a little younger. r) No. 13. Please state whether you presently have or have ever had at any time during the past the following medical conditions: . a) Diabetes; b) ~ Osteoarthritis and/or rheumatoid arthritis; c) Thyroid dysfunction; d) Gout; e) Neck injury; f) Spinal disease/injury (i.e., spinal stenosis); g) Calcium deposits, tumors, cysts, or broken/displaced bones in the lower extremities; h) Lumbar spine injurykiisease (i.e. herniated disc, ruptured disc); i) Obesity; j) Hemodialysis/kidney disease; k) Alcoholism; I) Vascular disease; m) Phlebitis/thrombophlebitis/varicose veins; n) Hemophilia; o) Any and all prior surgery to the lower extremities; p) Liver disease; q) Lupus; r) Morton's toe neuroma, or tarsal tunnel syndrome; s) Bony spurs and/or abnormalities of the hip, knee, foot, ankle, or toes; and t) Ganglia in the lower extremities; u) Deformities or abnormalities in the lower extremities; and v) Difficulties in walking (i.e., bowlegged, feet turned inwards). ANSWER: a) No. b) I have arthritis in my knees and hips. c) No. d) ~ I have an occasional flair up of gout. e) I hurt my neck at work in 1982. See answer to Interrogatory No. 15. f) i hurt my back while working for the railroad in 1979 and again in 1980. See answer to interrogatory No. 15. g) I broke each of my ankles twice while in high school. h) Yes. i) No. j) No. k) No. I) No. . m) No. n) No, o) None except the recent hip replacement surgeries. p) No. q) No. r) No. s) No. t) No. u) No. v) No. 14. If your answer to any subpart of the immediately preceding Interrogatory is in the affirmative, please s#ate the following particulars: (a) The onset date of any disease and/or condition and the period over which you have suffered from any such disease and/or condition; . (b) Whether you sought medics! attention as a result of any such disease and/or condition; (c) The name and address of any treating physician who rendered treatment for any such disease and/or condition; (d) The dates on which any medical treatment for such disease and/or condition was rendered; (e) The exact nature of medical treatment for any such disease and/or condition; (f) Whether any diagnostic tests were performed and, if so, the nature of such tests, the results thereof, and the name and address of the person or institution who performed them and the present custodian of the records of such tests; (g) Whether any medications wen: administered either by a physician,-an institution, or by you in an attempt to cure and/or alleviate any such conditions and identify the medications administered or used; (h) Whether surgical intervention was required ~in an attempt to cure or alleviate any such disease and/or condition, and, if so, the name and address of the physician who performed such surgery and the name and address of the institution at which such surgery was performed; and (i) The residual effect, if any, of any such disease and/or condition. ANSWER: See answer to Interrogatory No. 15. 15. Please state whether you have ever sustained any traumatic injury, including a bum, laceration, contusion, broken or displaced bone, crush injury, puncture wound, or amputation, to your lower extremities. If so, please provide the following particulars; a) The date upon which each such injury was sustained; b) The particular body part injured; c) The cause of such injury; d) A complete descrip#ion of the nature and extent of such injury; e) Whether you sought medical treatment as a result thereof; fl The date of such treatment; g) The nature of such treatment; h) The name and address of any physician and/or institution providing such treatment; i) Whether any diagnostic tests were performed, and, if so, the . nature of such tests and the results thereof; j) The name and address of'any physician or institution . performing diagnostic tests; k) Whether surgery was required in the treatment of such injuries, and, if so, the name and address of the physician who performed such surgery and the name and address of the physician who pertormed such surgery and the name and address of the institution at which such surgery was performed; and I) The residual effects, if any, of such injury. ANSWER: I broke each of my ankles twice while in high school, but have no residual effects from those injuries. I was in a car accident in 1968 and received injuries to my left knee and back. 1 was in the hospital for a couple of days as a result of these . injuries. I was in a car accident in approximately 1973, when I received an injury to my ankle and cuts on my face. I went to the emergency room and had stitches put in on the cuts on my face. In approximately 1976, 1 was in another accident while riding in a railroad bus. At this time, I went to the emergency room with a sprained injury to my arm. In 1978, I sustained an injury to my back while manually tamping. I believe I was sent to the railroad doctor and did not receive any further treatment. In approximately 1979, (received a right-knee injury while working. Again, , I believe that i went to the railroad doctor and did not receive any further treatment after that. in 1980, I hurt my back while moving rail. I believe at this time I was also `sent to the railroad doctor and do not recall whether or not !received any " ~ further treatment to my back as a result of this last injury. At that time, I think my back did bother me for awhile after this 1980 injury. 16. As of the date on which your Complaint was filed, state whether you were suffering from any pre-existing lower extremity disorders and/or nerve entrapment syndromes and/or degenerative joint disease and/or "repetitive strain injuries" and/or °cumulative trauma disorders," and, if so, please state the following particulars (refer to Defendant's instructions for definitions of "repetitive strain injuries" and "cumulative trauma disorders). a) A complete description of the nature and extent of your pre- existing condition; b) The extent to which you are disabled, wholly or partially, as a result of your pre-existing condition; c) Whether you are or have been treated for your pre-existing condition, and, if so, a description of the nature of the treatment, frequency of the treatment, and the name and address of the treating physician and/or institution; d) The expected progression of the pre-existing condition, in the absence of any aggravating causes; and e) Whether your pre-existing condition is permanent. ANSWER: Plaintiff objects to this question because it.is so vaguely worded that Plaintiff does not understand what is meant by "pre-existing condition when his Complaint was filed ° Plaintiff also objects to this question because it calls for a medical opinion. At the time the Plaintiffs Complaint was filed, Plaintiff suffered from cumulative trauma hip problems caused by his work activities on the railroad.. If these injuries are being considered pre-existing conditions that existed at the time that the Plaintiff filed his Complaint in 2009 by the Defendant, then the Plaintiff will contend, as stated in the Complaint, that the Defendant's work activities caused and aggravated these injuries. 17. Please state whether you suffer from any of the following symptoms; a) Numbness in your lower extremities; b} Prickling sensation in your lower extremities; c) Tingling sensation in your lower extremities; d) Burning sensation in your lower extremities; e) Aching sensation in your lower extremities; f) Pain in your lower extremities; g) Tenderness upon touch in the lower extremities; h) Pain upon particular movements; i) Nocturnal awakening; and j) Weakness of the muscles in the lower extremity. ANSWER: ~ - After my hip replacement surgeries, 1 now suffer from leg spasms in my right leg from time-to-time. I get woken up at night with these spasms and every moming because of the artificial hips it is painful with my first movements of the moming and I do have weakness in the muscles of my lower extremities. . Before my hip replacement surgeries, I experienced severe pain in both my hips. 18. if your answer to any subpart of the immediately preceding Interrogatory is in the affirmative, please provide the following particulars: a) The lower extremity(ies) affected; b) Factors that aggravate your symptoms; . c) Whether you experience your symptoms constantly or intermittently; d) Specifically where you experience each symptom identified above (i.e., back of ankle, top" of thigh, bottom of big toe, etc.); e) Whether any of your symptom(s) radiate into other parts of your lower extrem'sties, lower back, or neck, and, if so, please describe the extent to which your symptom{s) radiate . to other areas of your body; f) The onset date of each symptom(s); and g)~j Was the onset of symptoms of a gradual or acute nature? ANSWER: See answer to Interrogatory No. 17. 19. Please state whether you have been subjected to nerve conduction studies, electromyography, x-rays, computerized tomography, or magnetic resonance imaging relevant to the condition alleged in your Complaint. If so, please identify the physician or institution administering such testing and provide the address of the physician or institution administering such testing and provide the address of the of the physician or ins#itution and the date on which such testing was conducted. ANSWER: See X-ray and imaging studies which are contained in the attached medical records. 20. Please. state whether any physician, health care professional, or other person has advised you that you have a lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive stress injury" and/or a "cumulative trauma disorder?" If so, please provide the following particulars: . a) The identity and address of any such physician, health care professional, or other person; b) Whether such statement was oral or in writing; c) If such statement was in writing, please provide the present custodian of such writing; and d) State the content'of such oral or written statement. ANSWER: Plaintiff has been diagnosed with bilateral hip arthritis by Dr. David R. Maish. The Plaintiff first saw Dr. Maish in 2009. At that time, Dr. Maish also pertormed bilateral hip replacement surgeries on the Plaintiff. Dr. Maish's office is located at 30 Hope Drive, Hershey, Pennsylvania 17033. See attached medical records. 21. State whether you have been examined by a physician or institution pursuant to instructions or arrangements made by an attorney. If your answer is in the affirmative, please provide the following particulars: a) The identity and address of each physician or institution; b) The date of each examination; c) Whether any of the examining physicians or institutions submitted a report to you and/oryour attomey; d) The date of any such report; and e) The custodian of any such report. ANSWER: No. 22. Have you sought medical attention from any physician or institution, including. physical therapy, for a lower extremity disorder andlor a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive strain injury" and/or a "cumulative trauma disorder?" If your answer is in the affirmative, please provide the following particulars: a) The identity and address of any physician or institution from .whom you have sought medical attention; and b) The date on which any such treatment was rendered. ANSWER: In 2009, I saw Dr. David R. Maish for hip pain in both my, hips. Dr. Maish is located at 30 Hope Drive, Hershey, Pennsylvania 17033. Dr. Maish diagnosed me with osteoarthritis in both my hips. Dr. Maish also performed left hip replacement surgery on mein August 2009. He also performed right hip replacement surgery on me in December 2009. Both right and left hip replacements were performed at the Milton S. Hershey Medical Center in Hershey, Pennsylvania. See attached medical records (Plaintiff has requested, but has not received the medical records from the right hip replacement surgery which was just performed in December. Once Plaintiff receives this information, it will be forwarded to the Defendant. The medical records concerning the left hip replacement which was performed in August are attached hereto). 23. Please state whether you are presently being treated on a regular basis by any physician, health care professional, chiropractor, or physical therapist in an attempt to alleviate and cure your condition. If so, please state the identity and address of any such provider, the dates of any such treatment, and who had paid for such treatment: ANSWER: See answer to Interrogatory No. 22. 24. Please state whether any physician, health care professional, chiropractor, physical therapist, psychiatrist, or psychologist has recommended any future treatment ~in an attempt to cure or alleviate your condition. If so, please .provide the identity and address of the health care professional recommending any future therapy, including in your response the probable expense of any such future treatment. ANSWER: Dr. Maish has not mentioned any future treatment or surgeries since he has pertormed the bilateral hip replacements. 25. Please state whether any physician or other health care professional has recommended that you undergo any surgical procedure(s) in the future in an attempt to cure or alleviate your condition. If so, please state the following: a) The identity and address of the person(s) recommending the surgery; b) The probable date(s) on which you will undergo the surgery; c) The estimated cost of the surgery; d) The time, if any, that you expect to be absent from your employment; _ e) The nature of the surgery recommended. ANSWER: See answer to Interrogatory No. 24. 26. Please state whether you have undergone any surgery in an attempt to cure or alleviate a Lower extremity disorder and/or a nerve entrapment syndrome and/or a degenerative joint disease and/or a "repetitive strain injury" and/or a "cumulative trauma disorder.° If so, please provide the following particulars: a} Which extremity on which surgery~was performed; b) The date on which the surgery was performed; c) The identity of the surgeon(s); d} ~ Identify the health care institution at which your surgery or surgeries were performed, including the address of the institution; e) Whether the surgery relieved your symptom; f) ,Whether any of your symptoms have re-occurred subsequent to any surgery; g) Whether you have experienced any post-surgical . complications of any nature whatsoever and, if so, the details of your complications. ANSWER: Bilateral total hip replacements. See attached medical records. 27. State whether you have been or are presently suffering from any physical ailment or infirmity of any nature whatsoever not alleged to have been caused by Defendant, and if so, please state the following particulars: a) A complete description of the nature and extent, including the duration and permanency, of any such condition, including in your answer all past and present symptoms; b) The date upon which the symptoms of any such ailment or infirmity first appeared; c) The date any such ailment or infirmity was diagnosed; d) Whether you have received or are receiving any medical treatment for such ailment or infirmity; e) .The identity and address of each treating physician, institution, or therapist; f) The dates of any such treatment; g) The nature of any such treatment; - h) Whether any diagnostic tests have been performed, and,. if ' so, the nature of such tests, the results thereof, the identity and address of the physician, institution, or therapist who performed them, and the identify and address of the present custodian of the records thereof; i) Whether any medications have been administered by any physician, institution, therapist, or by you for any such ailment or infirmity, including in your answer the identity of any such medications and the dates on which you have been medicated; and . j) Whether you are disabled, whether temporarily partially disabled, temporarily totally disabled permanently partially disabled, or permanently totally disabled, as a result of such ailment or infirmity. ANSWER: Slight high cholesterol. See attached medical records and answers to previous Interrogatories. 28. Please state whether you have lost any earnings as a result of the condition of which you complain in your Complaint. If so, please state the amount of your loss and the period over which you have lost earnings as a result of your condition. ANSWER: Yes. Plaintiff last worked on July 13, 2009, when he went out of work to have both of his hips replaced. The last four years that the Plaintiff worked, he made approximately $72,000.00 a year. The Plaintiff, before he went out of work for his injuries, planned to work until age 65. Plaintiff could not have retired at age 60 because he would not have had 30 years of service at that time. Plaintiff will claim lost wages and benefits from July 13, 2009, when he went out work, until June 20, 2015, when he would be 65-years old. This is approximately 6 years of lost wages for approximately $432,000.00. At a time closer to trial, Plaintiff will retain an economist to calculate a more precise economic~lost wages and lost benefits. 29. Please identify each and every witness whom you intend to call on your behalf at the trial of this action, including in your answer the following particulars: a) The full name of each such witness and any other name by which any such witness is now or has been known; b) The business address and telephone number of any such witness; and c) The residence address and telephone number of each. witness. ANSWER: At this time, Plaintiff does not know who he will call as witnesses in this matter. Plaintiff will agree to exchange a witness list with the Defendant at a time closer to trial. 30. Please produce a copy of any flyer, advertisement, letter or any other solicitation for any screening, testing or presentation that plaintiff attended sponsored by any law firm or union for the types of injuries for which plaintiff is malting a claim. ANSWER: Plaintiff has not such documents. ~, Respectfully submitted, RANQOLPH L. CAMPBELL By: Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies Suite 500 Pittsburgh, PA 15219-1314 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on the day of ~ , 2010, a copy of the foregoing Plaintiffs Answers to Defendants' Lower Extremity Disorder Interrogatories and Request for Production of Documents was mailed, by United States. Mail, postage prepaid, to: Brian M. Mancos, Esquire Bums, White & Hickton Four Northshore Center 106 Isabella St. Pittsburgh, PA 15212 Of Counsel Page 1 of 2 0 ~~~~ Notes Trip to Harrisburg, PA 28.06 miles -about 33 minutes "Y" 2323 Ritner Hwy, Carlisle, PA 17015-9398 ® 1. Start out going NORTHEAST on RITNER HWY 1 US-11 go 2.1 mi toward MCALLISTER CHURCH RD. -.~ -~~!)!,,- 2. Tum RIGHT onto ALLEN RD / PA-465. go 0.5 mi ~`~`~~ 3. Merge onto I-81 N via the ramp on the LEFT toward CARLI LE go 22.7 mi _ . S __ 4. Take the US-22 W / US-322 W / US-22 E exit, EXIT 67B- A, toward LEWISTOWN /STATE COLLEGE / PA-230 E / go 0.2 mi HARRISBURG /CAMERON ST. ~E~T 5. Merge onto US-22 E via EXIT 67A toward HARRISBURG / PA-2301 CAMERON ST go 1.5 mi . ~~~ ~~ 6. Turn SLIGHT RIGHT onto MACLAY ST. go 0.4 mi 7. Turn LEFT onto N 7TH ST. go 0.6 mi 8. Welcome to HARRISBURG, PA. go 0.0 mi Harrisburg, PA __ Total Travel Estimate :28.06 miles -about 33 minutes Route Map Hide http://www.mapquest.com/print 3/17/2010 Page 2 of 2 _. ~~~~$~ ~`b 0 ~ ~~2011 m ~~?sfr~ H,i~` 9600 ft 11 i5 '~ Shormaaa Oe~#v ,,. ~F(eystons ti:. a~o~ ~, :. ,.r, ~ ~~~~Y ._w ._ - a ~'~ ~~~ estEnofa.-O'1 __ r .._ r~..,,~ iRtartzvilie = A . 4 ~r ,. ~_ ~sa~ ~ ~ ~ s~a~ a `~ ~,b, , ~- ~ ~ x =l ~ - W6rmlay;eburq ~~~~ 1 i ~ Q F?~.~'1 581 ~,. `~~~s4TM+t~~t `~, >~~ ~~ 11 ~~.-` Gsmp ~ifll ~ ~," ' ~."~ ~., .~ c R L A_ ~ D Gap, Eiker. ~,~ Ck=` .~ r;~ ,_ _ ~ , ., ' ~ .rvL*` ~ "~```+ White Hit ~r Machanicsbur ,. ~~ ~ 11 `~ _ ~,~~ _ Locastl's~t ~ ±l ,`` ~: 641_ '~ ~, `~~ __,__1 ~. r'h,~s~ ;ut ~riLr ~74 ra ~s ~ f ~~ ~~ ~174~ 111 , _: "• 4S5 ( ''~ ~. ,. ~_ i52RtP MapQuest Ir9o. ~ ,. _ 15 Map Data ~+2UiQhlIAYTEQ 4r ANCJ All rights reserved. Use subject to License/Coovright ~ Mao Legend Directions and maps are informational only. We make no warranties on the accuracy of their content, road conditions or route usability or expeditiousness. You assume all risk of use. MapQuest and its suppliers shall not be liable to you for any loss or delay resulting from your use of MapQuest. Your use of MapQuest means you agree to our Terms of Use i http://www.mapquest. com/print 3/17/2010 Page 1 of 2 0 ~~~~~~ Notes _ __ Trip to Harrisburg, PA 27.76 miles -about 34 minutes E Mount Holly Springs, PA ® 1. Start out going EAST on W BUTLER ST toward N BALTIMORE AVE ! PA-34. go 0.0 mi "~~~ ~ " 2. Turn LEFT onto N BALTIMORE AVE ! PA-34. Continue to follow PA-34. go 4.8 mi ~~~ - 3. Merge onto I-81 N toward HARRISBURG. go 20.3 mi 4. Take the US-22 W / US-322 W / US-22 E exit, EXIT 67B- A, toward LEWISTOWN /STATE COLLEGE ! PA-230 E 1 go 0.2 mi HARRISBURG /CAMERON ST. " ~ : 5. Merge onto US-22 E via EXIT 67A toward HARRISBURG / PA-2301 CAMERON ST. go 1.5 mi ~~ 6. Turn SLIGHT RIGHT onto MACLAY ST. go 0.4 mi ,~'!~ 7. Turn LEFT onto N 7TH ST. go 0.6 mi .~ 8. Welcome to HARRISBURG, PA. go 0.0 mi Harrisburg, PA _ _ _ _ __ Total Travel Estimate :27.76 miles -about 34 minutes Route Map Hide http://www.mapquest.com/print 3/17/2010 Page 2 of 2 six '°, .~gwFC~nget.~wn 11 581 ~~ ~~ ~ ~ ~ «.~~, ~ ~'~""~"'~..., -.~`',',~„~,. 114 7 ~ ~ ~ ~ ~ . w ,,,- ~ Ri119Gft3t11GSbtJr ~- ,t Zj W~stfiwtd T• ~ `~' l -~~~: Tr4dTd1. SpnngQ4: ~ ~ * Csrlial ~,,.~' U~ ~:• Locust Paint .R„"'" i~ ~! ~ ~_ -.~ i~ ~3Ba !a NuY ,.,, b , Yt~r,E- ~ ~, ~~ 282 4~' i 5 to aburn .__m_ .:. ... t • O: V9fitt~ams~Grovs . Boiling Spnn~s, ~ .~.~.. ,~174~ ° 15 `3~ ~! 2D1p~ MnpCh;,a~t tnc• '~' Map Bata 83 20tpN1~Y7~Q-w~ANG '' All rights reserved. Use subject to License/Copyright ~ Map Legend Directions and maps are informational only. We make na warranties on the accuracy of their content, road conditions or route usability or expeditiousness. You assume all risk of use. MapQuest and its suppliers shall not be liable to you for any loss or delay resulting from your use of MapQuest. Your use of MapQuest means you agree to our Terms of Use ~~`~~'~~. '~' ~~.~ 32co m _, - ft;i ; 9600 ft Sir ~,.,..,. _- ~ Su~ntn~rd ... rg, ~ . _ ... ~ 3 22 ,- 1 ... ~nola _ ~ '°` s.: ~_ ~ ~ - s 100T~ War~~vitJ~ ~ 3 , ~; ' 944 o HARRt~BU~i tzz ~34~~ ,. qty r ~-~ ' 561 Wormleysburp ~ ~` ~'~ Y ~ ~~~ ~..~ - Camp ~. ~. i. http://www. mapquest. com/print 3/17/2010 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, ) CIVIL DIVISION PLAINTIFF, ) N0:2009-CV-14899-CV VS. ) NORFOLK SOUTHERN RAILWAY ) COMPANY AND CONSOLIDATED ) RAIL CORPORATION, ) JURY TRIAL DEMANDED DEFENDANTS. ) AFFIDAVIT OF L. KEITH LAMBERT My name is L. Keith Lambert. I am over the age of 18, capable of making this Affidavit, and have personal knowledge of, and could testify competently to, the facts herein stated: 1. I am currently Manager of Occupational Claims for Norfolk Southern Corporation. In that capacity, I have responsibilities in connection with legal claims involving Defendant Consolidated Rail Corporation and Defendant Norfolk Southern Railway Company ("NSRC") 2. Upon information and belief, Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. 3. Upon information and belief, after January of 2007 Plaintiff worked out of Mount Holly Springs, Pennsylvania, located in Cumberland County. Prior to that time, Plaintiff worked out of Harrisburg, Dauphin County, Pennsylvania, briefly from September of 2006 until January of 2007. Prior to September of 2006, Plaintiffworked out of Olean, New York. 4. Upon information and belief, the majority of Plaintiff s most recent co-workers work out of Mount Holly Springs, Pennsylvania, located in Cumberland County. In addition, ~. • upon information and belief, the Plaintiff s co-workers and/or supervisors that are expected to testify reside in and around Cumberland County, Pennsylvania. 5. Those employees who will be witnesses at trial would be required to spend an extended amount of time in Harrisburg, Pennsylvania and away from work. Their absence would be unduly burdensome to Defendant NSRC, as Defendant NSRC would be required to have other employees fill these jobs. Defendant NSRC would also have to transport these witnesses to Philadelphia, Pennsylvania for trial and pay their wages and expenses for the duration of the time spent at trial. 6. Additionally, following Plaintiffs relocation to Cumberland County in 2006, all but one of Plaintiff s known primary medical providers are located within Cumberland County, Pennsylvania. Plaintiff s known healthcare providers during the latter part of his career include: • Carlisle Internal Medicine, Carlisle, Cumberland County, Pennsylvania • Dr. Robert F. Pellegrino, Carlisle, Cumberland County, Pennsylvania • Dr. David Maish, Hershey, Dauphin County, Pennsylvania 7. Further, it is anticipated that the trial of this matter will last between 8-10 days, likely causing disruption to Defendant NSRC's day-to-day operations and diminishing its effectiveness to service those customers who choose to transport their goods by rail. If trial were conducted in a forum in closer proximity to the site where the employee witnesses are employed, in this instance Cumberland County, Pennsylvania, the aforementioned disruption would be reduced considerably. 4~ ` ~J • . L. Keith ambert Manager of Occupational Claims Norfolk Southern Corporation Subscribed and sworn to before me, a Notary Public, this ~ 8 day of , STATE OF VIRGINIA ) SS. CITY OF NORFOLK ) 2010. e. My commission expires: rENNY C. NIfT Notanr Ccmmarw~th of virpinw 279242 ~, o (3~ n o ~ ~ ~ ~ N ~~~ i r-; '~ ~ c=~ r~ m 2~-c~ ~ sy. ~ c~ -C --yarn y ~ ~~~ .-~ ~ BURNS, WHITE & HICKTON BY: -BRIAN M. MANGOS, ESQ. Pa. I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 RANDOLPH L. CAMPBELL, PLAINTIFF, ATTORNEYS FOR DEFENDANTS NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION DAUPHIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, NO: 2009-CV-14899-CV JURY TRIAL DEMANDED DEFENDANTS. DEFENDANTS' BRIEF IN SUPPORT OF PETITION TO TRANSFER VENUE BASED ON FORUMNON CONVENIENS PURSUANT TO Pa. R.C.P.1006(d)(1) AND NOW, come DefendantslPetitioners, Consolidated Rail Corporation ("Conrail") and Norfolk Southern Railway Company ("NSRC"), by and through their attorneys, Burns White & Hickton, LLC, and file the within Brief in Support of Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1) and in support thereof, state the following: I. PROCEDURAL HISTORY Plaintiff/Respondent initiated the above action on November 9, 2009, by filing a Complaint against Defendants, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et seq. See, Plaintiff's Complaint attached to Defendants' Petition as Ex. "A". In his Complaint Plaintiff alleges that, within the course and scope of his employment, he was exposed to repetitive, forceful and awkward motions utilizing his lower extremities that caused him to sustain severe and permanent injuries to his knees, hips, and back. See, Ex. "A" at ¶11. In his Complaint, Plaintiff alleges that the acts of omission and commission causing his injuries were done by the Defendants, their agents, servants, workmen and/or employees acting in the course and scope of their employment with and under the direct and exclusive control of the Defendants. See, Ex. "A" at ¶7. II. STATEMENT OF FACTS Plaintiff currently resides at 2323 Ritner Highway, Carlisle, Cumberland County, Pennsylvania 17015. See, Ex. "A" at ¶1; see also, Plaintiff's Response to Defendants' Request for Admissions attached to Defendants' Petition as Ex. "B", at ¶¶27-29; see also, Plaintiff's Answers to Defendants' Lower Extremity Disorder Interrogatories attached to Defendants' Petition as Exhibit "C", at ¶1. Plaintiff s residence in Carlisle, Pennsylvania is approximately twenty-eight (28) miles from the Court of Common Pleas of Dauphin County, located in Harrisburg, Pennsylvania, which is approximately athirty-three (33) minute drive. However, Plaintiffs residence is approximately five (5) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a nine (9) minute drive. See, Ex. "A" at ¶l; Ex. "B" at ¶¶30-33; see also, a true and correct copy of Mapquest 2 Driving Directions from Carlisle, Pennsylvania to Harrisburg, Pennsylvania attached to Defendants' Petition as Ex. "D". Plaintiff began his career with Defendant Conrail as amaintenance-of--way employee working out of Olean, New York in May of 1976 and was employed by Conrail until May 31, 1999.1 Thereafter, Plaintiff became an employee of Defendant NSRC on June 1, 1999 where he worked out of Olean, New York until September of 2006. See, Ex. "B" at ¶¶2, 13; see also, Ex. "C" at ¶2. Plaintiff admits that he first bid for a position with Defendant NSRC in Harrisburg, Pennsylvania in September of 2006. See, Ex. "B" at ¶14. Plaintiff admits that he next bid for a position with Defendant NSRC in Mount Holly Springs, Pennsylvania in January of 2007. See, Ex. "B" at ¶17. Thus, Plaintiff admits that he was only employed by Defendant NSRC in Dauphin County, Pennsylvania from September of 2006 until January of 2007, or approximately four (4) months. See, Ex. "B" at ¶¶14, 17. Plaintiff further admits that he was employed by Defendant NSRC in Cumberland County, Pennsylvania from January of 2007 until July of 2009, or approximately two and one-half (2.5) years. See, Ex. "B" at ¶17; see also, Ex. "C" at ¶2. Plaintiff's most recent place of employment in Mount Holly Springs, Cumberland County, Pennsylvania is approximately twenty-eight (28) miles from Harrisburg and is approximately athirty-four (34) minute drive. However, Mount Holly Springs is approximately six (6) miles from the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, which is approximately a ten (10) minute drive. See, a true and correct copy of Mapquest Driving Directions from Mount Holly Springs, Pennsylvania to Harrisburg, Pennsylvania attached to Defendants' Petition as Exhibit "E"; see also, Ex. "B" at ¶¶19-23. 1 It should be noted that the nature of Conrail's business changed significantly as of June 1, 1999. On June 1, 1999, Conrail became a switching and terminal railroad, conducting railroad operations in the limited geographical areas of Detroit, Michigan; Northern New Jersey; and Southern New Jersey/Philadelphia. 3 Plaintiff further admits that he has never resided in Dauphin County, Pennsylvania. See, Ex. Plaintiff has only identified one treating physician, Dr. David Maish, as an individual likely to have knowledge regarding his alleged injuries. This treating physician is located in Hershey, Dauphin County, Pennsylvania. See, Ex. "B" at ¶¶34-36; see also, Ex. "C" at ~¶20, 22- 25. However Plaintiff s other known medical treatment during the latter part of his railroad career was received at Carlisle Internal Medicine, located in Cumberland County, Pennsylvania. See, Affidavit of L. Keith Lambert attached to Defendants' Petition as Exhibit "F" As Plaintiff is claiming injuries resulting from his duties at work, Defendants intend to call Plaintiff's supervisors and co-workers, who are familiar with Plaintiff's job duties and requirements, to testify at trial. See, Ex. "F". Defendants further believe and therefore aver that Plaintiff has not identified any co-worker witness who lives or works in Dauphin County and who has direct personal knowledge of Plaintiff's work activities that are alleged to have occurred in Cumberland County, Pennsylvania. See, Ex. "B" at ¶37; see also, Ex. "F" Based on the Affidavit of L. Keith Lambert, it would also be unduly burdensome to replace those employees/witnesses who possess knowledge of Plaintiff's claim, if said individuals were required to travel to Harrisburg, Pennsylvania, in terms of expense and time away from work. It would further be a burden for Defendants to transport these individuals to Harrisburg, Pennsylvania for the trial and also pay their wages and expenses for the duration of the time spent at trial. See, Ex. "F". Moreover, the expense associated with transporting a 4 Dauphin County jury for a view of Plaintiff s workplace in Cumberland County argues against venue in Dauphin County.Z The only connection that this case has to Dauphin County stems from the fact that Plaintiff was employed by Defendant NSRC in Dauphin County for approximately four (4) months, and one of Plaintiff's treating physicians is located in Dauphin County. In short, Defendants aver that Cumberland County is the site of Plaintiff's most recent workplace; Plaintiff only worked out of Dauphin County for approximately four (4) months; Plaintiff resides in Cumberland County; Plaintiff has never resided in Dauphin County; Plaintiff's known medical treatment during the latter part of his railroad career was received in Cumberland County; and most of the co-worker witnesses with direct personal knowledge of Plaintiff's work conditions or alleged injuries are located in Cumberland County. Based on the foregoing, Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company respectfully request that this Honorable Court grant Defendants' Petition, and transfer the within matter to Cumberland County, Pennsylvania for further proceedings. III. STATEMENT OF QUESTIONS INVOLVED A. Is an alternate forum available to Plaintiff, thereby making a transfer of venue possible? PROPOSED ANSWER: Yes. Based on Plaintiff's residence, his most recent work location and the location of his treating physicians, Cumberland County is available as a proper forum. z Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identified the possibility of a site visit as a factor to be considered in ruling on a motion to transfer based on forum non corrveniens. It is beyond dispute that an analysis of this factor clearly weighs in favor of transfer. See, Cheeseman a Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 5 B. Have Defendants met their burden of demonstrating that Plaintiff's choice of forum in Dauphin County is oppressive or vexatious to the Defendants? PROPOSED ANSWER: Yes. Based on the evidence of record, Plaintiff's choice of forum is both oppressive and vexatious, thereby permitting this Court to find that venue is improper in Dauphin County. IV. ARGUMENT A. AN ALTERNATE FORUM IS AVAILABLE TO PLAINTIFF, MAKING TRANSFER OF VENUE BASED ON FORUM NON CONVENIENS PURSUANT TO PA.RC.P. RULE 1006(d)(1) POSSIBLE. Prior to an analysis pursuant to the doctrine of forum non conveniens, the court must first determine whether the proposed transferee forum is an available, alternative forum. See, Wood v. E. I. du Pont de Nemours and Co., 829 A.2d 707, 712 (Pa.Super. 2003). Pa.R.C.P. 2179 states that a personal action against a corporation or similar entity may be brought in the county where the cause of action arose. In this case, it is undisputed that Plaintiff's cause of action arose as a result of alleged work-related injuries which occurred while employed by Defendant NSRC in Mount Holly Springs, Cumberland County, Pennsylvania. See, Ex. "A". It is also undisputed that Plaintiff currently resides in Carlisle, Cumberland County, Pennsylvania. See, Ex. "A". Therefore Cumberland County was, and still is, available to Plaintiff as a proper forum, and Plaintiff will not be prejudiced by a transfer of venue should Defendants' Petition be granted. B. DEFENDANTS' PETITION FOR CHANGE OF VENUE PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1006(d)(1) SHOULD BE GRANTED WHEREAS PLAINTIFF'S CHOICE OF FORUM IS OPPRESSIVE AND/OR VEXATIOUS. This Court is vested with discretion in considering whether to transfer an action to a more appropriate venue pursuant to Pa.R.C.P. 1006(d)(1), which provides: 6 For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought. Pa.R.C.P. 1006(d)(1). The doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See, Zappala a Brandolini Property Management, Inc., 909 A.2d 1272, 1283 (Pa. 2006). Furthermore, a defendant may file a petition challenging the plaintiff's choice of forum on the basis of forum non conveniens, and request a transfer of the action, at any time during the proceedings. See, id., 909 A.2d at 1282. A plaintiff's choice of forum is given great weight and a defendant has the burden of asserting a challenge to the plaintiff's choice of venue. See, id, at 1281. However, Rule 1006 not only articulates where the plaintiff may bring the action, but also provides bases upon which a defendant may challenge the plalntiff's chosen forum, including forum non conveniens. See, id. -Thus, the right of a plaintiff to choose a forum is not absolute, whereas the forum non conveniens provision inserted into Rule 1006(d) was intended as a necessary counterbalance. See, Wills v %aschak, 617 A.2d 37, 38 (Pa.Super. 1992). As a result, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue under Rule 1006(d). See, Hosiery Corporation ofAmerica, Inc. v Rich, 476 A.2d 50, 51 (Pa.Super. 1984). In Cheeseman v Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997), the Pennsylvania Supreme Court established guidelines to determine whether transfer of venue is proper, based on forum non conveniens, under Rule 1006(d)(1). The Cheeseman Court held that a petition to transfer venue pursuant to Rule 1006(d)(1) "should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant." See, Cheeseman, 701 A.2d at 162 (emphasis 7 added). The defendant may show that the plaintiff's choice of forum is vexatious by establishing with facts on record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. See, id. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses and other sources of proof, or to the ability to conduct a view of premises involved in the dispute. See, id. Therefore, even if a plaintiff's choice of forum is technically proper at the outset, the trial court is still vested with discretion to transfer the action to another county if defendant meets his burden of proving that the forum is oppressive or vexatious. See, Zappala, 909 A.2d at 1283. 1. Plaintiff's Chosen Forum of Dauphin County is Oppressive. An analysis pursuant to the doctrine of forum non conveniens implicitly vests considerable discretion in the trial court to balance the arguments of the parties, consider the level of prior court involvement, and consider whether the forum was designed to harass the defendant. See, id; see also, Cheeseman, 701 A.2d at 162. In cases factually similar to the case sub judice, the Pennsylvania Superior Court affirmed the transfer of matters from Philadelphia County, while interpreting the standard set forth in Cheeseman. In Dulaney a Consolidated Rail Corp., 715 A.2d 1217 (Pa. Super. 1998), the plaintiff brought suit in Philadelphia County under the FELA for an injury he allegedly sustained while working for the railroad in Ohio. The trial court in Dulaney transferred venue to Allegheny County based on forum non conveniens where the defendant established that trial in Philadelphia County would have been oppressive. The defendant demonstrated, with facts on the record, that: (1) the accident occurred in Ohio; (2) plaintiff resided in West Virginia; (3) plaintiff worked out 8 of Conrail's Allegheny County office; and (4) all of the witnesses to the accident and plaintiff s medical providers resided in Ohio, West Virginia, and Western Pennsylvania. See, Dulaney, 715 A.2d at 1218. The trial court found that the only connection to Philadelphia County was the fact that Conrail did business there, and that this was not enough to hold venue in that location. See, id., at 1219. The court held the defendant demonstrated that a trial in Philadelphia County, plaintiff s chosen forum, was oppressive, and determined that trial in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof. See, id. In Wood v E. I. du Pont de Nemours and Co., supra, the Superior Court affirmed the trial court's transfer of venue of Plaintiff s personal injury action from Philadelphia County to Bradford County. In this case, defendant demonstrated that the action would be more conveniently located in Bradford County and would provide easier access to sources of proof whereas the alleged injury occurred in Bradford County and none of the parties, or fact and medical witnesses, were located in Philadelphia County. See, Wood, 829 A.2d at 709. In addition, defendant demonstrated that many of the critical defense witnesses, including defendant's employees, would be forced to travel over 190 miles to attend trial in Philadelphia. See, id, at 713. Furthermore, this case was particularly appropriate for a jury view, in light of factual disputes surrounding the condition of pavement on the date in question. See, id. The Wood Court held that transfer of venue was appropriate where the trial court determined that these factors "established oppressiveness and vexatiousness, and not merely inconvenience." See, id, at 714. 9 In Mateu v Stout, 819 A.2d 563 (Pa. Super. 2003), the Superior Court affirmed the trial court's transfer of venue of Plaintiff's personal injury action from Philadelphia County to Delaware County. In this case, defendant demonstrated that the action would be more conveniently located in Delaware County and would provide easier access to sources of proof whereas: (1) Plaintiff resided in Delaware County; (2) the alleged injury occurred in Delaware County; and (3) all of the fact and medical witnesses were located in Delaware County. See, Mateu, 819 A.2d at 564. The Mateu Court held that litigation of the action in Delaware County would provide easier access to the sources of proof, namely to the witnesses, to plaintiff s own medical expert, plaintiff s medical records, and the site of the accident. See, id , at 567. In Borger v Murphy, 797 A.2d 309 (Pa.Super.), appeal denied 808 A.2d 568 (Pa. 2002), venue in Philadelphia County was determined to be oppressive so as to require transfer of venue of a medical malpractice action against a doctor located in Lehigh County. In this case the plaintiff admitted at his deposition that all of the witnesses who could testify regarding damages were located in Lehigh County. It was determined that trial in Philadelphia County would burden the doctor's medical practice in Lehigh County, as he would have been required to travel eighty miles each way in order to attend trial. Similar to Dulaney, Wood, Mateu, and Borger, the injuries in this matter are alleged to have occurred in another jurisdiction, namely Cumberland County. Plaintiff's co-workers, most of whom are located in Cumberland County, will be called to testify in this case regarding Plaintiff's job duties, job requirements, and railroad safety practices. They would be forced to incur substantial expense in the form of missed work, time away from home, and additional monetary costs associated with travel from their respective homes in Cumberland County in order to attend trial in Harrisburg. 1.0 Defendants anticipate that trial of this matter will last approximately 8 to 10 days. Therefore, if Defendant NSRC's Cumberland County-based employees aze required to be "on call," or otherwise available for trial for an extended period of time in Harrisburg, over 28 miles from their current job assignments, this will unduly disrupt NSRC's day-to-day railroad operations. The testimony of Plaintiff's co-workers is critical and necessary to Defendants' defense of this case, and Defendants anticipate that they will call one or more of these fact witnesses at trial. Furthermore, NSRC's Manager of Occupational Claims, L. Keith Lambert, has attested that trial in Harrisburg would likely be unduly burdensome for NSRC's current employees, and for the railroad in general. See, Ex. "F".3 Plaintiff has admitted in his Response to Defendants' Requests for Admissions that he spent approximately four (4) months of his railroad career working out of Dauphin County, Pennsylvania, and spent approximately two and one-half (2.5) years working out of Cumberland County, Pennsylvania. See, Ex. "B", at ¶¶14, 17. As such, more of the facts underlying Plalntif~s claims in this action are alleged to have occurred in Cumberland County, Pennsylvania, and more additional fact witnesses will reside in this azea as well. It would be burdensome for NSRC to transport those employees/witnesses to Harrisburg for trial, and also to pay their wages and expenses for their time spent at trial. Additionally, NSRC will be required to replace those individuals, or continue operations without them for the duration of trial. See, Ex. "F". s Defendants anticipate that Plaintiff will attempt to azgue that Defendants failed to meet their burden because they did not present affidavits from all of their proposed witnesses detailing the hardship they would suffer by traveling to Philadelphia. However, it is well-established that Cheeseman and Pa.R.C.P. 1006(d) do not require any particular form of proof. All that is required is that the moving party present a sufficient factual basis for the petition. See, Wood v E.I. du Pont de Nemours and Co., 829 A.2d at 714. 11 Plaintiff's treating physicians also possess information relevant to his alleged injury, and will likely testify at trial. Only one of these individuals, Dr. David Maish, is located in Dauphin County. See, Ex. "B" at ¶¶34-36. Atrial in Harrisburg would require Plaintiff's other medical providers to travel a longer distance to provide live testimony, which would not only disrupt their schedules, but would force the requesting parry to suffer significant financial expense. Further, as Plaintiff asserts that his alleged injuries aze attributable to his work conditions, the Court may choose to have the jury view Plaintiff's work premises in order to aid the decision- making process. Such a visit would cause undue hardship if this matter were to remain in Dauphin County.4 In the instant case, Plaintiff resides in Cumberland County, Plaintiff has never resided in Dauphin County, the majority of the alleged injuries occurred in Cumberland County, Plaintiff only worked out of Dauphin County for approximately four (4) months, and more of the fact and medical witnesses aze located in Cumberland County, Pennsylvania. Accordingly, Defendants respectfully request that this Court find that Dauphin County, Pennsylvania constitutes an oppressive forum and grant Defendants' Petition to Transfer Venue. 2. Plaintiff s Chosen Forum of Dauphin County is Vexatious. A chosen forum is considered vexatious when the facts on the record indicate that the plaintiff s choice of forum was designed to harass the Defendants, even at some inconvenience to the plaintiff himself. See, Cheeseman, 701 A.2d at 162. In Graham v Laidlaw Transit, Inc., a Although Defendants have not determined that a site visit by the jury will be necessary during trial, the Pennsylvania courts have clearly identifed the possibility of a site visit as a factor to be considered in ruling on a motion to transfer, based on forum non coriveniens. It is beyond dispute that analysis of this factor in this case clearly weighs in favor of transfer. See, Cheeseman a Lethal Exterminators, Inc., 701 A.2d 156 (Pa. 1997). 12 44 Pa. D. & C.4th 493 (2000), the trial court granted defendant's petition to transfer venue from Allegheny County to Erie County observing that Plaintiff's choice of forum in Allegheny County would result in a round trip for the plaintiff of approximately six (6) to seven (7) hours, as the plaintiff was from Erie, Pennsylvania, and that such evidence showed that the plaintiff's choice of forum was vexatious due to its inconvenience to the plaintiff. Instantly, Plaintiff lives in Cumberland County, Pennsylvania and will have to travel over one hour, round trip, to be present for trial in Harrisburg, as opposed to twenty (20) minutes round trip for trial in Carlisle, Pennsylvania. See, Exs. "B" and "D". Following the Court's holding in Graham, the fact that Plaintiff chose to file suit in Harrisburg, even at his own expense and inconvenience, may be considered evidence that he chose this forum in order to cause inconvenience and expense to Defendants, as most of the witnesses and sources of proof lie in Cumberland County, Pennsylvania. Accordingly, Defendants respectfully request that this Court find that Dauphin County constitutes a vexatious forum and grant Defendants' Petition to Transfer Venue. V. CONCLUSION Defendants have established that trying this matter in Dauphin County would be oppressive and/or vexatious, thus satisfying the requirements for transfer of venue based on forum non conveniens, as set forth in Cheeseman, supra. Specifically, Defendants have established that the forum of Dauphin County is oppressive in this case, as the Plaintiff resides in Cumberland County, the majority of the alleged injuries occurred in Cumberland County; more of the relevant fact and medical witnesses are located in Cumberland County; and it would pose a burden upon all parties and witnesses should trial be held in Harrisburg. Moreover, there is 13 also evidence that Plaintiff's choice to bring this action in Dauphin County is vexatious due to the fact that venue in Harrisburg constitutes a hazdship to Defendant, even at an obvious inconvenience to the Plaintiff. Based on the foregoing, Defendants respectfully request that this Honorable Court grant Defendants' Petition to Transfer Venue Based on Forum Non Conveniens Pursuant To Pa.R.C.P. 1006(d)(1), and transfer this matter to Cumberland County, Pennsylvania for further proceedings. Respectfully submitted, BURNS, WHITE & HICKTON By: -~ Brian M. Mancos, Esquire PA I.D. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation and Norfolk Southern Railway Company 14 CERTIFICATE OF SERVICE ed I hereby certify that on the ~ day of March, 2010, a true and correct copy of the within Defendants' Brief in Support of Petition to Transfer Venue Based on Forum Non Conveniens Pursuant to Pa.R.C.P. 1006(d)(1), was served on all counsel of record via regular mail, addressed as follows: H. Keith Moore, Esquire CRANWELL, MOORE & EMICK P.O. Box 11804 Roanoke, VA 24022 Mark F. McKenna, Esquire MCKENNA & ASSOCIATES 436 Blvd. of the Allies, Suite 500 Pittsburgh, PA 15219-1314 Respectfully submitted, BURNS, WHITE & HICKTON By: ,.., ~G Brian M. Mancos, Esquire PA LD. No. 89720 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 (412) 995-3000 Attorney for Defendants/Petitioners Consolidated Rail Corporation a~ Norfolk Southern Railway Company o e~ -^t ~, _~ _~ ~ ~ ~ ~ : N ~:; L,~ , Y:''-:r.::1 ..--+ V+ ~ ~'.~ ,.Y ~ ~x ~~ Copies Di ri uted Date 9 o Inihais -~ IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA RANDOLPH L. CAMPBELL, ) CIVIL DIVISION ~ cam.. ~~ }C3irr -~` -~ ~ -v ~: ~ ~ -~ PLAINTIFF, ) z ~ ~ ©~ ~, VS. NORFOLK SOUTHERN RAILWAY COMPANY AND CONSOLIDATED RAIL CORPORATION, DEFENDANTS AND NOW, this ~ day of foregoing petition, it is hereby ordered that NO: 2009-CV-14899-CV JURY TRIAL DEMANDED ORDER z r-~: a ~ ~ z w --~ _ . -t c~ ad J U h '~. , 2010, upon consideration of the (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within ~ ~ days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; ,~` .•($1-r~++~ ~nciiini~_ «,,.-i +_Q.i ~ th'n a F+L.' ~6' ` ~ 1.J V V V11V V11R11 VII-yLp~ ~~j~j'1'~r~ ' ~lour (5) argument shall be held on ULy_ 7 a0l0 ~ 10 '~D . _ in f//ee~ ~ of ~__ ~ C I'-AMD{P~" the Dauphin County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT: ~~'~~-- DISTRIBUTION: Mark F. McKenna, Esq., 436 Blvd. of the Allies, Ste. 500, Pittsburgh, PA 15219 Brian M. Mancos, Esq., Four Northshore Center, 106 Isabella Street, Pittsburgh, PA 15212 1 David -D. Buell Prothonotary Office of the Prothonotary Cum5er[and County, 'Pennsylvania 7�yrkS. So/ionage, FSQ Solicitor /0 -SOS CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 0 Suite100 ® CarCsCe, TA 0 (Phone 717 240-6195 0 Tax 717 240-6573