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Home My WebLink About01-3837MICHAEL L. MCWILLIAMS, Plaintiff V. LINDA L. JOHNSON, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTy, PENNSYLVANIA : CIVIL ACTION - LAW : 01-3837 CIVIL TERM PRETRIAL. CONFERENCE AND NOW, this 22nd day of December, 2004, before Edgar B. Bayley, Judge, present for the plaintiff was Michael E. Kosik, Esquire, and for the defendant, Michael B. Scheib, Esquire. This case arises out of an automobile accident that occurred on July 6, 1999, at the intersection of Route 15 and Market Street in Camp Hill. Defendant's vehicle struck plaintiff's vehicle from the rear. Negligence is admitted. Plaintiff claims that-he suffered a knee injury. Defendant denies causation. Plaintiff seeks noneconomic damages. He is a plumber and seeks a little over $6,000.00 in additional costs for hiring help for him to complete jobs as a result of his injuries. Defendant maintains that this is actually a lost wage claim for which first party benefits have not been exhausted. If plaintiff seeks to recover these claimed amounts, he should file a memorandum of legal support with the trial j /f~~~ udge at the commencement of the tr:'_al, j~ Estimated time of trial, ...~o toz~f~d/e days. Edgar B. Bayley, J. / Michael E. Kosik, Esquire For Plaintiff Michael B. Scheib, Esquire For Defendant prs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL L. McWILLIAMS, Plaintiff No. 2001-03837 vs. CIVIL ACTION - LAW LINDA L. JOHNSON, Defendant JUI~Y TRIAL DEMANDED MOTION IN LIMINE OF DEFENDANT LINDA JOHNSON COME NOW, Defendant, Linda Johnson, by and through her attorneys, GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, and Michael B. Scheib, Esquire, and files this Motion in Limine. Defendant Johnson requests the Court to: 1. Preclude Mention of Insurance; 2. Preclude any testimony that Mr. McWilliams suffered a knee injury as a result of this motor vehicle accident; 3. Preclude any testimony that Mr. McWilliams sustained lost wages as a result of this; 4. Preclude any mention that Defendant Johnson received a traffic citation as a result of this matter; and 5. Preclude portions of Dr. Smarsh's testimony. I. MOTION IN LIMINE TO PRECLUDE ANY MENTION OF INSURANCE. The general rule in Pennsylvania is that evidence of insurance is irrelevant and justifies a grant of mistrial. See Divelv vs. Penn PittsburQh Corporation, 332 Pa. 65, A.2d 831 (1938); Paxton National Insurance Company vs. Brickailik, 513 Pa. 627, 522 A.2d 531 (1987). The mention of insurance or the fact that the Defendant has insurance coverage for this lawsuit would prejudice the Defendant and would require a mistrial. Phillips vs. ShoenberQer, 369 Pa. Super. 52, 534 A.2d 1075 (1975). WHEREFORE, Defendant, Linda Johnson respectfully requests this Honorable Court to enter an Order to preclude the parties, the attorneys and all witnesses from using the word "insurance" during their testimony, or inferring, implying or testifying that the Defendant is covered under a liability policy. II. MOTION TO PRECLUDE ANY TESTIMONY THAT PLAINTIFF McWILLIAMS SUFFERED A KNEE INJURY AS A RESULT OF THIS MOTOR VEHICLE ACCIDENT In the Complaint Plaintiff alleges that he suffered a knee injury which required surgery as a result of this motor vehicle accident. The knee surgery was performed by Dr. Kaneda, who is with Orthopaedic Institute of Pennsylvania. Dr. Kaneda will not testify at the trial of this matter. Thus, there will be no testimony from Dr. Kaneda that the knee surgery which he performed in June, 2000 was related to this motor vehicle accident. Plaintiff has video taped the testimony of Dr. Stephen Wolf. Dr. Wolf is also associated with Orthopaedic Institute of Pennsylvania. Dr. Wolf did not treat Mr. McWilliams for the knee injury. Dr. Wolf did not give any testimony regarding the knee treatment. Similarly, he did not testify that the knee injury and/or knee surgery was related to the motor vehicle accident which is the subject of this lawsuit. Mr. McWilliams is not a medical doctor. He does not have the specialized knowledge which will allow him to give any medical opinions. See Pa. R.E.701. Accordingly Defendant Johnson requests that this Honorable Court preclude any testimony that Plaintiff McWilliams suffered a knee injury as a result of this motor vehicle accident. III. MOTION TO PRECLUDE ANY TESTIMONY THAT PLAINTIFF McWILLIAMS SUSTAINED LOST WAGES AS A RESULT OF THIS MOTOR VEHICLE ACCIDENT Plaintiffs Complaint alleges that he has a claim for lost wages or loss of earning capacity. Plaintiff has renewed this allegation in his Pre-Trial Conference Memorandum. Plaintiff, however, does not have a valid claim for lost wages. Plaintiff had first party wage benefits from Erie Insurance Company. Plaintiff, however, has not applied for first party wage benefits from Erie Insurance Company. At this time Plaintiff clearly has not exhausted his first party wage benefits. Section 1722 of the Motor Vehicle Code provides that in an action against a tort feasor a person who is eligible to receive first party wage benefits shall be "precluded from recovering the amount of benefits paid or payable" under this chapter. 75 Pa. C.S. 91722. As previously stated Plaintiff had first party wage> benefits. Plaintiff has never submitted any documentation to the first party carrier in order to receive these wage benefits. Accordingly Defendant Johnson requests this Honorable Court to preclude any testimony that Plaintiff McWilliams sustained any lost wages as a result of this motor vehicle accident. IV. MOTION TO PRECLUDE ANY MENTION THAT DEFENDANT JOHNSON RECEIVED A TRAFFIC CITATION AS A RESULT OF THIS MOTOR VEHICLE ACCIDENT Linda Johnson received a citation from Officer Michael Bingham as a result of this motor vehicle accident. Ms. Johnson simply paid the citation. She did not contest it. Evidence that a party has received a traffic citation and has been convicted of a traffic violation is inadmissible in a civil suit. Eastern EXlxess, Inc. vs. Food Haulers, Inc., 445 Pa. 432, 285 A.2d 152 (1971); Louahner vs. Sc:hmelzerk, 421 Pa. 283, 218 A.2d 768 (1966); Napolitan vs. Harpe, 432 A.2d. 608, 2e8 Pa. Super. 468 (1989); Simpson vs. Robinson, 238 Pa. Super. 555, 361 A.2d 387 (1976); Shepard vs. Martin Century Farms, 245 Pa. Super. 552, 369 A.2d 765 (189977). Accordingly, counsel for Defendant Johnson respectfully requests this Honorabl~l Court to issue an Order which would preclude all parties, their counsel and any witnesses from making any mention of the fact that Defendant Johnson may have been issued a traffic citation as a result of this accident. V. PRECLUDE PORTIONS OF DR. SMARSH'S TESTIMONY Plaintiff sought treatment from a chiropractor, Dr. Smarsh. During his deposition, Plaintiff introduced progress reports from Dr. Smarsh. Dr. Smarsh was asked several questions which related to Mr. McWilliams' prognosis. Defendant Johnson objected to these questions because Dr. Smarsh had never disclosed any opinions about the prognosis for Mr. McWilliams (See pages 34 - 35). A copy of Dr. Smarsh's office notes was attached to the deposition transcript. Dr. Smarsh's progress reports provide that the problems originated in March, 1999. Mr. McWilliams' file does not contact a written report which sets out Dr. Smarsh's opinion regarding Mr. McWilliams' progress as a result of the motor vehicle accident. Rule 4003.5 (c) of the Rules of Civil Procedure provides that the direct testimony of the expert at trial may not be inconsistent with or go beyond the fair scope of his previously disclosed opinions. In the present case Plaintiff has never disclosed any report, records or narrative letter which sets forth Dr. Smarsh's opinions as it related to Mr. McWilliams need for future treatment or as it relates to this motor vehicle accident. Rather, Dr. Smarsh's records indicate that the problem originated in March, 1999,4 months before this motor vehicle accident. In light of this, the testimony of Dr. Smarsh should be precluded. WHEREFORE, Defendant Johnson respectfully requests this Honorable Court to grant this Motion to Preclude those portions of Dr. Smarsh's testimony. GRIFFITH, STI~ICKLER, LERMAN, SOL YMOS & CALKINS BY: 1I(dJ~JJJ MICHAEL B. SCHEIB, ESQUIRE Attorney 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant Johnson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL L. McWILLIAMS, Plaintiff No. 2001-03837 vs. CIVIL ACTION - LAW LINDA L. JOHNSON, Defendant JURY TRIAL DEMANDED AND NOW, this CERTIFICATE OF SERVICE '\ ~~ day of January. 2005, I, Michael B. Scheib, a member of the firm of GRIFFITH, STRICKLER. LERMAN, SOL YMOS & CALKINS, hereby certify that I have, this date, served a copy of the Motion in Limine of Defendant Johnson by hand delivery to: Michael E. Kosik, Esquire Angina & Rovner, P.C. 4503 North Front Stmet Harrisburg, PA 17110-1799 GRIFFITH, STRICKLER, LERMAN, SOlYMOS & CALKINS / BY: Michael . cheib, Esquire Attorney for Defendant Johnson Supreme Court 1.0. No. 63868 110 South Northern Way York, PA 17402 Telephone No. (717) 757-7602 ----- <.:-/'1 ~ -:-, -( {-- "--1: ~.(- ;" -,-.. c.) C) c..~ -' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL L. McWILLIAMS, Plaintiff N,o. 2001-03837 VS. CIVIL ACTION - LAW LINDA L. JOHNSON, Defendant JURY TRIAL DEMANDED SPECIAL VERDICT SLIP 1. Was the negligence of Defendant Linda Johnson a factual cause in Plaintiff Michael McWilliams' harm? Yes No /' IF YOU ANSWER "YES" TO QUESTION NO.1, PROCEED TO QUESTION NO.2. IF YOU ANSWER "NO" TO QUESTION NO.1, RETURN TO THE COURTROOM. 2. State the amount of damages, if any, sustained by fJlaintiff Michael McWilliams as a result of the motor vehicle accident II \ q 10S' DATE /1N1'~'~ ~~ ~PER 0 CASE NO.: 0 1- j ~ "3" /YI CO I 1(,' a. "^ ( M., ~Il .. I / . DOCKET NO.: 0 / - 3'13? JOO!l" _ C)erk/Proth V:;:P$laff ~ COURTROOM NO.: ;;;........ --- ~tl,y5;"N L'-Nd",-- (.. I DATE: 1- J'i - O.J-- L .VS Turor # Name i-----m---wA~'S7';.!'i'ft1tt-~-.-. 96 HOG:H, JACQUELINE N. .~ CERHf.P,l:', 1l0NNIE L. 90 BANK, JUDITH B. 97 GRUVER, TIMOTHY A. .~ --.-.-- 99-- RICKE1'lbALH, JuAI~ 1'. 87 CASSATT, CRAIG 56 HO, TAN N. 93 PORTER, ROBYN W----..-W'OLF.E,..GARY. O~.O 94 KOSER, JESSICA 69 GAMBLE, ALOlSE G. 72 HILLMAN, LUCILLE M. 65 DAVIS, I LAWRENCE /\ J" D~ l,(Mll'lbHAl<l, MILHAhL t'\.. 86 ~. '-~S-T 85 53 -~ 73 98 55 81 59 79 54 84 62 68 82 77 61 91 74 Tuesday, January 18, 2005 P ASENELLI, STEPHANIE KING,-VfE:'f0R-SR: . SMITH, CYNTHIA BROOKER, KENNETH L. III MOTTIlRl\J, NANElk- KELUNGER, REBECCA G. SIMPSON, GRACE A SGIGNOL, DOUGLAS M. WILLIAMSON, rOAN MONTGOMERY, STEVE A. STICKLER, fAMES GILMORE, SHAWN SHOGREN, HARRY MCFARLAND, CHARLENE PASLEY, CAROL A. KEINTZ, DONNA MARIE SHEAFFER, WENDY S. DE ANGELIS, JANET MURRAY, NATHAN ANDERSON, CHARLES E Random No. fJ-1 .2121706028 -2078719377 .1848781391 -1843723981 -1696569468 -1592186542 -1485953222 -1474449269 -1409206631 .1150447109 -1132196122 -1062944317 -993312440 -693613875 -480278962 -458221379 -443225488 -425636564 -297971676 87337983 509684137 594725429 728679154 992619296 1181455902 1214971938 1271361109 1475653559 1491149180 1628001290 1898468513 2034273861 2068338503 2140342264 2143430838 '{:)i!? G +'. "5 (-J-J. D 4\- t1 \1-{t '2.- f'-4 p-'2... Page 1 of! ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL L. McWILLIAMS, Plaintiff No. 2001-03837 vs. CIVIL ACTION - LAW JURY TRIAL DEMANDED LINDA L. JOHNSON, Defendant TO THE PROTHONTOARY: ENTER JUDGMENT in the above case based upon the jury's verdict dated January 20, 2005, against Plaintiff Michael McWilliams, in favor of Defendant Linda L. Johnson. I hereby certify that the attached Praecipe is a true and correct copy of the original Praecipe that was mailed to the Plaintiff (and his attomey) on the ffiy of February, 2005, pursuant to Pa.R.C.P. 237.1. ):'e.~ . 7 , 2005, Judgment entered by the Prothonotary this day according to the tenor of the above statement. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL L. McWILLIAMS, Plaintiff No. 2001-03837 vs. CIVIL ACTION. LAW LINDA L. JOHNSON, Defendant JURY TRIAL DEMANDED () Notice is hereby given that a iudQment. in the above-captioned matter has been entered against you on fsG. ~ ,2005. ( ) A copy of all documents filed with the Prothonotary in support of the within judgment is/are enclosed. Prothonotary Civil Div. ~ dt-LhP -9 .77tl7~/~ Qj~ If you have any questions regarding this Notice, please contact the filing party: NAME: MICHAEL B. SCHEIB, ESQUIRE ADDRESS: 110 South Northern Way York, PA 17402 TELEPHONE NO.: (717) 7575-7602 This Notice is given in accordance with Pa.R.C.P. 236. Notice sent to: NAME: Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, P A 17110-1799