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Home My WebLink About05-0556IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER,DECEASED CIVIL DIVISION Plaintiff, VS. NO: 0-. - S u?Y 7¢--. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION : OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D., Defendants PRAECIPE FOR A WRIT OF SUMMONS Filed on behalf of: PLAINTIFFS Counsel of Record for this parry: Edmund J. Berger Attorney I.D. #53407 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER,DECEASED CIVIL DIVISION Plaintiff, No: C75 5 G Cc? P VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION: OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D., Defendants PRAECIPE FOR A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons upon Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Heritage Medical Group, LLP d/b/a Shepherdstown Family Practice (A Division Of Heritage Medical Group, LLP), Heritage Medical Group, LLP d/b/a Heritage Diagnostic Center (A Division Of Heritage Medical Group, LLP), Gary M. Schwartz, M.D., and Geoffrey James, M.D.. Date: January 31, 2005 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) 1 C --Q IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WRIT OF SUMMONS - CIVIL ACTION TO THE SHERIFF OF CUMBERLAND COUNTY: JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER,DECEASED Plaintiff, Vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION: OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D., Defendants WRIT OF SUMMONS CIVIL DIVISION No: 65% 5?r Cyr -7-x?--- TO: Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Heritage Medical Group, LLP d/b/a Shepherdstown Family Practice (A Division Of Heritage Medical Group, LLP), Heritage Medical Group, LLP d/b/a Heritage Diagnostic Center (A Division Of Heritage Medical Group, LLP), Gary M. Schwartz, M.D., And Geoffrey James, M.D., You are hereby notified that Julia Wagner, Executrix of the Estate of Frank Wagner, Deceased, has commenced an action against you. Date: January 31, 2005 Curt Long, Prothonotary By: ,,_ Oelputy Prothonotary Berger Law Firm, P.C. Attorney for Plaintiff: Attorney ID #53407 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: OS • S"•SG C?:nG T VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION: OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., GEOFFREY JAMES, M.D., Defendants NOTICE OF FILING OF WRONGFUL DEATH ACTION You are hereby notified that Julia Wagner, as Executrix of the Estate of Frank Wagner, deceased has commenced an action as plaintiff to recover damages for Frank Wagner's wrongful death. This action has been commenced in the Court of Common Pleas of Cumberland County at the above-captioned docket number. Date: January 31, 2005 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) .? E?``? J ( J 1._. C.ri ? .T.? 1..... L- 1`? `!. ? I t _ W t:. .. t- c: t r r _,_ w ,. ?`} : t r, ._ co , . r ? , . t ?, G% Addresses Shepherdstown Family Practice, P.C. Gary M. Schwartz Geoffrey James 2140 Fisher Road Mechanicsburg, PA 17055 Heritage Medical Group, LLP 1007 Mumma Drive Wormleysburg, PA 17043 J r. C'? iJ* C- T . {'.. G t. Jt_: ,/, ,`;; jr `'/ .t MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Email: mpipa@mdwcg.com (717)651-3500 Attorneys for Defendants, Shepherdstown Family Practice, P. C., Heritage Medical Group, LLP Gary M. Schwartz, M.D. and Geoffrey James, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff. CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB1A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants NO: 05-556 CIVIL TERM PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. in the above referenced matter. Respectfully Submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: {'fill 4 Z005- BY MICHAEL D. PIPA(f SQUIRE PA I.D. NO.: 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP Gary M. Schwartz, M.D. and Geoffrey ,Tames, M.D. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, NLD. Defendants CERTIFICATION OF SERVICE I hereby certify that I have served upon all parties listed below a true and correct copy of Entry of Appearance in the above-captioned matter this date by regular mail, Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 MARSHALL, DENNEHEY, WARNER COLEMAN AND COGGIN DATE: TV, 2'1'j Zw5 BY: MICHAEL D. PIPA, S UIRE Attorneys for Defendants, Shepherdstown Fainily Practice, P. C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey Jain es, M. D. 3 i w 0 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Cr uns Mill Road, Suite B Harrisburg, PA 17112 Email: mpipa@mdweg.com (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule upon the Plaintiffs to file a Complaint within ten (10) days hereof or suffer judgment non pros. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: MICHAEL D. PIPA)ESQUIRE Attorney T.D. No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP Gary M. Schwartz, MD. and Geoffrey James, MD. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWAR.TZ, M.D., and GEOFFREY JAMES, M.D. Defendants CERTIFICATION OF SERVICE I hereby certify that I have served upon all parties listed below a true and correct copy of the foregoing document in the above-captioned matter this date by regular mail. Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN DATE: Z`? Z5 BY: 4 I MICHAEL D. PIPA, E Q Attorneys for Defendants, Shepherdstown Family Practice, P. C, Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE :ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants RULE AND NOW, thisc--Ciay of , 2005, upon consideration of the foregoing Praecipe, a Rule is hereby issued upon the Plaintiffs, Julia Wagner, Executrix of the Estate of Frank Wagner, deceased, to file a Complaint within ten (10) days or suffer judgment of non pros. BY THE PROTHONOTARY: SEAL W LSD MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Email: mpipa@mdwcg.com (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule upon the Plaintiffs to file a Complaint within twenty (20) days hereof or suffer judgment non pros. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: / h" w MICHAEL D. PIPA, ES RE Attorney I.D. No. 53624 4200 Crums Mill Road, Suite B Harrisburg PA 17112 (717) 651-3515 Attorneys for Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP GaryM Schwartz, MD. and Geoffrey James, M.D. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP. LLP D(B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DIBIA HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants CERTIFICATION OF SERVICE I hereby certify that I have served upon all parties listed below a true and correct copy of the foregoing document in the above-captioned matter this date by regular mail. Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants RULE AND NOW, this Hl ay of 2005, upon consideration of the foregoing Praecipe, a Rule is hereby issued upon the Plaintiffs, Julia Wagner, Executrix of the Estate of Frank Wagner, deceased, to file a Complaint within twenty (20) days or suffer judgment of non pros. SEAL BY THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra soya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra soya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM Vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D., Defendants COMPLAINT IN A CIVIL ACTION Filed on behalf of. PLAINTIFF Counsel of Record for this party: Edmund J. Berger Attorney I.D. #53407 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) JURY TRIAL DEMANDED JULIA WAGNER, Executrix of the Estate of FRANK WAGNER, DECEASED, Plaintiff herein, resides at 13 Homestead Lane, Camp Hill, PA 17011, York County, Pennsylvania. Plaintiff was appointed Executrix of the Estate of Frank Wagner by the Register of Wills of Cumberland County, Pennsylvania and is also the surviving spouse of the decedent. 2. SHEPHERDSTOWN FAMILY PRACTICE, P.C., Defendant herein, is a Pennsylvania Professional Corporation with its registered office at 2140 Fisher Road, Mechanicsburg, PA 17055. At all times relevant to the matters set forth in this complaint, this Defendant owned, operated, possessed and maintained an office for the provision of medical services known as "Shepherdstown Family Practice" located in Cumberland County, Pennsylvania. 3. HERITAGE MEDICAL GROUP, LLP, Defendant herein, is a Pennsylvania Limited Liability General Partnership with its registered office at 1007 Mumma Drive, Wormleysburg, PA 17043. At all times relevant to the matters set forth in this complaint, this Defendant owned, operated, possessed and maintained offices to provide medical services located in Cumberland County, Pennsylvania, including the offices of Shepherdstown Family Practice, P.C. and Heritage Diagnostic Center. 4. GARY M. SCHWARTZ, M.D. Defendant herein, is a licensed physician with a business office at Shepherdstown Family Practice, P.C., 2140 Fisher Road, Mechanicsburg, PA 17055. At all times relevant to the matters set forth in this complaint, Dr. Schwartz was the agent, ostensible agent, servant and/or employee of Defendants Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP and was acting while in and upon the business of said Defendants and while in the course and -1- scope of his employment for said Defendants. Plaintiff is asserting a professional liability claim against this Defendant. 5. GEOFFREY JAMES, M.D. Defendant herein, is a licensed physician with a business office at Shepherdstown Family Practice, P.C., 2140 Fisher Road, Mechanicsburg, PA 17055. At all times relevant to the matters set forth in this complaint, Dr. James was the agent, ostensible agent, servant and/or employee of Defendants Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP and was acting while in and upon the business of said Defendants and while in the course and scope of his employment for said Defendants. Plaintiff is asserting a professional liability claim against this Defendant. 6. At all times relevant to the matters set forth in this Complaint, the health care and other personnel who participated in the care and treatment of Plaintiff s decedent were the agents, ostensible agents, servants and/or employees of all of the Defendants and were acting while in and upon the business of said Defendants and while in the course and scope of their employment by said Defendants. To the extent that other licensed professionals not specifically identified in Plaintiff's decedent's medical records participated in the care or treatment of Plaintiff on behalf of Defendants' Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP, Plaintiff is asserting a professional liability claim against such unknown and unidentified licensed professionals. On Friday, January 31, 2003, Plaintiff's decedent, Frank Wagner telephoned the office of his primary care physicians, Defendant Shepherdstown Family Practice, P.C. requesting to be seen by a physician as soon as possible. -2- 8. Based on information and belief, when Plaintiff's decedent telephoned Defendant Shepherdstown Family Practice on Friday, January 31, 2003, Plaintiff's decedent complained of shortness of breath and cough for approximately four (4) days. 9. Plaintiffs decedent had previously been diagnosed with Deep Vein Thrombosis or "DVTs" of his left calf as reported in a radiological report of February 15, 1995. He also had a number of other risk factors for DVTs and Pulmonary Embolism ("PE"), including his body habitus - he weighed approximately 313 pounds and history of lower extremity thrombophlebitis, a condition in which the superficial veins of the legs have small clots, resulting in leg swelling. All of these conditions and risk factors were known, or should have been known by all of the Defendants and were reflected in decedent's medical records. 10. Shortness of breath and cough, especially in a patient with a history of DVTs, may be indicators of developing PE which poses an immediate risk of death to the patient. 11. Instead of directing Plaintiff's decedent to seek treatment at a hospital Emergency Room or other acute care facility, Defendant Shepherdstown Family Practice, on January 31, 2003, made an appointment for Plaintiff's decedent to be seen in Defendant's offices on Saturday, February 1, 2003. 12. On Saturday, February 1, 2003, Plaintiff's decedent came to Shepherdstown Family Practice for his morning appointment. Upon intake, his body weight was 313 pounds. His pulse was recorded as 100 beats per minute and his respiratory rate was recorded as elevated at 20-24 per minute. He was reported to be complaining of congestion, cough, and shortness of breath for the past five days. -3- 13. Following intake at Defendant Shepherdstown Family Practice, Plaintiff's decedent was not seen by Defendant Gary M. Schwartz, M.D. his usual treating physician at Shepherdstown but was seen by Defendant Geoffrey James, M.D. Dr. James assessed decedent as having an Upper Respiratory Infection despite his history and recorded symptoms of a 4-5 day history of shortness of breath with exertion and dry cough without discharge, in addition to congested nose, throat PND ("post-nasal drip) and headache. Based on this diagnosis, Dr. James prescribed "fluids, rest, saline nasal spray/gargles." 14. After his visit to Defendants Shepherdstown Family Practice and Dr. James, Plaintiffs decedent returned home believing that there was nothing serious about which he should be concerned. 15. Beginning at approximately 6:10pm that evening, Plaintiff s decedent had two syncopal episodes. Emergency services were called and he was transported to Holy Spirit Hospital where, according to the autopsy performed by the Cumberland County Coroner's Office, he died of bilateral pulmonary embolism at about 7:25pm. 16. Defendants and their agents, ostensible agents, servants, and/or employees were negligent and careless in some or all of the following particulars: (a) In failing to direct Plaintiffs decedent to seek immediate treatment at a hospital Emergency Room or other acute care facility for further evaluation, particularly in view of his history of DVTs and symptoms of shortness of breath and cough; (b) In failing to recognize the potential risk of pulmonary embolism and the importance of immediate evaluation and treatment; (c) In failing to perform a proper and adequate differential diagnosis; -4- (d) In failing to rule out the possibility of a developing pulmonary embolism; (e) In failing to accurately reflect Plaintiff's decedent's history of DVTs and other risk factors for PE so that when decedent called on January 31, 2003 complaining of shortness of breath and cough, the risk of DVT and PE would be immediately apparent to Defendants' office staff, (f) In failing to accurately reflect Plaintiff's decedent's history of DVTs and potential risk of PE so that when decedent was seen on February 1, 2003 the significant risk of DVTs and PE would be immediately apparent to Dr. James and/or others who saw him in the office on February 1, 2003; (g) In failing to cause Plaintiff's decedent to receive proper medications, including heparin or other anticoagulants that would have been effective in treating Plaintiff's decedent's condition; (h) In failing to cause Plaintiffs decedent to be present in a hospital or other acute care facility where he could be properly treated for pulmonary embolism; (i) In causing Plaintiffs decedent to suffer from a developing pulmonary embolism without receiving adequate treatment in a hospital or other acute care facility; 0) In causing Plaintiff s decedent to suffer from a developing pulmonary embolism without having the benefit of medical specialists who were trained and experienced in the treatment and care of such a condition; (k) In causing Plaintiff's decedent to suffer from a developing pulmonary embolism without having the benefit of available testing for such a condition; -5- (1) In causing Plaintiff's decedent's developing pulmonary embolism to go untreated; (m) In failing to exercise reasonable care under the circumstances; (n) In failing to have reasonable, diligent and properly trained personnel on duty to treat Plaintiff s decedent; (o) In failing to diagnose and respond in a timely manner to Plaintiff's decedent's condition; (p) In failing to properly supervise Defendants' agents, servants or employees in the diagnosis and treatment of Plaintiff s decedent; (q) In failing to possess the degree of care and skill ordinarily exercised in similar cases by other physicians; (r) In failing to exercise the requisite degree of care and skill; (s) In failing to conform to the requisite standards of care under the circumstances; (t) In failing to properly examine and treat Plaintiffs decedent for potential pulmonary embolism; (u) In failing to perform necessary medical testing; (v) In failing to refer Plaintiff's decedent in a timely fashion to the necessary medical specialists who would have diagnosed and treated Plaintiff's decedent's condition; (w) In failing to properly and adequately supervise Defendants' agents, servants, and/or employees during the examination and treatment of Plaintiff's decedent; -6- (x) In failing to exercise reasonable care in the diagnosis and treatment of Plaintiff's decedent's condition for which prompt diagnosis and treatment were critical for effective medical treatment; (y) In failing to recognize and treat Plaintiff s decedent's deteriorating condition in the face of obvious clinical signs and symptoms; (z) In being otherwise negligent and careless as may be demonstrated at trial or determined through discovery. FIRST COUNT Survival Action 17. Paragraphs 1 through 16 of the Complaint are incorporated by reference as if set forth at length. 18. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann. § 3373 and 42 Pa. Cons. Stat. Ann. § 8302. 19. As a direct and proximate result of the aforesaid acts of negligence, Defendants are liable jointly and severally for the following damages: (a) decedent's pain and suffering between the time of his injuries and the time of death; (b) decedent's total estimated future earning power less his estimated cost of personal maintenance; (c) decedent's loss of retirement and Social Security income; (d) decedent's other financial losses suffered as a result of his death; (e) decedent's loss of enjoyment of life; and (f) such other damages as are permissible in a survival action. -7- WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally for a sum in excess of $25,000, plus interest and costs. SECOND COUNT Wrongful Death Action 20. Paragraphs 1 through 19 of the Complaint are incorporated by reference as if fully set forth at length. 21. Plaintiff brings this action pursuant to the Pennsylvania Wrongful Death Act, 42 Pa. Cons. Stat. Ann. & 8301 and Pa. R.C.P. No. § 2202(a). 22. The decedent was survived by Plaintiff, his wife, and three children who are entitled to recover damages for decedent's death. Decedent's three children are Michael, age 14 at the time of his father's death; Matthew, age I 1 at the time of his father's death; and Madison, age 11 at the time of her father's death. 23. The decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of decedent has been commenced against the Defendants herein. 24. As a direct and proximate result of the aforesaid acts of negligence, Defendants are jointly and severally liable for the following damages: (a) funeral expenses for the decedent; (b) expenses of administration related to decedent's injuries; (c) the loss of the support, consortium, comfort, counsel, aid, association, care and services of Plaintiffs decedent suffered by Plaintiff and decedent's children; and -8- (d) such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally for a sum in excess of $25,000, plus interest Attorney I.D. 03407 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tber er &bergerlawfinn.net -9- Attorney for Plaintiff VERIFICATION I, Julia Wagner, affirm that I am the Plaintiff in this action and that the statements of fact made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904 relating to unswom falsification to authorities. Date: April 7, 2005 1' Wagner CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, COMPLAINT IN A CIVIL ACTION, upon the following persons, in the manner indicated: VIA FIRST CLASS MAIL Michael D. Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: April 7, 2005 r- > ? ? ? 'til 2:, .-i t ' T ^?1 _ j11 ?% ,.t . ., rn =;- ;-7 ? . ' ?,! ' - i .i c., 4 ? 3 t'} SHERIFF'S RETURN - REGULAR CASE NO: 2005-00556 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WAGNER JULIA EXEC EST OF FRANK VS SHEPHERDSTOWN FAMILY PRACTICE VALERIE WEARY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon HERITAGE MEDICAL GROUP LLP t e DEFENDANT , at 1539:00 HOURS, on the 16th day of at 3 WALNUT STREET TE 206 LEMOYNE, PA 17043 by handing to DEB BANKS, RECEPTIONIST, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS 2005 together Aith and at the same time directing Her attention to the contents t Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 11.84 .00 10.00 .00 So Answers: 27.84 R. Thomas Kline 02/17/2005 BERGER LAW FIRM Sworn and Subscribed to before By: me this _`7 day of0 / ? A.D. - al Prothonotar ty AI CASE NO: 2005-00556 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WAGNER JULIA EXEC EST OF FRANK VS SHEPHERDSTOWN FAMILY PRACTICE RON KERR , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according says, the within WRIT OF SUMMONS was served upon SCHWARTZ GARY M t DEFENDANT , at 1658:00 HOURS, on the 3rd day of February at 2140 FISHER ROAD MECHANICSBURG, PA 17055 BRENDA MANN, OFFICE MANAGER, by handing to IN CHARGE a true and attested copy of WRIT OF SUMMONS Ito law, 2005 together Aith and at the same time directing Her attention to the contents the Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 10.00 R. Thomas Kline .00 16.00 02/17/2005 BERGER LAW FIRM Sworn and Subscribed to before By: me this day of % A.D. C eQ prothonotary Deputy SHERIFF'S RETURN - REGULAR CASE NO: 2005-00556 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WAGNER JULIA EXEC EST OF FRANK VS SHEPHERDSTOWN FAMILY PRACTICE RON KERR Cumberland County,Pennsylvania, who being duly sworn according says, the within WRIT OF SUMMONS , Sheriff or Deputy Sheriff of was served upon Ito law, JAMES GEOFFREY DEFENDANT , at 1658:00 HOURS, on the 3rd day of at 2140 FISHER ROAD MECHANICSBURG, PA 17055 by handing to BRENDA MANN, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS 2005 together *ith and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 R. Thomas Kiine 02/17/2005 BERGER LAW FIRM Sworn and Subscribed to before By: me this _?day of /,?- t2o,oa A.D. Prothonotary So Answers: Deputy S SHERIFF'S RETURN - REGULAR r CASE NO: 2005-00556 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WAGNER JULIA EXEC EST OF FRANK VS SHEPHERDSTOWN FAMILY PRACTICE RON KERR , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according says, the within WRIT OF SUMMONS was served upon law, SHEPHERDSTOWN FAMILY PRACTICE PC the DEFENDANT at 1658:00 HOURS, on the 3rd day of February 2005 at 2140 FISHER ROAD MECHANICSBURG, PA 17055 by handing to BRENDA MANN, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together gith and at the same time directing Her attention to the contents Sheriff's Costs Docketing 18.00 Service 8.14 Affidavit .00 Surcharge 10.00 11 36.14 02/17/2005 BERGER LAW FIRM Sworn and Subscribed to before By: me this _ Ifel day of ?` Deputy A.D. 'froth notary So Answers: r sf' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL NO: 05-556 CIVIL TERM GROUP, LLP DB/A HEPHARDSTOWN FAMILY CTICE (A DIVISION OF ITAGE MEDICAL GROUP, LLP), ITAGE MEDICAL GROUP, LLP A HERITAGE DIAGNOSTIC TER (A DIVISION OF HERITAGE )ICAL GROUP, LLP), GARY M. WARTZ, M.D., and GEOFFREY CES, M.D. Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants, by and through their attorneys, and respectfully submit th? following preliminary objections to Plaintiffs complaint, as follows: 1. This action was commenced by the issuance of a Writ of Summons upon Praecipe of the Plaintiff, which Praecipe was filed on or about January 31, 2005. 112. A rule was issued requiring Plaintiff to file a Complaint. On or about Apri 18, 2005, Plaintiff filed a Complaint, purporting to set forth professional liability claims against the Defendants. 4. According to the Complaint, this case arises out of the death of Plaintiffs Decedent on February 1, 2003. 5. In the Complaint, Plaintiff alleges generally that the Decedent died of a bilateral pulmonary embolism, secondary to deep vein thrombosis (DVT). 6. Plaintiffs allege generally that the Decedent had been treated by Defendant Gary M. Schwartz, M.D., at the offices of Shepherdstown Family Practice, and had exhibited a history ofDVT's and other risk factors for pulmonary embolism. 7. Plaintiff alleges further that on February 1, 2003, when the Decedent appeared at Shepherdstown Family Practice with complaints of shortness of breath and a cough, he was seen by Defendant Geoffrey James, M.D., instead of Dr. Schwartz, his usual treating physician at Shepherdstown. 8. Plaintiff alleges that on February 1, 2003, Dr. James diagnosed an upper respiratory infection (URI) and discharged the Decedent. 9. Plaintiff further alleges that Dr. James did not meet the applicable standard of care on February 1, 2003 when he diagnosed an URI and instead should have diagnosed a possible developing pulmonary embolism and referred the Decedent to the hospital emergency room or other appropriate specialists. 10. Plaintiff further alleges generally that Dr. Schwartz somehow fell below the standard of care at some unspecified time before February 1, 2003, by failing to make notations in the office notes that allegedly would have made it apparent to anyone reading the chart on January 31, 2003 or February 1, 2003 that the Decedent's condition presented a risk of DVT's or pulmonary embolism. 1. Plaintiff sets forth 26 subparagraphs in an attempt to set forth detailed allegations of negligence against the Defendants. See, Plaintiffs Complaint, paragraph 16. Insufficient Specificity Pursuant to Pa.R.C.P. No. 1028(a)(3) 12. It is well established that Pennsylvania is a fact pleading jurisdiction and that the material facts upon which a cause of action is based must be stated in a concise and summary form. See, e.g., Rule 1019(a). 13. It is also well established that vague and overbroad, catch-all averments, especially in a medical professional liability action, are insufficiently specific. 14. In subparagraph 16(m), of the Complaint, Plaintiff alleges that the Defendants were negligent "in failing to exercise reasonable care under the circumstances." 15. In subparagraph 16(x), Plaintiffs similarly allege that the Defendants were negligent in "failing to exercise reasonable care in the diagnosis and treatment of Plaintiffs Decedent's condition." 16. Similarly, in subparagraph 16(z), of the Complaint, Plaintiff alleges that the Defendants were "otherwise negligent and careless as may be demonstrated at trial or determined through discovery." 17. The Defendants respectfully submit that these allegations are overbroad, vague, and insufficiently specific and if not stricken, would allow the Plaintiff to add new theories of negligence against the Defendants even after the statute of limitations has run. WHEREFORE, Defendants respectfully request that this Court enter an Order sustaining i their Preliminary Objection for insufficient specificity and striking subparagraphs 16(m), (x), and (z) from Plaintiffs Complaint, with Prejudice. Failure to Conform to Rule of Court Pursuant to Rule 1028(a)(2) 18. In the Complaint, Plaintiff attempts to state claims against Dr. Schwartz and Dr. James based upon actions or inactions taken at different times during the treatment and care of the Plaintiffs Decedent. 19. Plaintiff also attempts to state claims against the physician practice group involved. 20. Rule 1020(a) states that each cause of action and any special damage related thereto shall be stated in a separate count. 21. Plaintiff has not stated separate counts against Drs. Schwartz and James or against the physician practice group. 22. The failure to separate counts containing a demand for relief against each Defendant compromises the Defendants' ability to prepare an adequate response and violates the applicable rules of Court. WHEREFORE, the Defendants respectfully request that this Court grant their preliminary objection for failure to conform to rule of court and enter an Order requiring the Plaintiff to state separate counts against each Defendant. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & G)OGGIN BY:? MICHAEL D. PIPA, QUIRE Attorney I.D. No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendants, Gary M. Schwartz, M.D., and Geoffrey James, M.D. MAR?HALL, DENNEHEY, WARNER, COL4MAN & GOGGIN BY: I Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ILIA WAGNER, EXECUTRIX G THE ESTATE OF FRANK AGNER, DECEASED Plaintiff, V. S PHERDSTOWN FAMILY CTICE, P.C., HERITAGE MEDICAL )UP, LLP, HERITAGE MEDICAL )UP, LLP DJBlA PHARDSTOWN FAMILY CTICE (A DIVISION OF ITAGE MEDICAL GROUP, LLP), ITAGE MEDICAL GROUP, LLP A HERITAGE DIAGNOSTIC TER (A DIVISION OF HERITAGE )ICAL GROUP, LLP), GARY M. WARTZ, M.D., and GEOFFREY ES, M.D. Defendants CIVIL DIVISION NO: 05-556 CIVIL TERM CERTIFICATION OF SERVICE I hey, document in? Edmund J. B Berger Law 1 2104 Market Camp Hill, P certify that I have served upon all parties listed below a true and correct copy of the foregoing the above-captioned matter this date by regular mail. Esquire P.C. 17011 MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN DATE:I l t T 6 ?? BY: k1 LXX MICHAEL D. PIPA, ES IRE Attorneys for Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. ?' r ,- ? tU --R ?i _- ? ?? ?. .?- IN THE COURT OF COMMON PLEAS OF CUM JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM Vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants YLVANIA JURY TRIAL DEMANDED I, Edmund Berger, counsel of record for Julia Wagner, Executrix of the Estate of Frank Wagner, hereby certify that an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised by Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP, acting through its employees, servants, agents and/or ostensible agents, including those unnamed and/or unidentified individuals who participated in the care of Frank Wagner and whose responsibility and/or identity are not disclosed in the medical records, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. O ? A FIRM Z- Date Edmund J. Berger Counsel for Plaintiffs Filed on behalf of. PLAINTIFFS Counsel of Record for this party: Edmund J. Berger Attorney I.D. #53407 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) tberger@bergerlawfmn.net CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Certificate of Merit as to Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP, et al., on the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael D. Pipe, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: June 2, 2005 (l ^? C'. J L __ > C? t _ l ? ^?_ ' ? i _ ._.- f .. . r. _ 1?:i 1 1 ?? tV i) s (_. ?. -.r„' i 1". ::_:; V` .. _. lJ -?: DENNE'a I w HOER, tAANL%aNi 'L& GOGr'I Esquire s COLE M?ael D• pipa,4 BY. tionN°. 5oadSuiteB Identifica s N1i11 R NNSYI v A13IA 4200 Cn 1? 112 xa?sbutg,P amd?ucg•cOm COUNTY,pE m4 p 500 AND P ax1 (` 11) 651- 630 MMON PLEAS OF CU CNI DNISIOIJ F ?1 COUgf OF CO ? TgE EXECIJTR? W AGNER OF Fg p,NK ILIA TATE SED tiff, 00)3N R,DECEA plain RM NO. 05-556 CIVIL TE v. ' gTO`? F ANIIGE MEDICAL SFIE C ICD P C., gIT AC'E MEDICAL R li? ' LLp' ?IBI A F LILY GR?P gT DNSION OF LLP), pgACTICE(MEDICAL GROUp,LLP KERI AG MEDIC DA?GNOSTICT AGE 'VOE 'f AGE OI•I OF IIER- Ivl. DIENTER GR L1P> I,Ld GEpF gEY . I6D`INCNL' ANCE 1AMES'MD Defendants UNT?YD?SCONTINU Ply- ocefit A,TIONgORVOL counselwh STIYUL tl?xola the1Y tespective stipulate that t' come the parties, , and hetebY NOW , tesectiveclients uedwithpYe?? A1?D their p 1 discontin ed to act on behalf of actZ MD 2sevoluntany CP No•229(v authoT1Z s of pa' R• ainst Gast M. Sch`u, dby the provision claims ag as auth°nZe t of all paties consen remove the reference to Gary M- Schwartz' M•D• from the caption of this further consent to action from this date forward- DATE: DATE: EDMUND J BERGER, ES Attorney for Plaintiffs DIRE I MICHAEL D4 ? • PIPA> Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that I have this da have this day served a true and correct co foregoing document, Stipulation for Voluntary of the person, in the Ci$continuance, on the following manner indicated: VIA FIRST CLASS MAIL Michael D. Pipa, Esq. Marshall pennehe 421)0 Crums Y' Warner, Coleman & Ham.sbur , Mill Road, Suite B GOggin g PA 17112 Date: June 2, 2005 f'1 r) G? N -i ,:'cell co IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants CIVIL DIVISION NO: 05-556 CIVIL TERM PRAECIPE TO AMEND CAPTION To the Prothonotary: Please amend the caption to delete Gary M. Schwartz as a party defendant in this action based upon the attached Stipulation of all DATE: EDMUND J. BERG Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Praecipe to Amend Caption, on the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael D. Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: June 2, 2005 r-? ?? lJ"I ?., t __ ?'?{ N --, ? _ _ ? . .. "i _q =i ^- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants AMENDED COMPLAINT IN A CIVIL ACTION Filed on behalf on PLAINTIFF Counsel of Record for this party: Edmund J. Berger Attorney I.D. #53407 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) JURY TRIAL DEMANDED 1. JULIA WAGNER, Executrix of the Estate of FRANK WAGNER, DECEASED, Plaintiff herein, resides at 13 Homestead Lane, Camp Hill, PA 17011, York County, Pennsylvania. Plaintiff was appointed Executrix of the Estate of Frank Wagner by the Register of Wills of Cumberland County, Pennsylvania and is also the surviving spouse of the decedent. 2. SHEPHERDSTOWN FAMILY PRACTICE, P.C., Defendant herein, is a Pennsylvania Professional Corporation with its registered office at 2140 Fisher Road, Mechanicsburg, PA 17055. At all times relevant to the matters set forth in this complaint, this Defendant owned, operated, possessed and maintained an office for the provision of medical services known as "Shepherdstown Family Practice" located in Cumberland County, Pennsylvania. 3. HERITAGE MEDICAL GROUP, LLP, Defendant herein, is a Pennsylvania Limited Liability General Partnership with its registered office at 1007 Mumma Drive, Wormleysburg, PA 17043. At all times relevant to the matters set forth in this complaint, this Defendant owned, operated, possessed and maintained offices to provide medical services located in Cumberland County, Pennsylvania, including the offices of Shepherdstown Family Practice, P.C. and Heritage Diagnostic Center. 4. GEOFFREY JAMES, M.D. Defendant herein, is a licensed physician with a business office at Shepherdstown Family Practice, P.C., 2140 Fisher Road, Mechanicsburg, PA 17055. At all times relevant to the matters set forth in this complaint, Dr. James was the agent, ostensible agent, servant and/or employee of Defendants Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP and was acting while in and upon the business of said Defendants and while in the course and -1- scope of his employment for said Defendants. Plaintiff is asserting a professional liability claim against this Defendant. At all times relevant to the matters set forth in this Complaint, the health care and other personnel who participated in the care and treatment of Plaintiff's decedent were the agents, ostensible agents, servants and/or employees of all of the Defendants and were acting while in and upon the business of said Defendants and while in the course and scope of their employment by said Defendants. To the extent that other licensed professionals not specifically identified in Plaintiffs decedent's medical records participated in the negligent care or treatment of Plaintiff on behalf of Defendants' Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP and such negligent care or treatment was a substantial factor in bringing about this harm, Plaintiff is asserting a professional liability claim against such unknown and unidentified licensed professionals. 6. On Friday, January 31, 2003, Plaintiff's decedent, Frank Wagner telephoned the office of his primary care physicians, Defendant Shepherdstown Family Practice, P.C. requesting to be seen by a physician as soon as possible. 7. Based on information and belief, when Plaintiffs decedent telephoned Defendant Shepherdstown Family Practice on Friday, January 31, 2003, Plaintiffs decedent complained of shortness of breath and cough for approximately four (4) days. 8. Plaintiffs decedent had previously been diagnosed with Deep Vein Thrombosis or "DVTs" of his left calf as reported in a radiological report of February 15, 1995. He also had a number of other risk factors for DVTs and Pulmonary Embolism ("PE"), including his body habitus - he weighed approximately 313 pounds and history -2- of lower extremity thrombophlebitis, a condition in which the superficial veins of the legs have small clots, resulting in leg swelling. All of these conditions and risk factors were known, or should have been known by all of the Defendants and were reflected in decedent's medical records. 9. Shortness of breath and cough, especially in a patient with a history of DVTs, may be indicators of developing PE which poses an immediate risk of death to the patient. 10. Instead of directing Plaintiffs decedent to seek treatment at a hospital Emergency Room or other acute care facility, Defendant Shepherdstown Family Practice, on January 31, 2003, made an appointment for Plaintiffs decedent to be seen in Defendant's offices on Saturday, February 1, 2003. 11. On Saturday, February 1, 2003, Plaintiffs decedent came to Shepherdstown Family Practice for his morning appointment. Upon intake, his body weight was 313 pounds. His pulse was recorded as 100 beats per minute and his respiratory rate was recorded as elevated at 20-24 per minute. He was reported to be complaining of congestion, cough, and shortness of breath for the past five days. 12. Following intake at Defendant Shepherdstown Family Practice, Plaintiffs decedent was not seen by Gary M. Schwartz, M.D,. his usual treating physician at Shepherdstown, but was seen by Defendant Geoffrey James, M.D. Dr. James assessed decedent as having an Upper Respiratory Infection despite his history and recorded symptoms of a 4-5 day history of shortness of breath with exertion and dry cough without discharge, in addition to congested nose, throat PND ("post-nasal drip) and headache. Based on this diagnosis, Dr. James prescribed "fluids, rest, saline nasal spray/gargles." -3- 13. After his visit to Defendants Shepherdstown Family Practice and Dr. James, Plaintiff's decedent returned home believing that there was nothing serious about which he should be concerned. 14. Beginning at approximately 6:1 Opm that evening, Plaintiff s decedent had two syncopal episodes. Emergency services were called and he was transported to Holy Spirit Hospital where, according to the autopsy performed by the Cumberland County Coroner's Office, he died of bilateral pulmonary embolism at about 7:25pm. 15. Defendants and their agents, ostensible agents, servants, and/or employees were negligent and careless in some or all of the following particulars: (a) In failing to direct Plaintiff's decedent to seek immediate treatment at a hospital Emergency Room or other acute care facility for further evaluation, particularly in view of his history of DVTs and symptoms of shortness of breath and cough; (b) In failing to recognize the potential risk of pulmonary embolism and the importance of immediate evaluation and treatment; (c) In failing to perform a proper and adequate differential diagnosis; (d) In failing to rule out the possibility of a developing pulmonary embolism; (e) In diagnosing Plaintiffs decedent as suffering from an Upper Respiratory Infection and/or other non-life threatening condition; (f) In failing to cause Plaintiffs decedent to receive proper medications, including heparin or other anticoagulants that would have been effective in treating Plaintiffs decedent's condition; -4- (g) In failing to cause Plaintiff's decedent to be present in a hospital or other acute care facility where he could be properly treated for pulmonary embolism; (h) In causing Plaintiffs decedent to suffer from a developing pulmonary embolism without receiving adequate treatment in a hospital or other acute care facility; (i) In causing Plaintiff s decedent to suffer from a developing pulmonary embolism without having the benefit of medical specialists who were trained and experienced in the treatment and care of such a condition; 0) In causing Plaintiff s decedent to suffer from a developing pulmonary embolism without having the benefit of available testing for such a condition; (k) In causing Plaintiff's decedent's developing pulmonary embolism to go untreated; (1) In failing to have reasonable, diligent and properly trained personnel on duty to treat Plaintiffs decedent; (m) In failing to diagnose and respond in a timely manner to Plaintiffs decedent's condition; (n) In failing to properly supervise Defendants' agents, servants or employees in the diagnosis and treatment of Plaintiffs decedent; (o) In causing Plaintiff s decedent to die from an undiagnosed and untreated pulmonary embolism; (p) In failing to possess the degree of care and skill ordinarily exercised in similar cases by other physicians; (q) In failing to exercise the requisite degree of care and skill; -5- (r) In failing to conform to the requisite standards of care under the circumstances; (s) In failing to properly examine and treat Plaintiff's decedent for potential pulmonary embolism; (t) In failing to perform necessary medical testing; (u) In failing to refer Plaintiffs decedent in a timely fashion to the necessary medical specialists who would have diagnosed and treated Plaintiff s decedent's condition; (v) In failing to properly and adequately supervise Defendants' agents, servants, and/or employees during the examination and treatment of Plaintiff's decedent; (w) In failing to recognize and treat Plaintiffs decedent's deteriorating condition in the face of obvious clinical signs and symptoms. FIRST COUNT Julia Warner, Executrix of the Estate of Frank Wagner v Sheaherdstown Family Practice. P. C. and Heritage Medical Groun LLP Survival Action 16. Paragraphs I through 15 of the Complaint are incorporated by reference as if set forth at length. 17. Plaintiff brings this survival action under 20 Pa. Cons. Stat Ann & 3373 and 42 Pa. Cons. Stat Ann & 8302. 18. As a direct and proximate result of the aforesaid acts of negligence, and -6- specifically with respect to these Defendants, the acts of negligence set forth in Paragraph 15, Defendants Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP are liable jointly and severally for the following damages: (a) decedent's pain and suffering between the time of his injuries and the time of death; (b) decedent's total estimated future earning power less his estimated cost of personal maintenance; (c) decedent's loss of retirement and Social Security income; (d) decedent's other financial losses suffered as a result of his death; (e) decedent's loss of enjoyment of life; and (f) such other damages as are permissible in a survival action. WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally for a sum in excess of $25,000, plus interest and costs. SECOND COUNT Practice. P- C- and HeritaPe Medical Groun LLP Wroneful Death Action 19. Paragraphs 1 through 18 of the Complaint are incorporated by reference as if fully set forth at length. 20. Plaintiff brings this action pursuant to the Pennsylvania Wrongful Death Act, 42 Pa. Cons Stat Ann 6 8301 and Pa. R.C.P. No. § 2202(a). 21. The decedent was survived by Plaintiff, his wife, and three children who -7- are entitled to recover damages for decedent's death. Decedent's three children are Michael, age 14 at the time of his father's death; Matthew, age 11 at the time of his father's death; and Madison, age 11 at the time of her father's death. 22. The decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of decedent has been commenced against the Defendants herein. 23. As a direct and proximate result of the aforesaid acts of negligence, Defendants Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP as set forth in Paragraph 15, Defendants are jointly and severally liable for the following damages: (a) funeral expenses for the decedent; (b) expenses of administration related to decedent's injuries; (c) the loss of the support, consortium, comfort, counsel, aid, association, care and services of Plaintiff s decedent suffered by Plaintiff and decedent's children; and (d) such other damages as are permissible in a wrongful death action. WHEREFORE, Plaintiff demands judgment against the Defendants jointly and severally for a sum in excess of $25,000, plus interest and costs. THIRD COUNT Survival Action 24. Paragraphs 1 through 23 of the Complaint are incorporated by reference as if set forth at length. -8- 25. Plaintiff brings this survival action under 20 Pa. Cons. Stat. Ann & 3373 and 42 Pa. Cons. Stat. Ann. § 8302. 26. As a direct and proximate result of the aforesaid acts of negligence as set forth in Paragraph 15, Defendant Geoffrey James is liable jointly and severally for the following damages: (a) decedent's pain and suffering between the time of his injuries and the time of death; (b) decedent's total estimated future earning power less his estimated cost of personal maintenance; (c) decedent's loss of retirement and Social Security income; (d) decedent's other financial losses suffered as a result of his death; (e) decedent's loss of enjoyment of life; and (f] such other damages as are permissible in a survival action. WHEREFORE, Plaintiff demands judgment against Defendant jointly and severally for a sum in excess of $25,000, plus interest and costs. FOURTH COUNT Julia Wanner. Executrix of the Estate of Frank Wagner v Geoffrev James MD Wrongful Death Action 27. Paragraphs I through 26 of the Complaint are incorporated by reference as if fully set forth at length. 28. Plaintiff brings this action pursuant to the Pennsylvania Wrongful Death Act, 42 Pa. Cons. Stat Ann & 8301 and Pa. R.C.P. No. § 2202(a). 29. The decedent was survived by Plaintiff, his wife, and three children who -9- are entitled to recover damages for decedent's death. Decedent's three children are Michael, age 14 at the time of his father's death; Matthew, age 11 at the time of his father's death; and Madison, age 11 at the time of her father's death. 30. The decedent did not bring an action for personal injuries during his lifetime, and no other action for the death of decedent has been commenced against the Defendants herein. 31. As a direct and proximate result of the aforesaid acts of negligence as set forth in Paragraph 15, Defendant Geoffrey James is jointly and severally liable for the following damages: (a) funeral expenses for the decedent; (b) expenses of administration related to decedent's injuries; (c) the loss of the support, consortium, comfort, counsel, aid, association, care and services of Plaintiffs decedent suffered by Plaintiff and decedent's children; and (d) such other damages as are permissible in a wrongful death action. -10- WHEREFORE, Plaintiff demands judgment against the Defendant Geoffrey James jointly and severally for a sum in excess Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbereer ,bereerlawfiirm net -11- VERIFICATION I, Julia Wagner, affirm that I am the Plaintiff' in this action and that the statements of fact made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons Stat Ann & 4904 relating to unworn falsification to authorities. Date: May 17, 2005 is Wagner CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Amended Complaint in a Civil Action, on the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael D. Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: June 2, 2005 {-: 5i ? 'ij -• ? l r)i is N O ?? MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Email: mpipa@mdwcg.com Ph: (717) 651-3500 Fax: (717) 651-9630 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY : NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come the Defendants, by and through their counsel, and in response to the Amended Complaint filed by the Plaintiffs, preliminarily object as follows: This is a medical professional liability action arising out of treatment and care provided to Plaintiffs decedent, Frank Wagner, on January 31 and February 1, 2003. 2. The action was commenced by Complaint and the: Defendants filed Preliminary Objections to the Complaint. In response, Plaintiff filed an Amended Complaint. 4. In the Amended Complaint, Plaintiffs include four separate counts. The separate counts consist of survival and wrongful death counts against the physician who has been named as a Defendant, Geoffrey James, M.D. (Third Count And Fourth Count), and wrongful death and survival actions against the group practice through which Dr. James practiced family medicine (First Count and Second Count). 6. The four counts referred to in the paragraph above; contain no substantive allegations against the Defendants. Rather, the preliminary paragraphs of the Amended Complaint are incorporated by reference into each specifically enumerated Count. 8. In those preliminary paragraphs, Plaintiff sets forth factual allegations (Paragraphs 6 -14) and then attempts to set forth specific allegations of negligence in paragraph 15. 9. In the background factual allegations of Paragraphs 6 through 14, Plaintiff refers to events that occurred on Friday, January 31, 2003 and Saturday, February 1, 2003. 10. Plaintiff has filed a Certificate of Merit against Dr. James. 11. Plaintiff also recently filed a Certificate of Merit against the practice group, a copy of which is attached as Exhibit A. 12. The requirement to file a Certificate of Merit is set forth in the procedural rules governing professional liability actions, in particular Pa.R.C.P. No. 1042.3. 13. Rule 1042.3 establishes that a Certificate of Merit may be filed in order to support one of three types of allegations: a direct claim against an appropriate licensed professional, 1042.3 (a) (1); a claim of vicarious liability based solely upon allegations against licensed professionals for whom the Defendant is responsible, 10423(a)(2); or a claim for which expert testimony of an appropriate licensed professional is unnecessary 1042.3(a)(3). 14. Rule 1042.3(b) provides further that a separate Certificate of Merit must be filed against each licensed professional against who a claim is asserted. 15. Plaintiff has filed one Certificate of Merit alleging; directly that the treatment of a licensed professional fell outside acceptable professional standards in this case. That Certificate of Merit has been filed against Dr. James. 16. Plaintiff has filed one other Certificate of Merit, on the basis that the family practice group is responsible vicariously for allegations that other licensed professionals for whom the group is responsible deviated from an acceptable professional standard. See Exhibit A. 17. hr paragraph 5 of the complaint, Plaintiff states that to the extent licensed professionals other than Dr. James participated in the treatment and care of Plaintiffs decedent, "Plaintiff is asserting a professional liability claim against such unknown and unidentified licensed professionals." 18. There are no separate counts of direct liability in the Amended Complaint against any provider other than Dr. James. 19. Similarly, there is no Certificate of Merit under Rule 1042.3(a)(1) in support of a direct claim of medical professional liability against any person other than Dr. James. 20. Defendants respectfully submit that, under the circumstances, any attempt to assert a professional liability claim against anyone other than Dr. James and the practice group must be dismissed, with prejudice. 21. Moreover, the official note to Rule 1042.3(a)(2) establishes that, in a claim of vicarious liability, Certificates of Merit must be filed as to each licensed professional for whom the Defendant is vicariously responsible, whether or not they are named Defendants in the action. 22. Plaintiff has not filed a Certificate of Merit against any licensed professional other than Dr. James. 23. Defendants therefore respectfully submit that Plaintiff cannot assert a claim of vicarious liability against the practice group based upon the conduct of anyone other than Dr. James. 24. Defendants therefore respectfully request that this Court enter an order granting their preliminary objections and striking paragraph five from the Amended Complaint with prejudice. 25. More than two years have passed from the date of death, February 1, 2003, and the statute of limitations has expired so that Plaintiff is not now entitled to amend the action and add a direct claim against any other licensed professional or a vicarious claim based upon the conduct of any other licensed professionals. 4 WHEREFORE, Defendants respectfully requests that this Court grant their preliminary objection and enter an Order dismissing Paragraph 5 of the Amended Complaint, with prejudice, for failure to conform to Rule of Court. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN ?,& GOGGIN BY: j / L/"`^ ZAR MICHAEL D. PIPA, E UIRE Attorney I.D. No. 53624 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendant, Geoffrey James, M.D. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants CERTIFICATION OF SERVICE I hereby certify that I have served upon all parties listed below a true and correct copy of the foregoing document in the above-captioned matter this date by regular mail. Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 MARSHALL, DENNEHE'Y, WARNER COLEMAN AND GOGGIN DATE: 7,,, a-7, 2 D 05' BY: ' J MICHAEL D. PIPA, ESQ Attorneys for Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, MD. O ?+C4d ca ti ?rn ? -c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM Vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. By way of further answer, as indicated in Paragraph 7 of Defendant's Preliminary Objections, the substantive allegations against Defendant are incorporated by reference in each count of Plaintiff's Amended Complaint. 7. Admitted. -1- Admitted in part; denied in part, Plaintiff admits that paragraphs 6-14 of the complaint contain factual allegations. However, Plaintiff specifically denies that paragraph 15 merely "attempts" to set forth specific allegations of negligence. To the contrary, the allegations of negligence adequately support Plaintiff s claims in this matter. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. By way of clarification, Rule 1042.3(a) provides, in a Medical Malpractice action, a Certificate of Merit of one of the three! types described "shall" be filed. Thus, Plaintiffs ability to proceed with the claim depends upon whether an appropriate licensed professional has supplied a written statement determining that a licensed professional deviated from an acceptable professional standard and, if so, the defendant is that licensed professional or one responsible for that licensed professional, or no such testimony is necessary to support such a claim. 14. Admitted. 15. Admitted. By way of further answer, because Plaintiffs are not, as a general rule, permitted to perform discovery prior to filing a complaint, Plaintiff's determination of responsible parties is limited to those which can be determined from the patient's medical records. However, licensed professional not identified in the medical records may also have been negligent in the care provided to Plaintiff's decedent. Such a determination can only be made after discovery has been performed. -2- 16. Admitted. By way of clarification, Plaintiff agrees that it has filed a Certificate of Merit on the basis that the family practice group is responsible vicariously for the death of Plaintiff s decedent. That allegation refers to the practice group's "employees, servants, agents, and/or ostensible agents." Plaintiffs allegations refer to Dr. James, the named licensed professional and "other unnamed and unidentified individuals who participated in the care of Frank Wagner and whose responsibility and/or identity are not disclosed in the medical records. " 17. Admitted. 18. Admitted. 19. Admitted. 20. Denied. By way of further answer, in the absence of information specifically identifying the responsible licensed professionals, it is adequate to plead that, in the case of hospitals, that a particular hospital department is responsible. Similarly, with respect to medical practices, it is adequate to plead the practice's vicarious responsibility for their employees/agents conduct in the absence of specific available identifying information. This sensible guideline has been established in the following cases. Yacoub v. Lehigh Valley Medical Associates. P.C., 2002 Pa. Super. 251, 805 A.2d 579, 588 (2002), citin McLellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053 (Pa. Super. 1992), appeal denied 532 Pa. 664, 616 A.2d 985 (1992); Mauser v. Hershey Medical Center. Docket No. 3727 CV 2004, Memorandum Opinion and Order of Judge Cherry (Dauphin Cty. November 8, 2004) (attached as Appendix "A"). Plaintiff has provided a Certificate of Merit with respect to one specific licensed professional for whom Defendant health practices are vicariously liable and this is adequate to support the claim against Defendant health care practices. However, other -3- unnamed or unidentified individuals may share responsibility. The discovery rule would ensure that claims with respect to the direct liability of unnamed and unidentified licensed professionals would be preserved once they are able to be identified. Plaintiff has previously served discovery on Defendant in part to make this determination. Since the claims against unnamed or unidentified individuals would survive until they are able to be identified under the discovery rule, actions against their employer will also no doubt survive. Thus, there is no basis to dismiss this action, with prejudice, with respect to any unknown or unidentified individual. Rather, it is imperative that Plaintiff s discovery be answered so that further details of the practice: group's responsibility can be finally determined. 21. It is admitted that the official note to Rule 1042.3(a)(2) provides the statement contained in this paragraph. However, this is not a factual allegation to which a response is required. 22. Admitted. 23. Denied. While a Certificate of Merit has been filed with respect to each licensed professional whose name and responsibility could be identified from the medical records, it is impossible of course to specifically identify individuals who have not been identified in the medical records except by calling them "unknown and unidentified" employees or agents. To the extent that any individual licensed professional for which Defendant health care practices are responsible is specifically identified as responsible for the negligent care and treatment of Plaintiff s decedent, Defendant health care practices will bear that liability vicariously because Plaintiff has adequately identified the health practice as bearing responsibility in a similar fashion to the responsibility of a -4- hospital department as determined in Yacoub, supra and because the discovery rule will ensure that those responsible do not escape responsibility because their names and/or their role in the treatment and care of Plaintiff's decedent were not fully indicated in the medical records. 24. This paragraph states a legal conclusion to which no response is required. By way of further answer, Plaintiff submits that Defendant's request should be denied for reasons stated above. 25. Admitted in part; denied in part. It is admitted that more than two years have passed from the date of death. However, it is specifically denied that the statute of limitations has expired with respect to a direct claim against any other licensed professional or a related vicarious claim with respect to any other licensed professional. As discussed above, vicarious claims are adequately supported by identifying the department or medical practice within which such licensed professionals provide services. Moreover, the discovery rule ensures that claims against those whose identity or responsibility have escaped scrutiny and which Plaintiff could not have reasonably been expected to determine at such point in time survive until they can be reasonably determined. Thus, Defendant is in error in suggesting that the statute of limitations has expired and acts as a bar to such claims. -5- WHEREFORE, Defendant's Preliminary Objections should be denied. Edmund I Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbergera-berxerlawfirm.net -6- JOAN Z. MAUSER, and JOHN MAUSER, her husband, Plaintiff Vs. IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 3727 CV 2004 HERSHEY MEDICAL CENTER t/d/b/a z' MILTON S. HERSHEY MEDICAL CENTER, o Defendant CIVIL ACTION - LAW m 'c co MEMORANDUM OPINION ? cn Before this Court are Defendant Hershey Medical Center's Preliminary Objections to Plaintiffs' Amended Complaint. Plaintiffs initiated this cause of action via complaint on August 27, 2003. An amended complaint was filed on February 20, 2004. Defendant filed preliminary objections with a supporting brief on April 21, 2004. Plaintiff answered the preliminary objections on May 10, 2004 and filed a brief in opposition to the preliminary objections on May 20, 2004. This action, sounding in negligence against the Milton S. Hershey Medical Center (hereinafter HMC), arises from the alleged negligent acts of certain doctors, nurses and a physician's assistant. A derivative claim for loss of consortium is asserted by plaintiff husband, John Mauser. On September 4, 2001, Plaintiff Joan Mauser (hereinafter Mauser) presented to HMC for hip replacement surgery. Prior to surgery, a lumbar epidural catheter was inserted for anesthesia and was retained for pain management subsequent to the surgery. On September 6, 2001, the epidural catheter was capped, pursuant to the order of Dr. Cronin. By September 9, 2001, Mauser complained of lower back pain. The site of the catheter was noted to be red, raised, and enlarged. Plaintiffs allege that, despite obvious signs of hematoma and infection, the catheter was not removed until September 10, 2001. On September 11, 2001, an emergency laminectomy was performed, at which time an infection of the hematoma was discovered. Because the catheter was left in place between September 6 and 10, 2001, plaintiffs allege that Mauser sustained permanent urinary and bladder dysfunction, Defendant objects, via a motion to strike, or alternatively, a motion for a more specific pleading, to the allegations of agency within paragraphs 19 through 24 and paragraph 27 of the amended complaint. The paragraphs allege negligent acts of unidentified members of the rehabilitation service, orthopedic service and pain management service of the Hershey medical staff who were involved in the care of Mrs. Mauser from September 6 through September 11, 2001, Physician's Assistant Searight, nurses Becker, Hoffman, Langan, and Millay as well as any unidentified nurses who cared for Mrs. Mauser on September 9, 2001 were negligent and careless in the following particulars .... (Complaint, paragraph 19). Defendant argues that, pursuant to Pa.R.C.P. 1019(a), plaintiffs must identify by name or appropriate description all agents for whom HMC allegedly is vicariously liable. Defendant concludes that it is unable to determine from the nonspecific reference the individuals whose conduct plaintiffs deem to be negligent. Thus, defendant reasons that it is prejudiced and unable to prepare a response to plaintiff's complaint. Secondly, defendant objects, via motion to strike, to the generic certificate of merit that was filed as to "unnamed and/or unidentified employees" of HMC. Defendant argues that because plaintiffs must file a separate certificate oirmerit that specifically identifies each licensed professional against whom plaintiffs allege negligence, the generic catchall certificate of merit must be stricken. Inasmuch as plaintiffs are not required to completely identify, other than by appropriate description, each agent for whom HMC is responsible, plaintiffs argue that defendant's specificity objection is without merit. Because Pa.R.C.P. 1042.5 generally prohibits discovery in professional liability causes of action prior to the filing of a certificate of merit, plaintiffs suggest that identification by hospital departments adequately specifies the responsible or negligent agents of HMC. As such, Rule 1042.5 prevents a specific determination of the identity of all negligent individuals prior to the filing of the complaint. Plaintiffs conclude that thirteen (13) separate agents are identified in the complaint, which indicate, to the extent possible, the individuals and departments responsible for Mauser's injuries as well as the: theory of liability upon which the agents may be responsible. Since it is impossible at this stage of the proceedings to specifically identify each person who made important decisions regarding Mauser's care, plaintiffs conclude that defendant's specificity objection should be overruled. With regard to defendant's objection to the certificate; of merit pertaining to "unnamed and/or unidentified employees, servants, agents and/or ostensible agents" of HMC, plaintiffs note that the hospital records fail to identify the persons who passed medical information from one caregiver to another. Inasmuch as HMC itself in unable to identify certain individuals who provided care for Mauser, plaintiffs conclude that the mandate of Pa.R.C.P. 1042.3 is satisfied because the complaint identifies those unnamed employees by departmental identification. Pennsylvania Rule of Civil Procedure 1028(a)(3) provides that preliminary objections may be filed by any party to any pleading premised on insufficient specificity in a pleading. Pa.R.C.P. 1042.3(a)(2) provides: "In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff... shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that ... 2.) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard ...." "Certificates of merit must be filed as to the other licensed professionals whether or not they are named defendants in the action." Pa.R.C.P. 1042.3(a)(2)(note). "Except for the production of documents and things or the entry upon property for inspection and other purposes, a plaintiff who has asserted a professional liability claim may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit." Pa.R.C.P. 1042.5 "The purpose of the pleadings is to place the defendants on notice of the claims upon which they will have to defend. A complaint must give the defendants fair notice of the plaintiffs claims and a summary of the material facts that. support those claims ... However, it is not enough to focus upon one portion of the complaint. Rather, in determining whether a particular paragraph in a complaint has, been stated with the necessary specificity, such paragraph must be read in context with all other allegations in that complaint. Only then can the court determine whether the defendant has been put upon adequate notice of the claim against which he must defend." Yacoub v. Lehieh Valley Medical Associates. 805 A.2d 579, 588-589 (Pa.Super. 2002). "While it is unnecessary to plead all the various details of an alleged agency relationship, a complainant must allege, as a minimum, facts which: 1.) identify the agent by name or appropriate description; and 2.) set forth the agent's authority, and how the tortuous acts of the agent either fall within the scope of that authority, or if unauthorized, were ratified by the principal." Alumni Assn. v. Sullivan, 525 A.2d 1095, 1100, n.2 (Pa.Super. 1987), affirmed, 572 A.2d 1209 (Pa. 1990). In this matter, defendant argues that HMC is unable: to respond to the unspecific allegations of agency in paragraphs 19 through 24 and paragraph 27 because the paragraphs mention "other unidentified" employees of HMC. The Superior Court, in Yacoub, ruled that the complaint must give defendant fair notice of the claims and enable the defendant to prepare its defense, In addition, Alumni Association holds that allegations of an agency relationship requires the complainant to identify the agent by name or appropriate description. Paragraph 19 alleges that Drs. Cronin, Costa, Cannon, Harris, Hoover, Dabbah, Pellegrini, Smith; Physician's Assistant Searight; Nurses Becker, Hoffman, Langan and Millay; and other unidentified. members of HMC's rehabilitation service, orthopedic service and pain management service were negligent and careless. This Court finds that plaintiffs adequately identifies the agents of Hershey Medical Center, either by name or by adequate description of the department wherein Joan Mauser was treated. Pursuant to the specificity requirement of Pa.R.C.P. 1019(a) and the mandates of Yacoub and Alumni Association, defendant's specificity objection therefore is overruled. Secondly, defendant asks the Court to strike the certificate of merit that was filed on behalf of "unnamed and/or unidentified employees" of HMC. Although defendant argues that Pa.R.C.P. 1042.3(a)(2)(note) and (b) mandates individual certificates of merit for each licensed professional against whom a claim of negligence is asserted, the Court in Yacoub, ruled that all paragraphs within the complaint must be read in context with all other allegations in the complaint. Inasmuch as Pa.R.C.P. 1042.5 limits discovery prior to the filing of a certificate of merit; and since plaintiffs identify the known agents by name and the unknown agents by adequate description, pursuant to the mandate of Alumni Association, defendant's preliminary objection in the nature of a motion to strike the certificate of merit filed on behalf of "unnamed and/or unidentified employees of HMC is overruled. Accordingly, we enter the following: JOAN Z. MAUSER, and JOHN MAUSER, her husband, Plaintiff vs. HERSHEY MEDICAL CENTER t/d/b/a MILTON S. HERSHEY MEDICAL CENTER, Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 1.269 CV 2004 CIVIL ACTION - LAW ?j ORDER AND NOW, this b day of November 2004, upon consideration of the pleadings and oral argument, IT IS HEREBY ORDERED: Defendant Hershey Medical Center's preliminary objection - in the nature of a motion to strike or alternatively a motion for a more specific pleading - to the allegations of agency in paragraphs 19 through 24 and paragraph 27 is OVERRULED. 2. Defendant Hershey Medical Center's preliminary objection - in the nature of a motion to strike the certificate of merit as to the unnamed and/or unidentified employees of defendant - is OVERRULED. BY THE COURT: 7 Jo Cher ,Judge Distribution: Paul A. Laguese, Esquire; Edmund J. Berger, Esquire, 2104• Market Street, Camp Hill, PA 17011 Grant H. Fleming, Esquire; Jonathan B. Stepanian, Esquire, 600 Centerview Drive, Hershey, PA 17033 Deb Freeman, Esquire, Deputy Court Administrator Judge Cherry 7 I hereby cedj6y' at e tore0ois true &W correct copy f)f 1W 6rq'V ,' Prothonotary CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Plaintiff's Answer to Defendant's Preliminary Objections, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL. Michael D. Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: July 18, 2005 h.3 r ?n L..' _ i ?? mil c.-, ? .? ?..,. r`+y ? !n C? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants No. 556, Y2005 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to. complaint, etc.): Defendants' Preliminary Obiections to Plaintiffs' CqmRlaint Identify counsel who will argue cases: (a) for plaintiff. Edmund J. Berger, Esquire, Berger Law Firm, F'.C., 2104 Market Street, Camp Hill, PA 17011 (Name and Address) (b) for defendant: Michael D Pina, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 20, 2005 Shenherdstown Family Practice and Geoffrey James M.D. Date: 31 ZOO Attorney for Michael D. Pioa. Esquire Print your name MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael D. Pipa, Esquire Identification No. 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTO WN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants CERTIFICATION OF SERVICE I hereby certify that I have served upon all parties listed below a true and correct copy of the foregoing document in the above-captioned matter this date by regular mail. Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN DATE: SI -? [ 105 BY:"o MICHAEL D. PIPA, ESQTORE Attorneys for Defendant, r t: 7 ?1l -1' N i..? } N IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DBIA SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DBJA HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 TO THE PROTHONOTARY.- Enter Judgment of Non Pros against Plaintiff Julia Wagner, Executrix of the Estate of Frank Wagner, deceased, in the professional liability claim against unknown and unidentified licensed professionals in the above-captioned matter. I, the undersigned, certify that Plaintiffs named above have asserted professional liability claims against the Defendants named above who are licensed professionals within the meaning of Pa.R.C.P. 1042. 1, that no Certificate of Merit has been filed within the time required by Pa.R.C.P. 1042.3 and that there is no Motion to Extend the time for filing the Certificate of Merit is pending before the Court. Respectfully Submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: October (K , 2005 BY: qt-??SC6; MICHAEL D. PIPA, ESQ RE PA I.D. NO.: 53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants CERTIFICATE OF SERVICE I hereby certify that I have served upon all parties listed below a true and correct copy of the Praecipe for Entry of Judgment of Non Pros Pursuant to Rule 1042.6 in the above- captioned matter on October C &? 2005 by regular mail. Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 Michael D. Pipa \05_A\LIAB\MEP\LLPG\200914\KPM\01012\00134 r G 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., CIVIL DIVISION ri No: 05-556 CIVIL TERM Defendants JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days before the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received and, in fact, the other party to this proceeding has waived the 20-day notice period; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. December 13, 2005 BY: Edmund J. Berger Attorney for Plaintiff BERGER LAW FIRM, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: (717) 920-8900 Fax: (717) 920-8901 E-Mail: tberger(ftergerlawfirm.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, vs, SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., CIVIL DIVISION No: 05-556 CIVIL TERM Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Regarding Your Customer: Julie P. Wagner, Account Number 717 763 0134 497 38 Y: at: Berger Law Firm P.C. 2104 Market Street. Camp Hill, PA 17011 (Address) You may deliver or mail legible copies of the documents or produced things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. was a call from the indicated account or a call to the indicated account, and the duration of the call. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Edmund J. Berger Address: Berger Law Firm. P.C. 2104 Market Street Camp Hill, PA 17011 Telephone: (717) 920-8900 Supreme Court ID. M 53407 Attorney for: Plaintiff By the Court: DATE: y2e_ t3 aDo Pro honotary- Seal of the Court Deputy EXPLANATION OF REQUIRED RECORDS TO: Verizon Pennsylvania, Inc. P.O. Box 28000 Lehigh Valley, PA 18002-8000 RE: Your Customer: Julie P. Wagner Your Account No..: 717 763 0134 497 38 Y Billing Cycle: January 10, 2003 to February 9, 2003 REQUIRED RECORDS: Any and all records of calls, including local telephone calls, made and/or received by the above-indicated account number during the above- indicated billing cycle. Records which are provided in response to this subpoena should indicate, to the extent available, date and time of call, telephone number to which the call was made or from which it was received, whether it was a call from the indicated account or a call to the indicated account, and the duration of the call. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days before the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received and, in fact, the other party to this proceeding has waived the 20-day notice period; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. BERGER LAV"IRM. P April 12, 2006 BY: Edmund J. Berger Attorney for Plaintiff BERGER LAw FIRM, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: (717) 920-8900 Fax: (717) 920-8901 E-Mail: tberger(fteroerlawfirm.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS TO: Michael Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 I, Edmund J. Berger, of Berger Law Firm, P.C., on behalf of Plaintiff, Julia Wagner, Executrix of the Estate of Frank Wagner, Deceased, intend to serve a Subpoena identical to the one that is attached to this Notice. You may have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoena. If no objection is made, the Subpoena may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure 4009.24. Complete copies of any reproduced records may be obtained at your expense by contacting the undersigned at his office. April 12, 2006 BY: U,- l ll - Edmund J. I Attorney for BERGER LAW FIRM, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: (717) 920-8900 Fax: (717) 920-8901 E-Mail: tberaer(fterperlawfirm.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DBIA HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., No: 05-556 CIVIL TERM Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Verizon Pennsylvania Inc Mail Code TX01613. 2701 S. Johnson Avenue, San Angelo. TX 76903 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Regarding Your Customer Julie P. Wagner, Account Number 717 763 0134 497 38 Y: Billing Cycle: January 10, 2003 to February 9.2003: Any and all records of calls, response to this subpoena should indicate to the extent available, date and time of call, telephone number to which the call was made or from which it was received, whether it was a call from the indicated account or a call to the indicated account, and the duration of the call. at: Berger Law Firm P.C. 2104 Market Street, Camp Hill. PA 17011 (Address) You may deliver or mail legible copies of the documents or produced things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Address: Telephone: Supreme Court ID. M Attorney for: Edmund J. Berner Berger Law Firm, P.C. 2104 Market Street Camp Hill. PA 17011 (717) 920-8900 53407 Plaintiff By the Court: DATE: Prothonotary Seal of the Court Deputy EXPLANATION OF REQUIRED RECORDS TO: Verizon, Pennsylvania, Inc. Mail Code TX01613 2701 S. Johnson Avenue San Angelo, TX 76903 RE: Your Customer: Julie P. Wagner Your Account No..: 717 763 0134 497 38 Y Billing Cycle: January 10, 2003 to February 9, 2003 REQUIRED RECORDS: Any and all records of calls, including local telephone calls, made and/or received by the above-indicated account number during the above- indicated billing cycle. Records which are provided in response to this subpoena should indicate, to the extent available, date and time of call, telephone number to which the call was made or from which it was received, whether it was a call from the indicated account or a call to the indicated account, and the duration of the call. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, Vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants CIVIL DIVISION No: 05-556 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF COMPLIANCE I hereby certify that I have complied in all respects with the foregoing subpoena by delivering any and all records requested by the party issuing this subpoena. The provided records consist of pages of paper reproduction of records. I have not withheld any information which might otherwise have been provided in response to this subpoena for any reason unless specified as follows: Name, Position, and Signature of Individual Swearing or Affirming Compliance with Subpoena under penalty of law. Name Signature Title Date CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Certificate Prerequisite to Service of Subpoena, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael D. Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: April 12, 2006 Edmund J. Berger l;} ( ?' ? ?l `vi 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE : DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants PLAINTIFF'S REQUEST TO DEFENDANTS FOR PRODUCTION OF EXPERT REPORTS PURSUANT TO RULE 1042.29 TO: DEFENDANT GEOFFREY JAMES, M.D., SHEPHERDSTOWN FAMILY PRACTICE, P.C., AND HERITAGE MEDICAL GROUP, LLP FROM: PLAINTIFF, JULIA WAGNER 1. Plaintiff provided Defendants with expert reports in December, 2005, summarizing the expert testimony that it will offer to support the claims of professional negligence that have been made against Defendants. 2. Pursuant to Pennsylvania Rule of Civil Procedure 1042.29(a)(3), you are requested within one hundred twenty (120) days of service of this request to furnish to Plaintiff expert reports summarizing the expert testimony that you will offer to support your defenses to the claims of professional negligence that Plaintiff has made against you. Date: June 12, 2006 Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbergeralberUr-lawfirm.net CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Plaintiffs Request to Defendants for Production of Expert Reports Pursuant to Rule 1042.29, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael D. Pipa, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite 6 Harrisburg, PA 17112 Date: June 12, 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, CIVIL DIVISION v. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants NO: 05-556 CIVIL TERM PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the enter the appearance of the undersigned on behalf of Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. in the above captioned case. DATE: BY: 4jAQt MICHAEL D. PIPA, ES RE I.D. NO. 53624 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of the Defendants, Shepherdstown Family Practice, P.C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. in the above captioned case. Respectfully Submitted, (.P DATE: V'?i17 BY: CRAIG A. ST N)3 I.D. NO. 15907 4200 Crums Mi 1 R Harrisburg, PA 71 (717) 651-3502 , WARNER, Attorneys for Defendants, Shepherdstown Family Practice, AC, Heritage Medical Group, LLP Gary M. Schwartz, M. D. and Geoffrey James, M.D. o ? CQ N J s" ?? n CD G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP),; and GEOFFREY JAMES, M.D., Defendants CIVIL DIVISION No: 05-556 CIVIL TERM MOTION FOR STATUS CONFERENCE TO RESOLVE ISSUES IN AID OF DISCOVERY AND IN ANTICIPATION OF LISTING THIS MATTER FOR TRIAL AND NOW COMES Plaintiff, Julia Wagner, by her counsel, and with the concurrence of defense counsel, and requests that the Court schedule a Status Conference for the purpose of discussing outstanding discovery issues and the possible establishment of case management deadlines to assist the parties in completing discovery so that this matter may be listed for trial. In support of this Motion, Plaintiff respectfully submits as follows: 1. This action was commenced on January 31, 2005. Since that date, the parties have actively engaged in discovery and this matter is nearly ready to be listed for trial. However, Plaintiff would like to take certain additional depositions and Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants MOTION FOR STATUS CONFERENCE TO RESOLVE ISSUES IN AID OF DISCOVERY AND TO ESTABLISH CASE MANAGEMENT DEADLINES AND NOW COMES Plaintiff, Julia Wagner, by her counsel, and with the concurrence of defense counsel, and requests that the Court schedule a Status Conference for the purpose of discussing outstanding discovery issues and the possible establishment of case management deadlines to assist the parties in completing discovery so that this matter may be listed for trial. In support of this Motion, Plaintiff respectfully submits as follows: 1. This action was commenced on January 31, 2005. Since that date, the parties have actively engaged in discovery and this matter is nearly ready to be listed for trial. However, Plaintiff would like to take certain additional depositions and Defendant has indicated objection to such depositions taking place, and both parties seek the Court's guidance on this issue. 2. Plaintiff and Defendant believe that the Court could assist the parties in r ? resolving the outstanding discovery issues without the need for a Motion to Compel, and the accompanying briefing and argument, by holding a Status Conference at which time the outstanding discovery issues can be addressed, as well as the possible establishment of case management deadlines. WHEREFORE, Plaintiff respectfully requests a Status Conference to discuss the outstanding discovery issues and the possible establishment of case management deadlines. December 12, 2006 Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbergerAberggrlawfirm.net 2 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Motion for Status Conference to Resolve Issues In Aid of Discovery And To Establish Case Management Deadlines, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael McGuckin, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: December 12, 2006 Edmund J. Berger C? l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants PROPOSED ORDER CIVIL DIVISION No: 05-556 CIVIL TERM AND NOW, this c)- b ;day of kpxte ? , 2006, the Court schedules a Status Conference in the above-captioned matter to discuss with the parties certain outstanding discovery issues and the possible establishment of case management deadlines. A Status ,{ Conference shall be held on J'4 02 j?,I at 9,15 A.M. in r _ i---?? before Judge BY THE COURT: A'_ 11. JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED PLAINTIFF V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSITC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), AND GEOFFREY JAMES, M.D., DEFENDANTS : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-0556 CIVIL IN RE: CASE MANAGEMENT ORDER ORDER OF COURT AND NOW, this 26t' day of January, 2007, after conference with counsel, the following case management schedule is ordered: 1. By February 9, 2007, the Defendant will identify the names of any individuals who were in the employ of the Defendants on January 31, 2003 who may have knowledge of the decedent scheduling an appointment for February 1, 2003. 2. If it is determined that such persons do exist, then depositions of these individuals shall take place by March 16, 2007. 3. By April 13, 2007, the Plaintiff shall file a Motion in Limine with supporting legal brief regarding a conversation between the decedent and his wife on January 31, 2003, regarding his physical condition and the scheduling of an appointment for medical care for the following day. Said Motion will include a specific offer of proof of what the wife will testify to regarding her husband's statements. 4. By May 11, 2007, the Defendant shall file a responsive brief to the Plaintiff's Motion in Limine. 5. By February 9, 2007, the Plaintiff's counsel will advise Defense counsel which children of the decedent would be called to testify at the trial. 6. By March 16, 2007, any child of the decedent who will testify at trial will be deposed. 7. By March 30, 2007, the Defendant will provide the Plaintiff with his Earnings Loss Expert Report assuming the Expert has all of the data required to formulate his opinion. By the Court, YXW :? ?=j M. L. Ebert, Jr., J. ,A-t/dmund J. Berger, Esquire Attorney for Plaintiff ?'""chael McGuckin, Esquire Attorney for Defendant A ?C :Z lld 6Z FVj U01 A's ''', ,; - z ?uR ?{a1? ?C,' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants MOTION IN LIMINE TO PERMIT PLAINTIFF TO OFFER TESTIMONY REGARDING PLAINTIFF'S DECEDENT'S STATEMENTS REGARDING HIS PHYSICAL CONDITION AND PLAINTIFF'S DECEDENT'S STATEMENTS REGARDING A CONVERSATION WITH DEFENDANT SHEPHERDSTOWN SCHEDULING APPOINTMENT AT DEFENDANT'S PRACTICE AND NOW COMES Plaintiff, Julia Wagner, and respectfully moves the court to permit testimony regarding a conversation between client and her deceased husband regarding the scheduling of an appointment at Defendant Shepherdstown Family Practice, P.C. ("Defendant Shepherdstown"). In support of this Motion, Plaintiff respectfully represents as follows: In the days preceding his death, Plaintiff's decedent had various conversations with Plaintiff, spouse of Plaintiff's decedent, and Plaintiff's decedent's eldest son regarding his physical well-being. Additionally, Plaintiff's decedent spoke to Plaintiff regarding a telephone conversation he had with Defendant Shepherdstown pertaining to his reasons for seeking medical treatment and the scheduling of his medical appointment. 2. Plaintiff anticipates that Defendant Shepherdstown will object to questions bearing upon these conversations between Plaintiff and Plaintiff's decedent and between Plaintiff's decedent's eldest son and Plaintiff's decedent as hearsay. 3. Plaintiff seeks here to obtain the Court's ruling as to whether or not these conversations are or are not hearsay and, if so, whether they fall into an exception to the hearsay rule. 4. As additional factual background, Plaintiff would note that she has submitted interrogatories and requests for production of documents seeking Defendant Shepherdstown's records and employee knowledge regarding Plaintiff's decedent's original contact with Defendant Shepherdstown to schedule his appointment of February 1, 2003. 5. However, Defendant has been unable to identify the individual who scheduled the appointment of Plaintiff's decedent on February 1, 2003, or the date and time of the call at which Plaintiff's decedent scheduled the appointment. Furthermore, without being able to identify the employee who took this call, Plaintiff is unable to examine such individual regarding any conversation which occurred at the time of scheduling of the appointment. 6. The Plaintiff's decedent's description of his physical symptoms/condition and the nature of the initial contact between Plaintiff's 2 decedent and Defendant Shepherdstown are potentially significant issues in this case because it is Plaintiff's position that Plaintiff's decedent's condition, based on the symptoms he described, was one which required emergency evaluation and treatment. Thus, the timing of Plaintiff's decedent's call and the symptoms he reported to the individual who took his call are important to the case. 7. Defendant Shepherdstown has indicated in discovery that between the date of Plaintiff's decedent's death and the filing of this lawsuit, its computer system was replaced and the data which would have identified the date, time and name of the individual who scheduled Plaintiff's decedent's appointment was destroyed. 8. Plaintiff's decedent spoke to his wife Plaintiff, Julia Wagner, and to his son, Michael Wagner, regarding his physical symptoms during the time preceding his visit to Defendant Shepherdstown. Consequently, the Plaintiff and her son can speak to the symptoms that Plaintiff's decedent described to them in light of the fact that, given his death, he is unavailable to testify regarding these matters 9. The Pennsylvania Rules of Evidence provide an exception from the hearsay rule for an out-of-court declarant's statements regarding his physical condition. Pa.R.E. Rule 803(3), citing Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978). 10. Plaintiff's decedent's statements to Plaintiff and his son regarding his physical condition fits into this "state of mind" exception to the hearsay rule and should be allowed. 3 11. As noted above, Plaintiff, Julia Wagner, can also testify regarding the telephone conversation that occurred between Plaintiff's decedent and Defendant Shepherdstown as he told Plaintiff of this call following the making of the appointment. 12. Pennsylvania Rule of Evidence 803(4) provides that "[a] statement made for purposes of medical treatment, or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensations... " is an exception to the hearsay rule. 13. The information conveyed by Plaintiff's decedent to Plaintiff regarding his telephone contact with Defendant Shepherdstown was information submitted to Defendant Shepherdstown for the purpose of medical treatment and medical diagnosis in contemplation of treatment which described past and present symptoms and other facts pertinent to diagnosis and treatment. As such, this testimony fits the exception provided by Pennsylvania Rule of Evidence 803(4), citing Commonwealth v. Smith 545 Pa. 487, 681 A.2d 1288 (1996). If not permitted for this reason, it should be allowed into evidence under Pennsylvania Rule of Evidence 803(1) as conveying Plaintiff's decedent's present sense impression of his contact with Defendant Shepherdstown shortly before these statements were made to Plaintiff. 14. Finally, Plaintiff would emphasize that the information destroyed by Shepherdstown is important information regarding Plaintiff's decedent's medical care that should have been retained by Defendant Shepherdstown and either reflected in his medical record or separately maintained. 4 15. Although Plaintiff is unaware of any legal requirement for maintaining medical records, the American Medical Association's Code of Medical Ethics clearly states that medical records should be retained "[i]n all cases.... for at least as long as the length of time of the statute of limitations for medical malpractice claims." E-7.05. 16. Defendant Shepherdstown's destruction of appointment scheduling information with respect to Mr. Wagner's appointment was wrongful and although no hearsay exception is specifically applicable, the objectives underlying the hearsay exception of Rule 804(6) is akin to the objectives sought to be achieved here. An exception should, therefore, be made in this instance and, if not allowed for the reasons set forth above, Plaintiff's testimony regarding the conversation between Plaintiff's decedent and Shepherdstown should be allowed into evidence. 5 WHEREFORE, Plaintiff respectfully requests that the testimony of Julia Wagner and Michael regarding Plaintiff's decedent's statements concerning his physical condition and symptoms and his conversation with Defendant Shepherdstown in which he scheduled his appointment be allowed into evidence. April 13, 2007 Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger@bergerlawfirm.net 6 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Motion in Limine and Brief in Support of Motion in Limine, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael McGuckin, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: April 13, 2007 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants AMENDED MOTION IN LIMINE TO PERMIT PLAINTIFF TO OFFER TESTIMONY REGARDING PLAINTIFF'S DECEDENT'S STATEMENTS REGARDING HIS PHYSICAL CONDITION AND PLAINTIFF'S DECEDENT'S STATEMENTS REGARDING A CONVERSATION WITH DEFENDANT SHEPHERDSTOWN SCHEDULING APPOINTMENT AT DEFENDANT'S PRACTICE AND NOW COMES Plaintiff, Julia Wagner, and respectfully moves the court to permit testimony regarding a conversation between client and her deceased husband regarding the scheduling of an appointment at Defendant Shepherdstown Family Practice, P.C. ("Defendant Shepherdstown"). In support of this Motion, Plaintiff respectfully represents as follows: 1. In the days preceding his death, Plaintiff's decedent had various conversations with Plaintiff, spouse of Plaintiff's decedent, and Plaintiff's decedent's eldest son regarding his physical well-being. Additionally, Plaintiff's decedent spoke to Plaintiff regarding a telephone conversation he had with Defendant Shepherdstown pertaining to his reasons for seeking medical treatment and the scheduling of his medical appointment. 2. Plaintiff anticipates that Defendant Shepherdstown will object to questions bearing upon these conversations between Plaintiff and Plaintiff's decedent and between Plaintiff's decedent's eldest son and Plaintiff's decedent as hearsay. 3. Plaintiff seeks here to obtain the Court's ruling as to whether or not these conversations are or are not hearsay and, if so, whether they fall into an exception to the hearsay rule. 4. As additional factual background, Plaintiff would note that she has submitted interrogatories and requests for production of documents seeking Defendant Shepherdstown's records and employee knowledge regarding Plaintiff's decedent's original contact with Defendant Shepherdstown to schedule his appointment of February 1, 2003. 5. However, Defendant has been unable to identify the individual who scheduled the appointment of Plaintiff's decedent on February 1, 2003, or the date and time of the call at which Plaintiff's decedent scheduled the appointment. Furthermore, without being able to identify the employee who took this call, Plaintiff is unable to examine such individual regarding any conversation which occurred at the time of scheduling of the appointment, 6. The Plaintiff's decedent's description of his physical symptoms/condition and the nature of the initial contact between Plaintiff's 2 decedent and Defendant Shepherdstown are potentially significant issues in this case because it is Plaintiff's position that Plaintiff's decedent's condition, based on the symptoms he described, was one which required emergency evaluation and treatment. Thus, the timing of Plaintiff's decedent's call and the symptoms he reported to the individual who took his call are important to the case. 7. Defendant Shepherdstown has indicated in discovery that between the date of Plaintiff's decedent's death and the filing of this lawsuit, its computer system was replaced and the data which would have identified the date, time and name of the individual who scheduled Plaintiff's decedent's appointment was destroyed. 8. Plaintiff's decedent spoke to his wife Plaintiff, Julia Wagner, and to his son, Michael Wagner, regarding his physical symptoms during the time preceding his visit to Defendant Shepherdstown. Consequently, the Plaintiff and her son can speak to the symptoms that Plaintiff's decedent described to them in light of the fact that, given his death, he is unavailable to testify regarding these matters 9. The Pennsylvania Rules of Evidence provide an exception from the hearsay rule for an out-of-court declarant's statements regarding his physical condition. Pa.R.E. Rule 803(3), citing Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978). 10. Plaintiff's decedent's statements to Plaintiff and his son regarding his physical condition fits into this "state of mind" exception to the hearsay rule and should be allowed. 3 11. As noted above, Plaintiff, Julia Wagner, can also testify regarding the telephone conversation that occurred between Plaintiff's decedent and Defendant Shepherdstown as he told Plaintiff of this call following the making of the appointment. 12. Pennsylvania Rule of Evidence 803(4) provides that "[a] statement made for purposes of medical treatment, or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensations... " is an exception to the hearsay rule. 13. The information conveyed by Plaintiff's decedent to Plaintiff regarding his telephone contact with Defendant Shepherdstown was information submitted to Defendant Shepherdstown for the purpose of medical treatment and medical diagnosis in contemplation of treatment which described past and present symptoms and other facts pertinent to diagnosis and treatment. As such, this testimony fits the exception provided by Pennsylvania Rule of Evidence 803(4), citing Commonwealth v. Smith 545 Pa. 487, 681 A.2d 1288 (1996). If not permitted for this reason, it should be allowed into evidence under Pennsylvania Rule of Evidence 803(1) as conveying Plaintiff's decedent's present sense impression of his contact with Defendant Shepherdstown shortly before these statements were made to Plaintiff. 14. Finally, Plaintiff would emphasize that the information destroyed by Shepherdstown is important information regarding Plaintiff's decedent's medical care that should have been retained by Defendant Shepherdstown and either reflected in his medical record or separately maintained. 4 15. Although Plaintiff is unaware of any legal requirement for maintaining medical records, the American Medical Association's Code of Medical Ethics clearly states that medical records should be retained "[i]n all cases.... for at least as long as the length of time of the statute of limitations for medical malpractice claims." E-7.05. 16. Defendant Shepherdstown's destruction of appointment scheduling information with respect to Mr. Wagner's appointment was wrongful and although no hearsay exception is specifically applicable, the objectives underlying the hearsay exception of Rule 804(6) is akin to the objectives sought to be achieved here. An exception should, therefore, be made in this instance and, if not allowed for the reasons set forth above, Plaintiff's testimony regarding the conversation between Plaintiff's decedent and Shepherdstown should be allowed into evidence. 17. This Motion is filed in accordance with the Case Management Order of January 26, 2007 of the Honorable M.L. Ebert, Jr., requiring Plaintiff to file its Motion in Limine by April 13, 2007. 18. Plaintiff did seek the concurrence of opposing counsel and opposing counsel did not concur. 5 WHEREFORE, Plaintiff respectfully requests that the testimony of Julia Wagner and Michael regarding Plaintiff's decedent's statements concerning his physical condition and symptoms and his conversation with Defendant Shepherdstown in which he scheduled his appointment be allowed into evidence. April 27, 2007 Edmund J. Berger Attorney I . D. #53407 Attorney for Plaintiff Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger@bergerlawfirm.net 6 f? ?-: :?) = ?` t :°, ` ? _ _ .-a r. ,.; _._, ; - -- ?..-ti r?-. .. 4 _-? .; Y- ? ?. ) F ..s'.P 4v.J CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Amended Motion in Limine, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Michael McGuckin, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: April 27, 2007 Edmund J. Berger .^-i .? ,} ..? _ _ __ r ?_ '?:? ?- •-?.. t +? MICHAEL W. MCGUCKIN, ESQUIRE I.D. No. 49464 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendants, Shepherdstown Family Practice, P. C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, : CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants NO: 05-556 CIVIL TERM DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE TO PERMIT PLAINTIFF TO OFFER HEARSAY TESTIMONY REGARDING PLAINTIFF'S DECEDENT'S STATEMENTS AND NOW comes the Defendants by their counsel, Marshall, Dennehey, Warner, Coleman & Goggin, who respond to Plaintiffs Motion in Limine as follows: I . Denied as stated. Defendants have no knowledge concerning the alleged "various conversations" that plaintiffs decedent had with his spouse and eldest son regarding his physical well being. When the issue concerning this Motion in Limine was discussed during the status conference on January 26, 2007 before the Honorable M.L. Ebert, Jr., plaintiffs counsel was directed to file a motion in limine and specify the hearsay statements that plaintiff believed were admissible under an evidentiary exception. Despite that requirement, no specific offer of proof has been attached and plaintiff has failed to specify what statements she believes are now admissible as evidence, and as such, defendants cannot respond with any further specificity except as set forth herein. Defendants did take the deposition of plaintiff, Mrs. Julia Wagner, on January 24, 2006. If Mrs. Wagner is going to testify at trial in accordance with her deposition testimony then defendants are potentially aware of the proffered hearsay testimony concerning a discussion between Mr. Wagner and his wife, which Mrs. Wagner claims occurred on Friday, January 31, 2003, and will be discussed at length herein. See copy of Mrs. Wagner's deposition testimony attached hereto as Exhibit "A". That statement is inadmissible hearsay as set forth at length in defendants' accompanying Brief. The sole purpose of submitting the hearsay testimony is to attempt to prove that Mr. Wagner was, in fact, short of breath when he telephoned the medical office to schedule an appointment and that Mr. Wagner was, in fact, short of breath when he was seen by Dr. James on the morning of February 1, 2003. Plaintiff apparently needs this hearsay testimony as the admissible evidence, including the medical records and sworn deposition testimony, confirms that Mr. Wagner was not short of breath. Plaintiffs attempt to use a catch all "state of mind" exception must fail as a matter of law as the statements are being offered to prove the truth of the matter asserted. 2. As stated above, as defendants do not know what plaintiffs decedent's son plans to say concerning alleged conversations he and his father had prior to his death, and as such Defendants can not reply with any specificity other than as set forth herein. 2 Defendants object to the admission of statements learned during Mrs. Wagner's deposition, specifically her proffered hearsay testimony that she spoke to her husband sometime after he allegedly made a telephone call to Shepherdstown Family Practice, P.C., on Friday, January 31, 2003 to schedule the office visit which took place on Saturday, February 1, 2003. Mrs. Wagner was not present when that alleged telephone conversation between her late husband and office personnel occurred, and Mrs. Wagner has no first hand knowledge of what transpired. As such, and as will be set forth at length herein, there is no exception to allow the admission of this hearsay testimony. Further, the proffered hearsay testimony is being offered to prove the truth of the matter asserted. The sole purpose of submitting this hearsay testimony is to attempt to prove that Mr. Wagner was, in fact, short of breath when he telephoned the office to schedule an appointment and that Mr. Wagner was, in fact, short of breath when he was seen by Dr. James on the morning of February 1, 2003. Plaintiff apparently needs this hearsay testimony as the admissible evidence, including the medical records and sworn deposition testimony, confirms that Mr. Wagner was not short of breath. A statement claiming to fall under the state of mind rule is properly excluded when the statement is actually offered "for its substantive effect of proving the truth of the matters asserted therein." Spotts v. Reidell, 497 A.2d 630, 634 (Pa. Super. 1985). 3. This averment requires no response. 4.-5. Denied as stated. The parties have engaged in extensive discovery concerning this case, including an investigation as to whether any employee of Shepherdstown Family Practice recalls receiving a telephone call from Mr. Wagner on January 31, 2003 scheduling his office visit of February 1, 2003. Defendants have provided information that there is no employee who recalls receiving a telephone call from Mr. Wagner on January 31, 2003. 3 Defendants have recently provided an affidavit from Noreen Johnson, the office manager at Shepherdstown Family Practice indicating that more than one year after the events at issue in this lawsuit, the computer system at Shepherdstown Family Practice was changed and no scheduling information from the previous years was maintained. See affidavit of N. Johnson attached hereto as "Exhibit "B". Plaintiff has suggested that the change-over of the computer system was somehow improper. Despite having no evidence of such, and citing no requirements or regulations, defendants hereby respond to that assertion by noting that no medical records of any patients were destroyed, altered or modified when the computer system was changed. In fact, even with the old computer system, scheduling information was only maintained for approximately three months and then that information was purged, either written over or discarded. As such, even if there was at one time a computer "schedule" entry for Mr. Wagner's February 1, 2003 appointment, that entry would have been automatically purged after three months. See Exhibit "B". Further, even if there was at one time a computer "schedule" entry for Mr. Wagner, it would not have any medical information only scheduling information. Here, there is no dispute that Dr. James evaluated Mr. Wagner on Saturday morning February 1, 2003, and as such this issue about the computer system is simply a non-issue. 6. Denied as stated. Plaintiffs only theory of direct liability against Defendants, Shepherdstown Family Practice, P.C., appears to be the wholly unsupported and speculative theory that Mr. Wagner, based upon symptoms that he allegedly described during a telephone call on January 31, 2003, required emergency evaluation and treatment. In fact, Plaintiffs liability expert bases his entire criticism of the Shepherdstown Family Practice on the proffered hearsay testimony of Mrs. Wagner concerning what she assumes was said by her late husband during that unwitnessed phone call - she was neither present nor heard any portion of her 4 husband's telephone call on January 31, 2003. See Exhibit "A" p.103. This hearsay statement does not, and cannot, fit into any exception and must be precluded. 7. Denied. Defendants incorporate herein their response to number 5 and 6 above. 8. Denied. Defendants incorporate herein their response to number 1 above. 9. This averment is denied as a conclusion of law. Defendants deny that any of the proffered hearsay statements are admissible for the reasons set forth at length in their accompanying Brief, which is incorporated herein. 10. Denied. These averments are conclusions of law. Further, defendants deny that any of the proffered hearsay statements are admissible for the reasons set forth at length in their accompanying Brief. Further, as mentioned above, plaintiff has failed to provide any offer of proof concerning what Mr. Wagner's son is allegedly going to say at trial concerning conversations, and as such, defendants cannot respond with any further specificity except as set forth herein and in their Brief. 11. Denied as stated. Mrs. Wagner did not hear and was not present when her husband allegedly telephoned Shepherdstown Family Practice on Friday January 31, 2003 to schedule an office appointment for February 1, 2003. As such, this hearsay testimony is inadmissible, and certainly not an exception under Pa. R. E. 803(4), as Mrs. Wagner did not witness or hear any portion of this alleged telephone conversation. 12. This averment is a conclusion of law and requires no response. 13. Denied. Plaintiffs argument that the alleged statement that Mr. Wagner made to his wife, Mrs. Wagner, concerning an earlier telephone call is an exception to the hearsay rule is fatally flawed. Mrs. Wagner has admitted that she was not present nor did she hear her husband when he allegedly telephoned Shepherdstown Family Practice to make an appointment for the next day. See Exhibit "A" p.103. The clear intent and purpose of Pennsylvania Rule of Evidence 5 803(4), allows for an exception to the hearsay rules if the statement was made for the purpose of medical diagnosis in contemplation of treatment. However, Plaintiff has no witness or evidence suggesting what information was, in fact, conveyed for purposes of medical treatment, even if a telephone call occurred that day. For instance, if Mr. Wagner simply called Shepherdstown Family Practice and requested an office visit, then any attempt to allege in hindsight that he must have said, or probably said, or an assumption was made that he complained of shortness of breath is not only inadmissible but extremely prejudicial to the Defendants. There is simply no evidence that Mr. Wagner complained of shortness of breath to the office when he scheduled an appointment for the next day. In fact when Mr. Wagner was seen early the next morning by Dr. James, Mr. Wagner was not short of breath. Plaintiff wants to get around the medical records and sworn testimony of Dr. James and his staff, and speculate to the jury using this hearsay testimony that Mr. Wagner must have complained of shortness of breath to someone at the office, and therefore the practice group was negligent in not referring Mr. Wagner directly to an emergency room. 14. Denied. It is specifically denied that any information was "destroyed". Again, plaintiff has offered no proof nor submitted any authority to suggest that Shepherdstown Family Practice ever had scheduling information about Mr. Wagner and the February 1, 2003 office visit recorded in its computer system. Further, this entire issue is misleading at best as it is undisputed that Mr. Wagner was seen early on Saturday, February 1, 2003, by defendant, Dr. James, and the claimed complaints that Plaintiff wishes to put into evidence by hearsay testimony are not borne out by the medical records, or any deposition testimony. For instance, Dr. James and his medical assistant have given deposition testimony in this case which confirms that Mr. Wagner was not short of breath. Finally, defendants incorporate herein their responses to numbers 5 and 6 above. 6 15. Defendants do not believe that this averments requires a response, however defendants would note again that Mr. Wagner's medical records were not destroyed, altered or modified. See Exhibit "B". To the contrary, plaintiffs counsel has a full and complete copy of all of Mr. Wagner's medical records. It appears that plaintiffs contention is that if there was some record that a telephone call was made that would help establish certain of her claims in this case. Regardless of whether a telephone call was made to schedule an appointment, the proffered hearsay testimony of what allegedly was said during that alleged conversation is prejudicial to the defense of this case. Plaintiff wants this Honorable Court to now rule that plaintiffs expert can opine that (based solely upon plaintiffs current attempt to get this hearsay testimony admitted) Mr. Wagner must have complained of shortness of breath when he called the practice office, and therefore it was mandated that Mr. Wagner be immediately seen in an emergency room. To allow this unsupported hearsay testimony would be extremely prejudicial to the defense, as defendants cannot cross-examine the declarant. Again, Mr. Wagner was seen early the next morning by Defendant, Dr. James, a board certified family physician, who evaluated Mr. Wagner's condition and made clinical judgments based upon the history reported to him and Mr. Wagner's presentation that morning. That is the real issue involved in this case - the appropriateness of Dr. James' evaluation and recommendations -- and the real issue in this case should not be based upon double hearsay from a statement that the declarant cannot be cross-examined about. 16. Denied. It appears that Plaintiffs counsel is requesting that this Court adopt a new rule of evidence concerning hearsay testimony. Again, no medical records were destroyed. Further, defendants incorporate herein their responses to numbers 5 and 6 above. Moreover, defendants feel compelled to respond that there has been absolutely no proof or authority cited to suggest that the changing of the scheduling computer system for a large medical practice group 7 (more than one year after the events at issue here) was in any way improper. Finally, as discussed above, even if there was a notation -- in the computer or in the office chart -- concerning a telephone call and scheduling of an appointment for the next morning, the alleged hearsay statements would not be admissible. 17. Admitted. 18. Admitted. WHEREFORE, Defendants respectfully request that this Honorable Court deny Plaintiffs Motion in Limine to offer hearsay statements of Plaintiffs Decedent. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: ichael . McGuckin, Esquire Sup. Ct. I.D. # 49464 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendants DATE: May 10, 2007 \05 A\LIAB\MWMCGUCKIN\LLPG\253126\MGWHrrE\01012\00134 8 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael W. McGuckin, Esquire Identification No. 49464 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendants, Shepherdstown Family Practice, P. C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, : CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants : NO: 05-556 CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that on this I e day of May, 2007, a true and correct copy of the foregoing Defendants' Response in Opposition to Plaintiffs Motion in Limine to Permit Plaintiff to Offer Hearsay Testimony Regarding Plaintiffs Decedent's Statements in the above-captioned matter was sent via first-class mail, postage prepaid, to the following counsel of record: Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN DATE: Ma 10 2007 2 v BY: ICHAEL W. MCGUCKIN, ESQUIRE Attorney for Defendants, Shepherdstown Family Practice, P. C., Heritage Medical Group, LLP, Gary M. Schwartz, M.D. and Geoffrey James, M.D. \05_A\LIAB\M WMCGUCKMLLPG\253586\MG WHITE\01012\00134 2 C;J 7 Z JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED, PLAINTIFF V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSITC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), AND GEOFFREY JAMES, M.D., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-556 CIVIL ORDER OF COURT AND NOW, this 1st day of June, 2007, upon consideration of the Plaintiff's Motion in Limine regarding the hearsay statements of Plaintiff's Decedent, and Defendant's Response and Brief in Opposition thereto, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiffs Motion in Limine is DENIED. The Plaintiff shall not be permitted to offer hearsay statements of the deceased, Frank Wagner. By the Court, M. L. Ebert, Jr., J. Edmund J. Berger, Esquire Attorney for Plaintiff Michael McGuckin, Esquire Attorney for Defendants ? 4- bas ' I NV! ! I ASNNIJ 6' : i Wd I - Nnr tool AdVIONC,HiC?'ilJ 3H1 JO A PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: for JURY trial at the next term of civil court. El t. for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE, MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., MEDICAL MALPRACTICE Defendants k one) x Civil Action - Law Appeal from arbitration Other CIVIL DIVISION The trial list will be called on August 19, 2008 Trials commence on September 15, 2008 Pretrials will be held on A_unust 27.2008 (Briefs are due 5 days before pretrials) No. 05-556, CIVIL TERM JURY TRIAL DEMANDED Indicate the attorney who will try case for the party who files this praecipe: Edmund J. Berger, Berger Law Firm P.C. Indicate trial counsel for other parties if known: This case is ready for trial. Date: July 28. 2008 Attorney For: Plaintiff CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Praecipe for Listing Case for Trial, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: July 28, 2008 Edmund J. Berger Attorney for Plaintiff Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 ?`?y rte= 'h i - ? Q gU lyT ?? _ --r• JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED, Plaintiff v SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP, d/b/a SHEPHERDSTOWN FAMILY PRACTICE (a Division of Heritage Medical Group, LLP), HERITAGE MEDICAL GROUP, LLP d/b/a HERITAGE DIAGNOSTIC CENTER (a Division of Heritage Medical Group, LLP), and GEOFFREY JAMES, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 05-0556 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 19th day of August, 2008, upon consideration of the call of the civil trial list, and no person having called the above-captioned case for trial, it is stricken from the trial list. By the Court, ,/dmund J. Berger, Esquire 2104 Market Street Floor 1 Camp Hill, PA 17011 For Plaintiff .Xaig Stone, Esquire J 4200 Crums Mill Road Suite B Harrisburg, PA 17112-2899 For Defendants Court Administrator c { -1 ta_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HEFNTAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO INTERROGATORIES AND/OR DEPOSITION TESTIMONY Plaintiff Julie Wagner moves the court for an order requiring Defendant Shepherdstown Family Practice, P.C. to provide full and complete responses to interrogatories within ten (10) days, provide the names and addresses of all "Office personnel" in attendance on January 31, 2003 and promptly make them available for depositions if they are employed or otherwise agents of Defendant. In support of this Motion, Plaintiff respectfully sets forth as follows: Plaintiff served its first set of interrogatories on Defendant Shepherdstown Family Practice on April 15, 2005. Defendant's First Interrogatory requested the identity of all agents, ostensible agents, servants, and/or employees, other than Dr. James, who spoke with or observed Plaintiff's decedent on January 31, 2003 and February 1, 2003, and asked for details with respect to each such individual. 2. On July 20, 2005, Defendant Shepherdstown Family Practice served Answers and Objections to Plaintiff's First Set of Interrogatories. Among the.Answers to Plaintiffs First Set of Interrogatories was the response which is attached hereto as Exhibit A. That response indicated that Defendant, after "reasonable investigation" was unable to determine the identity of the individual who may have taken an alleged phone call from Mr. Wagner on January 31, 2003. The response went on to state that "Indeed, Answering Defendant is unable at this time to confirm that such a phone call was received." 3. Subsequently, Plaintiff deposed several witnesses, subpoenaed information from the telephone company, and sought to obtain information regarding the phone call that was believed to have been made by Plaintiffs decedent on January 31, 2003 to schedule an appointment on February 1, 2003. Despite Plaintiff's efforts, however, Plaintiff was unable to identify the individual at Defendant's office with whom Plaintiffs decedent spoke on January 31, 2003. 4. On December 12, 2006, Plaintiff filed a Motion for a Status Conference and a Status Conference was held on January 26, 2007. 5. Pursuant to the Case Management Order issued as a result of the January 26, 2007 Status Conference, Defendant was to identify the names of any individuals in the employ of the Defendant on January 31, 2003 who may have knowledge of the decedent scheduling an appointment for February 1, 2003. 2 6. By letter of February 8, 2007, Plaintiff was informed of the identity of seveal individuals working on the indicated date but that at the time the lawsuit was initiated, "inquiries were made as to whether any employee had any recollection of Mr. Wagner telephoning the office on January 31, 2003" and that it was represented to Defendant's counsel that "there was no one with any knowledge of Mr. Wagner scheduling an appointment for February 1, 2003." Exhibit B. 7. By letter of February 20, 2007, Plaintiffs counsel requested additional information to support such representations and requested to take the depositions of the individuals identified. Exhibit C. Further letters from Plaintiffs counsel concerning the scheduling of depositions for these individuals followed on March 6, 2007 and April 30, 2007, and to current counsel on June 13, 2008. Exhibit D. 8. In the Interim, on June 1, 2007, Judge Ebert issued an Order denying Plaintiff's Motion in Limine and prohibiting Plaintiff from introducing the hearsay statements of Plaintiffs decedent to Plaintiff regarding decedent's scheduling of his appointment at Defendant's office. Consequently, absent reconsideration of this determination, the only way Plaintiff will be able to introduce evidence of Plaintiff's decedent's scheduling of his appointment and the information conveyed at that time would be through Defendant's agents. 9. On August 20, 2008, Plaintiff served a Fourth Set of Interrogatories to clarify information received in earlier responses. Specifically, Plaintiff specifically requested that Defendant identify the efforts which were made to 3 identify the individuals who spoke to Mr. Wagner, including specifically, "all steps which were taken to identify such individuals, the individuals who took such steps, and the time-frame during which such steps were taken." Exhibit E. In response, Defendant stated that an "affidavit" would be provided from Mr. McGuckin concerning the steps he had taken to identify other people who may have had contact with Mr. Wagner and an affidavit was provided. Exhibit F is a copy of Mr. McGuckin's affidavit. 10. Mr. McGuckin's affidavit only stated that he contacted "the office personnel who would have been in the Shepherdstown Family Practice on the afternoon of January 31, 2003." It does not indicate who "the office personnel" were with whom he spoke. Although the implication of this statement is that he spoke to all of the office personnel, there is not a clear statement to this effect. It should also be emphasized that, going back as many years as this, an individual's recollection of the particular circumstances would have to be placed in context for them to have any possibility of recalling the circumstances or discussion with Mr. Wagner. 11. Mr. McGuckin's affidavit also fails to provide any other details of his investigation or the investigation performed by Shepherdstown to give Plaintiff comfort with respect to the reasonableness of the investigation performed into identifying individuals who may have had or may still have some information regarding these matters. 12. Responses to interrogatories are to be answered fully and completely in accordance with Pennsylvania Rules of Civil Procedure. 4 13. There is nothing that would have kept Defendant Shepherdstown from identifying the "office personnel" or providing affidavits from such office personnel that they reviewed relevant records from the time period in question to refresh their recollection and that they have no recollection of any communication with Mr. Wagner, if that is in fact the case. 14. Although Plaintiff well recognizes that it is pointless to take depositions of individuals who have no information whatsoever regarding the case, by the same token, the duty of reasonable investigation by Defendant counsel imposes a responsibility to ensure that reasonable information is provided to office personnel from which they could refresh their recollection regarding Mr. Wagner and the circumstances associated with his call to the office. Mr. McGuckin's affidavit should evidence that a reasonable investigation was conducted to justify precluding Plaintiff from taking depositions. Plaintiff is entitled to know the details of the reasonable investigation that was conducted. 15. It has been stated in sworn responses to interrogatories by Defendant that, at the time the lawsuit was initiated, "inquiries were made as to whether any employee had any recollection of Mr. Wagner telephoning the office on January 31, 2003." Despite this representation, Heidi-Jo Yohe, the medical assistant who saw Mr. Wagner on February 1, 2003 stated that she only learned of the lawsuit 6 weeks before her November 14, 2005 deposition, months after this interrogatory was answered. Exhibit G. Rebecca Greene, the receptionist on February 1, 2003, first learned of the case a week or two before her deposition of September 15, 2008. Exhibit H. Nikki Lobeck, the front office supervisor, responsible for overseeing scheduling and staffing issues, first learned of the case 4-5 weeks before her deposition. Exhibit I. This is the case even though she was working on January 31, 2003 and even though she oversaw all of the telephone receptionists at Shepherdstown. It is difficult to believe that any inquiries were made if Nikki Lobeck, the front office supervisor, was not aware of them. 16. Defendant's counsel has indicated that Defendant Shepherdstown does not concur in this Motion. 17. Judge Ebert has previously addressed several Motions in this proceeding. 6 WHEREFORE, Plaintiff respectfully submits that Defendant be compelled to provide full and complete responses to Plaintiffs interrogatories within ten (10) days and be required to provide the names and addresses of all "office personnel" in attendance on January 31, 2003 and to make them available for depositions if they are employed or otherwise agents of Defendant. DATE: November 25, 2008 C.. Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: 7 Plaintiffs Motion to Compel Responses to Interrogatories Exhibit A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., and GEOFFREY JAMES, M.D. Defendants NO: 05-556 CIVIL TERM DEFENDANT SHEPHERDSTOWN FANULY PRACTICE P.C. ANSWERS AND OBJECTIONS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES GENERAL OBJECTIONS Defendant objects to Plaintiffs' First Set of Interrogatories, and to each of them, to the extent that they require disclosure of matters and communications that are protected by the attorney-client privilege, work-product immunity, or any other applicable privilege, immunity or exemption from discovery. To the extent that these Interrogatories can be construed to seek privileged or exempt information, Defendant objects and will provide only non-privileged and non-exempt responses and documents. Defendant objects to Plaintiffs' First Set of Interrogatories, and to each of them, to the extent that they purport to require Defendant to provide information not presently in its possession, custody or control. Defendant objects to Plaintiffs' First Set of Interrogatories, and to each of them, to the extent that they purport to impose upon Defendant a requirement or burden beyond that which is required under the Rules of this Court and/or the Pennsylvania Rules of Civil Procedure. Defendant objects to Plaintiffs' First Set of Interrogatories, and to each of them, to the extent that they are overly broad, unduly burdensome and seek information that is neither relevant to this litigation nor reasonably calculated to lead to the discovery of admissible evidence. These responseslanswers are based upon information now known. Defendant will seasonably supplement its answers/responses when additional responsive relevant information becomes available. Subject to and without waiver of the foregoing General Objections, Defendant responds as follows: ANSWERS TO INTERROGATORIES 1. Please identify any and all agents, ostensible agents, servants, and/or employees, other than Dr. James, who spoke with or observed Plaintiffs decedent on January 31,2003 and February 1,2003, and with respect to each such individual, please identify the following: a. job title and length of employment in such position as of January 31, 2003 and February 1,2003; b. previous job titles and length of employment with Defendant in such positions; nature and extent of training in position held on January 31, 2003 and February 1,2003 and previous positions; d. a description of job responsibilities in position held on January 31, 2003 and February 1,2003; e. any written instructions with respect to such individual's job responsibilities that were in place as of January 31, 2003 and February 1,2003; f. schools attended, dates of attendance, dates of graduation, degrees received; g, employment history prior to employment with Defendant; h. professional training received by the individual on or before February 1,2003. ANSWER: a. - h. Objection. To the extent that this interrogatory calls for previous educational and employment histories of office staff, the interrogatory is overbroad, not calculated to lead to the discovery of relevant or admissible evidence, and would require an unreasonable investigation beyond that required by the Pennsylvania Rules of Civil Procedure. Without waiving this objection, and after reasonable investigation, Answering Defendant is unable to determine the identity of the individual who may have taken an alleged phone call from Mr. Wagner on January 31, 2003. Indeed, Answering Defendant is unable at this time to confirm that such a phone call was received. To the extent that a record of such a call may have existed, such record is no longer available. If a phone call was placed, it likely would have been received by an office receptionist. On February 1, 2003, as reflected in the medical records, Mr. Wagner was seen by a medical assistant, Heidi Yohe, and by Dr. James. Answering Defendant at this time has been unable to locate any applicable written instructions, policies or job descriptions. The search for documents is continuing and this response will be supplemented as may be appropriate. VERIFICATION I, Geoffrey James, M.D., state that I am a member of Heritage Medical Group engaged in the practice of medicine at the offices of Shepardstown Family Practice, and am authorized to execute this verification on behalf of Shepardstown Family Practice. I verify that the facts set forth in the foregoing Defendant Shepardstown Family Practice Answers and Objections to Plaintiffs First Set of Interrogatories are true and correct to the best of my knowledge, information, and belief. This verification is subject to 18 Pa.C.S. §4904 which provides for certain penalties for making false statements. DATE: J /S0 JU'5 4Ge4119?w M. \05 A\L.IAB\MEPOISC\IM491K WO1012\00134 Plaintiffs Motion to Compel Responses to Interrogatories Exhibit B A REGIONAL "TENSE LITIGATION LAW FIRM ???v,?*7 ?7???+??.p D-7 D (?` ?7?,?A 7?? G G (???I ?T MARSHALL DENNEHEY WARMR O PMNSYVANIA Bethlehem 9 , 9 i.i:1?i V VLJIJ - Doylestown A P R O F E S S 1 O N A L C O R P O R A T I O N www.mantuffidemehey.com Erie Harrisburg King of Prussia Philadelphia Pittsburgh Scranton 4200 Crums Mill Road, Suite B • Harrisburg, PA 17112 Williamsport (717) 651-3500 • Fax (717) 651-9630 Nw Jsneser Cherry Hill Roseland DW AVAM Wilmington Direct Dial: 717-651-3515 A1-- Akron Email: mwmcguckin@mdwcg.com F OA rL IDerdalc Jacksonville Orlando Tampa February 8, 2007 VL4 FACSIMILE (717) 920-8901 AND FIRST-CLASS MAIL Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 RE: Wagner, et al v Shepherdstown Family Practice, P. C, et at Cumberland County C.C. P. No.05-556 DWCG File No. 01012-00134.A55 Dear M Pursuant to Judge Ebert's Order dated January 26, 2007, I have been informed by representatives of Shepherdstown Family Practice that the front office personnel who were scheduled to work and would have been available to answer any incoming phone calls from patients on the afternoon of January 31, 2003 are Nikki Lobeck, Karen Goode, Erica White, and Jessica Gordon. Tammy Eynon had worked earlier that day but left before 11:30 a.m. You have already deposed Nikki Lobeck, and she is the only employee who is still with Shepherdstown Family Practice. As a side note, I have also been informed that after the lawsuit was initiated, inquiries were made as to whether any employee had any recollection of Mr. Wagner telephoning the office on January 31, 2003. It has been represented to me that there was no one with any knowledge of Mr. Wagner scheduling an appointment for February 1, 2003. Please let me know if you believe that I need to provide you with any additional information pursuant to Judge Ebert's Order. Edmund J. Berger, Esquire _ February 8, 2007 Page 2 I look forward to speaking with you further about this case. Thank you. Very truly ours, chael W. McGuckin MWM:mgw \05_A\LIAB\M WMCGUCKIN\CORR\245548\MGW HITE\01012\00134 Plaintiffs Motion to Compel Responses to Interrogatories Exhibit C BERGER LAW FIRM, P.C. ATTORNEYS AT LAW 2104 MARKET STREET CAMP HILL, PA 17011 EMAIL: tberge berBerlawfirm.net TELEPHONE: (717) 920-8900 FACSIMILE: (717) 920-8901 February 20, 2007 Michael McGuckin, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Re: Estate of Frank Wagner, et al v. Shepherdstown Family Practice, et al. Cumberland County No. 05-556 Civil Term Dear Mr. McGuckin: I am writing in follow-up to your letter of February 8, 2007 and our conversation last week regarding the above-referenced matter. Your letter referenced four people other than Nikki Lobeck who would have been available to answer phone calls on the day in question - Karen Goode, Erica White, Jessica Gordon, and Tammy Eynon. You indicated that none of these people currently work for your clients and I will, therefore, need to subpoena them as witnesses. Would you kindly ask your client to provide me with the last known addresses for these individuals so that I may subpoena them. Barb Erickson (Receptionist) and Brooke Siplivy (Medical Assistant) were also identified as individuals who worked on January 31, 2003 but were not identified as individuals who may have taken a call from Mr. Wagner. Would you please advise me why they were not considered to be staff who might have spoken with him. If Mr. Wagner might have spoken with them as well, would you please let me know whether they are current employees or provide me with their last known addresses. You also noted that after the lawsuit was filed, inquiries were made as to whether any employee had any recollection of Mr. Wagner calling the office on January 31, 2003. Could you please provide me with any information regarding who made this inquiry and any written notes regarding the inquiry. Do you know whether any of the six employees identified above were spoken to regarding this matter. There were also two receptionists working on February 1, 2003 when Frank Wagner was seen at the office - Rebecca Greene and Sherry Shortys(?). Would you please advise me of the current status of these individuals as well. If you need me to send additional discovery questions to obtain this information, please let me know. Michael McGuckin, Esq. February 20, 2007 Page 2 During our conversation last week, you agreed to provide me with an affidavit from an individual with sufficient knowledge of the previous computer system and the remaining data from that system who would swear as to the unavailability of the calendar/scheduling information from that system. I am looking forward to receiving that affidavit. Please be sure to identify the position and address of the individual making that affidavit so that I can subpoena them if necessary as well. As we discussed with Judge Ebert, I will also want to take the deposition of Dr. Weaver as the person who made the note of "superficial" on the medical records from the 1995 DVT. Please let me know when he will be available for a deposition. Judge Ebert's Order indicates that the depositions of these individuals should be completed by March 16, 2007. However, from our conversation, I think we are agreed that we will make best efforts to complete these depositions as quickly as possible but that it is possible schedules may not allow them to be completed until some time after March 16, 2007 and that both of us will be somewhat flexible about the deposition deadlines. If this is not accurate, please let me know. In any event, however, I would like to take them before the end of March so that my Motion in Limine can take these depositions into account. Please also advise me of any scheduling conflicts that you may have I)efore the end of Mar. Would you please forward me the information identified above as soon as possible so that I can determine which witnesses I will need to depose and can then subpoena them if necessary. Before subpoenaing them, I will attempt to coordinate our schedules for the depositions. Also, please advise me of a convenient date and time for Dr. Weaver's deposition. Thank you for your attention to this matter. cc: Julia Wagner Plaintiffs Motion to Compel Responses to Interrogatories Exhibit D BERGER LAW FIRM, P.C. ATTORNEYS AT LAW 2104 MARKET STREET CAMP HILL, PA 17011 TELEPHONE: (717) 920-8900 FACSIMILE: (717) 920-8901 EMAIL: tbergg@b,_ergerlawfirm.net March 6, 2007 Michael McGuckin, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Re: Estate of Frank Wagner, et al v. Shepherdstown Family Practice, et al. Cumberland County No. 05-556 Civil Term Dear Mr. McGuckin: As you know, I sent you a letter on February 20, 2007 regarding Judge Ebert's Order of January 31, 2007. In that letter, I requested that you provide me with the last known contact information for those individuals working on January 31, 2003 and February 1, 2003 at your client's office, most of whom are no longer working there. I also requested information regarding the inquiry that was made to employees regarding Frank Wagner after this lawsuit was filed. You had also indicated that you were going to provide me with an affidavit from an individual with sufficient knowledge of the previous computer system and the remaining data from that system who would swear as to the unavailability of the calendar/scheduling information from that system. You also indicated that you could provide me with contact information for Dr. Weaver. Subsequently, we spoke on the phone and, as I understand it, you were endeavoring to obtain this information. Please advise me of the status of your efforts to obtain this information so we can have some idea when depositions could be scheduled in this matter for such witnesses. At this point, it should be obvious that we will not be able to meet the Judge's requested date for scheduling of additional depositions. However, I would like to move ahead as quickly as possible. BERGER LAW FIRM, P.C. ATTORNEYS AT LAW 2104 MARKET STREET CAMP HILL, PA 17011 TELEPHONE: (717) 920-8900 FACSIMILE: (717) 920-8901 EMAIL: tberger@bergerlawfirm.net April 30, 2007 Michael McGuckin, Esq. 0 p Marshall, Dennehey, Warner, Coleman & Goggin O 4200 Crum s Mill Road, Suite B Harrisburg, PA 17112 Re: Estate of Frank Wagner, et al v. Shepherdstown Family Practice, et al. Cumberland County No. 05-556 Civil Term Dear Mike: I am writing you in follow-up to previous conversations and correspondence regarding the above-referenced matter. As you know, I am still awaiting the requested contact information for those individuals who were working on January 31, 2003 and February 1, 2003 at your client's office, most of whom are no longer working there. Would you please advise me when you will be providing this information as it was requested long ago and we would like to perform depositions of these individuals. We also discussed the deposition of Dr. Weaver a few weeks ago. I indicated that I would like to take his deposition by video conference if possible and you seemed agreeable. However, in order to proceed with scheduling that deposition, I need to have his location and, in particular, a zip code of the area where he is located. I left you a voice mail message regarding this request but haven't heard back from you. Please provide this information as soon as possible so that we can proceed to schedule a video conference deposition. Of course, I will also need dates of availability for yourself and Dr. Weaver. Third, I would like to present the expert testimony of Dr. Jack Hirsh by way of videotaped deposition and, again, I would ask if you are agreeable to doing this by way of videoconference deposition. Please advise me whether this would be satisfactory as soon as possible. Otherwise, we will have to travel to Ontario, Canada to take this video deposition. In any event, please advise me of your availability for this deposition. I expect that Dr. Kernan and Andrew Verzilli will appear at trial. Please advise me whether your expert witnesses will be appearing at trial or by videotape deposition and, if by videotaped deposition, please advise me when you would like to schedule Michael McGuckin, Esq. - April 30, 2007 Page 2 those depositions. As I have expressed to you on a number of occasions, I am frustrated about the slow scheduling of discovery in this proceeding and would request that you advise me as soon as possible regarding these scheduling matters. Thank you for your attention to this matter. BERGER LAW FIRM, P. C. ATTORNEY AT LAW 2104 MARKET STREET CAMP HILL, PA 17011 EMAIL: tbeMff@tr.Mlawfirm.net TELEPHONE: (717) 920-8900 FACSIMILE: (717) 920-8901 June 13, 2008 Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Re: Estate of Frank Wagner, et al v. Shepherdstown Family Practice, et al. Cumberland County No. 05-556 Civil Term Dear Craig: As you may recall, we spoke about a month ago regarding bringing the above- referenced matter to trial in the fall of 2008. At that time, I discussed with you stipulating to the admission of Dr. Hirsh's videotaped testimony, as well as stipulations regarding exhibits. I also discussed with you the outstanding issue of Mr. McGuckin's confirming to me that none of the individuals who were working at Shepherdstown Family Practice on January 31, 2003 had any recollection of a call from Mr. Wagner on that day. As we discussed, the last day for listing this matter for trial for the September 15, 2008 trial week is June 23, 2008. Would you please confirm your agreement to listing the matter for trial for that date as well as stipulating to the admission of Dr. Hirsh's testimony, including his expert report and curriculum vitae. Please also confirm the issue regarding knowledge of the staff of Shepherdstown Family Practice with respect to Mr. Wagner's phone call of January 31, 2003. Thank you for your attention to this matter. rel Edmund "Tad" Berger cc: Julia Wagner COPY Plaintiffs Motion to Compel Responses to Interrogatories Exhibit E IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED PLAINTIFF'S FOURTH SET OF INTERROGATORIES DIRECTED TO DEFENDANT SHEPHERDSTOWN FAMILY PRACTICE, P.C. AND NOW, comes Plaintiff, by and through their counsel, and requests that Defendant answer the following Interrogatories under oath pursuant to the Pennsylvania Rules of Civil Procedure within thirty (30) days from the date of service hereof. DEFINITIONS 1. "You", "Your", or "Defendant" shall mean Shepherdstown Family Practice, P.C., as well as its agents, attorneys, accountants, consultants, independent contractors, employees, and any other individual or entity purporting to act on its behalf with respect to the matter in question. 2. "Communication" shall mean the transmittal of information in the form of facts, ideas, inquiries or otherwise. 3. "Document' 'is defined to be any writing, drawing, graph, chart, photograph, phonorecord, or other data compilation from which information can be obtained, translated, of necessary, by Defendant through detection devices into reasonably usable form. 4. "Concerning" means relating to, referring to, describing, evidencing or constituting. 5. The words "identify," and "identification" when used with respect to a person means to state the full name and present or last known residence and business or permanent address of such person, and if a natural person, his present or last know job title, and the name and address of his present or last known employer. 6. The words "identify," "identity," and "identification" when used with respect to a document means to describe the document by date, subject matter, the name of each person who wrote, signed, initialed, dictated or otherwise participated in the preparation of same, the name and address of each addressee (if any) and the name and address of each person who has possession, custody or control of such document. 7. The words "identify," "identity," and "identification" when used with respect to an act, occurrence, statement or conduct, including an alleged violation or breach (hereinafter collectively called an "act", mean to: (a) describe the substance of each event constituting such act and to state the date when such act occurred; (2) identify each person participating in such act; (3) identify each person present when such act occurred; (4) state whether the occurrence of such act was recorded or described in a document; (5) state whether such document, or a copy thereof, now exists; and (6) identify the person presently having possession, custody or control of each such document. 8. The use of the singular form of any word includes the plural and vice versa. 9. The term "all" and "each" shall be construed as all and each. 10. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. 11. "Plaintiff s decedent" shall mean Frank Wagner. "Plaintiff' shall mean Julia Wagner. INTERROGATORIES 1. Please reference your response to Interrogatory Set 1, No. 1, which requested the identity of each agent, ostensible agent, servant or employee who spoke with or observed Frank Wagner on January 31, 2003 and February 1, 2003. In this response, the only people identified as having seen Frank Wagner were Heidi Yohe and Dr. James but it is stated that the search was continuing and the response would be supplemented. Please specifically describe all steps which were taken to identify such individuals, the individuals who took such steps, and the time-frame during which such steps were taken. ANSWER: 2. Please identify each and every person working at Shepherdstown Family Practice, P.C. who might have taken a phone call from Frank Wagner on January 31, 2003 or February 1, 2003, or who might have spoken on the telephone to Frank Wagner on such dates to address a complaint regarding shortness of breath or similar symptoms. With respect to each such person, please provide their current contact information. ANSWER: 3. Please reference the attached billing record from February 1, 2003, identify the meaning of all hand-written notations on such record, and identify each individual who participated in the preparation and completion of the billing record. ANSWER: 4. With respect to the record of Frank Wagner's January 5, 2002 visit to Shepherdstown Family Practice, P.C., please identify the meaning of each handwritten notation on such record and identify the person who prepared such handwritten notation. BERGER LAW Edmund J Berger Attorney for Plaintiff Plaintiffs Motion to Compel Responses to Interrogatories Exhibit F IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY : PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC : CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants : AFFIDAVIT OF MICHAEL MCGUCKIN I, Michael McGuckin, Esquire, hereby verify that the following statements made in this Affidavit are true and correct to the best of my personal knowledge: 1. I, Michael W. McGuckin, am an Attorney and when I was employed by Marshall, Dennehey, Warner, Coleman & Goggin, I represented the Defendants in the above-captioned matter. 2. After attending a conference before the Honorable M.L. Ebert in January of 2007, I contacted the office personnel who would have been in the Shepherdstown Family Practice on the afternoon of January 31, 2003, to again inquire whether anyone had any recollection of Mr. Wagner (allegedly) telephoning Shepherdstown Family Practice. 3. No one at Shepherdstown Family Practice had any recollection of Mr. Wagner (allegedly) telephoning Shepherdstown Family Practice on Friday, January 31, 2003. 4. I again confirmed that after this lawsuit was initially filed, inquiries were made as to whether any employee had any recollection of Mr. Wagner telephoning Shepherdstown Family Practice, and again no one had any knowledge of Mr. Wagner telephoning the office or attempting to schedule an appointment for February 1, 2003. 5. Plaintiffs Counsel, Edmund J. Berger, Esquire was repeatedly made aware of the above during both telephone calls and in correspondence. 6. To the best of my information and belief, after reasonable investigation, no one associated with Shepherdstown Family Practice had any knowledge concerning an alleged telephone call from Mr. Wagner on January 31, 2003. I swear and affirm upon oath of the Notary below that the above information is based upon by personal knowledge, is true and correct to the best of that knowledge. Date: r Michael cGuckin, Esquire Sworn and subscribed be 'ore me This day of , 200$ )2 COMMONWEALJH O, F ENNSYLVANIA NOTARIAL SEAL ANGELA M. PETRONE, Notary Public City of Philadelphia. Phila. County My Commission Fxaires Varch 28, 2009 05'425730.v1 Plaintiff's Motion to Compel Responses to Interrogatories Exhibit G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED, PLAINTIFF , V SHEPHERDSTOWN FAMILY . PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY , PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP),: HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP),: GEOFFREY JAMES, M.D., DEFENDANTS DEPOSITION OF: TAKEN BY: BEFORE: CIVIL DIVISION NO.: 05-556 CIVIL TERM JURY TRIAL DEMANDED HEIDI-JO YOHE PLAINTIFF PAMELA S. SULLIVAN REPORTER-NOTARY PUBLIC DATE: NOVEMBER 14, 2005, 9:03 A.M. PLACE: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 CRUMS MILL ROAD HARRISBURG, PENNSYLVANIA Huyhe, Ila A16nght a ?, i cz Notalc 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 • Lancaster 717.393.5101 Multi-PageT"` HEIDI-JO YORE Page 26 1 diagnosis and how that is performed? 2 A Through experience, yes. 3 Q Through experience on the job or -- 4 A Job experience. 5 Q Is that a specific part of the training 6 regimen at Central Penn? 7 A It's a general -- taking the vital signs, 8 generally. 9 Q As part of that training regimen, do they to instruct you as to the significance of the vital signs 11 in the assessment of a patient's condition? Do they 12 tell you of the -- 13 A No. 14 Q -- potential significance of those vital 15 signs? 16 MR. PIPA: Object to the form. 17 Are you asking her if she's been trained to 18 make differential diagnoses? 19 MR. BERGER: No. I'm asking her whether she 20 has been trained to understand the potential 21 significance of vital signs and other things that she 22 observes to the -- to the evaluation by the physician 23 of the patient. 24 BY MR. PIPA: I guess I'm objecting to the 25 potential significance. I don't think that's a fair Page 27 1 -- I don't understand it. I'm not sure what you're 2 asking. I'd ask you to try to rephrase that. 3 I mean, are you asking her does she know 4 it's important to the physician? 5 MR. BERGER: No. I'm asking her whether she 6 in her training has been apprised of what the vital 7 signs might mean in terms of the various conditions 8 that the patient could have as a result of that vital 9 signs. 10 MR. PIPA: i don't understand. Are you 11 asking if she can make a diagnosis based on vital 12 signs? 13 MR. BERGER: No. I'm not asking her if she 14 can make a diagnosis. I'm asking her whether her 15 training involved instruction as to the significance 16 of vital signs to -- as to what those vital signs 17 might indicate. I'm asking whether she has training 18 as to what vital signs may indicate. 19 MR. PIPA: I don't understand the question. 20 I'm sorry. 21 BY MR. BERGER: 22 Q Do you understand the question I'm asking? 23 A No, not clearly. 24 MR. PIPA: Can you give us an example maybe? 25 BY MR. BERGER: rr V v r,f4HKK 14, 2005 Page 28 1 Q I'm asking do you -- whether you're 2 trained whether a particular condition such as in this 3 case, pulmonary embolism, is indicated by a particular 4 vital sign? Are you trained -- 5 A No. 6 Q --in that respect? 7 Did you speak to Dr. James after Mr. Wagner 8 had passed away? 9 A No. 10 Q And you haven't spoken to him at all since 11 February 1 st regarding Mr. Wagner? 12 A No. 13 Q When did you first learn about Mr. Wagner's 14 passing? 15 A About six weeks ago. 16 Q So the fact that Mr. Wagner had passed away 17 was never discussed at Shepherdstown to your hearing? 18 A No. 19 Q Did Mr. Wagner, if you recall, appear to you 20 to be in distress? 21 A I do not recall. 22 Q When you take the vital signs of a patient, 23 do you ever look at the patient's chart? 24 A Yes. 25 Q Why would -- why would you look at the Page 29 1 patient's chart when you're taking vital signs? 2 A Well, when I'm actually taking them, I'm not 3 looking at the chart. 4 Q Well, I mean -- 5 A But -- 6 Q --at some point. 7 A At some point, yes. 8 Q And what is the purpose of your looking at 9 the chart? 10 A It's just a routine process that I do. 11 Q Okay. In your medical assistants' training, 12 are you trained to review the chart briefly at the 13 time you see the patient? 14 A Yes, yes. 15 Q Was that something that you were also 16 instructed to do at the time you see a patient by 17 Shepherdstown Family Practice or Heritage Medical 18 Group? 19 A Yes. 20 Q And did your instruction indicate what the 21 purpose of looking at the chart was, either your 22 instruction at Central Penn or your instruction at 23 Shepherdstown or Heritage Medical Group? 24 A Yes. 25 Q Can you describe for me that purpose? Page 26 - Page 29 HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 Plaintiffs Motion to Compel Responses to Interrogatories Exhibit H JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED, PLAINTIFF V SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., AND GEOFFREY JAMES, M.D., DEFENDANTS DEPOSITION OF TAKEN BY: BEFORE: DATE: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION : DOCKET NO: 05-556 CIVIL TERM REBECCA GREENE PLAINTIFF DIANE F. FOLTZ, RMR NOTARY PUBLIC SEPTEMBER 15, 2008, 9:40 A.M. PLACE: BERGER LAW FIRM, P.C. 2104 MARKET STREET CAMP HILL, PENNSYLVANIA 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page TM REBECCA GREENE SFPTFMRFR I,% ?nnR Page 2 Page 4 APPEARANCES: BERGER LAW FIRM, P.C. BY: EDMUND J. BERGER, ESQUIRE FOR - PLAINTIFF MARSHALL, DENNEHEY, WARNER, COLEMAN 6 GOGGIN BY: CRAIG A. STONE, ESQUIRE FOR - DEFENDANTS 1 WITNESSES 2 NAME EXAMINATION 3 REBECCA GREENE 4 BY: MR. BERGER 4 5 6 9 9 10 11 12 EXHIBITS 13 14 GREENE DEPOSITION EXHIBIT 15 1. BILLING RECORD 16 2. EMPLOYEE TIME REPORTS, 6 PAGES i7 20 2: 22 23 24 25 PRODUCED AND MARRED 5 10 1 STIPUTATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that sealing, certification and 4 filing are hereby waived; and that all objections except as 5 to the form of the question are reserved to the time of 6 trial. 7 8 REBECCA GREENE, called as a witness, being duly 9 sworn, testified as follows: 10 EXAMINATION 11 BY MR. BERGER: 12 Q Good morning. 13 A Good morning. 14 Q My name is Tad Berger, and I represent the 15 Plaintiff in this case. Are you familiar with the case, I 16 take it? 17 A Somewhat. 18 Q When did you first learn about this case? 19 A About a week ago, a week or two ago. 20 Q Okay. Would you please state your full name and 21 your address for the record? 22 A Rebecca Greene. 852 Range End Road in Dillsburg, 23 Pennsylvania. 24 Q Is that near the golf course? 25 A Yes, right down the street. eage 3 Page 5 1 Q Have you ever taken part in a deposition before? 2 A No. 3 Q If there's anything you don't understand, feel 4 free to ask for clarification. If you don't recall 5 something, it's a perfectly fine answer to say you don't 6 remember. If you don't know something, please say you 7 don't know. We're just seeking to find out what the facts 8 are here, okay? 9 A Okay. 10 Q This goes back a long ways, so I'm going to try 11 and prompt your memory from long ago, since this goes back 12 to 2003. 13 A Okay. 14 Q Have you reviewed any records prior to this 15 deposition? 16 A I haven't reviewed any records myself. 17 MR. STONE: Well, he's including this. 18 THE WITNESS: Right. 19 BY MR. BERGER: 20 Q The medical billing record? 21 A The bill, it's just the billing sheet. 22 MR. BERGER: And I'd ask that that record be 23 marked as Deposition Exhibit No. 1. 24 (Billing record produced and marked Greene 25 Deposition Exhibit No. 1.) Page 2 -Page 5 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM REBECCA GREENE SEPTEMBER 15, 2008 Page 14 1 a Sherry that worked at Shepherdstown, I know that, but I'm 2 not sure if that's her last name. 3 MR. BERGER: Craig, can you tell me, do you know 4 who that name is? 5 MR. STONE: I can't, but I'll try to get you the 6 information. 7 BY MR. BERGER: 8 Q Okay. I'm sorry. Did you say earlier, did you 9 know -- you never met Frank Wagner that you can recall? 10 A Not that I can recall. 11 Q And until you had learned about your deposition, 12 you didn't know that he had passed away? 13 A That's right. 14 MR. STONE: Is that right? 15 THE WITNESS: That's correct. 16 BY MR. BERGER: 17 Q Did anybody previously inquire from you whether 18 you had spoken to him on that Saturday or on the preceding 19 Friday? 20 A No. 21 Q Okay. So nobody inquired whether you had spoken 22 with him on that Saturday morning? 23 A Nobody had inquired when if I had spoken to him 24 on Saturday? 25 Q Before you were notified about this deposition. Page 15 1 A No. 2 MR. STONE: I think you said something about 3 Friday. You ought to ask her if she worked Friday. 4 THE WITNESS: I don't usually work Fridays. 5 MR. BERGER: Okay. I think that's shown in the 6 records. She didn't work Friday. 7 THE WITNESS: Uh-hum. 8 MR. STONE: Okay. 9 BY MR. BERGER: 10 Q Actually maybe not. Do you ever work Friday 11 evenings? 12 A We're never open Friday evening. 13 Q You are never open Friday evenings? 14 A No. 15 Q And you don't know who was working -- who else 16 was working that morning? 17 A No. 18 Q Friday, Saturday? 19 A I have no recollection. 20 Q Saturday, February 1st? 21 A (Shakes head from side to side.) 22 MR. STONE: We are talking about the front office 23 person? 24 MR. BERGER: Pardon? 25 MR. STONE: You are talking about the front Page 16 1 office person? 2 MR. BERGER: Yes. 3 MR. STONE: Okay. 4 BY MR. BERGER: 5 Q What is your experience about whether people make 6 appointments for -- for how people make appointments for 7 Saturday appointments? Do they make them the day before, 8 the week? Are they urgent appointments? What are the 9 circumstances? 10 A Usually Saturdays are urgent appointments. We 1 I usually take them as a first-come-first-serve type of 12 basis. 13 Q Do people make appointments for Saturday on 14 Friday and come in then? 15 A Not too many. We usually keep the Saturdays open 16 for same day appointments. 17 Q But it does happen sometimes? 18 A Very rarely we'll preschedule something that is 19 okayed by the doctor. 20 Q Okay. Would there be any way from telling -- 21 in telling from this form whether somebody was 22 prescheduled? 23 A No, not that I know of. 24 Q If somebody had an appointment time of 8:00 a.m., 25 would they have been prescheduled? Page 17 1 MR. STONE: Object to the form of the question. 2 First of all, Mr. Wagner came in at 9:50, and his 3 appointment was sometime after 10 so -- 4 MR. BERGER: That's the time this form was 5 completed. 6 MR. STONE: If someone came in at 8:00 -- 7 MR. BERGER: That's the time the form was 8 completed. 9 MR. STONE: There's no basis for the question. I 10 object to the question. 11 MR. BERGER: Fine. You can object. 12 MR. STONE: There is no evidence that Mr. Wagner 13 had an 8 o'clock appointment. 14 MR. BERGER: Other than the 8:00 that's on 15 check-in, depending how you read that. 16 MR..STONE: Well, I don't know that there was an 17 8:00 a.m. check-in. You are going to have to establish 18 that. I see a mark at check-in, and then I see a mark at 19 appointment time. 20 MR. BERGER: Yeah. 21 MR. STONE: And then I see that this form was 22 generated when this gentleman came in at 9:50 a.m., so to 23 ask this witness something about an 8 o'clock appointment, 24 she's testified that very rarely with a physician's 25 approval an appointment can be premade for, I guess, early Page 14 - Page 17 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Plaintiff's Motion to Compel Responses to Interrogatories Exhibit I JULIA WAGNER, EXECUTRIX OF THE: IN THE COURT OF COMMON PLEAS ESTATE OF FRANK WAGNER, : CUMBERLAND COUNTY, DECEASED, : PENNSYLVANIA PLAINTIFF V SHEPHERDSTOWN FAMILY PRACTICE,: PC, HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY: PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), : HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE: MEDICAL GROUP, LLP), GEOFFREY JAMES, MD, DEFENDANTS CIVIL DIVISION NO. 05-556 CIVIL TERM JURY TRIAL DEMANDED DEPOSITION OF: NIKKI LOBECK TAKEN BY: PLAINTIFF BEFORE: TAMMY J. BAKER, REPORTER NOTARY PUBLIC DATE: NOVEMBER 22, 2005, 9:05 A.M. PLACE: SHEPHERDSTOWN FAMILY PRACTICE 2140 FISHER ROAD MECHANICSBURG, PENNSYLVANIA Hughes Albright f oltz Natalc 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 I THE WITNESS: You're asking if there is a verbal 2 protocol? 3 BY MR. BERGER: 4 Q A verbal protocol yes. 5 A That would come from this. 6 Q Okay. Did you personally make entries in the 7 appointment schedule on the computer? Was that part of 8 job? Your 9 A Yes. 10 Q Do you recall Mr. Wagner at all in January and 11 February of 2003? 12 A I do not. 13 Q When did you first become aware of what had 14 happened to Mr. Wagner? 15 MR. PIPA: Object to the form. 16 BY MR. BERGER: 17 Q When did you first become aware of Mr. Wagner's 18 d eath? 19 A 20 Q 21 A 22 23 24 25 Q A Q A When I received my first letter. And what do you mean by your first letter? My first -- With respect to the deposition? Yes. So that would have been four or five weeks ago? Yes. 46 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO INTERROGATORIES AND/OR DEPOSITION TESTIMONY, on the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: November 25, 2008 Edmund J. Berger PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: x for JURY trial at the next term of civil court. for trial without a jury. ------------------------------------------------------------------------------------------------------------ ck one) CAPTION OF CASE x Civil Action - Law (entire caption must be stated in full) Appeal from arbitration JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER,DECEASED Plaintiff, vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants Other CIVIL DIVISION The trial list will be called on December 30, 2008 Trials commence on January 26, 2009 Pretrials will be held on January 7. 2009 (Briefs are due 5 days before pretrials) No. 05-556, CIVIL TERM MEDICAL MALPRACTICE JURY TRIAL DEMANDED Indicate the attorney who will try case for the party who files this praecipe: Edmund J. Berger. Berner Law Firm P.C. Indicate trial counsel for other parties if known: This case is ready for trial. Date: November 24. 2008 Signed: Print Name: Edmund J. Beraer Attorney For: Plaintiff : . CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Praecipe for Listing Case for Trial, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: November 24, 2008 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 v-umuiiu j. merger Attorney for Plaintiff r, 3 _ ? .. ;1`i -.. S -.. 1 - 1 f t. t ? .. ? ,,,? ' u ?'? ?" ? iJ l '? ' > _ 1 \S r, . ( ? ? ?? '? V ?? h. ?.} .? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants MOTION FOR STATUS CONFERENCE TO RESOLVE OUTSTANDING DISCOVERY ISSUES IN READINESS OF THE MATTER FOR TRIAL AND NOW COMES Plaintiff, Julia Wagner, by her counsel and requests that the Court schedule a further Status Conference for the purpose of resolving Plaintiff's outstanding Motions to Compel filed November 25, 2008 and December 5, 2008. In support of this Motion, Plaintiff respectfully submits as follows: 1. Plaintiffs Motion to Compel of November 25, 2008 concerns an issue presented to this Court at an earlier status conference, held on January 26, 2007, and addressed in the Court's Case Management Order of such date. 2. Plaintiff's Motion to Compel of December 5, 2008 concerns the identification of information from a billing record. 3. Holding of a status conference to address these discovery issues would ensure that the issues are addressed in a timely fashion and would not be prejudicial to any party. 4. Plaintiffs counsel has attempted to contact Defendant counsel on several occasions to obtain concurrence in the request for a status conference to address these issues but has received no response. 5. Judge Ebert has previously addressed Motions in this matter. WHEREFORE, Plaintiff respectfully requests a Status Conference to resolve the issues raised in the Motions to Compel. December 5, 2008 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbe[ger „fberaerlawfirm.net 2 Attorney I . D. #53407 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Plaintiffs Motion for Status Conference to Resolve Outstanding Discovery Issues in Readiness of the Matter for Trial, on the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 1 Dated: December 5, 2008 Edmund J. Berger ?? ; ? 5 ' ? ..'' = ': ` ? ? ?- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM VS. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO INTERROGATORY SET 4 NO 3 Plaintiff Julie Wagner moves the court for an order requiring Defendant Shepherdstown Family Practice, P.C. to provide a full and complete response to Interrogatory, Set 4, No. 3 within ten (10) days, requesting Defendant to reference the attached billing record from February 1, 2003, identify the meaning of all hand-written notations on such record, and identify each individual who participated in the preparation and completion of the billing record. In support of this Motion, Plaintiff respectfully sets forth as follows: On August 20, 2008, Plaintiff served Interrogatory, Set 4, No. 3, requesting Defendant Shepherdstown to: 3. Please reference the attached billing record from February 1, 2003, identify the meaning of all hand- written notations on such record, and identify each individual who participated in the preparation and completion of the billing record. 2. On October 3, 2008, Defendant Shepherdstown provided an answer to the interrogatory which stated simply that "See transcript of the deposition of Rebecca Green." 3. During the deposition of Rebecca Greene, which was held on September 15, 2008, Ms. Greene stated that other people provided information on the ioilling record and consequently her deposition could not provide full and complete information in response to Plaintiff's questions. Exhibit A. Consequently, it is clear that the deposition of Ms. Greene was unable to shed light on all of the information on the billing record. 4. Plaintiff has requested Defendant's concurrence or non- concurrence in this Motion but has not received a response to that request as of this date. 5. Hon. Judge Ebert has previously handled Motions related to this proceeding. 2 WHEREFORE, Plaintiff respectfully submits that Defendant be compelled to provide a full and complete responses to Plaintiffs interrogatory, Set 4, No. 3, requesting Defendant to reference the attached billing record from February 1, 2003, identify the meaning of all hand-written notations on such record, and identify each individual who participated in the preparation and completion of the billing record. DATE: December 5, 2008 Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: 3 Plaintiff's Motion to Compel Response to Set 4, No. 3 Exhibit A JULIA WAGNER, EXECUTRIX : IN THE COURT OF COMMON PLEAS OF THE ESTATE OF FRANK : CUMBERLAND COUNTY, PENNSYLVANIA WAGNER, DECEASED, PLAINTIFF CIVIL DIVISION V DOCKET NO: 05-556 CIVIL TERM SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GARY M. SCHWARTZ, M.D., AND GEOFFREY JAMES, M.D., DEFENDANTS DEPOSITION OF: REBECCA GREENE TAKEN BY: PLAINTIFF BEFORE: DIANE F. FOLTZ, RMR NOTARY PUBLIC DATE: SEPTEMBER 15, 2008, 9:40 A.M. PLACE: BERGER LAW FIRM, P.C. 2104 MARKET STREET CAMP HILL, PENNSYLVANIA Hughes Albright Foltz Natale 2080 Linglestown Read • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page rm REBECCA GREENE SEPTEMRFR I'S 2nnR Page 18 1 Saturday morning. 2 THE WITNESS: Uh-hum, correct. 3 MR. STONE: I mean that's all she can say. 4 MR. BERGER: Can we let her testify? 5 MR. STONE: She has already said that. 6 MR. BERGER: i understand, but you're really -- 7 I'm asking her questions, and you're interrupting my 8 question. 9 MR. STONE: You are asking a question based on a 10 hypothetical about an 8 o'clock appointment. There just is 11 no evidence of an 8 o'clock appointment. 12 MR. BERGER: Then you make your objection and -- 13 MR..STONE: Which I have done. 14 MR. BERGER: Which I get to ask the question. 15 MR. STONE: Okay. Ask the question. 16 BY MR. BERGER: 17 Q You said earlier when the patient is taken back 18 that's when this form is completed; is that right? 19 A When the patient is checked in, we print out the 20 super bill which is this form. 21 Q Okay. 22 A It's put on the chart and put up for the MA to 23 take the chart back. 24 Q Okay. Under what circumstances would there be a 25 different time on the handwritten check-in and on the date, Page 19 1 on the time under the date there? 2 MR_ STONE: I object to the form of the question. 3 You are indicating that there's a time in the check-in. 4 You ought to ask this witness what information goes after 5 the check-in line. 6 BY MR. BERGER: 7 Q You can answer that question. Do you know what 8 information goes after the check-in line? 9 A The check-in, people up front don't have 10 anything to do with that block as far as check-in, 11 appointment time and room number. We have nothing to do 12 with that. 13 Q Okay. So that would have been filled in by the 14 medical assistant is what you're saying? 15 A I would assume. 16 Q Okay. Do you know any reason why there would be 17 an earlier time written there for -- if that is, in fact, 18 and I'm talking hypothetically, if that is, in fact, 19 indicating an 8 o'clock check-in time, why there would be 20 an earlier check-in time written by the medical assistant 21 than there is on this form -- 22 MR. STOVE: Object to the form of the 23 question. 24 MR. BERGER: -- under the date? MR. STONE: I'm not going to permit the witness Page 20 1 to answer that question. She has indicated that that block 2 is filled in by somebody else. That block appears to have 3 a space for the indication of who checked somebody in, what 4 their appointment time is and what room they went to. 5 MR. BERGER: Who? You're saying that next to 6 check-in, you're saying that indicates who, that -- 7 MR. STONE: I didn't write it, but you're saying 8 that that mark after check-in somehow indicates an 8 9 o'clock appointment when right next to it it says 10 appointment time 10:15 or whatever, 10 whatever it says. I 11 will not let you ask this witness why there would be an 8 12 o'clock appointment indicated in that block without some 13 foundation. 14 MR. BERGER: 1 didn't say an 8 o'clock 15 appointment. I said an 8 o'clock check-in. It looks like 16 an 8 to me. That's the foundation. Check-in could be 17 different from appointment time. That would make sense, 18 but if you're going to ask for a judge to make a decision 19 and have another deposition for this witness because I'm 20 asking her a hypothetical question, that's your choice. 21 MR. STONE: She said that when the patient checks 22 in this form is created. This form was created at 9:50 23 a.m. Now, ask the question, and I'll decide whether I'll 24 permit her to answer it. 25 BY MR. BERGER: Page 21 1 Q Yes. The question was simply would there be a 2 reason hypothetically that you know of why there might be a 3 different check-in time indicated in the block above, an 4 earlier check-in time than the time indicated down under 5 the gray area where it says date and has a time? 6 MR. STONE: Object to the form of that question. 7 I'll let you answer it if you can. 8 THE WITNESS: I don't know. 9 BY MR. BERGER: 10 Q Okay. 11 A Since the front office does not fill that out,1 12 don't know why somebody did it. 13 Q Okay. Thank you. Who have you talked to about 14 the case? 15 A Just Craig. 16 Q Okay. You have talked to no other employees at 17 Shepherdstown Family Practice? 18 A No. 19 Q You have talked to no family members about this? 20 A No. 21 Q You've talked to no friends about this? 22 A No. 23 Q Is there anything you recall or know about what 24 happened to Mr. Wagner that you haven't told me here today? 25 A No, I don't recollect anything about it. 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MAABIO RAM 1 SC E rNIf `,; ?, , , . i O R H I DIAON0M MAMMOVAd0 HS 8(faN r M . 1018 C3 17 FAST C3 2' pp 13 UA C3 EM RETURN DAYS UNIT R EASON DAY THE I PT ED WEEKS: CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Plaintiffs Motion to Compel Response to Interrogatory Set 4, No. 3, on the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: December 5, 2008 Edmund J. Berger ? s ? ??>c,? ?:; <." ? N =i E? Y} ?'? JULIA WAGNER, EXECUTRIX OF THE ESTEATE OF FRANK WAGNER, DECEASED, PLAINTIFF V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSITC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), AND GEOFFREY JAMES, M.D., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-556 CIVIL ORDER OF COURT AND NOW, this 3d day of December, 2008, upon consideration of the Plaintiff's Motion to Compel Interrogatory Responses, IT IS HEREBY ORDERED AND DIRECTED: 1. With regard to Interrogatories 1 and 2, Defendant Shepherdstown Family Practice, P.C. will simply provide a list of all persons who were in the employ of Shepherdstown Family Practice, P.C. on January 31, 2003 and February 1, 2003. 2. Defendant Shepherdstown Family Practice, P.C., is directed to provide answers to Plaintiff's Interrogatories 3 and 4. By the Court, Edmund J. Berger, Esquire Attorney for Plaintiff Craig Stone, Esquire Attorney for Defendants bas O&P r'ES 11 `v` M. L. Ebert, Jr., J. C S :Z add ? - 030 0401 AUVI 'N? ")r E :did Hi dO 3OU411--cTu JULIA WAGNER, EXECUTRIX OF THE ESTEATE OF FRANK WAGNER, DECEASED, PLAINTIFF V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSITC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), AND GEOFFREY JAMES, M.D., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-556 CIVIL ORDER OF COURT AND NOW, this 17th day of December, 2008, upon consideration of the Plaintiff's Motion to Compel Full and Complete Responses to Interrogatory Set 4, No. 3 and Motion for Status Conference, IT IS HEREBY ORDERED AND DIRECTED that: 1. The issue will be reviewed during the Pre-Trial Conference scheduled for January 7, 2009. 2. Defense counsel shall bring with him to the Pre-Trial Conference the most legible copy of the billing record at issue from February 1, 2003, and shall be prepared to explain to the Court what the procedure of the medical practice was with regard to the box on the form referenced as "Check-In Appt. Time: Room # " By the Court, Edmund J. Berger, Esquire Attorney for Plaintiff k -4, ?4.A M. L. Ebert, Jr., J. F It :Z Ill 91 3..440 80oz C . Craig Stone, Esquire Attorney for Defendants Court Administrator lal)kll fMS bas r ?c%s W JULIA WAGNER, EXECUTRIX OF THE ESTEATE OF FRANK WAGNER, DECEASED, PLAINTIFF V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSITC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), AND GEOFFREY JAMES, M.D., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-556 CIVIL IN RE: PRE-TRIAL ORDER OF COURT AND NOW, this 7th day of January, 2009, after Pre-Trial Conference with Counsel in this matter, IT IS HEREBY ORDERED AND DIRECTED that: 1. Trial counsel in this case shall be Edmund J. Berger, Esquire for Plaintiff and Craig Stone, Esquire for Defendant. 2. There are no scheduling or judicial conflicts in this matter. 3. Counsel have indicated that trial will take approximately 5-6 days. 4. Each party will be granted four peremptory challenges. 5. There is no need for a view in this case. 6. Given the fact that counsel have indicated that this case will take in excess of 2 days, pursuant to Pa. R. C. P. Rule 223.2, jurors will be allowed to take notes. a 10 7. For the purposes of trial management, Defense Counsel has agreed to schedule one of his expert witnesses to be available on Wednesday, January 28, 2009, at 3:00 p.m. and to be taken out of order if necessary. Defendant's second expert witness will be scheduled for appearance on Thursday, January 29, 2009. 8. Plaintiff will be filing a Motion in Limine requesting a restriction of cross examination of his expert witness Dr. Jack Hirsh. Ruling on this Motion is reserved for the trial judge. The Court notes that the Defendant's Counsel has provided a memorandum of law regarding cross examination of Dr. Jack Hirsh. 9. Defense counsel indicated in regard to the stipulations listed in the Plaintiff's Pre-Trial Memorandum that there is not absolute agreement as to the stipulations. Defense counsel indicates that the stipulations should be in the form as presented in his letter of October 30, 2008, paragraphs 2, 3 and 5. The final form of the stipulations will be addressed during trial. 10. Both parties have agreed to provide the trial court with a copy of all exhibits in a binder. 11. Counsel for each party is directed to file with the Court on or before 12:00 noon on January 23, 2009, a list of the numbered standard jury instructions the party is requesting. If a party is proposing a unique jury instruction or requesting significant modification of a standard instruction, it shall provide the full text of the proposed instruction to the Court. 12. On or before 12:00 noon on January 23, 2009, the parties will provide a proposed verdict slip to the Court for review. 13. Plaintiff will submit proposed voir dire questions to the Court for review on or before 12:00 noon on January 23, 2009. By the Court, ?muncl J. Berger, Esquire Attorney for Plaintiff ,,-?Craig Stone, Esquire Attorney for Defendant Court Administrator - bas 1.:??t£s m?c?d.?181oq - VN -?' b')? M. L. Ebert, Jr., J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF.FRANK WAGNER, DECEASED Plaintiff, vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants CIVIL DIVISION No: 05-556 CIVIL TERM Jury Trial Demanded AND NOW COMES the Plaintiff, Julia Wagner, and respectfully moves the court to strike cross-examination of Plaintiffs causation expert, Jack Hirsh, M.D., relating to the breach of standard of care issues by Defendant regarding the deposition testimony of Dr. Hirsh as beyond the scope of his report and direct. In support of this Motion, Plaintiff respectfully represents the following: Dr. Jack Hirsh is an expert retained by the Plaintiff and offered his opinion regarding the issue of causation; i.e., had a diagnosis of Pulmonary Embolism been made in sufficient time, then Frank Wagner (the deceased) would have lived. 2. Dr. Hirsh offered his opinion in a report dated December 13, 2005, and in a Supplemental Report dated December 10, 2008. See Exhibit A-1 and A-2. 3. On August 21, 2007, Dr. Hirsh testified in a videotaped deposition as to his opinion. A Supplemental Deposition was taken for trial on December 22, 2008, which will be read at trial. 4. Plaintiff offered Dr. Hirsh as an expert offering his opinion "with respect to his expertise in the causation of - in the diagnosis and treatment of pulmonary embolism, and, in particular, with respect to the cause of Mr. Wagner's death as to whether it could have been prevented had another, had he been treated at an earlier point in time." See Hirsh Depo, p. 17, In. 14-20. 5. Plaintiff elicited Dr. Hirsh's testimony that he was testifying to causation only, and not standard of care. Id. P. 27, In. 10-20. 6. Defense objected to the expert being offered as to causation only. Id. P. 28, In. 8-10. 7. Dr. Hirsh testes in response to Plaintiff's questions that if Frank Wagner had received treatment that day in the morning, or sometime prior to his first syncopal episode at 6:10 p.m., most likely he would have survived. Dr. Hirsh based his opinion on his clinical experience and studies, Id. P. 34-35, In. 18- 1. 8. Dr. Hirsh was cross-examined extensively during his deposition testimony by counsel for the defense regarding the issue of whether Dr. James breached his standard of care in treatment of Frank Wagner. 9. Plaintiff specifically requests this Honorable Court preclude Defense Counsel's questions and Dr. Hirsh's response on the following pages of Dr. Hirsh's deposition attached as Exhibit 131-63: p. 68 In. 9 thru p. 70 In. 22 ("B- 1"); p. 72 In. 11-22 ("13-2"); p. 82 In. 3-22 ('13-Y). 10. To allow the cross-examination of Dr. Hirsh to stand as-is goes beyond the scope of direct in violation of Pa. R. E. 611(b) and is unfairly prejudicial to the Plaintiffs because Dr. Hirsh's opinion was not offered on the standard of care issue. 11. Pertinent portions of the deposition referenced in this Motion are attached as Exhibit C. 12. Concurrence between Plaintiff and Defendant was not obtained regarding this issue and it was agreed at the Pre-trial Conference that a motion in limine would be filed. 13. Wherefore, Plaintiff requests this Honorable Court disallow cross-examination of Dr. Jack Hirsh on the standard of care issue as beyond the scope of direct in violation of Pa. R. E. 611 (b). Respectfully Submitted, Berger Law Firm, A January 14, 2009 dmun J. Berger` Attorney I.D. #53407 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberaerO-beLgerlawfirm.net Oi? ??-- ' HENDERSON Research Centre December 13, 2005 AFFIL. , WITH FACULTY OF HEALTH SCIENCES McMASTER UNIVERSITY AND HAMILTON HEALTH SCIENCES Edmund "Tad" Berger BERGER LAW FIRM, P.C. 2104 Market Street Camp Hill, PA 17011 Dear Mr. Berger: Re: Mr. Frank Wagner Experimental Thrombosis & Atherosclerosis Clinical Trials Methodology Clincal Thromboembolism Jack Hirsh, C.M., M.D., F.R.C.P.(C), F.R.A.C.P., F.R.S.C., DSc. I have read through the records that you sent me. This is my summary of the case and of my opinions. Frank Wagner was an obese 50 year old male who on Feb 1" 03 had two syncopal episodes. 911 called and he coded in ambulance. He had an autopsy that showed bilateral massive emboli. Mr. Wagner had a long- standing history of right superficial phlebitis with recurrent pain and persistent leg swelling. In 1995 he had an ultrasound performed, which showed thrombosis in a deep calf vein. On 07/23/02 (5 - 6 months before his death) he saw Dr. Schwartz because of worsening leg swelling. His calf was tender. A Doppler ultrasound was performed which was negative for proximal and distal vein thrombosis. Mr. Wagner called the office of the Sheperdstown Family Practice in the early afternoon of Jan 31 2003 complaining of shortness of breath. He was not seen then or referred to a hospital but attended the Sheperdstown Family Practice on the morning of Feb 1 2003 where he saw Dr. James, his family practitioner. The records indicate that he complained of cough and shortness of breath for 5 days. His throat was inflamed. Dr. James diagnosed a viral illness. After seeing Dr. James at about 9am, he went home and had a syncopal attack at 6.10pm and was pronounced dead at 7.25pm. In retrospect, Mr. Wagner's symptoms of cough and shortness of breath for 5 days were likely caused by pulmonary embolism. He was at risk for pulmonary embolism, based on his deep vein thrombosis, diagnosed in 1995. If a diagnosis of pulmonary embolism had been considered either on the afternoon of Jan 31 ' or Feb 1 and if, as a consequence he had been referred to the emergency department, a helical CT scan or perfusion scan would have been abnormal and diagnosis of pulmonary embolism would have been made. If a diagnosis of pulmonary embolism had been made and treatment with heparin instituted, it is more likely than not that he would have survived. Yo nc ly, J/h, CM, , FRCP(C), FRACP, FRSCDSc. P meritus, McMaster University Director Emeritus, Henderson Research Centre JH/lesAegaVberger.wagner.dec1205 EXHIBIT A-1 711 Concession Street, Hamilton, Ontario L8V 1 C3 Tel: 905-527-2299 ext. 42600 • Fax: 905-575-2646 Email: ihirshOthrombosis.hhscrorg • Website: www.hendersonresearchcentre.com HRC FACULTY K'ITh fACUlTY Of HEALTH SCIENCES- rIAL? HENDERSON Mch1ASTER UNIVERSITY Research Centre AND HAMILTON HEALTH SCIENCES 711 Cw=931on Street, HamKon, Ontario, Canada, L8V 10; Tel: 905-527-2299 x 42800. Fax: 905-575-2646 December 10, 2008 Edmund `"Tad" Berger Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 Dear Mr. Berger, I am writing this Supplemental Report to respond to various comments that have been made by Dr. Gillan and Dr. Kotler in their various reports in response to my initial report of December 13, 2005 and my videotape testimony of August 21, 2007. The deposition of Rebecca Greene also indicated that Mr. Wagner may not have. been seen by Dr. James until l Oa.m. or a little bit thereafter, rather than 9a.m. as I had originally believed, and I wanted to comment on her testimony in that respect. I was asked to evaluate the cause of Mr. Wagner's death and discuss the likelihood that he would have survived had he been sent to the hospital after he was seen by Dr. James. I stand by my opinion that he died from massive pulmonary embolism and that more likely than not he would have survived' had he been referred to hospital promptly after he had seen Dr James. It should be understood that I was not asked to evaluate this case in terns of whether Dr. James met the standard of care for those in his field of practice as I am not a family practitioner. My opinion is based on an analysis performed retrospectively of the consequence of his not having been sent to the hospital with a suspected diagnosis of pulmonary embolism. I did not address the issue of whether Dr. James should have considered Mr. Wagner for a possible PE. That was a task placed on Dr. Kernan. Our tasks here should be viewed as separate and not overlapping. Forensic evaluation of cause' and effect is often done retrospectively. My view remains that if he had been sent to the hospital, he would have had a diagnosis of PE made and would have survived to live a normal life, without long term consequences of pulmonary embolism. That is the significance and only significance of my testimony in this case. Dr. Kotler's initial report on the one hand emphasized a lack of "crucial information" in my report, including a history of nasal congestion and aches, exposure to two sick children, history of cough, wheezing triggered by prior upper respiratory tract infections. I was aware of many of these symptoms, notwithstanding that they were not in my report. These factors were not mentioned in my report because they did not change my opinion that Mr. Wagner had developed pulmonary embolism and would have had the benefit of treatment for pulmonary embolism had he been sent to the hospital. That was the crux of my opinion and remains my opinion. 1 EXHIBIT A-2 A 1 Dr. Kotler, in his October 21, 2008 report, identifies 9 statements I made in my deposition. While all of these statements are true, none of them go to the issue that I am testifying about in this case which is whether Mr. Wagner had pulmonary embolism and whether he would likely have survived had he been sent to the hospital when he was seen by Dr. James and had be been treated for pulmonary embolism. Dr. Keman's testimony addresses the standard of care issues on behalf of Plaintiff. I have not been asked to testify on those issues here. I would also comment on Ms. Green's testimony that Mr. Wagner may not have been seen by Dr. James until 10 a.m. or shortly thereafter, rather than 9am. as I had originally believed. This would not change my opinion that Mr. Wagner would have likely survived had he been sent to the hospital by Dr. James. There was still substantial time before Mr. Wagner's` syncopal episode at 6:10pm. in the evening for Mr. Wagner to have the necessary diagnostic and treatment regimen had he been sent to the hospital with suspicion of a possible PE, and it was more likely than not that he would have survived even with a I oam or 10:15am doctor's visit. My opinions in this report, my initial report of December 13, 2005, as well as my deposition testimony of August 21, 2007 were stated to a reasonable degree of medical certainty. Yours sincerely, Jack Hirsh, CM, MD, FRCP(C), FRACP, FRSC, DSc. Professor Emeritus, McMaster University Director Emeritus, Henderson Research Centre JHrh Z ?• Dr. Hirsh - 68 1 just because a physician doesn't make a correct diagnosis 2 doesn't mean the physician is negligent? 3 A. I would agree to that, with that. 4 Q. And you've, you've, in fact, testified 5 Hirsh? ou not Dr have h t s , . , y o uc 6 A. Well, again, I can't remember the 7 details but it wouldn't surprise me that I had because I 8 believe that to be the truth. 9 Q. Okay. For instance, I have another 10 transcript: from a case Marjorie Schuster versus NME 11 Hospitals and Boca Medical Center. Again, August 16th 12 1996. I want to see if you agree with this statement. 13 "Well, if a patient died from pulmonary embolism, and I 14 have to assume the patient did, then there are other 15 causes of syncope, and just because a physician does not 16 make the correct diagnosis, just because a physician is 17 wrong it doesn't mean the physician is negligent." Do you 18 h? if i s ng as suc t y remember te 19 A. No, but I, but I don't disagree with 20 the statement. 21 Q. Okay.. And you as - I know in your, in 22 your, when you did have a clinical practice, most of the f b i he l h h d ti 23 ng uxury o e ents t ey a t times you saw pa 24 diagnosed with suspected problems and being sent to you as 25 a specialist for further treatment; right? EXHIBIT B-1 NIMIGAN MIHAILOVICH REPORTING Dr. Hirsh - 69 1 A. Correct. 2 Q. And you would also agree you don't 3 send patients for tests unless they're reasonably 4 necessary, right? 5 A.' Correct. 6 Q. Okay. And that goes back to, again 7 I'd like to maybe try to put it in context for you. The 8 one piece of testimony I read from that Massar case to you 9 when the attorney was asking you the crux of your opinion 10 that these doctors should not have been on heightened 11 suspicion. 12 Again that answer was, "Well, there 13 were other explanations for her signs. To give you an 14 example, if someone comes in with pneumonia and the 15 symptoms and signs are completely compatible with LL- 16 pulmonary embolism and you diagnose pneumonia, you don't 17 do pulmonary angiogram," meaning it was reasonable for the 18 physician to believe that the patient had pneumonia and to 19 treat the patient for pneumonia. Right? 20 A. Correct. 21 Q. Okay. And that goes on to say,.."Now, 22 occasionally the two may occur together and you make a 23 mistake." Again that doesn't mean you're negligent; 24 correct? 25 A. Correct, NIMIGAN MIHAILOVICH REPORTING • Dr. Hirsh - 70 1 Q. And you can have a patient who has a 2 cold and who then develops a pulmonary embolism; right? 3 A. Correct. 4 Q. And just because a doctor doesn't 5 diagnose a pulmonary embolism, a family doctor, doesn't 6 mean he's negligent, does it? A. Correct. 8 Q. And you would agree with me that your 9 official report, your official letter in this case does ? 10 not mention one Vord that you feel Dr. James is in an way 11 negligent, does it? 12 MR. BERGER: Objection. 13 WITNESS:. No, it does not. 14 BY MR. MCGUCKIN: 15 Q Okay. And the physicians, clinical 16 physicians caring for patients each day have to, not in -1.7 retrospect but real time, make judgment calls based upon 18 the symptoms presented to them; correct? 19 A. Correct. 20 Q. And Dr. Hirsh;. um, just, I'll be done, 21 I'll be done shortly. Bear with me a couple more minutes. 22 A. Sure, sure. 23 Q. You would agree with me that every one 24 of the objective symptoms that Mr. James - excuse me - Mr. 25 Wagner had - I misspoke. Let me do that again. You would NIMIGAN MIHAILOVICH REPORTING Dr. Hirsh - 72 1 Q. Mr., Mr., Mr. Wagner did not have a 2 fever that day; correct? 3 A. No, he did not. 4 Q. Okay. But every other one of those 5 symptoms you mentioned right before fever he had as 6 reported in the medical records and as checked off by Dr. ..7 James - the cough, the nasal congestion, the postnasal 8 drip - all of those? 9 A. He didn't have a productive; he had a 10 dry cough. 11 Q. Okay. You, Dr. Hirsh, you, you would 12 not hold a family doctor to the same standards on 13 pulmonary embolism that you would a specialist, would you? 14 A. No, I wouldn't. 15 Q. You wouldn't hold a family doctor to -16. the same standard on pulmonary embolism that you would, 17 for instance, to a board-certified pulmonologist or a 18 thrombosis expert, would you? 19 0. MR. BERGER: Objection. - 20 BY MR. McGUCKIN: .21 Q. Would you, Doctor? ,22 A. No, I wouldn't. 23 - Q. Okay. Now, lastly, Dr. Hirsh, um, I ti24 would - I'll trust and assume that you'll be 25 intellectually honest with this jury. Is it possible, Dr. NIMIGAN MIHAILOVICH REPORTING EXHIBIT B-2 ' Dr. Hirsh - 82 1 A. Yes, but I, but I think it's, it's 2 what the doctor observes when the patient is complaining. 3 Q. Well,< the patient's there that day for 4 5 Dr. James - again, I'm defending this case real time with D J N r. ames, and I know plaintiff's counsel wants to wants . 6 to have you be limited only to causation in retrospect. 7 A. Right, 8 Q. But in fairness, Doctor, I want to ask 9 you questions concerning the breadth of all your 10 knowledge. 11 A. Sure. 12 Q. Okay? All right. Now, let me see if 13 I can wrap it u Have p• you testified. in other. cases that. 14 if there, if there are other possible explanations and 15 other possible causes for a patient's symptoms, 'even 16 though in retrospect the patient then later develops a 17 pulmonary embolism, it doesn't mean the doctor's negligent ` 18 or did anything wrong? 19 A. I1, m sure I have. 20 Q. And do you honestly believe that, Dr. 21 Hirsh? 22 A. Yes, yes, I do. 23 MR. MCGUCKIN: Those are all the 24 questions I have. Thank you again, sir. 25 MR. BERGER: Can we go off the video NIMI. AN MIHAILOVICH REPORTING EXHIBIT B-3 ` Dr. Hirsh -17 i 1 Q. Okay. And you are - are you familiar 2 with the time-frame within which treatment can 3 successfully occur for a patient with pulmonary embolism? 4 A. I'm familiar with the published 5 literature on that, yes. t 6 Q. And you've also treated patients with 1 7 pulmonary embolism so you have personal experience in that 8 respect; is that right? 9 A. Correct 10 MR. BERGER: Cross examination on 11 qualifications? 12 MR. McGUCKIN: What are you asking him 13 to be qualified to do? 14 MR. BERGER I'm asking him to be 15 qualified with respect to his expertise in the causation 16 of - in the diagnosis and treatment of pulmonary embolism 17 and, in particular, with respect to the cause of Mr. -18 Wagner's death as to whether it could have been prevented 19 had another, had he been treated at an earlier point in -: 20 time. 21 BY MR McGUCKIN: 22 Q. Dr. Hirsh good afternoon. 23 A.- Good afternoon. 24 Q. We have not met before. My name is 25 Mike McGuckin, I'm an attorney; I represent Dr. James and NIMIGAN MIHAILOVICH REPORTING EXHIBIT C f Dr. Hirsh - 27 1 have some questions about the case, though. 2 A Thank you. 3 BY MR. BERGER: 4 Q. Thank you, Dr. Hirsh. And would I be 5 correct that you're here to testify regarding whether Mr. 6 Wagner, the decedent, had a developing pulmonary emboli or 7 embolism at the time that he was seen by Dr. James, based 8 upon the evidence of record? 9 A. Correct. 10 Q. Is would I be correct that you have 11 not been asked to render an opinion regarding whether Dr. 12 James's treatment was within the standard of care given 13 Mr. Wagner's presentation: on the morning of February 1, 14 2003? And do you understand that Dr. Kernan, an 15 internist, is providing that testimony? 16 MR. McGUCKIN: Objection to the form. 17 WITNESS: I do, to both 18 MR. McGUCKIN: Object to the question 19 as phrased. 20 WITNESS Yes, I do. 21 BY MR. BERGER: 22 Q. Are you aware that no appointment 23 schedule was maintained, no appointment schedule remains 24 so we don't know exactly when Mr. Wagner was seen, the 25 exact time? NIMIGAN MIHAILOVICH REPORTING t ' Dr. Hirsh - 28 1 MR. McGUCKIN: objection. Ted, if 2 you're - I let you lead him throughout qualifications ' 3 without objection. If you-'re going to now lead him 4 through the remainder of this deposition, I am forced to 5 object to the leading nature of the question. I also 6 object that it's a gross mischaracterization to suggest to 7 this Doctor that there's no schedule information. It's 8 patently unfair to this group. You're now going to try to limit this Doctor's testimony to causation only, and, you 10 know, I object. 11 MR. BERGER: I certainly hear your. 12 objection. Um. 13 BY MR. BERGER: 14 Q. Do you know exactly what time, Dr. 15 Hirsh, that Mr. Wagner was seen in the office of 16 Shepherdstown Family Practice by Dr. James? 17 f A. No. I believe he was seen on Saturday Y 18, morning; I don't recall the time. 19 Q. Do you know whether, in your opinion, `20 basedupon your experience, um, do you have an opinion as 21 to whether Mr. Wagner, had he been sent to the hospital at 22 the time that he was seen by Dr. James, would have `23 survived the occurrence of this pulmonary embolism. 24 A. Assuming, assuming the symptoms that 2S he had when he saw Dr. James were caused by pulmonary NIMI'GAN MIHAILOVIGH REPORTING 1 ' Dr. Hirsh - 31 1 A. That is correct. 2 Q. And it is a one-page report 3 summarizing your review of this, of the records, and 4 expressing your opinion regarding Mr. Wagner's, um, 5 treatment, diagnosis and treatment; is that right? Or the 6 cause - excuse me, the causation of Mr. Wagner's death. 7 A. That's right. It was mainly focused 8' on the causation of death. 9 Q. And in this report you say, um, -- 10 MR. McGUCKIN: Could we go off the 11 video record, please. 12 VIDEOGRAPHER: This is the video 13 technician. We are going off the record. The time is 14 12:39 p.m. 15 MR. McGUCKIN: Mr. Berger, if you're 16 going to read from the report, I'm going to have - I don't 17 know how many more times I can say that I object to you 18 leading this witness. If you want to ask this Doctor his 19 opinion and basis for it, I understand that, but each, 20 each question is leading. 21 We don't have the judge here. It's 22 unfair forme then to have to interrupt Dr. Hirsh each 23 time with respect to.this, for the leading questions, and 24 I'm just asking respectfully if you could refrain from 25 that and we can get through this. NIMIGAN MIHAILOVICH REPORTING r.. Dr. Hirsh . 34 A. Yeah. MR. McGUCKIN: I'll be happy to stipulate his report says 6:10 p.m. WITNESS: Right, right. BY MR BERGER: Q. Okay. A. 6:10 p.m., right. Q When would Mr. Wagner, in your opinion, have had to receive treatment in order to have survived his pulmonary embolism that caused the syncopal attack at 6-:10 p.m.? A. The sooner he received treatment before that, the more likely it would be that he would have survived. Q. Okay. Can you you can't - can you. give me a time at which was a point of no return for Mr. Wagner, or is that not possible? A. I don't think it-'s possible. I think that once he was - once, once he had the syncopal episode I think the syncopal episode indicated that he had the massive embolism. So oncehe had that, treatment would have been much much more difficult than before he had it. And the, if he had been treated'in the morning, ah, then based on all the evidence from my clinical experience and studies it's more likely than not NIMIGAN MIHAILOVICH REPORTING Dr. Hirsh - 35 1 that he would have survived. 2 Q. And when you're talking about his 3 having survived, would he have had a normal life span 4 after that? Would he have been okay? 5 A. Um, there's, there's better than a 90 6 percent chance that the, the smaller pulmonary embolism which caused the sym-, which I believe caused the symptoms 8 in the morning, for those five days, or the recurrent r 9 pulmonary emboli, the evidence suggests that they would 10 t. dissipate, and they do in about 95 percent of cases, and 11 there's no permanent lung sequelae from the pulmonary 12 embolism. In about five percent of the cases patients can 13 go on and develop what's called thromboembolic pulmonary ` 14 hypertension. 15 Q. Now, you talked about the five days; 16 what five days were you referring to? 17 A. Well, I believe that he was, had 18 symptoms of shortness of breath for four or five days 19 before he saw, um, Dr. James. 20 Q. And what leads you to your conclusion 21 that he had some developing pulmonary emboli earlier in 22 the morning when he was seen by Dr. James? 23 A. So, as I said in my, in my deposition 24 letter, my conclusions are in retrospect, and I'd like to 25 elaborate on that. Could I? NIMIGAN MIHAILOVICH REPORTING D. Hirsh 37 days. That occurred at the time, soon, probably at the, time he was syncopal or,at the time that he died. Q. Are your opinions that you've just stated, stated to a reasonable degree of medical certainty? A. Yes. Q. And that would include your opinion regarding the, your statements that he had developing pulmonary emboli in the morning when he was seen by Dr. James; your statement, your opinion that there was adequate time to treat him for the pulmonary embolism, and that he would most likely have had a normal life span had he been treated? A. Correct. MR McGUCKIN: Object to the form. WITNESS: Correct. BY MR BERGER: Q. Do you know whether Mr., Wagner would have had to receive continuing medical treatment to prevent an episode such as this from recurring had he survived this episode? MR. McGUCKIN: Let me just object. Is that in the report? Am I missing something here, Mr. Berger? MR. BERGER No. I - as he would have NIMIGAN MIHAILOVICH REPORTING • ` Dr. Hirsh - 40 1 supplemental report in response to Dr. Kotler? 2 MR. BERGER: No. 3 MR. McGUCKIN: Because I haven't been 4 provided with one. 5 MR. BERGER: No, he hasn't. 6 MR. McGUCKIN: I object to you reading 7 from my expert report to him and now having him comment 8 upon it. The rules in Pennsylvania are you have to give 9 me his opinion ahead of time so I can cross examine him. 10 You are now asking for his opinion concerning that. I 11 object both to the form and to the question. 12 MR. BERGER: I'm asking him whether he 13 assessed, um, whether he was asked to assess that. 14 MR. McGUCKIN: Let's go back on the 15 video. 16 VIDEOGRAPHER: This is the video 17 technician. We're going back on the record. The time is 18 12:53 p.m. ;: 19 BY MR. BERGER: 20 Q. Just to talk to you briefly about the 21 scope of your expert report, um, you were only asked to 22 testify regarding whether Mr. Wagner would have survived t` 23 this episode; is that correct? And you were not asked to 24 testify regarding the standard of care which Dr. Kernan is 25 testifying about for plaintiff; is that right? r NIMIGAN MIHAILOVICH REPORTING Dr. Hirsh - 42 I Q. Other than the developing pulmonary '• embolism that would likely have, could be attributable to s or could be attributed to his shortness of breath and cough that he was having at that time. A. Yeah, I think that's the point of contention really, and that is could the shortness of breath be explained entirely on the symptoms of a postnasal drip and nasal congestion, or is, were the symptoms out of proportion to the signs that Dr. James elicited when he was seen on Saturday morning. And as I said in my report, I can only, comment on this in retrospect; I'm only prepared to comment on this in retrospect because I was asked to comment on causality. And I think given that he died from pulmonary embolism and he had pulmonary embolism, and given that I think it's unlikely that, that shortness of breath on exertion, shortness of breath walking upstairs is a, I think that's an uncommon symptom of just a upper respiratory tract infection; given that he died of pulmonary embolism, I think that it's more likely than not that he was having episodes of pulmonary embolism at that time. Q. And when you say "at that time, you're talking about when? NIMIGAN MIHAILOVICH REPORTING CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Plaintiff's Motion In Limine to Strike Cross Examination Relating to Standard of Care Issues as Beyond the Scope of Direct and on the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: January 14, 2009 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Plaintiff's Brief in Support of Its Motion In Limine to Strike Cross Examination Relating to Standard of Care Issues as Beyond the Scope of Direct and on the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: January 14, 2009 ,. cz? ?'vv a> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF JURY TRIAL DEMANDED HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants DEFENDANTS' ANSWER TO PLAINTIFF'S MOTION IN LIMINE TO STRIKE CROSS EXAMINATION RELATING TO STANDARD OF CARE ISSUES AS BEYOND THE SCOPE OF DIRECT AND NOW come Defendants, by and through their counsel, Marshall Dennehey Warner Coleman & Goggin, who respectfully file this Answer to Plaintiffs Motion in Limine to Strike Cross-Examination Relating to Standard of Care Issues as Beyond the Scope of Direct regarding Plaintiffs expert, Jack Hirsh, and in support thereof aver as follows: 1. Admitted in part, denied in part. It is admitted that Dr. Jack Hirsh is an expert retained by the Plaintiff. It is denied that Dr. Hirsh's opinion is limited to the issue of causation only. To the contrary, Dr. Hirsh's opinion as described by Plaintiff - i.e., had a diagnosis of pulmonary embolism been made in sufficient time, then Mr. Wagner would have survived - is an t unequivocal statement that Dr. James deviated from the standard of care by failing to diagnose Mr. Wagner's pulmonary embolism in sufficient time. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that Plaintiff accurately quotes language from Dr. Hirsh's August 21, 2007 deposition. It is specifically denied that Dr. Hirsh's opinions in his report, and the testimony offered during his depositions, are limited to the issue of causation. By way of further response, Defendants incorporate their response in Paragraph 1, supra. 5. Admitted in part, denied in part. It is admitted that Dr. Hirsh testified that he had been retained to comment on causation only. It is specifically denied that Dr. Hirsh's opinions are limited to causation only. By way of further response, Defendants incorporate their response in Paragraph 1, supra. 6. Denied as stated. It is admitted that, at the section of testimony cited by Plaintiff, defense counsel objected to Plaintiffs counsel's attempt to limit Dr. Hirsh's testimony to causation only. However, Plaintiffs characterization of this objection is specifically denied. By way of further response, the objection at p. 28, In. 8-10 addresses Plaintiffs counsel's prior questions to Dr. Hirsh, which sought to elicit testimony regarding alleged deviations from the standard of care (see p. 27, In. 22-25), in light of his insistence that Dr. Hirsh would offer causation testimony only. 7. Plaintiffs characterization of Dr. Hirsh's testimony at p. 34, In. 18-25 through p. 35, In. 1 is specifically denied. Contrary to Plaintiffs insistence, such testimony is an obvious criticism of Dr. James' alleged failure to treat Mr. Wagner appropriately - i.e., had Dr. James not deviated from the standard of care and appropriately diagnosed Mr. Wagner's pulmonary embolism, Mr. Wagner would likely have survived. 8. The averments in Paragraph 8 contain Plaintiffs characterization of Dr. Hirsh's lengthy cross-examination, and Defendants submit that Dr. Hirsh's deposition transcript speaks for itself. By way of further response, as is addressed more fully in Defendants' Brief in Opposition to Plaintiffs Motion in Limine, Dr. Hirsh's cross-examination was proper and permissible under the Pennsylvania Rules of Evidence and the prevailing case law of this Commonwealth. 9. Paragraph 9 contains a prayer for relief to which no response is required. To the extent a response is required, Defendants respectfully submit that the portions of Dr. Hirsh's testimony to which Plaintiff now objects are admissible and should not be redacted from the videotape played to the jury. 10. Paragraph 10 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Defendants submit that the portions of Dr. Hirsh's testimony to which Plaintiff now objects were well within the scope of Dr. Hirsh's direct testimony and are in no way prejudicial to Plaintiff. 11. Admitted. 12. Admitted. 13. Paragraph 13 contains a prayer for relief to which no response is required. To the extent a response is required, Defendants submit that this Honorable Court should deny the requested relief and permit the identified portions of Dr. Hirsh's testimony to be displayed to the fury. WHEREFORE, Defendants respectfully request that this Honorable Court enter an Order denying Plaintiffs Motion in Limine. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: aa-?' a=L%% 1, Craig A. one, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the following Answer to Plaintiffs Motion in Limine upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, U.S. mail, addressed as follows: Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 Craig A. Sto Esquire 4200 Crums ill Road Suite B Harrisburg, PA 17112 717-651-3500 Date: I (D Iul 05/461076.0 1 r•a ?~ ? ?? ? ??? r-, r ` ! `F+ J` R ? J? i' - i ?` ,r:.s f.J'? "? _...i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF JURY TRIAL DEMANDED HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants MOTION IN LIMINE TO LIMIT THE SCOPE OF TESTIMONY OF WALTER N. KERNAN, M.D. AND NOW come Defendants, by and through their counsel, Marshall Dennehey Warner Coleman & Goggin, who respectfully submit the following Motion in Limine to Limit the Testimony of Walter N. Kernan, M.D., and in support thereof aver as follows: 1. This is a medical malpractice action involving allegations of Dr. James' failure to timely diagnose and treat Plaintiffs decedent, Frank Wagner, for a pulmonary embolism on February 1, 2003. 2. In support of her claims, Plaintiff has produced the December 12, 2005 and December 10, 2006 experts report of Walter N. Kernan, M.D. Dr. Keman's reports are attached hereto as Exhibit "A", collectively. 3. Defendants now file this Motion in Limine to limit Dr. Kernan's trial testimony in order to comply with past rulings of this Court, as well as with Pennsylvania's requirement that an expert's testimony be limited to the four corners of his or her report(s). 4. First, Dr. Kernan should be precluded from testifying as to Plaintiffs contention, documented in her narrative statement which Dr. Kernan reviewed when authoring his reports, that Mr. Wagner informed her that he called Dr. James' office on January 31, 2003. 5. Dr. Kernan opines that if Mr. Wagner did, in fact, call Dr. James' practice on January 31, 2003 as Plaintiff describes, then Mr. Wagner should have been evaluated or referred to the emergency room. See December 12, 2005 Report of Walter N. Kernan, M.D., p. 4. 6. Dr. Kernan later opines in his December 10, 2006 report that Plaintiff "says that her husband reported "trouble breathing" to Shepherdstown Family Practice in the days prior to her appointment with Dr. James. 7. On June 1, 2007, this Honorable Court denied Plaintiffs Motion in Limine seeking the admission of hearsay statements of Plaintiffs decedent. The Court directed that Plaintiff will not be permitted to offer any hearsay statements attributed to Mr. Wagner during trial. 8. In accordance with the Court's Order, Dr. Kernan is similarly precluded from offering any hearsay statements of Mr. Wagner. Thus, Dr. Kernan should be precluded from testifying that, according to Plaintiff, Mr. Wagner called Dr. James' office on January 31, 2003, and should further be precluded from offering any opinions based upon this hearsay. Dr. Keman should also be precluded from testifying that Mr. Wagner reported "trouble breathing" to Mrs. Wagner several days prior to his appointment with Dr. James. 9. Second, Dr. Kernan should be precluded from offering any testimony regarding what he refers to as a "mischaracterization" of Mr. Wagner's 1995 deep vein thrombosis as "superficial thrombophlebitis". 10. Plaintiffs allegation that Mr. Wagner's 1995 deep vein thrombosis was negligently mischaracterized and/or omitted from Mr. Wagner's major medical problems list was voluntarily discontinued with prejudice by stipulation of the parties on June 5, 2005. The Stipulation of Voluntary Discontinuance, together with the portion of Plaintiffs Amended Complaint exhibiting the exclusion of this claim, are attached hereto as Exhibit "B", collectively. 11. Because Plaintiff discontinued this claim with prejudice, Plaintiff cannot now offer testimony that Mr. Wagner's 1995 DVT diagnosis was negligently mischaracterized, omitted, or otherwise not considered as of February 1, 2003 when Dr. James treated Mr. Wagner. 12. As such, Dr. Kernan should be precluded from offering testimony as to the mischaracterization of Mr. Wagner's past diagnosis. 13. Next, Dr. Kernan cannot testify that Dr. James was negligent by failing to review the entirety of Mr. Wagner's medical chart prior to or during his examination of Mr. Wagner. 14. Dr. Kernan's report does not contain an opinion that Dr. James' failure to review Mr. Wagner's chart in its entirety constitutes a deviation from the standard of care. Thus, because Dr. Kernan's testimony is limited to the four corners of his pre-trial reports, he cannot testify as to an opinion of negligence that is not contained in his report. See Pa.R.C.P. 4003.5; see also Walsh v. Kubiak, 443 Pa. Super. 284, 661 A.2d 416 (1995) (en banc). 15. Next, Dr. Kernan should be precluded from testifying as to what Dr. James should have done if Mr. Wagner had presented with complaints or symptoms of significant dyspnea. 16. Dr. Kernan's report contains several statements of what Dr. James would have been required to do had Mr. Wagner demonstrated symptoms which were not present, and of which Mr. Wagner did not complain, during his appointment with Dr. James. 17. What Dr. James would or would not have done under different circumstances or had Mr. Wagner presented with different symptoms is irrelevant to the issue of whether Dr. James' treatment of Mr. Wagner, when faced with the symptoms exhibited and reported on February 1, 2003, was within the standard of care. 18. Moreover, Dr. Kernan does not opine that Dr. James deviated from the standard of care by failing to perform the evaluation he describes at number 4 on page 3 of his report. Thus, Dr. Kernan should be precluded from offering testimony that the absence of the described evaluation constitues negligence by Dr. James. 19. Next, Dr. Kernan should be precluded from testifying that Mr. Wagner's risk factors for pulmonary embolism included a prior deep vein thrombosis, as he opines in his December 12, 2005 report at p. 4, number 5. It has been established that Dr. James was not aware of Mr. Wagner's 1995 DVT at the time he treated Mr. Wagner. 20. Were Dr. Kernan allowed to testify as to Mr. Wagner's risk factors, including his past DVT, in the context of what Dr. James should have considered in reaching his diagnosis, Dr. Kernan will necessarily be called upon to testify that Dr. James was unaware of Mr. Wagner's DVT because it did not appear on his list of major medical problems. For the reasons set forth above, Dr. Kernan cannot so testify. Thus, he cannot testify that Mr. Wagner's risk factors included past DVT, nor can Dr. Kernan testify that Defendants' expert, Dr. Gillan, neglected to mention past DVT as a risk factor for pulmonary embolus. 1 In fact, at no point in his expert report does Dr. Kernan opine that Dr. James deviated from the standard of care. 21. Next, Dr. Kernan should be precluded from testifying as to what should have transpired if Mr. Wagner reported "new or changing dyspnea" on January 31, 2003. Apart from the previously mentioned prohibition on the introduction of hearsay, such testimony should be precluded because the record does not demonstrate that Mr. Wagner ever complained of "new or changing dyspnea" to Dr. James or his office staff. 22. Dr. Kernan cannot be permitted to testify as to actions which might have constituted negligence under circumstances not present in this case. 23. Finally, Dr. Keman should be precluded from testifying that Mr. Wagner may have had multiple pulmonary emboli prior to his February 1, 2003 office visit and that the fatal event may have been caused by a recurrent embolus. 24. Pennsylvania law has unequivocally determined that an expert who renders an opinion that an event may have been the cause of a patient's death has not rendered an opinion with the requisite degree of medical certainty. WHEREFORE, Defendants respectfully request that this Honorable Court enter an Order limiting Dr. Kernan's trial testimony in accordance with the above allegations and further Ordering that Dr. Kernan may testify only as to his opinions that (1) Mr. Wagner's dyspnea was caused by pulmonary embolism; and (2) dyspnea on exertion is not typically a symptom of upper respiratory infection. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GO GIN By: Craig A. St , Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the following Motion in Limine upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, U.S. mail, addressed as follows: Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17,011 Craig A. Stone, Esq?] 4200 Crums Mill Roar Suite B Harrisburg, PA 17112 717-651-3500 Date: 10 101 2 C8] --C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, V. : SHEPHERDSTOWN FAMILY NO: 05-556 CIVIL TERM PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A : SHEPHARDSTOWN FAMILY : PRACTICE (A DIVISION OF JURY TRIAL DEMANDED HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and : GEOFFREY JAMES, M.D. Defendants MOTION IN LIMINE TO PRECLUDE PORTIONS OF THE VIDEOTAPE AND WRITTEN DEPOSITION OF GEOFFREY JAMES M.D. AND NOW come Defendants, by and through their counsel, Marshall Dennehey Warner Coleman & Goggin, who respectfully submit the following Motion in Limine to preclude portions of the videotape deposition of Geoffrey James, M.D., and in support thereof aver as follows: 1. This is a medical malpractice action involving allegations of Dr. James' failure to timely diagnose and treat Plaintiffs decedent, Frank Wagner, for a pulmonary embolism on February 1, 2003.. 2. On October 3, 2005, Plaintiff took the videotape discovery deposition of Dr. James. Following a January 6, 2009 Pre-Trial Conference, by correspondence of January 9, 2009, Plaintiff advised Defendants of his intention to play the entire videotape of Dr. James' deposition during trial. A copy of Plaintiffs January 9, 2009 correspondence is attached hereto as Exhibit "A". 3. Defendants respectfully submit that, for the reasons set forth below, the following portions of Dr. James' testimony should be precluded at trial and redacted from the videotape shown to the jury: p. 28, In. 5-9 p. 36, In. 21-25 p. 43, In. 7 - p. 47, In. 21 p. 52, In. 23 - p. 55, In. 5 p. 58, In. 14 - p. 59, In. 24 p. 62, In. 8-19 A copy of Dr. James' deposition testimony is attached hereto as Exhibit "B". 4. On p. 28, lines 5-9, Dr. James was asked whether he reviewed the decedent's medical records to determine whether Mr. Wagner had previously experienced shortness of breath on exertion. Defense counsel properly objected because Dr. James had previously been asked the same question, and provided his response. See Deposition of Geoffrey James, M.D., p. 27, In. 22-25 through p. 28, In. 1-4. Thus, the question and objection at p. 28, lines 5-9 should be precluded and redacted from the videotape shown to the jury. 5. With respect to p. 36, lines 21-25, Dr. James was asked whether he would have considered a diagnosis of pulmonary embolism had Mr. Wagner's list of major medical problems included a history of deep vein thrombosis. 6. The question is improper because it asks Dr. James to make a differential diagnosis based upon factors not present at the time he treated Mr. Wagner. Such questioning is likely to confuse the jury and mislead the jurors into basing their ultimate decision upon an improper basis in violation of Pa.R.E. 403. 7. In addition, the question is improper because Plaintiff lacks any expert support for her insinuation that Dr. James negligently failed to review Mr. Wagner's entire medical history before or during the February 1, 2003 office visit. 8. Additionally, Plaintiffs claim that Mr. Wagner's earlier diagnosis of deep vein thrombosis was erroneously omitted from his list of major medical problems was voluntarily withdrawn by stipulation of the parties on June 5, 2005, and as such, Plaintiff is precluded from re-raising this issue. Thus, this testimony should be precluded and redacted from the videotape shown to the jury. 9. With respect to p. 43, In. 7 through p. 47, In. 21, Dr. James was asked a series of questions regarding his diagnosis of pulmonary embolism in other patients. 10. Specifically, Dr. James was asked whether he recalled the symptoms demonstrated by patients diagnosed with pulmonary embolism, as well as whether he ever treated patients whose pulmonary emboli were not diagnosed. 11. Defense counsel objected on the basis that questions regarding Dr. James' other patients, who presented with symptoms different than those demonstrated by Mr. Wagner on February 1, 2003, is irrelevant to the issues in the current case. 12. Allowing Dr. James to testify about his care and treatment of other patients is irrelevant to the issue of how Dr. James treated Mr. Wagner. Moreover, allowing the jury to hear testimony regarding different patients, different symptoms, and different courses of treatment will serve only to confuse the jury and mislead them into believing that they should judge the care and treatment rendered by Dr. James upon the manner in which he treated different people with different symptoms. Thus, the identified portion of Dr. James' testimony should be precluded and redacted from the videotape shown to the jury. 13. With respect to p. 52, In. 23 through p. 55, In. 5, Dr. James was asked a series of question about a study that appeared in the January 1995 issue of Chest Magazine: The Cardiopulmonary and Critical Care Journal. 14. Dr. James testified that he does not routinely read Chest Magazine and was not aware of the study which Plaintiffs counsel "characterized". 15. Thus, Plaintiffs counsel has failed to lay the proper foundation for any questions regarding the Chest Magazine study, as Dr. James indicated his unfamiliarity with the study. Therefore, questions regarding the study should be precluded from trial and redacted from the videotape shown to the jury. 16. With respect to p. 58, In. 14 - p. 59, In. 24, Plaintiffs counsel read a portion of Dr. James' discovery responses wherein Dr. James indicated his inability to determine the identity of the individual who may have taken an alleged phone call from Mr. Wagner on January 31, 2003. Counsel then asked Dr. James whether he was disputing whether Mr. Wagner actually called Shepherdstown Family Practice that day. 17. Defense counsel objected to the question on the basis that the discovery response reads for itself. 18. After an exchange between counsel, Plaintiffs counsel moved on to another question, and Dr. James never provided a response to Plaintiffs question as to whether he was disputing his interrogatory response. Thus, the identified portion of Dr. James' testimony should be precluded and redacted from the videotape, as no response to counsel's question was ever provided and counsel subsequently abandoned the question. 19. Finally, with respect to p. 62, In. 8-19, counsel attempts to question Dr. James regarding statements allegedly made by Mr. Wagner to his wife and children regarding his shortness of breath. 20. By order of June 1, 2007, this Honorable Court has previously determined that Plaintiff cannot be permitted to offer hearsay statement of the decedent. 21. Thus, the identified portions of Dr. James' testimony should be precluded and redacted from the videotape, as they are violative of this Court's Order precluding the admission of any testimony regarding things Mr. Wagner allegedly said to his family regarding his shortness of breath. WHEREFORE, Defendants respectfully request that this Honorable Court enter an Order precluding the aforementioned portions of the Deposition of Geoffrey James, M.D. from being played to the jury during trial. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COL MAN & GOGGIN By: 49r OAS Craig A. Stone, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the following Motion in Limine upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, U.S. mail, addressed as follows: Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17,011 Craig A. Stone, Esquire 4200 Crums Mill Road Suite B Harrisburg, PA 17112 717-651-3500 Date: 1 11010 cl c ° = rQ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants AND NOW comes Plaintiff, Julia Wagner, by and through counsel, Berger Law Firm, P.C., and respectfully answers Defendant's Motion in Limine to Limit the Scope of Testimony of Walter N. Kernan, M.D. and in support, hereof submits as follows: It is admitted that this is a Medical Malpractice action involving Dr. James' and Shepherdstown Family Practice's failure to timely diagnose and treat Plaintiffs decedent, Frank Wagner for a pulmonary embolism. Based on Plaintiffs information, Mr. Wagner made an appointment with Shepherdstown prior to February 1, 2003 and was seen by Dr. James at Shepherdstown on February 1, 2003. 2, It is admitted that Plaintiff produced the indicated and attached reports of Walter N. Keman, M.D. in support of its position on standard of care issues. The indicated reports clearly identified the medical obligations which Dr. James and Shepherdstown failed to carry through with. First among these was the requirement to explore the characteristics of Mr. Wagner's dyspnea (shortness of breath) and evaluate its severity. Dr. Keman's report clearly indicated that Dr. James was "required to question Mr. Wagner about the temporal pattern and severity of his dyspnea, whether it caused discomfort at rest or during daily activities, and associated pulmonary and cardiac symptoms." Instead, as noted in Dr. Kernan's report, and according to Dr. James' deposition, Dr. James simply attributed the shortness of breath to Mr. Wagner's "obesity nasal congestion and postnasal drainage." Dr. James' deposition testimony indicated that he did not recall questioning Mr. Wagner regarding the nature of his complaint of dyspnea. James Deposition, p. 24. Second, Dr. Kernan's report addresses the possibility that, in fact, Mr. Wagner did report significant dyspnea on exertion to Dr. James, although Dr. James' testimony indicated that he did not recall this. In this event, Dr. Kernan states that Dr. James was required to evaluate Mr. Wagner for causes other than a URI, including pulmonary embolus. He goes on to explain what this evaluation would have involved in detail. Third, Dr. Kernan's report describes what would have been included in an appropriate evaluation of a patient reporting significant dyspnea on exertion. The question here is whether (1) Dr. James should have asked questions which 2 determined that Mr. Wagner in fact had significant dyspnea on exertion, or (2) Mr. Wagner did in fact report significant dyspnea on exertion and Dr. James simply does not recall. These are factual questions for the jury. Dr. Kernan's report clearly sets forth the standard of care, stating Dr. James' obligations and the characteristics of an appropriate evaluation. 3. It is recognized that the Court has ruled on a previous Motion in Limine that Plaintiff will not be permitted to testify regarding her conversation with Plaintiffs decedent regarding his conversation with Defendant Shepherdstown Family Practice scheduling his appointment at Defendant practice. However, Judge Ebert, at the Pre-Trial Conference, also indicated that Plaintiff will be able to present circumstantial evidence of the scheduling of the appointment on January 31, 2003, which Plaintiff intends to produce and submits that this will be adequate to support Plaintiffs expert's testimony in this respect. Judge Ebert also indicated that his ruling on hearsay statements was more limited than might otherwise be interpreted by his Order of June 1, 2007. With respect to proposed limitation of Dr. Kernan's reports to the "four comers," Dr. Kernan's reports address a broad range of issues involved in the diagnosis and treatment of Mr. Wagner, and evaluate the diagnosis and treatment of Mr. Wagner from Dr. Kernan's broad range of education and experience. Moreover, Pennsylvania's Rules generally favor the "fair scope" doctrine. As with all experts presented in this case, in ruling on any particular objection, the Court will need to look at the range of information that Dr. Kernan reviewed and considered as part of his reports and the fair scope of the medical 3 and scientific information that form the backbone of his opinions. Expert reports are not intended to be comprehensive written testimony but are supposed to apprise the parties sufficiently to make a meaningful response. Bainhauer v. Lehigh Valley Hosp., 834 A.2d 1146 (Pa. Super. 2003). If there is nothing that would mislead the adversary as to the appropriate response, then Defendants have a difficult argument to make that the proposed testimony is outside the "fair scope" of the expert reports produced in the discovery phase of the case. 4. The first area of proposed preclusion is that Dr. Kernan should not be able to testify that Mrs. Wagner told him that Mr. Wagner called Dr. James' office on January 31, 2003. Plaintiff acknowledges and accepts that Plaintiff should not be able to offer through Dr. Kernan what Plaintiff is not herself permitted to testify about. 5. It is admitted that Dr. Kernan offers the indicated opinion. 6. It is admitted that Dr. Keman states the indicated report from Plaintiff in his report. 7. It is admitted that the Court's ruling indicated that the Plaintiff will not be permitted to offer hearsay statements of the deceased, Frank Wagner However, the Court indicated at the Pre-Trial Conference that its ruling was limited to Plaintiffs decedent's conversation with Plaintiff regarding his telephone call with Shepherdstown Family Practice, P.C. on January 31, 2003, as hearsay on hearsay, and that Plaintiff would be allowed to offer hearsay statements of decedent that did not constitute hearsay on hearsay. 4 8. Admitted in part and denied in part. Although Plaintiff, as per paragraph 4, agrees that Plaintiff should not be permitted to offer testimony through its experts that would not be permitted to be offered through Plaintiff, Dr. Keman, as a medical expert, is permitted to rely on circumstantial evidence and to state his testimony accordingly. At the Pre-Trial conference, the Court recognized that the issue of the January 31, 2003 phone call would be a matter that could be addressed through circumstantial evidence. Further, the Court limited its ruling on the hearsay issue to the phone call and indicated it would allow other hearsay such as the testimony regarding "trouble breathing." Consequently, Dr. Keman should be permitted to testify as to his opinions in the event that the phone call was made on January 31, 2003. 9. Defendants next argue that Dr. Keman should be precluded from offering testimony regarding mischaracterization of Mr. Wagner's 1995 deep vein thrombosis as "superficial thrombophlebitis." 10. Defendants argue that Plaintiff's have "voluntarily discontinued" their action with respect to the negligent mischaracterization of the deep vein thrombosis. While it is true that Plaintiff discontinued its action against Dr. Schwartz, this was in no sense meant to preclude Plaintiff from contending that the records were mischaracterized. 11. Denied. Simply because Plaintiff has not continued its claim against Dr. Schwartz does not mean that it cannot say that the records are mischaracterized, which they are. It would be simply a factual inaccuracy to say that the record is stated accurately. 5 12. Denied. Dr. Kernan should be permitted to describe the medical records accurately, as he does in his report and to describe the errors in them. 13. Defendants next contend that Dr. Keman should be precluded from testifying that Dr. James was negligent by failing to review the entirety of Mr. Wagner's medical chart prior to or during his examination of Mr. Wagner. This argument is addressed in paragraph 14 below. 14. Defendants contend that Dr. Kernan's report does not contain an opinion that Dr. James' failure to review Mr. Wagner's chart in its entirety constitutes a deviation from the standard of care. Dr. Kernan's viewpoint in this respect is obvious from his report. He states that Dr. James was required to inquire of Mr. Wagner regarding.his dyspnea on exertion and if his symptom was significant to evaluate it for causes other than a URI, including pulmonary embolus. Evaluation, in this context, would obviously include review of the medical history. Dr. Kernan's reports focus extensively on the medical history and it goes without saying that medical history is key to every medical review. In particular, Dr. Keman's report focuses on knowing the risk factors for the patient; it is not possible to know the risk factors for the patient without knowing the patient's medical records. Dr. Kernan's report is replete with discussion of the many factors that go into a thorough medical review, including evaluation of medical records, assessment of vital signs, assessment of risk factors, interviewing the patient regarding the characteristics and severity of their symptoms, reviewing whether the patient had similar previous symptoms, questioning whether current 6 symptoms can be easily explained by existing phenomena, physical examination, testing of various types. It is not possible to indicate every last obligation of the physician in these contexts, especially those that would seem obvious, such as a review of the medical chart. Clearly, evaluation for a- pulmonary embolus as Dr. Keman states would have been required of Dr. James would entail a review of the medical records to see whether related conditions such as deep vein thrombosis had been experienced before. Dr. Kernan's report simply makes these basic connections as would any physician - as should Dr. James have made on the date in question. Testimony in this respect would clearly be in the fair scope of Dr. Kernan's expert report and Defendants clearly were well apprised of Dr. Kernan's opinion that the risk factor of a DVT was available to Dr. James, although not shown on the list of major medical problems. 15. Defendants next contend that Dr. Keman should be precluded from testifying as to what Dr. James should have done if Mr. Wagner had presented with complaints or symptoms of significant dyspnea. This contention is addressed in paragraph 16 below. 16. It is acknowledged that Dr. Kernan's statement sets forth Dr. James' obligations under the circumstances where Mr. Wagner did report symptoms of significant dyspnea on exertion. Although Defendants contend that the symptoms "were not present" and "Mr. Wagner did not complain", Plaintiff submits that this is a factual dispute. Dr. James has said he does not recall asking Mr. Wagner questions and does not recall any conversation further about 7 the shortness of breath. That does not mean that there was not one or that Dr. James did. not have more information than set forth in his deposition testimony. It is for the jury to determine Dr. James' credibility in this respect. Consequently, Dr. Kernan's testimony as to what Dr. James should have done is perfectly appropriate based on the circumstantial evidence regarding Mr. Wagner's condition (as described in part in Dr. Kernan's report) at the time he presented to Dr. James. 17. Denied. As indicated in the preceding paragraph, it is inappropriate to presume that Dr. James' deposition testimony reflects everything that was said and that happened in Dr. James' office that day. Dr. James' credibility and his ability to recall are subject to question by the jury and, therefore, Dr. Kernan's testimony in this respect is appropriate. 18. Denied. Dr. Kernan's statement at number 4 on page 3 does state the standard of care under circumstances where either (1) Dr. James' failure to make appropriate inquires of Mr. Wagner kept him from determining that Mr. Wagner had significant dyspnea on exertion, or (2) Mr. Wagner did in fact report significant dyspnea on exertion and Dr. James simply failed to recognize the complaint or appropriately respond to it. It is for the jury to determine whether these facts were present. 19. Denied. Mr. Wagner's risk factors are important medical facts evidenced by the medical records that are relevant to the issues in this case and have nothing to do with what Dr. James did or didn't know. Indeed, the fact that Mr. Wagner had deep vein thrombosis is noted by both defense experts. The 8 fact that Dr. James did or didn't know, and whether he should or shouldn't have known, are separate issues about which separate testimony can be presented, by Dr. James and the defense experts. The facts remain the facts. 20. What Dr. Kernan will be called upon to testify by Defendants with respect to the knowledge of Dr. James, Plaintiff does not know. Defendants will be permitted to ask their questions of Dr. Keman within the scope of his testimony. Dr. James can certainly testify that he didn't know about the prior DVTs, and, if it is his opinion, that he had. no reason to know about the prior DVTs, he can certainly state to that effect. Similarly, Defendants' remaining arguments in this paragraph simply make no sense. The fact that Mr. Wagner had, as a risk factor, a prior DVT, is not irrelevant. Nor does Plaintiff understand how Dr. Keman can be precluded from testifying that Dr. Gillan neglects to mention the prior DVT when it is a significant risk factor related to the illness from which he expired. 21. Defendants next seek to preclude Dr. Kernan from testifying as to what should have been done if Mr. Wagner reported new or changing dyspnea on January 31, 2003 when he contacted Shepherdstown to make an appointment. Defendants argue that this is precluded by the prohibition on hearsay and contends that there is no evidence to demonstrate that he complained of new or changing dyspnea. Plaintiff submits that there is circumstantial evidence that Mr. Wagner called to make an appointment and that he would have complained about his 9 dyspnea on exertion, a symptom he never reported before, making it a new symptom for him. Thus, this testimony should be permitted. 22. It is unclear what Defendants are discussing in this paragraph. Nonetheless, Plaintiff would respond that the circumstances to which Dr. Kernan is being asked to testify are present in this case and are the subject matter of his testimony. 23. Defendants next seek to preclude Dr. Kernan from testifying that Mr. Wagner "may have had multiple pulmonary emboli prior to his February 1, 2003 office visit and that the fatal event may have been caused by a recurrent embolus." The referenced language refers to an idiomatic commentary that Dr. Kernan makes in his rebuttal report on Defendant expert Gillan's report and does not reflect his own stronger opinion, stated in his original report, that "on the morning of 2.1.03, Mr. Wagner was experiencing dyspnea on exertion related to a pulmonary embolus or pulmonary. emboli." Dr. Kernan's commentary on Dr. Gillan's statement is a critique of Dr. Gillan's thought process and is not properly construed as a weak statement of Dr. Kernan's own opinion which is stated in his original report. Furthermore, as Dr. Kernan's opinion regarding the existence of pre- existence pulmonary emboli on the morning of 2.1.03 and in the days preceding 2.1.03 has been stated, Defendants have had a fair opportunity to respond and Defendants cannot reasonably argue that this testimony is not within the fair 10 scope of his report so much as reflecting a variation in the nature of his opinion, a matter more for clarification. 24. Dr. Kernan's opinion is stated with the requisite degree of medical certainty. His critique of Dr. Gillan, as indicated in the preceding paragraph, used an idiomatic expression, which was not meant to detract from the firmness of his opinion and should not preclude his testimony in any respect as stated in the preceding paragraph. WHEREFORE, Plaintiff respectfully submits that Defendants' Motion in Limine to Limit the Scope of Testimony of Walter N. Kernan, M.D. January 20, 2009 Edmund J. Berger I Attorney I.D. #53407 Attorney for Plaintiff Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger(Dberaerlawfirm.net 11 ?-`? s°' ?`ti.°i 6*''".' ..: , ?'t i :::j .C 1' :.? ..--w 05/461617. v 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants NO: 05-556 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Julia Wagner, Administratrix of the Estate of Frank Wagner, Deceased c/o Edmund J. Berger, Esquire Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. , WARNER, BY: DATE: CO Craig T. StonW Esquire I.D. No. 159074 4200 Crums Mill Road, Suite B Harrisburg, FA 17112 (717) 651-3502 Attorneys for the Defendants 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, CIVIL DIVISION V. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHARDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D. Defendants : NO: 05-556 CIVIL TERM : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANTS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW come the Defendants, by their attorneys, Marshall, Dennehey, Warner, Coleman & Goggin who answer Plaintiffs Amended Complaint, with New Matter, as follows: 1. After a reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraph to Plaintiffs Amended Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 2. Denied pursuant to Pa. R.C.P. 1029(e). By way of further answer it is averred that there was no corporation known as Shepherdstown Family Practice, P.C. at any time material to Plaintiffs Amended Complaint. Rather, at all times relevant to the matter set forth in the Amended Complaint, Shepherdstown Family Practice ("Shepherdstown") was a fictitious name under which Heritage Medical Group, LLP ("Heritage") did business at 2140 Fisher Road, Mechanicsburg, PA 17055. 3. Denied as stated. Rather, at all times material to Plaintiffs Amended Complaint, Heritage was a Pennsylvania Limited Liability Partnership with registered offices located at 3 Walnut Street, Lemoyne, PA 17043. 4. Denied as stated. By way of further answer it is admitted that Geoffrey James, M.D. ("Dr. James") is a licensed physician and limited partner of Heritage. It is further admitted that, at all times material to Plaintiffs Complaint Dr. James was the agent of Shepherdstown and Heritage and was acting in and upon the business of said Defendants while in the course and scope of his employment for said Defendants. The balance of the averments of Plaintiffs Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e). 5. After reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the identity of "the healthcare and other personnel" who participated in the treatment of Plaintiffs decedent or the "other licensed professionals not specifically identified in Plaintiffs medical records." Therefore, the agency, identity and alleged acts or omissions of said unidentified persons are denied with strict proof, if relevant, demanded at the trial. 6. Denied pursuant to Pa.R.C.P. 1029(e). 7. Denied pursuant to Pa.R.C.P. 1029(e) and Judge Ebert's Order. 2 8. Denied pursuant to Pa.R.C.P. 1029(e). By way of further answer the Shepherdstown records and stipulations concerning the same speak for themselves. 9. Pursuant to Pa.R.C.P. 1029(e). 10. Pursuant to Pa.R.C.P. 1029(e). 11. Pursuant to Pa.R.C.P. 1029(e). By way of further answer the Shepherdstown records relating to the visit of February 1, 2003, are incorporated by reference as though fully set forth. 12. Denied for reasons set forth in the deposition testimony of Dr. James and Heidi Jo Yohe. 13. After reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraph to Plaintiffs Amended Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 14. Denied pursuant to Pa.R.C.P. 1029(e). By way of further answer the decedent's Holy Spirit Hospital records are incorporated by reference as though fully set forth. 15. The corresponding paragraph of Plaintiffs Amended Complaint contains conclusions of law to which no answer is required. If an answer is deemed required, the same is denied pursuant to Pa.R.C.P. 1029(e). At all times material to Plaintiffs Amended Complaint all Defendants met the applicable standard of care. 3 FIRST COUNT Julia Wapner, Executrix of the Estate of Frank Wagner v. Shepherdstown Family Practice, P.C. and Heritage Medical Group, LLP Survival Action 16. The averments of Paragraphs 1 through 15 of this Answer with New Matter are incorporated by reference as though fully set forth. 17. The averments of the corresponding paragraph of Plaintiffs Amended Complaint contain conclusions of law to which no answer is required. If an answer is deemed required the same are denied pursuant to Pa.R.C.P. 1029(e). 18. Denied for reasons set forth in Paragraph 15. WHEREFORE, Defendants demand that Plaintiffs Amended Complaint be dismissed with costs to them. SECOND COUNT Julia Wapner, Executrix of the Estate of Frank Wagner v Shepherdstown Family Practice, P. C. and Heritage Medical Group, LLP Wrongful Death Action 19. The averments of Paragraphs 1 through 18 of this Answer with New Matter are incorporated by reference as though fully set forth. 20. The averments of the corresponding paragraph of Plaintiffs Amended Complaint contain conclusions of law to which no answer is required. If an answer is deemed required the same are denied pursuant to Pa.R.C.P. 1029(e). 4 21. After a reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraph to Plaintiffs Amended Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 22. After a reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraph to Plaintiffs Amended Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 23. Denied for reasons set forth in Paragraph 15. WHEREFORE, Defendants demand that Plaintiffs Amended Complaint be dismissed with costs to them. THIRD COUNT Julia Wagner, Executrix of the Estate of Frank Wagner v. Geoffrey James, M.D. Survival Action 24. The averments of Paragraphs 1 through 23 of this Answer with New Matter are incorporated by reference as though fully set forth. 25. Denied. Paragraph 25 is denied in that the same contains conclusions of law to which no response is required, the same are denied and strict proof thereof is demanded at the time of trial. 26. Denied for reasons set forth in Paragraph 15. WHEREFORE, Defendants demand that Plaintiffs Amended Complaint be dismissed with costs to them. 5 FOURTH COUNT Julia Wagner, Executrix of the Estate of Frank Wagner v. Geoffrey James, M.D. Wrongful Death Action 27. The averments of Paragraphs 1 through 26 of this Answer with New Matter are incorporated by reference as though fully set forth. 28. Denied. Paragraph 28 is denied in that the same contains conclusions of law to which no response is required, and therefore, the same are denied with strict proof thereof required at trial. 29. After a reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraph to Plaintiffs Amended Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 30. After a reasonable investigation Answering Defendants are without information or knowledge sufficient to form a belief as to the truth of the averments of the corresponding paragraph to Plaintiffs Amended Complaint. The same are therefore denied and strict proof, if relevant, is demanded at the time of trial. 31. Denied for the reasons set forth in Paragraph 15. WHEREFORE, Defendants demand that Plaintiffs Amended Complaint be dismissed with costs to them. 6 NEW MATTER 32. Answering Defendants hereby incorporate all averments of this Answer with New Matter as if fully set forth. 33. Plaintiffs Amended Complaint fails to state a claim upon which relief can be granted against any of the Answering Defendants. 34. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendants. 35. At all times relevant hereto, each of Answering Defendants complied with the applicable standard of care. 36. At all times relevant hereto Answering Defendants acted within and followed the precepts of a respected school of thought and, accordingly, all professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 37. Answering Defendants believe and therefore aver that evidence provided at trial may establish Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Answering Defendant hereby pleads contributory or comparative negligence as an affirmative defense. 38. Answering Defendants are entitled to relief and contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. § 7102 as amended by Senate Bill 1089, effective August 14, 2002. 7 39. In the event that it is determined that Answering Defendants were negligent with regard to any of the allegations contained in, and with respect to Plaintiffs Amended Complaint, said allegations being specifically denied, said negligence, if any, was superseded by the intervening negligent acts of other person, parties and/or organizations other than Answering Defendant and over whom Answering Defendant had no control, right, responsibility and, therefore, Answering Defendant is not liable. 40. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial causes, factual causes, or factors contributing to the injuries and damages alleged in Plaintiffs Complaint. 41. Plaintiffs injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendants but rather were caused by pre-existing medical conditions and/or causes beyond the control of Answering Defendants, and Plaintiff may not recover against them. 42. Plaintiffs claims are barred by operation of the applicable statute of limitations, including Pa. C.S.A. § 5524 and 40 P.S. § 1301.605. 43. All claims that might have been asserted by Plaintiff including claims for medical expenses are barred by operation of the applicable statute of limitations. 44. Plaintiffs claims are limited and barred by Section 103, 602 and 606 of the Health Care Services Malpractice Act of 1974, 40 P.S. § 1301, et sM., as amended. 45. Plaintiffs claims are limited and barred by the provisions of the Medical Care Availability and Reduction of Errors (MCARE) Act, 40 P.S. § 1303.101, et seg. 46. The damages alleged by Plaintiff did not result from acts or omissions of Answering Defendants, their agents, servants or employees, but, rather, from acts or omissions of persons and/or entities over whom Answering Defendants had no right of control. 8 47, Pa. R.C.P. 238 is unconstitutional on its face and as may be applied in this case. 48. Answering Defendants are entitled to and incorporates herein by reference the defenses contained in the Federal Health Care Quality Improvement Act, P.L. 99-660. 49. Answering Defendants demand trial by jury on all issues. WHEREFORE, Defendants demand judgment in their favor and against all other parties, including interest, costs and fees, and other relief deemed appropriate by this Court. tted, , WARNER, IN DATE: gO U1 BY: 9 Craig`-K. S on Esquire I.D. No. 1 0 4200 Crum ill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for the Defendants VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer with New Matter to Plaintiffs Complaint are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer with New Matter to Plaintiffs Complaint is that of counsel and not my own. I have read the Answer with New Matter to Plaintiff s Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter to Plaintiffs Complaint are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. *W,1A Geoffrey Jame U (J DATE: 1 q1 joq CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer with New Matter to Plaintiffs Amended Complaint has been served upon the following known counsel of record this day of January, 2009, via United States First-Class Mail, postage prepaid: Edmund J. Berger, Es u Berger Law Firm, 2104 Market St eet Camp Hill, PA 70A1 Craig Ae, E ui. 4200( rums Mill oa Suite B Harrisburg, 1 112 717-651-3500 Date: / x/0g N F7 V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP D/B/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP D/B/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), and GEOFFREY JAMES, M.D., Defendants CERTIFICATE OF SERVICE CIVIL DIVISION No: 05-556 CIVIL TERM Jury Trial Demanded I hereby certify that I have this day served a true and correct copy, via first class mail, the following documents upon the following: 1. Plaintiffs Reply Brief Re: Plaintiff's Motion to Strike Defendant's Cross Examination of Jack Hirsh and 2. Plaintiffs Answer to Defendant's Motion in Limine to Limit the Scope of Testimony of Walter N. Kernan, M.D. Marshall, Date: January 20, 2009 Craig A. Stone, Esq. Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suit B Harrisburg, W117? Edmund J. Berger,) Attorney for the Plai c.. wry N F . r, 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX CIVIL DIVISION OF THE ESTATE OF FRANK WAGNER, DECEASED Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED REPLY TO NEW MATTER 32. This is an incorporation paragraph to which no response is required 33. This paragraph states a conclusion of law to which no response is required. By way of further answer, the legal defense is denied. 34. Denied. Plaintiff believes, and therefore avers, that other agents, servants, and/or employees acted on behalf of Answering Defendants. 35. Denied. 36. Denied. 37. Denied. 38. Denied. 39. Denied. 40. Denied. -1- 41. Denied. 42. Denied. 43. Denied. 44. Denied. 45. Denied. 46. Denied. 47. Denied. 48. Such defenses are denied. 49. Plaintiff acknowledges Defendants demand for a trial by jury. WHEREFORE, Defendants' affirmative defenses should be dismissed and judgment entered in favor of Plaintiff and against the Defendants jointly and severally in a sum in excess of $25,000, plus interest and its. Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger(a,bergerlawfirm.net -2- • VERIFICATION I, Julia Wagner, affirm that I am the Plaintiff in this action and that the statements of fact made in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann & 4904 relating to unsworn falsification to authorities. Date: January 21, 2009 ? li Wagner -3- ? fY .../ j 1 15 p?I i ?` CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document, Reply to New Matter and on the following person, in the manner indicated: VIA FIRST CLASS MAIL Craig Stone, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: January 21, 2009 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 ("b CJ . 1, C? t.? ? ? ...t. ? L... - "'? .-en t ' 1.. '. T?-' t- •'.'?•,9. ? - ....s Y.. '"47 fF+ ,. ? ^"+. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JULIA WAGNER, EXECUTRIX OF THE ESTATE OF FRANK WAGNER, DECEASED CIVIL DIVISION Plaintiff, No: 05-556 CIVIL TERM vs. SHEPHERDSTOWN FAMILY PRACTICE, P.C., HERITAGE MEDICAL GROUP, LLP, HERITAGE MEDICAL GROUP, LLP DB/A SHEPHERDSTOWN FAMILY PRACTICE (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), HERITAGE MEDICAL GROUP, LLP DB/A HERITAGE DIAGNOSTIC CENTER (A DIVISION OF HERITAGE MEDICAL GROUP, LLP), GEOFFREY JAMES, M.D., Defendants JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please discontinue the above-captioned proceeding, and mark it settled, discontinued, and ended, with prejudice. Date: April 16, 2009 Edmund J. Berge Attorney for Plai iff BERGER LAW FIRM, P.C. 2104 Market Street Camp Hill, PA 17011 Phone: (717) 920-8900 Fax: (717) 920-8901 E-Mail: tberger@bergerlawfirm.net FILED-C) FF CF THE 2069 APR 17 PH w 53