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HomeMy WebLinkAbout05-6328ORIGINAL R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff Jason Smith Telephone: (717) 234-7828 Facsimile: (717) 234-6883 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW n JASON SMITH DOCKET NO. Qs - ?3aP?C't??y Plaintiff V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND 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 defense 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 claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguintes, usted tiene viente (20) dias de plaza al partir de la fecha de la demanda y la nontificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su p esona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted pueda perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA LFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PEUDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania (717) 249-3166 JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd., in the above captioned case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: Michael D. Pipa, Esqu r Sup. Ct. I.D. 953624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendants DATE: January) , 2006 JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on January A 2006, I served a copy of the Entry of Appearance via First Class United States mail, postage prepaid as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Michael D. Pipa V05 AALIABAMEPALLPGA209964TPM\01012V00158 R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: 1717) 234-6883 Attorneys for Plaintiff Jason Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JASON SMITH DOCKET NO. ?- G 3°1 00 Plaintiff V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants JURY TRIAL DEMANDED COMPLAINT Plaintiff, Jason Smith, at all relevant times herein was an adult individual residing at 2253 Canterbury Drive, Mechanicsburg, PA 17055, Cumberland County, Pennsylvania. 2. Defendant Anastasius Peter, M.D. (hereinafter Defendant Peter) was a physician licensed to practice medicine in the Commonwealth of Pennsylvania and at all relevant times herein was engaged in the practice of general surgery in Cumberland County, Pennsylvania. 3. Defendant Susquehanna Surgeons, Ltd. (hereinafter Defendant SSL) is a CI-01-11637 corporate medical institution with offices and facilities in Cumberland County, Pennsylvania and a corporate address at, Medical Arts Building, 890 Poplar Church Road, Suite 102, Camp Hill, PA 17011. 4. At all relevant times herein, Defendant Peter, and all physicians, interns, residents and medical support staff who provided care and treatment to Plaintiff Jason Smith were the agents, apparent agents, servants and/or employees of Defendant SSL when providing professional medical services to the Plaintiff and they were acting in the course and scope of their employment. 5. In or about the fall of 2003, Jason Smith, then a 20-year-old gentleman, otherwise in good health, developed a lump on his neck that became painful at times. 6. On or about October 6, 2003, Mr. Smith sought an evaluation of the lump on his neck from his family physician, Suzanne Wolanin-Saifi, M.D. 7. Dr. Wolanin-Saifi's assessment was that Mr. Smith had a cyst on his neck, and she ordered a surgical consult. On or about November 13, 2003, Mr. Smith had a surgical consultation with Defendant Peter, during which he located a right posterior neck mass at the right trapezius at the base of the neck. 9. During the evaluation of Mr. Smith, Defendant Peter also noted that the mass felt smooth, movable and not fixed to the deeper tissues. 10. At the recommendation of Defendant Peter and/or the agents, apparent agents, servants and/or employees of Defendant SSL, Mr. Smith agreed to undergo surgical excision of the mass on his neck. CI-O1-11637 11. At the time that Defendant Peter recommended the surgical excision to Mr. Smith, he did not advise him of all of the risks, consequences and possible alternatives to the procedure. 12. Non-surgical management or treatment was never presented as an option to Mr. Smith. 13. Defendant Peter did not advise Mr. Smith of the possibility of spinal accessory nerve damage during the performance of the excision. 14. Based on the information that Defendant Peter provided to Mr. Smith, he decided to have the aforementioned procedure performed by Defendant Peter at Holy Spirit Hospital. 15. Mr. Smith was admitted to Holy Spirit Hospital on or about December 22, 2003, for excision of the mass on his neck by Defendant Peter. 16. During the performance of the excision, Defendant Peter, and/or another physician, intern, resident or support staff member failed to properly identify and protect the spinal accessory nerve and/or the nerves controlling Mr. Smith's right upper extremity, thereby causing damage to the nerves. 17. The aforementioned injury was negligently overlooked throughout the procedure. 18. The excised mass was in fact a lymph node, and it was sent to the Holy Spirit Department of Laboratory medicine where it was determined to be benign. 19. On or about December 29, 2003, Mr. Smith had his first follow-up appointment with Defendant Peter, and it was noted that Mr. Smith's incision was healing CI-O1-11637 nicely and no further follow-up care was anticipated. 20. However, on or about January 30, 2004, Mr. Smith returned to Defendant SSL because of increasing pain and discomfort in his shoulder along with an inability to raise his right arm. 21. Mr. Smith was examined by Michael Page, M.D., an employee of Defendant SSL, who noted that Mr. Smith had shoulder droop, a wing scapula in the back and a decrease in muscle definition with some slight atrophy around his trapezius shoulder girdle. 22. Dr. Page concluded that Mr. Smith's symptoms were the result of a spinal accessory nerve injury, related to the lymph node biopsy performed by Defendant Peter, and he ordered an EMG to be performed as soon as possible. 23. Thereafter, on or about February 4, 2004 Mr. Smith had an EMG/nerve conduction study performed by Barbara Peterlin, D.O., which revealed a spinal accessory nerve injury, and she requested a consultation with a neurosurgeon from Hershey Medical Center. 24. On or about February 10, 2004, Mr. Smith was evaluated by Kimberly Harbaugh, M.D., a neurosurgeon at HMC, who documented that Mr. Smith was suffering from pain and weakness related to a right spinal accessory nerve injury, which occurred at the time of his lymph node biopsy. 25. As a result of Dr. Harbaugh's findings, she recommended surgical exploration, which took place on or about February 25, 2004 at Hershey Medical Center. 26. Dr. Harbaugh performed a surgical procedure in an attempt to repair the CI-01-1 1637 damaged nerve(s). 27. Following surgery, Mr. Smith had numerous follow-up visits with Dr. Harbaugh and his condition was improving, at a slow rate. However, Mr. Smith's recover has plateaued without regaining full function of his right arm. 28. Plaintiff has been advised and therefore avers that the injuries and damages sustained by the Plaintiff are permanent and a claim is made therefore. 29. Defendants Anastasius Peter, M.D., and Susquehanna Surgeons, Ltd. are jointly and severally liable to the Plaintiff for the injuries and damages as set forth herein. 30. Defendant Peter, and/or the agents, apparent agents, servants and/or employees of Defendant SSL did not take the necessary and appropriate action to prevent this type of nerve damage from occurring. 31. As a direct and proximate result of the Defendant's negligence, Plaintiffs have been forced to incur liability for medical treatment, medicines, hospitalizations, rehabilitation and similar miscellaneous expenses in an effort to restore Mr. Jason Smith to health and because of the nature of said injuries, Plaintiff is advised and therefore avers that he will be forced to incur similar medical expenses in the future and a claim is made therefore. 32. As a direct and proximate result of the Defendant's negligence, Plaintiff Jason Smith has undergone and will in the future undergo great physical and mental pain and suffering, great inconvenience in carrying out his daily activities, a loss of life's pleasures and enjoyment and a claim in made therefore. 33. As a direct and proximate result of the Defendant's negligence, Plaintiff CI-O1-11637 Jason Smith has been and in the future will be subject to great humiliation, embarrassment, and disfigurement and a claim is made therefore. 34. As a direct and proximate result of the Defendant's negligence, Plaintiff Jason Smith has sustained a loss of past and future earnings, a loss of earning power and a loss of earning capacity and a claim is made therefore. COUNTI Jason Smith V. Anastasius Peter, M.D. 35. Paragraphs 1 through 34 of this Complaint are incorporated herein by reference as if set forth at length. 36. Anastasius Peter, M.D. is liable to the Plaintiffs for the injuries and damages alleged herein which were directly and proximately caused by his negligence with regards to Jason Smith by: (a) Negligently failing to identify the I Ph cranial nerve (also called the spinal accessory nerve) during the lymph node biopsy; (b) Negligently injuring the spinal accessory nerve during the surgical excision of the lymph node; (c) Failing to timely recognize and properly treat the injuries to the spinal accessory nerve; (d) Improperly stretching nicking, severing, and/or injuring the spinal accessory CI-01-11637 nerve and/or the other nerves controlling Mr. Smith's upper right extremity; (e) Failing to employ adequate nerve spearing techniques and equipment during the performance of the aforementioned procedure; (f) Performing the surgery in such a fashion as to cause permanent impairment of Mr. Smith's upper right extremity function; (g) Negligently causing the need for further surgery in an effort to repair the injured nerve(s); (h) Negligently causing permanent pain and weakness of Mr. Smith's right shoulder; 37. As a direct and proximate result of Defendant Peter's negligence with regards to Jason Smith's welfare, the Plaintiff has suffered injuries and damages as set forth in Paragraphs 27 through 34 above which are incorporated herein by reference as if set forth at length. WHEREFORE, Plaintiff Jason Smith, demands judgment against Defendant Anastasius Peter, M.D. in an amount in excess of Thirty-Five Thousand Dollars ($35,000.00) exclusive of interests and costs and in excess of any jurisdictional amount requiring compulsory arbitration. CI-01-11637 COUNT II INFORMED CONSENT Jason Smith V. Anastasius Peter, M.D. 38. Paragraphs I through 34 and Count I of this Complaint are incorporated herein by reference as if set forth by length. 39. Defendant Anastasius Peter, M.D. is liable to the Plaintiff Jason Smith for battery in the form of intentionally inflicting harmful and offensive bodily contact on Jason Smith by: (a) Realizing that the proposed surgical procedure would result in offensive bodily contact with Jason Smith. (b) Knowingly performing the proposed surgical procedure on Jason Smith without his informed consent. (c) Causing permanent and substantial injuries to Jason Smith as a result of the non-consensual and unnecessary surgery. (d) Failing to obtain Mr. Smith's informed consent to the proposed procedure. (e) Failing to inform Mr. Smith fully and properly as to the nature and extent of his condition and the nature and extent of the surgical procedure proposed. (f) Failing to inform Mr. Smith fully and properly of the material risks, possible consequences and alternatives to the proposed surgical procedure. (g) Failing to inform Mr. Smith of the possible consequences of the surgical CI-O1-11637 procedure, including the physical, emotional, and psychological consequences. (h) Failing to disclose to Mr. Smith all information material to the decision to undergo the proposed surgical procedure. 40. Plaintiff Jason Smith would not have submitted to the aforementioned surgical procedure if he had known of the undisclosed information, misinformation, risks, consequences, side effects and alternatives to the proposed procedure. 41. As a result, Plaintiff, Jason Smith sustained injuries and damages as set forth in paragraphs 27 through 34 above which are incorporated herein by reference as if set forth at length. WHEREFORE, Plaintiff Jason Smith, demands judgment against Defendant Anastasius Peter, M.D. in an amount in excess of Thirty-Five Thousand Dollars ($35,000.00) exclusive of interests and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III VICARIOUS LIABILITY Jason Smith V. Susquehanna Surgeons Ltd. 42. Paragraphs 1 through 34 and Counts I through II of this Complaint are incorporated herein by reference as if set forth at length. 43. Defendant Peter, and all physicians, interns, residents, nurses and other medical support staff who treated Jason Smith were the agents, apparent agents, servants and/or employees of Defendant SSL and were acting within the course and scope of their CI-01-11637 employment when providing professional medical services to the Plaintiff. 44. Defendant SSL, acting through its agents, apparent agents, servants and/or employees is liable to the Plaintiffs for the injuries and damages alleged herein which were directly and proximately caused by the acts set forth in paragraphs 35(a) through 35(i), and 38(a) through 38(h), which are incorporated herein by reference as if set forth at length. 45. As a result, Plaintiff, Jason Smith sustained injuries and damages as set forth in paragraphs 27 through 34 above which are incorporated herein by reference as if set forth at length. WHEREFORE, Plaintiff Jason Smith, demands judgment against Defendant Anastasius Peter, M.D. in an amount in excess of Thirty-Five Thousand Dollars ($35,000.00) exclusive of interests and costs and in excess of any jurisdictional amount requiring compulsory arbitration. submitted, P.C. Date: )'? dvo?; Suprbm'e Co D. #66856 3513 North-Front Street Harrisburg, PA 17110 (717) 234-7828 Attorneys for Plaintiff, Jason Smith 10 CI-01-11637 VERIFICATION I, Jason Smith, hereby swear and affirm that the facts and matters set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities. Dated: Q- S-C9 anon Smith n ? ? ?? ? ? ?? o ?? ?, ?--- ORIGINAL R. J. MARZELLA & ASSOCIATES, P.C. BY. Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile (717) 234-68$3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Attorneys for Plaintiff Jason Smith CIVIL ACTION - LAW JASON SMITH Plaintiff DOCKETNO.DS -{03,2 l.tU??Ll V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT FOR SUSQUEHANNA SURGEONS, LTD I obin J. Marzella, attorney for Plaintiff, Jason Smith, hereby, certify that: al' 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 or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; D El, the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and 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 or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. R. J Karzehsf & Assoeiat6s. P.C. iieom i. arz uire ? ??7 h Attom Id ation No. 66856 Dated: /? ", R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rmarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff Jason Smith Telephone: (717) 234-7828 Facsimile: 717) 234-6883 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JASON SMITH DOCKET NO. 05 Plaintiff V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT FOR ANASTASIUS PETER, M.D. /Robin J. Marzella, attorney for Plaintiff, Jason Smith, hereby, certify that: 1B 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 or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; ND the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and 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 or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Dated: A e "? ;; MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael A. Pipa, Esquire Identification No, 53624 Geoffrey S. Mclnroy, Esquire Identification No. 87876 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 Email: mpipa?aumdwcg.com Email: gmcinroyL&mdwcg com Ph: (717) 651-3500 Fax: (717) 651,9630 Attorneys for Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) 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. MARSHALL, Attorney for Eisenstein Date: All 6?, , WARNER, .t MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael A. Pipa, Esquire Identification No. 53624 Geoffrey S. Mclnroy, Esquire Identification No. 87876 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 Email: moina(c),mdwcQ.com Email: gmcinroyCu mdwcg com Ph: (717) 651-3500 Fax: (717) 651-9630 Attorneys for Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW : DOCKET NO. 05-6328 : JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS ANASTASIUS PETER, M.D. AND SUSQUEHANNA SURGEONS, LTD. TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd., by and through their attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, hereby file the following Preliminary Objections to Plaintiffs Complaint, pursuant to Pa.R.C.P. 1028, and avers as follows: 2. According to the Plaintiffs Complaint, this case arises out of the Plaintiffs consultation with Dr. Anastasius Peter and a surgical procedure performed by Dr. Anastasius Peter. 3. The Plaintiffs Complaint alleges the Plaintiff consulted with Dr. Peter on November 13, 2003 for a right posterior neck mass. (Complaint, paragraph 8.) 4. According to the Plaintiffs Complaint, Dr. Peter performed surgery for the removal of the right posterior neck mass on the Plaintiff on December 22, 2003. (Complaint, paragraph 15.) 5. According to the Plaintiffs Complaint, Dr. Peter performed surgery on the Plaintiff on December 22, 2003. (Complaint, paragraph 15.) 6. According to the Plaintiffs Complaint, the Plaintiff was inadequately informed prior to undergoing surgery on December 22, 2003. (Complaint, paragraph 11.) INSUFFICIENT SPECIFICITY - PARAGRAPH 17 7. Paragraph 17 indicates the injury was "negligently overlooked". 8. Paragraph 17 lacks sufficient specificity pursuant to Pa.R.C.P. Rule 1028(a)(3). 9. Paragraph 17's "negligently overlooked" represents a conclusory catch-all averment that lacks sufficient specificity pursuant to the Pennsylvania rules. 10. Such a general allegation is not sufficiently specific as to allow the Defendants to prepare their defense and may later be amplified to include new facts upon which a cause of action can be based. 11. Such vague "boiler-plate" allegations should be stricken from paragraph 17. INSUFFICIENT SPECIFICITY - PARAGRAPH 30 12. Paragraph 30 alleges that Defendants "did not take the necessary appropriate action". 2 13. "Necessary and appropriate" is an overbroad and conclusory designation that lacks sufficient specificity to satisfy Pa.R.C.P. 1028(a)(3). 14. The overly broad "necessary and appropriate action" may later be amplified to include just about any theory of liability. 15. "Necessary and appropriate action" is not sufficiently specific as to allow the Defendants to prepare their defense. 16. "Necessary and appropriate action" should be stricken from paragraph 30 for failure to satisfy the Pennsylvania Rules. INSUFFICIENT SPECIFICITY - PARAGRAPH 36(0 17. Paragraph 36(f) lacks the requisite specificity to satisfy Pa.R.C.P. 1028(a)(3). 18. Paragraph 36(f) alleges that "performing the surgery in such a fashion." 19. "In such a fashion" is an overly broad catch-all phrase lacking the sufficient specificity to satisfy Pa.R.C.P. 1028(a)(3). 20. Paragraph 36(f) is not sufficiently clear as to enable the Defendants to prepare a defense or inform the Defendants with accuracy and completeness of the specific basis on which recovery is sought, so that Defendants may know without question upon what grounds to make their defense. 21. The language of paragraph 36(f) presents a risk of a future, unexpected amendment to the Complaint based upon new facts after the statute of limitations has run. 22. Paragraph 36(f) should be stricken in its entirety for lacking the factual specificity required under the Pennsylvania Rules. 3 INSUFFICIENT SPECIFICITY - PARAGRAPH 36(g) 23. Paragraph 36(g) states in a conclusory fashion that Defendants are liable for "negligently causing the need for further surgery". 24. By characterizing the Defendants' conduct as having been performed "negligently", the Plaintiff fails to inform the Defendants with accuracy and completeness of the specific basis on which recovery is sought, so that Defendants may know without question what grounds to make their defense. 25. "Negligently" as it appears in paragraph 36(g), poses a risk of future, unexpected amendment to the Complaint based upon new facts after the statute of limitations has run. 26. Paragraph 36(g) should therefore be stricken in its entirety for its lack of specificity. INSUFFICIENT SPECIFICITY - PARAGRAPH 36(h) 27. Paragraph 36(h) characterizes pain and weakness experienced by Mr. Smith as having been "negligently" caused. 28. The Plaintiffs characterization of the pain and weakness having been "negligently caused" lacks sufficient specificity to satisfy the Pennsylvania Rules. 29. "Negligently," as it appears in paragraph 36(h), is overly broad and conclusory and does not inform the Defendant with accuracy and completeness of the specific basis on which recovery is sought. 30. "Negligently" presents a risk of a future, unexpected amendment to the Complaint based upon new facts after the statute of limitations has run. 31. The phrase "negligently causing permanent pain and weakness" should be stricken from paragraph 36(h) for its lack of specificity and failure to satisfy the Pennsylvania pleading requirements. 4 INCLUSION OF SCANDALOUS AND IMPERTINENT MATTER 32. Plaintiffs Complaint, Count lI is captioned "Informed Consent". 33. In Pennsylvania, the Informed Consent Doctrine requires physicians to provide patients with material information necessary to determine whether to proceed with surgical or operative procedure or to remain in the present condition. 34. Under the Pennsylvania Informed Consent Doctrine, a patient is either provided with the material information or is not provided with the material information. 35. The doctor's state of mind is not relevant under Pennsylvania's Informed Consent Doctrine. 36. Paragraph 39 of the Plaintiffs Complaint alleges that Dr. Peter acted "intentionally" and paragraph 39(b) alleges Dr. Peter acted "knowingly". 37. The inclusion of such irrelevant and impertinent matter as allegations of the doctor's state of mind, prejudices Dr. Peter by introducing allegations that are not relevant and that may later be used as a basis upon which to seek punitive damages. 38. The words "intentionally" and "knowingly" should be stricken from paragraph 39 as impertinent and irrelevant to a claim under the Doctrine of Informed Consent. INCLUSION OF SCANDALOUS AND IMPERTINENT MATTER 39. Paragraphs 39 and 39(a) characterize bodily contact as "offensive." 40. Inclusion of the word "offensive" constitutes the inclusion of impertinent and irrelevant material and material that may later be used as a basis upon which to seek punitive damages. 41. The Pennsylvania Informed Consent Doctrine does not inquire into whether or not the patient is offended by "bodily contact," as such the word "offensive" should be stricken from paragraphs 39 and 39(a). 5 WHEREFORE, Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd., prays this Honorable Court to sustain the Preliminary Objections and strike paragraphs 17, 30, 36(f) - (h), the word "intentionally" from paragraph 39, the word "knowingly" from 39(b), and the word "offensive" from paragraph 39 and 39(a) or, in the alternative, order Plaintiff to file an Amended Complaint. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN DATE: January Zo, 2006 BY: CHAEL D. PIPI ES IRE GEOFFREY S. McfNRO UIRE Attorneys for the Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. V05_AALIABAGMIALLPGA208577ATKCA01012\50000 5 6 JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW : DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Geoffrey S. McInroy, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on January 2=(), 2006, served a copy of the PRELIMINARY OBJECTIONS OF DEFENDANTS ANASTASIUS PETER, M.D. AND SUSQUEHANNA SURGEONS, LTD. TO PLAINTIFF'S COMPLAINT, via First Class United States mail, postage prepaid as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) I MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN GEOFFREY V05_AALIABAGMIALLPGA208577ATKCA01012\50000 ( i -2 (. J ?i 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. JASON SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW : DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendants Anastasius Peter M.D. and Susquehanna Surgeons. Ltd. to Plaintiffs Compla nt 2. Identify counsel who will argue cases (a) for plaintiff: Robin J Marzella Esquire, R.J. Marzella & Associates, P.C., 3513 North Front Street, Harrisburg, PA 17110 (Name and Address) (b) for defendant: Michael D. Pina Esquire and Geoffrey S. Mchuov, Esquire. Marshall Dennehey Warner, Coleman & Goggin, 4200 Crums Mill Road, Harrisburg, PA 17112 (Counsel for Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd.)) (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. Certificate of Service is attached hereto. 4. Argument Court Date: Date: X c i i \05_A\LIAB\GM I\LLPG\209888\TKC\01012\00158 rant your name Attorneys for Defendants Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT has been served upon the following known counsel of record this 20th day of January, 2006, via United States First-Class Mail, postage prepaid: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) MARSHALL, DENNEHEY, WARNER, COLEMAN & G0Gfr V BY: \05_A\LIA B\GM I\LLPG\209888\TKC\01012\00159 M7CRAEL D. PIPA, ES IRE GEOFFREY S. Mc Y, E RE Attorneys for Defendan s, Anastasious Peter, M.D. and Susquehanna Surgeons, Ltd. ,.; ?.; .. ,. r. SHERIFF'S RETURN - REGULAR CASE NO: 2005-06328 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH JASON VS PETER ANASTASIUS MD ET AL WILLIAM T. CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ANASTASIUS MD DEFENDANT the at 1336:00 HOURS, on the 14th day of December , 2005 at 532 NORTH FRONT STREET WORMLEYSBURG, PA 17011 by handing to TOM CALLAHAN, OFFICE MANAGER AND ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE - together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 15.36 Postage .37 Surcharge 10.00 .00 43.73 Sworn and Subscribed to before me this Al & day of ?pj A.D. Prot 0 f So Annswers : R. Thomas Kline 12/19/2005 RJ MARZELLA By: ?? Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2005-06328 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH JASON VS PETER ANASTASIUS MD ET AL WILLIAM T. CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SURGEONS LTD DEFENDANT the at 1336:00 HOURS, on the 14th day of December , 2005 at 532 NORTH FRONT STREET WORMLEYSBURG, PA 17011 by handing to TOM CALLAHAN, OFFICE MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 So Answers: R. Thomas Kline 12/19/2005 RJ MARZELLA Sworn and Subscribed to before me this afiw day of i u2 A. D. Proth ar By: a v. eputy Sheriff 28. Jason Smith V. Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6328 CIVIL TERM ORDER OF COURT AND NOW, February 14, 2006, by agreement of counsel, the above-captioned matter is continued from the February 15, 2006 Argument Court list. Counsel is directed to relist the case when ready. Robin J. Marzella, Esquire For the Plaintiff Geoffrey S. McInroy, Esquire For the Defendant Court Administrator By the Court, Edgar B. Bayley, J. ? - l1- l> In Ci-o-ruse lkd :. Mk, ii io r?,.i JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 05-6328 JURY TRIAL DEMANDED STIPULATION OF THE PARTIES AND COUNSEL TO SUBSTITUTE It is hereby stipulated by the parties, acting through counsel who certify that they have the authority to act on behalf of the parties, as follows: 1. The Heritage Medical Group is substituted as a defendant in this matter in place of Susquehanna Surgeons, Ltd. in the above-captioned action. 2. Heritage Medical Group maintained professional liability insurance providing coverage for Heritage Medical Group arising out of the acts and/or omissions of persons for whose acts or omissions Heritage Medical Group is legally responsible; such coverage is effective, in pertinent part, for the period of March 1, 2002 through February 28, 2004 (Policy No. FPC51185) and includes coverage for Heritage Medical Group arising out of the allegations set forth in the Plaintiffs Complaint against Anastasius O_ Peter, M.D. 3. Susquehanna Surgeons, Ltd. is dismissed with prejudice as a defendant in the above- captioned action upon the substitution of the Heritage Medical Group. 4. The above caption will be amended to reflect the substitution of the Heritage Medical Group and the dismissal of Susquehanna Surgeons, Ltd. d Date Date Michael D. Pipa, Es •e Attorneys for Anastasius O. Peter, M.D., and Heritage Medical Group V05_AALIABAMEPALLPGA208094AKPMV01012\50000 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: Michael A. Pipa, Esquire Identification No. 53624 Geoffrey S. Mclnroy, Esquire Identification No. 87876 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Email: mpipa(&,mdwcg.com Email: gmcinroy mdwcg.com Ph: (717) 651-3500 Fax: (717) 651-9630 Attorneys for Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. JASON SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. JURY TRIAL DEMANDED STIPULATION OF COUNSEL 1. Plaintiff filed a Complaint on or about December 7, 2005. 2. Defendant Dr. Anastasius Peter timely filed Preliminary Objections to Plaintiffs Complaint. 3. The parties, through their counsel, desire to resolve the Preliminary Objections without the need for briefing and argument or judicial intervention. 0 • 4. This Stipulation is being executed by counsel, who hereby certify that they have the authority to act on the behalf of their respective clients. 5. It is stipulated and agreed to by counsel that the following are withdrawn from the Plaintiffs Complaint with prejudice: a. The word "negligently" is withdrawn from paragraph 17 of the Plaintiffs Complaint; b. Paragraph 30 is withdrawn in its entirety; c. Paragraph 36(f) is withdrawn in its entirety; d. The word "negligently" is withdrawn from paragraphs 36(g) and 36(h); e. The word "intentionally" is withdrawn from paragraph 39; f. The word "knowingly" is withdrawn from paragraph 39(b); and g. The word "offensive" is withdrawn from paragraphs 39 and 39(a). 6. The parties respectfully request this Honorable Court to enter an Order adopting the Stipulation of Counsel. Respectfully submitted, R.J. MZ=;;=RE--F0R BY: Attorney for Plaintiff MARSHALL BY: -MICHAEL D.TIPA, E UIRE GEOFFREY S. McINO QUIRE Attorneys for the Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. V05 AUAWGMIVLLPGA208760CfKCA01012\50000 2 CAL- , JAN 2 1 2906 BY- ---------------- JASON SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this -6z day of "AN , 2006, upon consideration of the attached stipulation of the parties and counsel to substitute, it is hereby ORDERED that the stipulation is adopted and Heritage Medical Group is substituted as a Defendant in this matter in place of Susquehanna Surgeons, Ltd. The Prothonotary is directed to correct the caption to reflect that the Heritage Medical Group is a Defendant and to remove Susquehanna Surgeons, Ltd. from the caption. J. r.^ ??-? ? :? .? `, + y?. t? ? V. 1<.! k t`- ! _, ? s I,ECEIVED Mv. p ; ' a JASON SMITH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW V. DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this .16k day of f? VyN 2006, upon stipulation and agreement of the Plaintiffs and the Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd., the following are withdrawn from Plaintiffs Complaint with prejudice: A. The word "negligently" is withdrawn from paragraph 17 of the Plaintiffs Complaint; B. Paragraph 30 is withdrawn in its entirety; C. Paragraph 36(f) is withdrawn in its entirety; D. The word "negligently" is withdrawn from paragraphs 36(g) and 36(h); E. The word "intentionally" is withdrawn from paragraph 39; F. The word "knowingly" is withdrawn from paragraph 39(b); and G. The word "offensive" is withdrawn from paragraphs 39 and 39(a). The removal of the above-listed elements of the Plaintiffs Complaint is with prejudice. Plaintiffs shall not be permitted to reinstate the claims withdrawn herein by the filing of a Praecipe to Reinstate such claims with the Prothonotary. J. 05 AA 1IAWGSM('INR0YV1_1 .PGA212633\TKCOPENHAVP,RV01012V00158 JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Jason Smith, Plaintiff c/o Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 You are hereby notified to plead to the enclosed New Matter to Plaintiffs Complaint within twenty (20) days from service hereof or a default judgment may be filed against you. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: 1/t ( ju 0 a,,, Michael D. Pipa, Esquire Sup. Ct. I.D. #53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendant Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. DATE: March ' 2006 JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 05-6328 JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANTS' TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants, Anastasius Peter, M.D. and Heritage Medical Group, by and through their attorneys, and in response to Plaintiffs Complaint, state as follows: 1. Admitted. 2. Admitted. 3. Admitted only that Susquehanna Surgeons operates at the location alleged as a Physician Operating Division of Heritage Medical Group, Inc. 4. Admitted in part and denied in part. The relevant medical records are incorporated by reference. Without knowing the identity of the unnamed persons referred to by Plaintiff in this paragraph of the Complaint, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and the averments of this paragraph are therefore denied pursuant to Pa.R.C.P. No. 1029(e). It is admitted generally that persons attending to Plaintiff during his care and treatment would be expected to be agents of Susquehanna Surgeons acting within the scope of their agency. However, as pled, the allegations of this paragraph cannot be admitted or denied because the persons and time frames are not properly identified. Further, any allegation of agency related to persons who may have attended to Plaintiff "during the relevant time period" at locations other than the premises where Dr. Peter practiced is specifically denied. 5. It is admitted that Jason Smith, was 20 years old, and that he at that time presented to Dr. Peter and gave a history that included recent development of a lump on his neck. By way of further answer, the medical records are incorporated herein by reference. To the extent any further answer is deemed necessary, the averments of ¶5 are denied pursuant to Pa.R.C.P. 1029(e). 6. The medical records are incorporated herein by reference. To the extent any further answer is deemed necessary, the averments of ¶6 are denied pursuant to Pa.R.C.P. 1029(e). 7. Denied. By way of further answer, the medical records are incorporated herein by reference. To the extent any further answer is deemed necessary, the averments of ¶7 are denied pursuant to Pa.R.C.P. 1029(e). 8. The medical records are incorporated herein by reference. It is admitted that Dr. Peter examined Plaintiff Smith on November 13, 2003. To the extent any further answer is deemed necessary, the averments of ¶8 are denied pursuant to Pa.R.C.P. 1029(e). 9. The medical records are incorporated herein by reference. To the extent that any further answer is deemed necessary, the averments of ¶9 are denied pursuant to Pa.R.C.P. 1029(e). 10. Dr. Peter admits recommending that Mr. Smith undergo surgical excision of the mass on his neck, however, denies that agents, apparent agents, servants and/or employees of Susquehanna Surgeons, Ltd., or Heritage Medical Group other than Dr. Peter made any recommendations to Mr. Smith. To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of 2 this incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with those records, the averments are denied. The remaining averments including the reasons Plaintiff may have agreed to certain procedures are denied pursuant to Rule 1029(e). 11. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied and strict proof to the contrary is demanded at trial. 12. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied and strict proof to the contrary is demanded at trial. 13. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied and strict proof to the contrary is demanded at trial. 3 14. Denied pursuant to Rule 1029(e). By way of further answer, the reason Plaintiff decided to undergo the aforementioned procedure is not within the knowledge of Defendant Peter. To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 15. Denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied and strict proof to the contrary is demanded at trial. Dr. Peter admits generally only that he attended to Plaintiff for excision of a mass, as reflected in the medical records. 16. Dr. Peter admits that he was involved in the treatment and care of Plaintiff, Jason Smith, at or around the time period for the conditions alleged generally in the Complaint. The remaining averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. By way of further answer, the averment that certain nerves were not properly identified is specifically denied and strict proof to the contrary is demanded at trial. Further, the allegations of causation constitute conclusions of law to which no response is required, To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029(e). 4 17. By Court Order adopting the Stipulation of the Parties to Resolve Preliminary Objections, the word "negligently" has been stricken from this paragraph and no response is therefore required. The remaining averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. Any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied and strict proof to the contrary is demanded at trial. 18. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 19. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, it is admitted that Dr. Peter examined the Plaintiff on December 29, 2003. By way of further answer, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 5 20. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, it is admitted that Plaintiff was not examined by a member of Susquehanna Surgeons on January 30, 2004. By way of further answer, the medical records pertaining to the treatment and care of Mr. Smith on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 21. It is admitted that Dr. Michael Page is an employee of Susquehanna Surgeons, Ltd., and it is further admitted that Dr. Page made certain observations which he noted. The remaining averments are denied pursuant to Rule 1029(e). By way of further response, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 22. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. To the extent the allegations of this paragraph constitute any allegation of or implication of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants, the allegations are specifically denied and strict proof to the contrary is demanded at trial. 6 23. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 24. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Further, to the extent the allegations of this paragraph constitute any allegation of or implication of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants, the allegations are specifically denied and strict proof to the contrary is demanded at trial. 25. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 7 26. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. 27. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. 28. The averments of this paragraph of the Complaint are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. 29. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and time referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of any liability on the part of the Answering Defendants are specifically denied and strict proof to the contrary is demanded at trial. 30. Pursuant to Court Order, this paragraph of the Complaint has been stricken and no response is therefore required. 8 31. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with those records, the averments are denied. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. 32. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and the times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of Answering Defendants are specifically denied. 33. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with those records, the averments are denied. By way of further answer, any and 9 all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. 34. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with those records, the averments are denied. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. COUNTI JASON SMITH v. ANASTASIUS PETER M.D. 35. The responses to T¶l-34 are incorporated herein by reference. 36. The allegations of this paragraph of the Complaint and each of its subparagraphs constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, Defendants respond to each of the subparagraphs of paragraph 36 of the Complaint as follows: (a) The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times 10 referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (b) The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (c) The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (d) The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records 11 reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (e) The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (f) Pursuant to Court Order, this subparagraph has been stricken and no response is therefore required. (g) Pursuant to Court Order, the word "negligently" contained in this subparagraph has been stricken from the Complaint and no response to that allegation is therefore required. The remaining averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates 12 and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (h) Pursuant to Court Order, the word "negligently" contained in this subparagraph has been stricken from the Complaint and no response to that allegation is therefore required. The remaining averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. 37. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, the medical records reflecting the treatment and care provided to Plaintiff, Jason Smith, on the dates and times referred to in the Complaint are incorporated herein by reference. By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. WHEREFORE, Answering Defendants request judgment in their favor. 13 COUNT II INFORMED CONSENT JASON SMITH V. ANASTASIUS PETER, M.D. 38. Responses to ¶¶]-37 above are incorporated herein by reference. 39. Pursuant to Court Order, the words "intentionally" and "offensive" have been stricken from paragraph 39 of the Complaint, and no response to those allegations is therefore required. The remaining averments of paragraph 39 of the Complaint and each of its subparagraphs constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, Defendants respond to each of the averments of the subparagraphs of this paragraph as follows: (a) Pursuant to Court Order, the word "offensive" has been stricken from this subparagraph of the Complaint, and no response to those allegations is therefore required. The remaining averments of this subparagraph constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (b) Pursuant to Court Order, the word "knowingly" has been stricken from paragraph 39 of the Complaint, and no response to that allegation is therefore required. The remaining averments of this subparagraph of Plaintiffs Complaint constitute 14 conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (c) The averments of this subparagraph of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (d) The averments of this subparagraph of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, 15 Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (e) The averments of this subparagraph of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (f) The averments of this subparagraph of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of 16 improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (g) The averments of this subparagraph of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. (h) The averments of this subparagraph of Plaintiffs Complaint constitute conclusions of law to which no response is required. By way of further answer, all allegations are denied pursuant to Rule 1029(e). To the extent any further answer is deemed necessary, the medical records pertaining to the treatment and care of Plaintiff, Jason Smith, on the dates referred to in the Complaint are incorporated herein by reference. To the extent the averments of this paragraph are inconsistent with the records, the averments are denied. Furthermore, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. 17 40. Denied pursuant to Rule 1029(e). By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied, 41. The averments of this paragraph of the Complaint constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). WHEREFORE, Answering Defendants request judgment be entered into their favor. COUNT III VICARIOUS LIABILITY JASON SMITH V. SUSQUEHANNA SURGEONS, LTD. 42. The responses to T¶1-41 above are incorporated herein by reference. 43. The response to paragraph 4 above is incorporated herein by reference. 44. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations are denied pursuant to Rule 1029(e). By way of further answer, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. Further, the responses to ¶¶1-43 above are incorporated herein by reference. 18 45. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a further response is deemed required, the allegations are denied pursuant to Rule 1029(e). In addition, any and all averments or implications of improper conduct, a failure to meet the appropriate standards of care there and then prevailing, and any liability-producing conduct on the part of the Answering Defendants are specifically denied. Further, the responses to ¶¶37-34 above are incorporated herein by reference. WHEREFORE, Answering Defendants request judgment be entered into their favor. NEW MATTER 46. At no time relevant to the events referred to in Plaintiffs Complaint were the Defendants, their agents, servants, employees or otherwise acting on or in behalf of any other natural person, partnership, corporation or other legal entity. 47. At all times relevant to the events referred to in Plaintiffs complaint, the Defendants complied with the applicable standard of care. 48. The Defendants are entitled to relief and contribution in accord with the Pennsylvania Comparative Negligence Act, 42 P.S. § 7102, as amended by Senate Bill 1089, effective August 14, 2002. 49. In the event that it is determined that the Defendants were negligent with regard to any of the allegations contained in Plaintiffs Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than the Defendants and over whom the Defendants had no control, right, or right to control and the Defendants therefore are not liable. 50. Any acts or omissions of the Defendants alleged to constitute negligence were not substantial causes, factual causes, or factors contributing to the injuries and damages alleged in Plaintiffs Complaint. 19 51. Plaintiffs injuries and losses, if any, were not caused by the conduct or negligence of the Defendants but rather were caused by pre-existing medical conditions and/or causes beyond the control of the Defendant and the Plaintiff therefore may not recover against the Defendants. 52. 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. 53. The damages alleged by the Plaintiff did not result from acts or omissions of the Defendants, their agents, servants or employees, but rather resulted from acts or omissions of persons and/or entities over whom the Defendants had no right of control. 54. Plaintiffs claims, the existence of which are specifically denied by the Defendants, may be reduced and/or limited by any collateral source of compensation and/or benefit in accord with Pennsylvania Statutes and the opinion of the Pennsylvania Supreme Court in Moorehead v. Crozer Chester Medical Center. 55. The Defendants demand trial by jury on all issues. 56. Answering Defendants are entitled to and assert all defenses available under the Fair Share Act, 42 Pa.C.S. §710213. 57. Plaintiffs claims may be barred by the applicable statute of limitations. 20 WHEREFORE, the Defendants demand judgment in their favor and against the Plaintiff, including interest, costs, and fees, and other relief deemed appropriate by this Court. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: F /i rt(?a Michael D. Pipa, Esquire Sup. Ct. I.D. #53624 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717)651-3500 Attorneys for Defendant Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. DATE: March, 2006 21 VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer to the Complaint with New Matter 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 to the Complaint with New Matter is that of counsel and not my own. I have read the Answer to the Complaint with New Matter 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 to the Complaint with New Matter 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 unsworn falsification to authorities. l Date: Anastasi s Peter, M.D. Susquehanna Surgeons, Ltd. JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 05-6328 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certified that a true and correct copy of the foregoing Notice to Plead and Answer with New Matter was served to parties listed herein via United States First-Class Mail on March 41 2006. Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Michael D. Pipa, ,squire V05_AALIA.BAMDPIPAALLPGA209950AKAMOYERSV01012V00158 C? r-? -n ._? '." n L1 l) .. . . . l?l ?_1 , V . } 1 `? -<l R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff Jason Smith Telephone: (717) 234-7828 Facsimile_ _A7171234 6883_ _ JASON SMITH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff DOCKET NO. 05-6328 V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANTS' NEW MATTER 46. Denied. It is specifically denied that at no time relevant to the events referred in Plaintiffs Complaint were the Defendants, their agents, servants, employees or acting on or in behalf of any other natural person, partnership, corporation, or other legal entity. 47. Denied. It is specifically denied that at all times relevant to the events referred in Plaintiffs Complaint, the Defendants complied with the applicable standard of care. 48. Denied. It is specifically denied that the Defendants are entitled to relief contribution in accord with the Pennsylvania Comparative Negligence Act, 42 P.S. §7102, amended by Senate Bill 1089, effective August 14, 2002. 49. Denied. It is specifically denied that the negligence of the Defendants superseded by the intervening negligent acts of other persons, parties and/or organizations than the Defendants and over whom the Defendants had no control, right,.or right to control. 50. Denied. It is specifically denied that any acts or omissions of the alleged to constitute negligence were not substantial causes, factual causes, or contributing to the injuries and damages alleged in Plaintiffs Complaint. 51. Denied. It is specifically denied that Plaintiffs injuries and losses were r caused by the conduct or negligence of the Defendants but rather were caused by pre-existi medical conditions and/or causes beyond the control of the Defendant. 52. Denied. It is specifically denied that Plaintiffs claims are limited and barred the provisions of the Medical Care Availability and Reduction of Errors (MCARE) Act, 40 P. §1303.101. 53. Denied. It is specifically denied that the damages alleged by the Plaintiff did result from acts or omissions of the Defendants, their agents, servants or employees, but resulted from acts or omissions of persons and/or entities over whom the Defendants had no of control. 54. Denied. It is specifically denied that Plaintiffs claims maybe reduced limited by any collateral source of compensation and/or benefit in accord with Pennsyl Statutes and the opinion of the Pennsylvania Supreme Court in Medical Center. 55. Plaintiff concurs with a trial by jury on all issues. 56. Denied. It is specifically denied that Answering Defendants are entitled to defenses available under the Fair Share Act, 42 Pa.C.S. §7102B. 57. Denied. It is specifically denied that Plaintiffs claims may be barred by applicable statute of limitations. R. J. Dated: submitted la & Associates, P.C. Esquire tion No. 66856 CERTIFICATE OF SERVICE I, Adam G. Reedy, hereby certify that true and correct copies of the foregoing documents were served upon all counsel of record this 131h day of April, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Michael D. Pipa, Esquire Geoffrey McInroy, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 R. J. MARZELLA & ASSOCIATES, P.C. By: Adam G. Reedy ?p _3 (" ; l C. _ - i`-? . , CJ: MICHAEL D. PIPA, ESQUIRE I.D. No. 53624 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. . JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoenas for documents and things pursuant to Rule 4009.22, Defendant, Anastasius Peter, M.D. and Heritage Medical Group by and through his attorneys, certifies that: (1) a notice of intent to serve the subpoenas with copies of the subpoenas attached thereto was mailed to each party providing notice that the records were going to be obtained; (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objection to the subpoena has been made or received and the twenty day waiting period has expired, and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN e--? By: MICHAEL D. PIPA, ES IRE Attorney for Defendant, Anastasius Peter, M.D. and Heritage Medical Group Date: $ (? 0 6 2 \05 A\LIAB\MDPIPA\LLPG\228974\DBZIMMERMAM01012\00158 MICHAEL D. PIPA, ESQUIRE I.D. No. 53624 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS TO: Robin J. Marzella, Esquire R.I. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Michael D. Pipa, Esquire, with the Law Offices of Marshall, Dennehey, Warner, Coleman & Goggin, on behalf of Defendants intends 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. b5 AU MNMDP1PAU,LPG\221510\DB23MMERMA4M1012\Q0I58 Complete copies of any reproduced records may be obtained at your expense by contacting the undersigned at bis office. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: 2k" MICHAEL D. PIPA, UIRE 304 a@p? DATE: b5 AV.1AB\MDPIPAWC;\22I510\DBZIMMERMAMO101200158 MICHAEL D. PIPA, ESQUIRE I.D. No. 53624 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, V. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Lisa Skbam 781 Valley Street. Mgr IA110. PA 17053 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: at Marshall Dennehey Warner Coleman & Goedm 4200 Crums Mill Road. Suite B Harrisburg PA 17112 (Address) You may deliver or mail legible copies of the documents or produce 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: Michael D. Pipa. Esquire ADDRESS: Marshall. Denoehev. Warner. Coleman & Gosain. 4200 Crums Mill Road. Suite B. Harrisburg.. PA 17112 TELEPHONE: (717) 651-3515 SUPREME COURT ID # 53624 ATTORNEY FOR: Defendants. Anastasius Peter. M.D. and Heritage Medical Grouo BY THE URT: mthotjpt y, ivilI? ' ion Date: Seal o e Court Deputy \OS_A\LM\MDPIPA\MISC\218716 \DBZIMMM MAM\01012 \00158 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Notice of Intent to Serve Subpoena to Produce Documents has been served upon the following known counsel of record this 0 day of May, 2006, by: First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: i& MICHAEL D. PIPA, ESQVIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, 105 A%LAB\MDPIPAV"G\221510\DBZIMMERMANA1012W0158 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena has been served upon the following known counsel of record this -LCLI-/day of August, 2006, by: ? First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: q MICHAEL D. PIPA, ESQ Attorney for Defendant, Anastasius Peter, M.D., and Heritage Medical Group, \05 A\LIAB\MDPIPA\LLPG\228974\DBZIMMERMAN\O1012\00158 'tt G? G o JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. DOCKET NO. 05-6328 ANASTASWS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. JURY TRIAL DEMANDED PRAECH'E FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the enter the appearance of the undersigned on behalf of Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. in the above captioned case. DATE: '71i j b i. BY: ` MICHAEL D. PIPA, ESQ I.D. NO. 53624 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf 'of the Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. in the above captioned case. Respectfully Submitted, WARNER, DATE: D - I% `() ('° BY: CRAIG A. STONE, 0 I.D. NO. 15907 ' 4200 Crums Mill oar Harrisburg, PA 17 12 (717) 651-3502 C7 0 G rn mr ? m? ?a ?ry7 r-n C:D -J MICHAEL W McGUCKIN, ESQUIRE I.D. No. 49464 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL V. LIABILITY ACTION ANASTASIUS PETER, M.D., and ; CIVIL ACTION - LAW HERITAGE MEDICAL GROUP, 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, Defendants certify that: (1) a notice of intent to serve the subpoena with copy of the subpoena attached thereto was mailed to each party providing notice that the records were going to be obtained; (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 made or received, and/or counsel for the plaintiff has agreed to waive the twenty day notice, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: ichael . McGuckin, Esquire Sup. Ct. I.D. #15907 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 Attorneys for Defendants Dated: I1 1 k s\ 0 -1 CERTIFICATE OF SERVICE I hereby certify that I am serving a copy of the foregoing document upon the person(s) on the date and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: ? d Pamela L. Boge , Paralegal to Michael W. McGuckin, Esquire Sup. Ct. I.D. #49464 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 DATED: S, U1 Attorneys for Defendants \05_A\L1AB\PLB0GER\S LPG\242551 \PLBOGER\01012\00158 ' A REGIONAL DEFENSE LITIGATION LAw FIRM 4 ?y EHEY WARNER COLEMAN 8 GOGGIN DEN M PENNSYLVANIA Bethlehem ARSHALL N Erie A P R O F E S S 1 0 N A L C O R P O R A T 1 O N www.marshalldemehey.com Harrisburg King of Prussia Philadelphia Pittsburgh Scranton 4200 Crums Mill Road, Suite B - Harrisburg, PA 17112 WJMSE; N (717) 651-3500 - Fax (717) 651-9630 E Rose and'" DEL&wmw Wilmington Oleo Akron Direct Dial: 717-651-3529 PLORMA Ft. Lauderdale Email: plboger@mdwcg com sonville J a . O c Tampa December 20, 2006 Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3 513 North Front Street Harrisburg, PA 17110 RE: Smith v Peter, et, aL Cumberland County CCP No. 05-6328 MDWCG File No. 01012-00158 Dear Ms. Marzella: Enclosed is a Notice of Intent to Subpoena records from the Hershey Medical Center. Please advise in writing if you are willing to waive the twenty day notice so that we may immediately serve the subpoenas. At your request, we will provide you with copies of any records we receive in response to our subpoena. Thank you for your courtesy in this matter. Very truly yours, '(? \ 0? ' Pamela L. Boger Paralegal /plb Enclosures \05_A\LIAB\PLBOGER\CORR\240637\PLBOGER\01012\00158 MICHAEL W McGUCKIN, ESQUIRE I.D. No. 49464 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO PA RCP RULE 4009.21 AND 45 CFR 164 ET SEO (HIPAA) Defendants, Anastasius Peter, M.D., and Heritage Medical Group, intends to serve a subpoena identical to the one that is attached to this notice for the purpose of obtaining medical records pertaining to the plaintiff. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: W C l?-,.wcj, Michael W. McGuckin, Esquire Sup. Ct. I.D. #49464 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 DATED: 1 ?A ok 6(o Attorneys for Defendants JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. . : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Hershey Medical Center Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300 at: Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 (Address) You may deliver or mail legible copies of the documents or produce 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 Ct ID#: Attorney For: Michael W. McGuckin, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 49464 Defendants DATE: BY THE COURT: Seal of the Court (P othonot , Civ' Division) CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Notice of Intent to Service of Subpoena has been served upon the following known counsel of record this D ay of M wn,1 2006, by: - First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff til aWl0;'V MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN MICHAEL W. McGUCKIN, ESQUIRE Attorney for Defendant, Anastasius Peter, M.D., and Heritage Medical Group, \05 A\LIAB\PLBOGER\SLPG\240643\PLBOGER\01012\00158 n co ,. J cc) MICHAEL W McGUCKIN, ESQUIRE I.D. No. 49464 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants . : JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendants, Anastasius Peter, M.D. and Heritage Medical Group by and through their attorneys, certifies that: (1) a notice of intent to serve the subpoenas with copies of the subpoenas attached thereto was mailed to each party providing notice that the records were going to be obtained; (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objection to the subpoena has been made or received and the twenty day waiting period has expired, and (4) the subpoenas which will be served are identical to the subpoenas which are attached to the notice of intent. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By:J? w • To L C? MICHAEL W. McGUCKIN, ESQUIRE Attorney for Defendant, Anastasius Peter, M.D. and Heritage Medical Group -70 Date: I q 01 2 A REGIONAL DEFENSE LITIGATION LAW FIRM MARSHALL, DENNEHEY, WARNER, COLEMAN 8 GOGGiN I A P R O F E S S I O N A L C O R P O R A T I O N www.marshOdermehey.com 4200 Crums Mill Road, Suite B - Harrisburg, PA 17112 (717) 651-3500 - Fax (717) 651-9630 Direct Dial: 717-651-3529 Email: plboger@mdwcg.com July 16, 2007 Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 RE: Smith v. Peter, et, aL Cumberland County CCP No. 05-6328 MDWCG File No. 01012-00158 Dear Ms. Marzella: Enclosed is a Notice of Intent to Subpoena records from the following providers: 1. Orthopedic Institute of PA 6. Jason Ltiton, MD 2. Central Penn Rehab 7. Fed Ex Corporation 3. Pinnacle Health System 8. Gateway 4. Associated Otolaryngologist of PA 9. Federal Blue Cross/Blue Shied 5. Seidle First Place 10. Medical Assistance PENNSYLVANIA Bethlehem Doylestown Erie Harrisburg King of Prussia Philadelphia Pittsburgh Scranton Williamsport NEW JERSEY Cherry Hill Roseland DELAWARE Wilmington oleo Akron PLoRIDA Ft. Lauderdale Jacksonville Orlando Tampa Please advise if you are willing to waive the twenty day notice so that we may immediately serve the subpoenas. At your request, we will provide you with copies of any records we receive in response to our subpoenas. Very truly yours, 9A V?> ocr Pamela L. Boger Paralegal /plb Enclosures \05_A\LIA 13\PLBOGER\CORR\258980\PLBOGER\01012\00158 MICHAEL W. MCGUCKIN, ESQUIRE I.D. No. 49464 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. . : : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS TO: Robin J. Marcella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Michael W. McGuckin, Esquire, with the Law Offices of Marshall, Dennehey, Warner, Coleman & Goggin, on behalf of Defendants intends to serve Subpoenas identical to the ones that are 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 Subpoenas. If no objection is made, the Subpoenas 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. DATE: MARSHALL, DENNEHEY, WARNER, COLEM GOGGIN BY: f- CHAEL W. MCGUCKIN, ESQUIRE JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Orthopedic Institute of PA, 3399 Trindle Road, Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300 at: Marshall Dennehey Warner Coleman & Goggiin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants ? BY THE COURT: DATE: / / J'j U(50thonotary/Clerk, A Seal of the Court Civi ivision) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Central Pennsylvania Rehab, 102 N. Baltimore Street, Dillsburg, PA 17019 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300 at: Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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 Ct ID#: Attorney For: Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 15907 Defendants DATE: '11114200-7 BY THE COURT: Seal of the Court Aothonotary/Clerk, Ci 1 Division) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION : CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Pinnacle Health System, 17 North Market Square Harrisburg, PA 17101 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300 at: Marshall Dennehey Warner Coleman & Goggin 4200 Crums Mill Road Ste. B Harrisburg PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants BY THE COURT: DATE: _ h 7 Z p? Seal of the Court /(P/Othonotary/Clerk, CiN(j Division) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Associated Otolaryngologist of PA 890 Poplar Church Road Suite 300, Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 1211911982, SS#: 169-70-2300 at: Marshall Dennehey Warner Coleman & Goggin, 4200 Crums Mill Road Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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 Ct ID#: Attorney For: Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 15907 Defendants DATE: -11111ago BY THE COURT: s " P. or8 Seal of the Court (rothonotary/Clerk, Civ' ivision) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Seidle FirstPlace Seidle Cam us 120 S. Filbert Street, Mechanicsburg, PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300 at: Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants DATE: I/1't1,2007 BY THE COURT: /5/ L?t? P. Qa Seal of the Court ( othonotary/Clerk, Civvision) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Jason Litton, MD, 1 Cona Road, Mechanicsburg PA 17055-5984 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire medical file, including but not limited to: any and all medical records, office notes, reports for all radiology studies, radiology films, MRI films, CT Scans, all correspondence, memoranda, facsimile documents or other materials contained in the patient file for treatment rendered to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300 at: Marshall, Dennehev Warner Coleman & Goggin 4200 Crums Mill Road Ste B Harrisburg PA 17112 Attn: Pamela L. Boger Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants BY THE COURT: DATE: 7 /&Do W P. n Seal of the Court ( othonotary/Clerk, Civi ivision) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Gateway US Steel Tower Floor 41, 600 Grant Street, Pittsburgh, PA 15219-2704 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire benefits file, including but not limited to: any and all benefits payment information, medical records, office notes, reports only for all radiology studies, radiology films, MRI films, CT Scans, prescription payment, all correspondence, memoranda, facsimile documents or other materials contained in the benefits file of member: Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300; Plan No. 22554299.01 at: Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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 Ct ID#: Attorney For: Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 15907 Defendants DATE: 7/11 bool BY THE COURT: s t 100,N191 D 5-7 Seal of the Court ( othonotary/Clerk, Civi ivision) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION : CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Federal Blue Cross/Blue Shield, PO Box 898854, Camp Hill, PA 17089 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire benefits file, including but not limited to: any and all benefits payment information, medical records, office notes, reports only for all radiology studies, radiology films, MRI films, CT Scans, prescription payment, all correspondence, memoranda, facsimile documents or other materials contained in the benefits file of Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300; Policy Holder: Linda Landucci, Group No. 105, Member No. R54070607 at: Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants BY THE COURT: DATE: - '?jp?_ S / L?" ko . " '0M Seal of the Court (P othonotary/Clerk, Civil vision) JASON SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Medical Assistance, Health and Welfare Building, Room 515, PO Box 2675, Harrisburg, PA 17105-2675 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire benefits file, including but not limited to: any and all benefits payment information, medical records, office notes, reports only for all radiology studies, radiology films, MRI films, CT Scans, prescription payment, all correspondence, memoranda, facsimile documents or other materials contained in the benefits file to Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300; at: Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crums Mill Road, Ste. B, Harrisburg, PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants DATE: I In WO - BY THE COURT: Seal of the Court (rothonotary/Clerk, Ci 1 Division) JASON SMITH, Plaintiff V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Fed Ex Corporation 924 South Shady Grove Road Memphis TN 38120 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: The entire personnel file of Jason S. Smith, Date of Birth: 12/19/1982, SS#: 169-70-2300; including, but not limited to, applications, wage/income records, time records, sickness and accident information, benefit records, correspondence, doctors' excuses and all other documents and things that relate to his employment at any time at: Marshall, Dennehey Warner Coleman & Goggin 4200 Crums Mill Road Ste B Harrisburg. PA 17112 Attn: Pamela L. Boger, Paralegal (Address) You may deliver or mail legible copies of the documents or produce 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: Craig A. Stone, Esquire Address: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 Supreme Ct ID#: 15907 Attorney For: Defendants DATE: BY THE COURT: )S/ " P. feroto OK_ Seal of the Court '(Prothonotary/Clerk, Ci ' Division) CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Notice of Intent to Serve Subpoena to Produce Documents has been served upon the following known counsel of record this Iday of July, 2007, by: X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: 9-? 1, a rs., Pamela L. Boger, Paralegal to MICHAEL W. MCGUCKIN, ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena has been served upon the following known counsel of record this - day of August, 2007, by: X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marcella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: ?)LA'v)D Pamela L. Boger, 'Paralegal to MICHAEL W. McGUCKIN ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, 051339527.v1 3 .?, ?n r° `_ ?,? ;'= ?? ? -n - ,?, ? ; -ray,, h w -._`? r.' _? ??`- - -Ti _ y ii N ? s r - 3 ? `? C.n% A lqo Is R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rmarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff Jason Smith Telephone: (717) 2347828 Facsimile: (717) 234-6883 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JASON SMITH Plaintiff V. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants DOCKET NO. 05-6328 JURY TRIAL DEMANDED PLAINTIFFS' COUNSEL'S MOTION TO WITHDRAW AND NOW COMES, Plaintiff, Jason Smith, by and through his counsel, R. J. Marzella and Associates, P.C. hereby petition for leave of Court to allow R.J. Marzella & Associates, P.C. to withdraw as counsel for the Plaintiffs in the above captioned action and in support thereof aver as follows: 1. This medical malpractice action was instituted on or about December 12, 2005, by way of filing a Complaint. 2. Because of professional considerations that have been fully disclosed to the Plaintiff, the undersigned counsel is no longer able to pursue this lawsuit on behalf of Jason Smith. 3. Plaintiff understands the reasons that counsel can no longer pursue this litigation on her behalf. 4. Undersigned counsel has instructed Plaintiff, Jason Smith, to obtain new counsel to undertake representation of the Plaintiff in this matter. 5. Counsel for Plaintiff requests sixty (60) days from the date of this Honorable Court's Order, granting leave to withdraw, to obtain alternative counsel of record on behalf of Plaintiff and to file a Complaint. In the interim, we would request that no action be taken by Defense Counsel to prejudice Plaintiffs rights. 6. At the conclusion of the sixty (60) days from the date of this Honorable Court's Order, should Plaintiff fail to file a Complaint, Defendants shall be free to enter judgment Non Pros. 7. Defense counsel does not concur with the requested relief in this Petition. WHEREFORE, Plaintiffs request this Honorable Court enter the Proposed Order. Respectfully submitted, R. J. MarAQ# & Associates, P.C. Attorney 1fication No. 66856 Dated: ?/ FLED-OfFICE ?,E ? pr' ? nNtr) 'AAY 2009 DEC 16 PM 2: 4 i c?:r? JASON SMITH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANASTASIUS PETER, M.D. and 2005 - 6328 CIVIL TERM SUSQUEHANNA SURGEONS, LTD. CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 14TH day of JANUARY, 2010, a Rule is issued upon Plaintiff and Defendant's counsel to Show Cause why Plaintiff's counsel's Petition to Withdraw should not be granted. Rule returnable twenty (20) days after service. ? Robin J. Marzella, Esquire 3513 North Front Street Harrisburg, Pa. 17110 Michael C. Mongiello, Esquire 4200 Crums Mill Road, Suite B Harrisburg, Pa. 17112 sld t_.al?i £s m?i lac(, .??11 N -r? t 1 Edward E. Guido, J. CRAIG A. STONE, ESQUIRE r 1 ?t?Ry I.D. No. 15907 20,10 J,- (s? ?, ? ? MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 Marshall, DenneheY, Warner Coleman &Gogin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendants, Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED DEFENDANTS' ANSWER TO PLAINTIFF'S COUNSEL'S MOTION TO WITHDRAW AND NOW come Defendants, Anastasius Peter, M.D. and Heritage Medical Group (hereinafter collectively referred to as "Defendants"), by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and timely answer Plaintiffs' Counsel's Motion to Withdraw pursuant to this Honorable Court's resultant twenty (20) day Rule to Show Cause dated January 14, 2010 as follows: 1. Admitted. By way of further answer, since the filing of Plaintiffs Complaint, this case has been in litigation for over four (4) years. 2. Admitted upon Defendants' information and belief. 3. Admitted upon Defendants' information and belief. 4. Admitted upon Defendants' information and belief. 0 5. - 7. Defendants have no objection to Plaintiffs counsel withdrawing from this case or to allowing Plaintiff sixty (60) days without prejudicial action by Defendants in which to find alternate counsel. A Complaint has already been filed in this case. To attempt to require the filing of another complaint or pursuing a judgment of non pros for failure to do so would therefore be inappropriate. Accordingly, Defendants respectfully request that this Honorable Court's Order granting Plaintiffs counsel leave to withdraw require that Plaintiff must provide full and complete responses to Defendants' written discovery requests, including expert reports, within one-hundred and twenty (120) days (i.e., sixty (60) days after the deadline to retain alternate counsel) or suffer appropriate sanctions upon motion of Defendants. WHEREFORE, Defendants respectfully request that this Honorable Court enter the attached Order. Respectfully Submitted, \\ T\\ \0 By: DENNEHEY, WARNER, SI)D SQUIRE C. M(( LLO, ESQUIRE 05/565521.x1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer to Plaintiffs Motion has been served upon the following known counsel of record this O10day of January, 2010, by: X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: CRAIG STONE, E QUIRE MICH C. MONGIELLO, ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, CRAIG A. STONE, ESQUIRE T "= v I.D. No. 15907 MICHAEL C. MONGIELLO, ESQUIRE -9 Z; 4 I.D. No. 87532 Marshall, Dennehey, Warner, Coleman & Goggin C?ftFrhlr, 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendants, Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. No: 05-6328 MEDICAL PROFESSIONAL LIABILITY ACTION : CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANTS PETITION TO MAKE RULE ABSOLUTE AND NOW come Defendants, Anastasius Peter, M.D. and Heritage Medical Group, by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and petition this Honorable Court to make Rule absolute as follows: 1. On December 16, 2009, Plaintiffs counsel filed a Motion to Withdraw. A true and correct copy of said motion is attached hereto as Exhibit A. 2. In response thereto, the Honorable Edward E. Guido issued a Rule to Show Cause why Plaintiffs counsel's Petition to Withdraw should not be granted on January 14, 2010, returnable within twenty (20) days after service. A true and correct copy of said Order is attached hereto as Exhibit B. 3. On behalf of Defendants, the undersigned timely filed an answer to Plaintiffs counsel's Motion to Withdraw on January 21, 2010. A true and correct copy of said answer is attached hereto as Exhibit C. 4. Plaintiffs Motion to Withdraw is ripe for disposition. 5. Pursuant to the Cumberland County Local Rules, the undersigned does not believe that argument is necessary with regard to Plaintiffs counsel's Motion to Withdraw. WHEREFORE, Defendants, Anastasius Peter, M.D. and Heritage Medical Group, respectfully request that this Honorable Court enter the attached Order. Respectfully Submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN. By: YMNEJ ESQUIRE C. MONGIELLO, ESQUIRE 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing has been served upon the following known counsel of record this ay of April, 2010, by: X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marcella, Esquire R.J. Marcella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN I By: 05/590195.v 1 (;"10 A. `STONEVESQUIRE MICHAEL C. MONGIELLO, ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, .'rte.` II R. J. MARZELIA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rmarzellagdmamella.com 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 2347828 17171 7 Z A? Q Q Z 0 Attorneys for Plaintiff Jason C -ta rr mr; r f c. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JASON SMITH DOCKET NO. 05-6328 Plaintiff v. r1j o ? M m n m C.. -? CD o .?- 5bo ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants JURY TRIAL DEMANDED PLAINTIFFS' COUNSEL'S MOTION TO WITHDRAW AND NOW COMES, Plaintiff, Jason Smith, by and through his counsel, R. J. Marzella and Associates, P.C. hereby petition for leave of Court to allow R. J. Marzella & Associates, P.C. to withdraw as counsel for the Plaintiffs in the above captioned action and in support thereof aver as follows: 1. This medical malpractice action was instituted on or about December 12, 2005, by way of filing a Complaint. 2. Because of professional considerations that have been fully disclosed to the Plaintiff, the undersigned counsel is no longer able to pursue this lawsuit on behalf of Jason Smith. 0 3. Plaintiff understands the reasons that counsel can no longer pursue this litigation on her behalf. 4. Undersigned counsel has instructed Plaintiff, Jason Smith, to obtain new I counsel to undertake representation of the Plaintiff in this matter. 5. Counsel for Plaintiff requests sixty (60) days from the date of this I Honorable Court's Order, granting leave to withdraw, to obtain alternative counsel of record on behalf of Plaintiff and to file a Complaint. In the interim, we would request that no action be taken by Defense Counsel to prejudice Plaintiffs rights. 6. At the conclusion of the sixty (60) days from the date of this Honorable I Court's Order, should Plaintiff fail to file a Complaint, Defendants shall be free to enter Judgment Non Pros. 7. Defense counsel does not concur with the requested relief in this Petition. WHEREFORE, Plaintiffs request this Honorable Court enter the Proposed Order. Respectfully submitted, R. J. Marza & Associates, P.C. Attorney lfication No. 66856 Dated: 4g //! ??2- JASON SMITH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . V. ANASTASIUS PETER, M.D. and 2005 - 6328 CIVIL TERM SUSQUEHANNA SURGEONS, LTD. CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 14TH day of JANUARY, 2010, a Rule is issued upon Plaintiff and Defendant's counsel to Show Cause why Plaintiff's counsel's Petition to Withdraw should not be granted. Rule returnable twenty (20) days after service. Robin J. Marzella, Esquire 3513 North Front Street Harrisburg, Pa. 17110 Michael C. Mongiello, Esquire 4200 Crams Mill Road, Suite B Harrisburg, Pa. 17112 : sld ,?-'awara E. Guido, J. E ?}f01L+WI ?v CRAIG A. STONE, ESQUIRE © ; I.D. No. 15907 - ,, O n MICHAEL C. MONGIELLO, ESQUIRE I.D. No. 87532 M h ll D h W l i C & G G7 ,:: n) c-n -71M ars a , enne arner, eman ey, o ogg n _ 4200 Crums Mill Road, Suite B ?T -; ?v Harrisburg, PA 17112 t i (717) 651-3502 Attorneys for Defendants, Anastasius Peter, M.D. and Heritage Medical Group w JASON SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED DEFENDANTS' ANSWER TO PLAINTIFF'S COUNSEL'S MOTION TO WITHDRAW AND NOW come Defendants, Anastasius Peter, M.D. and Heritage Medical Group (hereinafter collectively referred to as "Defendants"), by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and timely answer Plaintiffs' Counsel's Motion to Withdraw pursuant to this Honorable Court's resultant twenty (20) day Rule to Show Cause dated January 14, 2010 as follows: 1. Admitted. By way of further answer, since the filing of Plaintiffs Complaint, this case has been in litigation for over four (4) years. 2. Admitted upon Defendants' information and belief. 3. Admitted upon Defendants' information and belief. 4. Admitted upon Defendants' information and belief. 5. - 7. Defendants have no objection to Plaintiff's counsel withdrawing from this case or to allowing Plaintiff sixty (60) days without prejudicial action by Defendants in which to find alternate counsel. A Complaint has already been filed in this case. To attempt to require the filing of another complaint or pursuing a judgment of non pros for failure to do so would therefore be inappropriate. Accordingly, Defendants respectfully request that this Honorable Court's Order granting Plaintiffs counsel leave to withdraw require that Plaintiff must provide full and complete responses to Defendants' written discovery requests, including expert reports, within one-hundred and twenty (120) days (i.e., sixty (60) days after the deadline to retain alternate counsel) or suffer appropriate sanctions upon motion of Defendants. WHEREFORE, Defendants respectfudy request that this Honorable Court enter the attached Order. Respectfully Submitted, By: DENNEHEY, WARNER, C. MON01ELLO, ESQUIRE 051565521.x1 :. 0 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer to Plaintiffs Motion has been served upon the following known counsel of record this 0 &Oday of January, 2010, by: X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: FAY) CRAIG STOMON' E QUIRE MIC C. MN GIELL0, ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, APR 12 2010 3 JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. : JURY TRIAL DEMANDED ORDER AND NOW, this f day of , 2010, upon consideration of Plaintiff s Counsel's Motion to Withdraw and Defendants' Answer thereto, it is hereby ORDERED and DECREED that Plaintiffs current counsel, Robin J. Marzella, Esquire, is hereby granted leave to withdraw. Plaintiff shall have sixty (60) days from the date of this Order in which to retain alternate counsel. C-m r no ain i re a eounse wi n e a provi e full ancomplete responses to Defendants' written iscov u 1ng any and all expert reports, within one-hundred antwenty ays o e date J. C I`£S .7t? t OS/56T6.v 1 7D -? . ?. C ? D ,_ ?: - ? ; , x ~ . r -. JUN 2 2 2010 ~ 3 JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: OS-6328 v. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION -LAW Defendants. . JURY TRIAL DEMANDED ORDER AND NOW, this ~ ~ day of , 2010, upon consideration of Defendants' Motion to Compel Discovery Responses and Plaintiff s Answer thereto, if any, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiff shall serve full d mplete answers, without objection, to Defendants' Expert Interrogatories s~x~~~o~ within tlrirty{38) days of the date of this Order. J. OS/611829.v1 ~ IFS ma~~~~, C. S'~~.. ~, /au ~ ~a ~~ n d ~, ~ b ~ ~~~ ° L ~ ~ ~ ~C '~ ~--~~ ~ ~~~ ~ ~~ :~. ~ ca :~ ~r~ ~ t ~ I Distribution List Jason S. Smith 2253 Canterbury Drive Mechanicsburg, PA 17055 Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 4200 Cruets Mill Road, Surte B , Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group CRAIG A. STONE, ESQUIRE LD. No. 15907 ,~;., r~- MICHAEL C. MONGIELLO, ESQUIRE ' .~ ~ `€ '~ ~~`i 4 ~ [~ I.D. No. 87532 G ~~ ir,. i ,, ~ ni~~ Marshall, Dennehey, Warner, Coleman & Goggin 4i; ~,;,yjv~t~Vi~' JASON SMITH, Plaintiff v. . ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: OS-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION -LAW JURY TRIAL DEMANDED MOTION FOR SANCTIONS OF DEFENDANTS PURSUANT TO PA. R.C.P. 4019 AND NOW come the Defendants, Anastasius Peter, M.D. (hereinafter referred to as "Dr. Peter") and Heritage Medical Group (hereinafter referred to as "Heritage") by their attorneys, Marshall, Dennehey, Warner, Coleman & Goggin who respectfully request the Court to enter sanctions in favor of the Defendants based on the following: 1. The above captioned action was commenced on or about December 12, 2005 by the filing of a Complaint by Robin J. Marzella, Esq, on behalf of Jason Smith against Dr. Peter and his Heritage. 2. In the Complaint, the action was pleaded as medical professional negligence and Certificates of Merit as to both Defendants were attached. 3. On or about February 28, 2006, an Order was entered by the Honorable Edgar Bayley correcting the original caption of this matter to reflect that "Heritage Medical Group" is the properly named Defendant as opposed to "Susquehanna Surgeons, Ltd." 4. Timely Preliminary Objections to Plaintiffs Complaint were filed by the Defendants, following which a Stipulation of Counsel was entered. 5. On or about March 2, 2006, by agreement of counsel, an Order was entered by the Honorable Edgar Bayley approving the Stipulation of counsel providing for amendments to the Complaint to cure the Defendants" Preliminary Objections. 6. On or about March 28, 2006, an Answer with New Matter was filed on behalf of the Defendants, Dr. Peter and Heritage. 7. On or about April 13, 2006, Plaintiff replied to Defendants' New Matter and the pleadings were closed. 8. On or about January 20, 2006, Defendants propounded and served discovery upon Plaintiff, including Expert Witness Interrogatories, acopy ofwhich is attached hereto, made a part hereof and marked as Exhibit A. 9. On or about March 10, 2006, a second set of Expert Witness Interrogatories, reflecting the corrected caption, were served upon Plaintiff for answer, a copy of which is attached hereto, made a part hereof and marked as Exhibit B. 10. On or about March 27, 2006, Plaintiff answered Defendants' Expert Interrogatories by indicating, in pertinent part: Plaintiff has not yet determined whom they will call as expert witnesses at trial. Upon completion of discovery, when such a designation is made, Plaintiff will seasonably supplement the response to this Interrogatory in compliance with the requirements of Pa. R.C.P. 4003.5. A copy of said Answers are attached hereto, made a part hereof and marked as Exhibit C. 11. On or about August 5, 2008, Defendants' counsel took the deposition of Jason S. Smith, Plaintiff. 2 t 12.On or about October 21, 2008, Defendants' counsel took the deposition of a subsequent treating surgeon, Kimberly S. Harbaugh, M.D., at the Hershey Medical Center. Dr. Harbaugh's deposition testimony cast great doubt on the alleged negligence of Dr. Peter. 13. Plaintiffs then counsel, Robin J. Marzella, Esq, scheduled the deposition of Dr. Peter for August 20, 2008, but subsequently canceled the deposition and did not reschedule it. 14. On or about December 16, 2009, Plaintiff s counsel, Robin J. Marzella, Esq, filed a motion with the Court to withdraw as Plaintiffs counsel "because of professional considerations that have been fully disclosed to the Plaintiff..." 15. Following a response on behalf of the Defendants, on or about April 13, 2010, the Honorable Edward E. Guido signed an Order permitting Plaintiffs counsel, Robin J. Marzella, Esquire, to withdraw and giving Plaintiff sixty (60) days from the date of the Order in which to retain alternate counsel. A copy of Judge Guido's Order is attached hereto as Exhibit D. 16. More than sixty (60) days have elapsed since the entry of Judge Guido's Order (Exhibit D) and no substitute appearance for the Plaintiff has ever been entered. 17. Under Pa. R.C.P. 4003.5, discovery may be had of facts known and opinions held by an expert and a Defendant may, through Interrogatories, require a Plaintiff to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter in which the expert is expected to testify and the substance of the facts and opinions to which the expert is expected to testify and the summary of the grounds for each opinion. Alternatively, the Defendant may provide a report signed by such expert. 18. The above captioned matter is a medical professional liability action based on Dr. Peter's alleged negligence in failing to identify a cranial nerve during surgery to remove a 3 lesion and, thereby, injuring a cranial nerve. Clearly, such allegations require expert witness support. 19. Under Pa. R.C.P. 4006, Answers or Objections to a written Interrogatory shall be filed within thirty (30) days after service of the Interrogatory. 20. As noted here and above, appropriate Interrogatories requesting Plaintiffs expert witness information were served over four (4) years ago and no information has been provided supplementing that set forth in paragraph 10. 21. On or about June 21, 2010, Defendants filed a Motion to Compel discovery responses to Defendant's Expert Interrogatories. 22.On or about June 23, 2010, the Honorable Edward E. Guido signed an Order requiring Plaintiffs to file full and complete answers, without objections, to Defendant's Expert Interrogatories within sixty (60) days thereof. A copy of said Order is attached hereto, made a part hereof and marked as Exhibit E. 23. Another sixty (60) day has elapsed and, to the time of the filing of this Motion, Plaintiff has not filed answers to Defendant's Expert Interrogatories. 24. Pursuant to Pa. R.C.P. 4019 (a)(1)(i), the Court may make an appropriate Order if a party fails to serve Answers to written Interrogatories under Rule 4005. 25. Pursuant to Pa. R.C.P. 4019 (c)(1), the Court may make an Order refusing to allow the disobedient party to support designated claims and prohibiting such party from introducing evidence. 26. Pursuant to C.C.R.P. 208.2 (d), Plaintiff is currently proceeding pro se, and, therefore, concurrence of his counsel of record could not be sought with the regard to the instant motion. 4 27. The Honorable Edward E. Guido has entered several prior Orders in this case. 28. Moving party therefore seeks an Order precluding Plaintiff from producing or introducing expert testimony during any further proceeding in this matter, including at the trial of this case. WHEREFORE, the Defendants Anastasius Peter, M.D. and Heritage Medical Group respectfully request that this Honorable Court enter an Order precluding Plaintiff from producing or introducing expert testimony during any further proceeding in this matter, including at the trial of this case. Respectfully Submitted, MARSHALL, DEl'~fNEHEY, WARNER, By: MICHAEI/ C. NIONGIELLO, ESQUIRE 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717)651-3500 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true 4and correct copy of the foregoing has been served upon the following unrepresented party this u~day of September, 2010, by: X First Class Mail, Postage Pre-Paid X Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Jason S. Smith 2253 Canterbury Drive Mechanicsburg PA 17055 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: ~~, Q . CRAIG TONE, ESQU RE MICHAEL C. MONGIELLO, ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, OS/633358.v1 6 ~X ~~ ~~~ . ~._ ~1~ ~ x JASON SMITH, Plaintiff v. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW DOCKET NO.OS-6328 JURY TRIAL DEMANDED EXPERT WITNESS INTERROGATORIES OF DEFENDANTS ADDRESSED TO PLAINTIFF JASON SMITH. SET I PLEASE TAKE NOTICE that you aze hereby required, pursuant to Pennsylvania Rules of Civil Procedure No. 4001, et seq., to serve upon the undersigned, within thirty (30) days after service of this Notice, your Answers and Objections, if any, in writing under oath to the following Interrogatories. These Interrogatories shall be deemed to be continuing in nature and in accordance with the provisions of the Pennsylvania Rules of Civil Procedure §4407.4. Between the time of your answers to said Interrogatories and the time of trial, if you or anyone acting in your behalf learns the identity or whereabouts of additional persons with knowledge of discoverable facts not disclosed in your answers, or if you obtain or learn of additional information requested herein, but not supplied in your answers, then you shall promptly furnish a supplemental answer under oath containing the same. a DEFINITIONS AND INSTRUCTIONS (A) Whenever the term "document" is used herein, it includes (whether or not specifically called for) all printed, typewritten, handwritten, graphic or recorded matter, hov~ever produced or reproduced and however formal or informal. (B) Whenever you are asked to "identify" a document, the following information should be given as to each document of which you aze awaze, whether or not you have possession, custody or control thereof: (1) The nature of the document (e.g., letter, memorandum, computer print-out, minutes, resolution, tape recording, etc.); (2) Its date (or if it bears no date, the date when it was prepazed); (3) The name, address, employer and position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and position of the person, if any, to whom the document was sent; (5) If you have possession, custody or control of the document, the location and designation of the place or file in which it is contained, and the name, address and position of the person having custody of the document;: (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address. of the organization having possession, custody or control thereof; and (7) A brief statement of the subject matter of such document. (C) Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are awaze, whether or not you or others were present or participated therein: 2 • ,~ 3 ~~ ! l (1) The means of communication (e.g., telephone, personal conversation, etc.); (2) Where it took place; ~ (3) Its date; (4) The names, addresses, employers and positions (a) of all persons who participated in the communication; and (b) of all other persons who were present during or who overheard that communication; (5) The substance of who said what to whom and the order in which it was said; and (6) Whether that communication or any part thereof is recorded, described or referred to in any document (however informal) and, if so, an identification of such document in the manner indicated above. (D) If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. (E) Whenever you are asked to "identify" a person, the following information should be given: (1) The name, present address and present employer and position of the person; and (2) Whether the person has given testimony by way of deposition or otherwise in any proceeding related to the present proceeding and/or whether that person has given a statement whether oral, written, or otherwise,.and if so; the title and nature 3 ~ . 1 1 9 of any such proceeding, the date of the testimony, whether you have a copy of the transcript thereof, the name of the person to whom the statement was given, where the statement is presently located if written or otherv~ise transcribed, and the present location of such transcript or statement if not in your possession. (F) The term "you" and "plaintiff' shall be deemed to mean and refer to the plaintiffs, Paula L. Evans and Oliver Evans, and shall also be deemed to refer to, but shall not be limited to, their attorneys, consultants, sureties, indemnitors, insurers, investigators, and any other agents insofar as the material requested herein is not privileged. (G) The word "incident" shall be deemed to mean and refer to the incident as alleged to have occurred and as set forth in your Complaint. (H) The phrase "medical treatment" shall include any treatment of any kind or nature for physical or mental illness, disease, injury or condition. (I) The term "defendant(s)" shall mean and refer to the Defendants, Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. and their agents, servants and employees. Respectfully submitted, MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN ~-- By: Michael D. Pipa, Esquire Sup. Ct. I.D. #53624 4200 Cnuns Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3515 Attorneys for Defendants DATED: Januar~, 2006 4 (F INTERROGATORIES 1 y 1 • State the name, home and business address and telephone numbers of all persons you expect to call as expert witnesses at the trial of the above-captioned matter. 8 ANSWER: 5 ~` ~' ~ ~ '} 2. For each person named in Interrogatory No. 1, state the following: (a) His/her occupation. (b) Whether he/she specializes in any particular field, and if so, his/her area or areas of specialization. ANSWER: -. 6 3. For each person named in Interrogatory No. 1, state his/her qualifications including, but not limited to, the following: (a) The schools or training programs that each has attended, including the yeazs of attendance, degrees or certificates received. (b) The experience in the particular field of endeavor, whether related to or unrelated to their azeas of specialty, including the names and addresses of employers with years of employment. (c) A list of all publications authored by said persons, including the title of the work, the name of the periodical or book in which it was printed, and the date of its publication. (d) If any of the persons listed in answer to Interrogatory No. 1 has printed or mimeographed resumes or curriculum vitae or other summaries of qualifications which provide all information requested herein, you may attach a copy of same hereto, ANSWER: 7 ~ ~. 4. ~ ~ t'~ ti For each person named in Interrogatory No. 1, set forth the following: (a) The subject matter in which each expert is expected to testify. (b) The substance of the fa~Cts to which each expert is expected to testify. (c) The opinions to which each expert is expected to testify. (d) A summary of the grounds for each opinion of each expert including, but not limited to, any textual material upon which each expert witness will rely. For any such text, please identify the name of the text, the author, the edition, the yeaz of publication, and the page or pages of said text to be relied upon. If the expert will rely on any journal material or article (medical journal or the like), then for each such journal or article, identify the medical journal in which it appears, the author, the edition, the year of publication and the page or pages of the medical journal to be retied upon. ANSWER: 8 - ,. ~ - ~ 5. Set forth in detail the factual information supplied to each such expert including, but not limited to, the following: (a) All documents, objects and materials examined by the expert including, but not limited to, x- ys, laboratory reports, slides, tissue specimens or analyses and any and all medic records or reports. (b) The source of each document, object or material examined by each expert. (c) The date and place of the examination of each of said documents, object or material by each expert. (d) Descriptions of all photographs, movies, videotapes, plans, drawings, sketches or other documents reviewed by each expert. (e) Any locations, sites or facilities visited by each expert. ANSWER: 9 ~' 6. State whether the expert has provided a report regarding his/her opinions and findings concerning this case. If the answer to the foregoing is "yes", please consider this a request for production of documents pursuant to Pa.R.C.P. 4009(x) and attach a copy of each report by each expert to your answers to these Interrogatories. ANSWER: 10 (" (~~~~ CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, of Marshall, Dennehey, Warner, Coleman & Coggin, do Y hereby certify that on January, 2006, I served a copy of the Ezpert Witness Interrogatories of Defendants addressed to Plaintiff Jason Smith, Set I via First Class United States mail, postage prepaid as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 Michael D. Pip WS AEI,IABVvIEP~DiSC1209927~[CPM~01012~00158 11 - ~kf~i~tT JASON SMITH, Plaintiff v. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW DOCKET N0.05-6328 JURY TRIAL DEMANDED PLEASE TAKE NOTICE that you are hereby required, .pursuant to Pennsylvania Rules of Civil Procedure No. 4001, et seq., to serve upon the undersigned, within thirty (30) days after service of this Notice, your Answers and Objections, if any, in writing under oath to the following Interrogatories. These Interrogatories shall be deemed to be continuing in nature and in accordance with the provisions of the Pennsylvania. Rules of Civil Procedure §4407.4. Between the time of your answers to said Interrogatories and the time of trial, if you. or anyone acting in your behalf teams the identity or whereabouts of additional persons with knowledge of discoverable facts not disclosed in your answers, ~or if you obtain or learn of additional information requested herein, but not supplied in your answers, then you shall promptly furnish a supplemental answer under oath containing the, same DEFINITIONS AND INSTRUCTIONS (A) Whenever the term "document° is used herein, it includes (whether or not specifically called for) all printed, typewritten, handwritten., graphic or recorded matter, however produced or reproduced and however formal or informal. (B) .Whenever you are asked to "identify" a document, the following information should be given as to each document of which you are aware, whether or not you have possession, custody or control thereof: (1) The nature of the document (e.g., letter, memorandum, computer print-out, minutes, resolution, tape recording, etc.); (2) Its date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and position of the person, if any, to whom the document was sent; (5) If you have possession, custody or control of the document, the location and designation of the place or file in which it is contained, and the name, address and position of the person having custody of the document; (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address of the organization having possession, custody or control thereof; and (7) A brief statement of the subject matter of such document. 2 • ~ ' .~'~ ~ (C) Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are aware, whether or not you or others were present or participated therein: (1) The means of communication (e.g., telephone, personal conversation, etc.); (2) Where it took place; (3) Its date; (4) The names, addresses, employers and positions (a) of all persons who participated in the communication; and (b) of all other persons who were present during or who overheard that~communication; (5) The substance of who said what to whom and the order in which.it was said; and (6) Whether that communication or any part thereof is recorded, described or referred to in any document (however informal) and, if so, an identification of such document in the manner indicated above. (D) If you claim that the subject matter of a document or oral communication is privileged, you need~not set forth the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. (E) Whenever you are asked to "identify" a person, the following information should be given: 3 - (1) The name, present address and present employer and position of the person; and (2) Whether the person has given testimony by way of deposition or otherwise in any proceeding related to the present proceeding and/or whether that person has given a statement whether oral, written, or otherwise, and if so, the title and nature of any such proceeding, the date of the testimony, whether you~have a copy of the transcript thereof, the name of the person to whom the statement was given, where the statement is presently located if written or otherwise transcribed, and the present location of such transcript or statement if not in your possession. (F) The term "you" and "plaintiff" shall be deemed to mean and refer to the plaintiff, Jason Smith, and shalt also be deemed to refer to, but shall not be limited to, their attorneys, consultants, sureties, indemnitors, insurers, investigators, and any other agents insofar as the material requested herein is not privileged. (G) The word "incident" shall be deemed to mean and refer to the incident as alleged to have occurred and as set forth in your Complaint. (H) The phrase "medical treatment" shall include any treatment of any kind or nature for physical or mental illness, disease, injury or condition. 4 (I) The term °defendant(s)" shall mean and refer to the defendants, Anastasius Peter, M.D. and Heritage Medical Group and their agents, servants and employees. MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By. Michael D. Pipa, .Esq Sup. Ct. I.D. #53624 4200 Crums Mill Road, Suite B Hamsburg, PA 17112 Attorneys for Defendants, Anastasius Peter, M.D. and Heritage Medical Group DATED: March ~, 2006 5 INTERROGATORIES 1. State the name, home and business address and telephone numbers of all persons you expect to call as expert witnesses at the trial of the above-captioned matter. ANSWER: 6 ~~ _l 2. For each person named in Interrogatory No. 1, state the following: (a) His/her occupation. (b) Whether he/she specializes in any particular field, and if so, his/her area or areas of specialization. ANSWER: . ~ 3. For each person named in Interrogatory No. 1, state his/her qualifications including, but not limited to, the following: (a) The schools or training programs that each has attended, including the years of attendance, degrees or certificates received. (b) The experience in the particular field of endeavor, whether related to or unrelated to their areas of specialty, including the names and addresses.of employers with- years of employment. (c) A list of all publications authored by said persons, including the title of the work, the name of the periodical or. book in which it was printed, and the date of its publication. (d) If any of the persons listed in answer to Interrogatory No. 1 has printed or mimeographed resumes or curriculum vitae or other summaries of qualifications which provide all information requested herein, you may attach a copy of same hereto. ANSWER: 8 4. For each person named in Interrogatory No. 1, set forth the following: (a) The subject matter in which each expert is expected to testify. (b) (c) (d) ANSWER: The substance of the facts to which each expert is expected to testify. The opinions to which each expert is expected to testify. A summary of the grounds for each opinion of each expert including, but not limited~to, any textual material upon which each expert witness will rely. For any such text, please identify the name of the text, the author, the edition, the year of publication, and the page or pages of said text to be relied upon. If the expert will rely on any joumal material or article (medical joumal or the like, then for each such joumal or article, identify the medical joumal in which it appears, the author, the edition, the year of publication and the page or pages of the medical journal to be relied upon. 9 ~. . 5. Set forth in detail the factual information supplied to each such expert including; but n ot limited to, the following: (a) All documents, objects and materials examined by the expert including, but not limited to, x-rays, laboratory reports, slides, tissue specimens or analyses and any and all medical records or reports. (b) The source of each document, object or material examined by each expert. (c) The date and place of the examination of each of said documents, object or material by each expert. (d) Descriptions of all photographs, .movies, videotapes, plans, drawings, sketches or other documents reviewed by each expert. (e) Any locations, sites or facilities visited- by each expert. ANSWER: 10 6. State whether the expert has provided a report regarding his/her opinions and findings concerning this case. If the answer to the foregoing is "yes", please consider this a request for production of documents pursuant to Pa.R.C.P. 4009(a) and attach a copy of each report by each expert to your answers to these Interrogatories. ANSWER: 11 ~ - • • ~ ~ t 7 CERTIFICATE OF SERVICE I hereby certify that on this day, I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, First Class Mail, postage prepaid, as follows: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 DATED: March- ~~ , 2006 MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN By: Michael D. Pipa,~ Esq Sup. Ct. I.D. #53264 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Defendants, Anastasious Peter, M.D. and Heritage Medical Group 105 AWABIMDPIPAIDISC12147401KAMOYERS101012100158 12 ~X~~~~i C e ~ i / R. J. MARZELLA & ASSOCIATES, P.C. BY: Robin J. Marzella, Esquire Pennsylvania Supreme Court I.D. No. 66856 Email: rmarzella@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Attorneys for Plaintiff Jason Smith Telephone: (717) Z34-7828 Facsimile: (7171234-6RR3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW ~ JASON SMITH Plaintiff v. ANASTASIUS PETER, M.D., and SUSQUEHANNA SURGEONS, LTD Defendants DOCKET NO.OS-6328 JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO EXPERT INTERROGATORIES OF DEFENDANTS, SET I 1. Objection. To the extent this interrogatory seeks facts known or opinions held experts retained for the purposes of litigation but not identified as trial witnesses, it exceeds t] permissible scope of expert discovery under Pa.R.C.P. 4003.5. Plaintiff has not yet determine whom they will call as expert witnesses at trial. Upon completion of discovery, when such designation. is made, Plaintiff will seasonably supplement the response to this interrogatory compliance with the requirements of Pa.R.C.P. 4003.5. 2. Objection. To the extent this interrogatory seeks facts known or opinions held experts retained for the purposes of litigation but not identified as trial witnesses, it exceeds EI ~ ~ permissible scope of expert discovery under Pa.R.C.P. 4003.5. Plaintiff has not yet detennin~ whom they will call as expert witnesses at trial. Upon completion of discovery, when such designation is made, Plaintiff will seasonably supplement the response to this interrogatory compliance with the requirements of Pa.R.C.P. 4003.5. 3. Objection. To the extent this interrogatory seeks facts known or opinions held experts retained for the purposes of litigation but not identified as trial witnesses, it exceeds t] permissible scope of expert discovery under Pa.R.C.P. 4003.5. Plaintiff has not yet detenmin~ whom they will call as expert witnesses at trial. Upon completion of discovery, when such designation is made, Plaintiff will seasonably supplement the response to this interrogatory compliance with the requirements of Pa.R.C.P. 4003.5. 4. Objection. To the extent this interrogatory seeks facts known or opinions held experts retained for the purposes of litigation but not identified as trial witnesses, it exceeds t] permissible scope of expert discovery under Pa:R.C.P. 4003.5. Plaintiff has not yet deternun~ whom they will call as expert witnesses at trial. Upon completion of discovery, when such designation is made, Plaintiff will seasonably supplement the response to this interrogatory compliance with the requirements of Pa.R.C.P. 4003.5. 5. Objection. To the extent this interrogatory seeks facts known or opinions- held experts retained for the purposes of litigation but not identified as trial witnesses, it exceeds permissible scope of expert discovery under Pa.R.C.P. 4003.5. Plaintiff has not yet whom they will call as expert witnesses at trial. Upon completion of discovery, when such . N n r~ I designation is made, Plaintiff will seasonably supplement the response to this interrogatory i~ compliance with the requirements of Pa.R.C.P. 4003.5. 6. Objection. To the extent this interrogatory seeks facts known or opinions held experts retained for the purposes of litigation but not identified as trial witnesses, it exceeds permissible scope of expert discovery under Pa.R.C.P. 4003.5. Plaintiff has not yet determine whom they will call as expert witnesses at trial. Upon completion of discovery, when such designation is made, Plaintiff will seasonably supplement the response to this interrogatory i compliance with the requirements of Pa.R.C.P. 4003.5. R. J. Mar~l~ls~ & Associates, P.C. By: i'' J. uire Attorney Id 'fication No. Dat Z .' ~ ~~ ` CERTIFICATE OF SERVICE I, Adam G. Reedy, hereby certify that true and correct copies of the foregoing documents were served upon all counsel of record this 27te day of March, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Michael D. Pipa, Esquire Geoffrey McInroy, Esquire Marshall, Dennehey, Warner, Coleman & Coggin 4200 Cruets Mill Road, Suite B Harrisburg, PA 17112 R. J. MARZELLA & ASSOCIATES, P.C. By: Adam G. Reedy ~,X ~«~ i v.. ~ . ~r ~: . ,1 APR 12 ZOt~ JASON SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: OS-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION -LAW v. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this- day of I~t~~2t L , 2010, upon consideration of Plaintiffs Counsel's Motion to Withdraw and Defendants' Answer thereto, it is hereby ORDERED and DECREED that Plaintiffs current counsel, Robin J. Marzella, Esquire, is hereby granted leave to withdraw. Plaintiff sha11 have sixty (60) days from the date of this Order in which to retain alternate counsel. , nc g , P,l, ,.A Pi~"L :.L,~ ,,, n ,. os~s6ssae.~~ 1 Y F ~' ~ JASON SMITH, IN THE COURT OF COMMON PLEAS PlaintifT CUMBERLAND COUNTY, PENNSYLVANIA No: OS-6328 ~• MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION -LAW Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2010, upon consideration of Defendants' Motion to Compel Discovery Responses and Plaintiffs Answer thereto, if any, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiff shall serve full and complete answers, without objection, to Defendants' Expert Interrogatories within thirty (30) days of the date of this Order. J. OS/611829,v1 -. ~` .- • Distribution List Jason S. Smith 2253 Canterbury Drive Mechanicsburg, PA 17055 Craig A. Stone, Esquire Marshall, pennehey, Warner, Coleman & Goggin 4200 Cruets Mill Road, Suite B Harrisburg, PA 17112 t ,~ ~X~~ Bl i -?-~.. ,. ~ ~ JUN 2 2 2D10 ~ 3 JASON SMITH, Plaintiff v. ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No: OS-6328 MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION -LAW JURY TRIAL DEMANDED ORDER 2~ AND NOW, this 41^ 3 day of , 2010, upon consideration of Defendants' Motion to Compel Discovery Responses and PlaintifFs Answer thereto, if any, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiff shall serve full d ss~~oomplete answers, without objection, to Defendants' Expert Interrogatories S~k~~~o) within thirly~39) days of the date of this Order. _ _.__~~ J. OS/611829.v1 a •' v SEP `10 2010 JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED 2 ORDER AND NOW this ? day of , 2010, upon consideration of Defendants' Motion for Sanctions under Pennsylvania Rule of Civil Procedure 4019 and considering that Plaintiff did not serve full and complete answers, without objections, to Defendants' Expert Interrogatories within sixty (60) days of prior Order of this Court dated June 23, 2010, Plaintiff is hereby precluded from introducing expert testimony in support of his claims during any further proceeding in this matter, including the trial of this case. 05/633359.vl 9/14, /rv ?l BYJH1 s) air f'Tl CRAIG A. STONE, ESQUIRE' I.D. No. 15907 R{ _ MICHAEL C. MONGIELLO, ESQUIRE ` I ' i +o: I.D. No. 87532 ^1 ^ Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B 'J ^ Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendants Anastasius Peter, M.D. and Heritage Medical Group JASON SMITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No: 05-6328 V. MEDICAL PROFESSIONAL LIABILITY ACTION ANASTASIUS PETER, M.D., and HERITAGE MEDICAL GROUP, CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND NOW come the Defendants, Anastasius Peter, M.D. (hereinafter referred to as "Dr. Peter") and Heritage Medical Group (hereinafter referred to as "Heritage") by their attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, and respectfully request the Court to enter summary judgment in their favor based on the following: 1. The above captioned action was commenced on or about December 12, 2005 by the filing of a Complaint by Robin J. Marzella, Esq, on behalf of Jason Smith against Dr. Peter and Heritage. 2. In the Complaint, the action was pleaded as medical professional negligence and Certificates of Merit as to both Dr. Peter and Heritage were attached. 3. On or about February 28, 2006, an Order was entered by the Honorable Edgar Bayley correcting the original caption of this matter to reflect that "Heritage Medical Group" is the properly named Defendant as opposed to "Susquehanna Surgeons, Ltd." 4. Timely Preliminary Objections to Plaintiffs Complaint were filed by the Defendants, following which a Stipulation of Counsel was entered. 5. On or about March 2, 2006, by agreement of counsel, an Order was entered by the Honorable Edgar Bayley approving the Stipulation of counsel providing for amendments to the Complaint to cure the Defendants" Preliminary Objections. 6. On or about March 28, 2006, an Answer with New Matter was filed on behalf of the Defendants. 7. On or about April 13, 2006, Plaintiff replied to Defendants' New Matter and the pleadings were closed. 8. On or about January 20, 2006, Defendants propounded and mailed discovery upon Plaintiff including Expert Witness Interrogatories, a copy of which is attached hereto, made a part hereof and marked as Exhibit A. 9. On or about March 10, 2006, a second set of Expert Witness Interrogatories, reflecting the corrected caption, were served upon Plaintiffs for answer, a copy of which is attached hereto, made a part hereof and marked as Exhibit B. 10. On or about March 27, 2006, Plaintiff responded to Defendants' Expert Interrogatories by indicating, in pertinent part: Plaintiff has not yet determined whom they will call as expert witnesses at trial. Upon completion of discovery, when such a designation is made, Plaintiff will seasonably supplement the response to this Interrogatory in compliance with the requirements of Pa. R.C.P. 4003.5. A copy of said Answers are attached hereto, made a part hereof and marked as Exhibit C. 11. On or about August 5, 2008, Defendants' counsel took the deposition of Jason S. Smith, Plaintiff. 2 12. On or about October 21, 2008, Defendants' counsel took the deposition of a subsequent treating surgeon, Kimberly S. Harbaugh, M.D., at the Hershey Medical Center. Dr. Harbaugh's deposition testimony cast great doubt on the alleged negligence of Dr. Peter. 13. Plaintiffs then counsel, Robin J. Marzella, Esq, scheduled the deposition of Dr. Peter for August 20, 2008, but subsequently canceled the deposition and did not reschedule it. 14. On or about December 16, 2009, Plaintiffs counsel, Robin J. Marzella, Esq, filed a motion with the Court to withdraw as Plaintiffs counsel "because of professional considerations that have been fully disclosed to the Plaintiff..." 15. Following a response on behalf of the Defendants, on or about April 13, 2010, the Honorable Edward E. Guido signed an Order permitting Plaintiffs counsel, Robin J. Marzella, Esquire, to withdraw and giving Plaintiff sixty (60) days from the date of the Order in which to retain alternate counsel. A copy of Judge Guido's Order is attached hereto as Exhibit D. 16. More than sixty (60) days elapsed from the entry of Judge Guido's Order (Exhibit D) and no substitute appearance was entered for Plaintiff. 17. Under Pa. R.C.P. 4003.5, discovery may be had of facts known and opinions held by an expert and a defendant may, through Interrogatories, require a plaintiff to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter in which the expert is expected to testify and the substance of the facts and opinions to which the expert is expected to testify and the summary of the grounds for each opinion. Alternatively, the plaintiff may file a report signed by such expert. 18. The above captioned matter is a medical professional liability action based on Dr. Peter's alleged negligent failure to identify a cranial nerve during surgery to remove a cancer 3 and thereafter injuring the cranial nerve. Clearly, such allegations require expert witness support. 19. Under Pa.R.C.P. No. 4006, Answers or Objections to a written Interrogatory shall be served within thirty (30) days after service of the Interrogatories. 20. As noted here and above, appropriate Interrogatories requesting Plaintiffs expert witness information were served over four (4) years ago and no information has been provided beyond that set forth in paragraph 10. 21. On or about June 21, 2010, Defendants filed a Motion to Compel discovery responses to Defendant's Expert Interrogatories. 22. By Order dated June 23, 2010, the Honorable Edward E. Guido signed an Order requiring Plaintiffs to file full and complete answers, without objections, to Defendant's Expert Interrogatories within sixty (60) days thereof. A copy of said Order is attached hereto, made a part hereof and marked as Exhibit E. 23. Sixty (60) days elapsed from the date of Judge Guido's June 23, 2010 Order (Exhibit E) but Plaintiff did not serve answers to Defendants' Expert Interrogatories. 24. Accordingly, on September 9, 2010, Defendants filed a Motion for Sanctions Pursuant to Pa.R.C.P. No. 4019, seeking to preclude Plaintiff from introducing expert testimony in support of his medical professional liability claims at trial. 25. In response to said Motion for Sanctions, on September 13, 2010, Judge Guido entered an Order precluding Plaintiff "from introducing expert testimony in support of his claims during any further proceeding in this matter, including the trial of this case." A copy of said Order is attached hereto, made a part hereof and marked as Exhibit F. 4 26. With very limited exception, to establish a prima facie case of medical professional liability, "a plaintiff must present an expert witness who testify, to a reasonable degree of medical certainty, that the facts of the physician deviated from good and acceptable medical standards, and that such deviation was the approximate cause of the harm suffered. Hoffman v. Brandywine Hosp., 661 A.2d 397, 399-400, (Pa.Super. 1995) citing Mitzefelfelt v. Camrim, 584 A.2d 888, 892 (Pa. 1990). 27. The only exception to the expert testimony requirement is that where the physician's departure from the standard of care is so simple and obvious that it lies within the comprehension of ordinary lay persons. Gergorio v. Zelouck, 451 Pa. Super. 154, 678 A. 2d. 810 (1996). 28. In Plaintiffs Complaint, made a part hereof and marked as Exhibit G, Plaintiff alleges that Dr. Peter was negligent in connection with the performance of an excision of a mass on his neck at Holy Spirit Hospital on December 22, 2003. 29. It is alleged in paragraph 36 that Dr. Peter negligently failed to identify a nerve, negligently injured a nerve, negligently failed to realize he caused such an injury and that he employed improper surgical technique. (Exhibit G). 30. All of the allegations of negligence against Dr. Peter and Heritage in Plaintiffs Complaint require expert testimony as to: a. what the standard of care is regarding the performance of the surgical excision of a lymph node; b. that the Defendant's negligence deviated from the accepted standard of care and how that care deviated from the standard; and c. that the deviation was a factual cause of Plaintiffs alleged injuries and that the damages which Plaintiff had allegedly suffered were as a result of that harm. 5 31. Despite having been served with appropriate Interrogatories and Request for Production of Documents to elicit Plaintiffs anticipated expert trial testimony, Plaintiff has provided none, resulting in him being precluded from doing so by Judge Guido. 32. Plaintiff has failed to (and now cannot) establish a prima facia case of medical professional negligence against Defendants because he has offered no expert testimony in support of same (Exhibit F) and, therefore, no genuine issue of material fact exists for submission of this case to a jury at trial. 33. Pa.R.C.P. No. 1035.2 provides that any party may move for summary judgment where "the adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to that cause of action. " 34. Pa.R.C.P. No. 1035.2, in setting forth the applicable standard for courts to employ in determining summary judgment, states in pertinent part as follows: After the relevant pleadings are closed, but within such time as to not unreasonably delay trial, any party may move for summary judgment, in whole or in part, as a matter of law. (1) Whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or (2) If, after the completion of discovery relevant to the motion including the production of expert reports an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. (Emphasis supplied). 35. In order for the non-moving party to defeat a Motion for Summary Judgment, the non-moving party may not rest upon mere allegations in the pleadings, but must produce evidence in the record establishing the facts essential to the cause of action. See Pa.R.C.P. No. 1035.3(a)(1)(2). 6 36. In the instant matter, Plaintiff is unable to produce expert testimony to support his claims of medical professional liability against Defendants, which are obviously beyond the province of laypersons, and pursuant to Pa.R.C.P. No. 103 5.2, summary judgment is appropriate. 37. Pursuant to C.C.R.P. 208.2 (d), Plaintiff is currently proceeding pro se, and, therefore, concurrence of his counsel of record could not be sought with the regard to the instant motion. 38. As detailed above, the Honorable Edward E. Guido has entered several prior Orders in this case. WHEREFORE, Defendants Anastasius Peter, M.D. and Heritage Medical Group respectfully request that this Honorable Court grant its Motion for Summary Judgment and enter the attached Order dismissing the instant matter, with prejudice. Respectfully Submitted, DENNEHEY, WARNER, 9 1301k0 By: C CRAiq X. 8IT11 ?,IESQUIRE MICHAEL C. MO GIELLO, ESQUIRE 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3500 7 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing has been served upon the following unrepresented party this day of August, 2010, by: X First Class Mail, Postage Pre-Paid X Certified Mail, Return Receipt Requested Hand Delivery Overnight Mail Fax Transmission at the following address(es) and/or number(s): Jason S. Smith 2253 Canterbury Drive Mechanicsburg PA 17055 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: CRAI KI SWVOl'1T,E,'ESQUIRE MICHAEL C. MONGIELLO, ESQUIRE Attorney for Defendants, Anastasius Peter, M.D., and Heritage Medical Group, 05/633107.v l 8 Cij I f\ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the,.?ext Argument Court.) - --------- CAPTION OF CASE (entire caption must be stated in full) Jason Smith -?? vs. C-T 77 W .. Anastasius Peter, M.D. and Heritage Medical Group ..a • °-,jam ''?' No. 05-6328 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment (unopposed) 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason Smith, 2253 Canterbury Drive Mechanicsburg PA 17055 (Pro Se Plaintiff) (Name and Address) (b) for defendants: Michael C. Mongiello, 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Michael C. Print your name Defendants November 16, 2010 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. IN THE COURT OF COMMON PLEAS OF Plaintiff Jason Smith CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW Defendant Anastasius Peter, M.D. : No. 2005-6328 CIVIL TERM +_ C= cz -n Heritage Medical Group nCo ' _ -zr n rnn rn rn ? c - -? z~ o v n ORDER OF COURT C) z_n s> IN RE: ARGUMENT COURT © z- o AND NOW, this 9`h day of December, 2010, the case listed above has been stricken from the 12/15/2010 Argument Court List due to the listing party's failure to file a brief in accordance with Cumberland County Local Rule 1028 (c) (5). By the Court, Hess, P.J. CA/AL FILED-OFFICE PRAECIPE FOR LISTING CASE FOR ARGUMENT O F THE PROTHONOTARY (Must be 2010 DEC 2.7 PM 2: 34 typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: U PB N N S Y LVA CO UN T Y Please list the within matter for the next Argument Court. JASON SMITH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. DOCKET NO. 05-6328 ANASTASIUS PETER, M.D., and , HERITAGE MEDICAL GROUP, , Defendants. JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment of Defendants Anastasius Peter. M.D. and Heritage Medical Group 2. Identify counsel who will argue cases: (a) for plaintiff: Jason S. Smith, 2253 Canterbury Drive Mechanicsburg PA 17055 (Name and Address) (b) for defendant: Michael C. Mongiello Esquire Marshall D mnehev Warner Coleman & Goggm, 4200 Crums Mill Road Harrisburg PA 17112 (Counsel for Defendants, Anastasius Peter, M.D. and Susauehanna Surgeons Ltd )) (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. Certificate of Service is attached hereto. 4. Argument Court Date: Date: 121111 it) Print your name Attorneys for Defendants Anastasius Peter, M.D. and Susquehanna Surgeons, Ltd. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT has been served upon the following known counsel of record this day of 2010, via United States First-Class Mail, postage prepaid: Jason S. Smith 2253 Canterbury Drive Mechanicsburg, PA 17055 (Pro Se Plaintiff) MARSHALL, DE EHEY, WARNER, COLE f4AN c1 GO?GIN BY: 1vIII-,rIK1411 L??IC71?QIIELLO, ESQUIRE Attorney No. 7532 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3500 Attorneys for Defendants, Anastasious Peter, M.D. and Heritage Medical Group #17. JASON SMITH Plaintiff V. ANASTASIUS PETER, M.D. and HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA _ NO. 2005-6328 CIVIL TERM'''' 7 '`n IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, EBERT, JJ. ORDER OF COURT AND NOW, this 18TH day of JANUARY, 2011, the Plaintiff having failed to respond to the motion, and it appearing that he is precluded from offering expert testimony at trial, the Defendants' Motion for Summary Judgment is GRANTED. 61/ Robin J. Marzella, Esquire `Michael C. Mongiello, Esquire B ourt, i`ed Edward E. Guido, J. C? µ ?> 6 Court Administrator -in bin Buell- Trothonotoy �� —~~ the �/��n'~''~~'`~f"~n�yCum errand County, Tennsykania -~rk-._---p,_.Q Solicitor t 5 433.7,..8 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square Suite100 e CarCisfe, (P.,q (Phone 717 240-6195 Ea;{ 717 240-6573