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HomeMy WebLinkAbout06-7263r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, ??- C__ NO.. (:t v i. Plaintiffs V. DONNA L. HEILMAN, Defendant PRAECIPE FOR WRIT OF SUMMONS TO: Curtis R. Long, Prothonotary Please issue a Writ of Summons against the Defendant, Donna L. Heilman, in regard to the above-captioned action. Respectfully submitted, TIWE./EVAN. 2CHENOK & P Rarry M , Esuire Attorney or Plaintiffs SHERIFF'S RETURN - REGULAR CASE NO: 2006-07263 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE PATRICIA A ET AL VS HEILMAN DONNA L JESSICA HERMANSEN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS HEILMAN DONNA L was served upon the DEFENDANT , at 1840:00 HOURS, on the 11th day of January-, 2007 at 547 DOGWOOD DRIVE MECHANICSBURG, PA 17055-6176 by handing to DON HEILMAN, HUSBAND a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.56 Affidavit .00 Surcharge 10.00 .00 38.56 0_13'6 Sworn and Subscibed to 1100 before me this day of , So Answers: R. Thomas Kline 01/12/2007 TIGHE EVAN SCHENCK & PARAS By. A\XMNA11V___ U De Vu. y Sheriff A.D. 0 e? ,?,,, ;-°- -- ? _? p fJ'? T? T ? 1 _ r-: , '-? av ?. rr-?, ' c? ? ??r ?, ?c., A ..r', °; f't ?Mf ,? e ? E ? o??? ?.? ?- ?? ?. Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS PATRICIA A. WHITE AND EUGENE D. WHITE, HER HUSBAND Plaintiff Vs. DONNA L. HEILMAN 547 DOGWOOD DRIVE MECHANICSBURG, PA 17055-6176 Defendant Court of Common Pleas No 06-7263 CIVIL TERM In CivilAction-Law To DONNA L. HEILMAN, You are hereby notified that PATRICIA A. WHITE AND EUGENE D. WHITE, the Plaintiff(s) has / have commenced an action in Civil Action-Law against Rinst you. you which you are required to defend or a default judgment may be entered a (SEAL) Curtis R. Long, Date DECEMBER 26, 2006 Attorney: Name: HARRY M. PARRS, ESQUIRE Address: FOUR GATEWAY CENTER 444 LIBERTY AVENUE, SUITE 1300 PITTSBURGH, PA 15222 Attorney for: Plaintiff Telephone: 412-391-8100 Supreme Court ID No. 33739 Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, CIVIL DIVISION NO.: 06-7263 Civil Term Plaintiffs COMPLAINT IN CIVIL ACTION V. DONNA L. HEILMAN, Defendant To: -De s?mant YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED COMPLAI N CIVIL ACTION WITHIN TWENT),(20) DAYS OM SERVICE HEREOF OR A ,JU T MAY .411E ENTERED NST Y . Har Paras, E qui' At rney or Plai Patricia A hite and Eugene D. White, her husband Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I.D. #33739 TIGHE, EVAN, SCHENCK & PARAS Firm #629 Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service, The Allegheny County Bar Association 920 City-County Building, 414 Grant Street, Pittsburgh, PA 15219 Telephone: (412) 261-5555 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant COMPLAINT IN CIVIL ACTION AND NOW, comes the Plaintiffs, Patricia A. White and Eugene D. White, her husband, by their attorneys, Harry M. Paras, Esquire, and Tighe, Evan, Schenck & Paras, and file the following Complaint in Civil Action against the Defendant, Donna L. Heilman, whereof the following is a statement: 1. The Plaintiffs, Patricia A. White and Eugene D. White, her husband, are adult individuals residing at 5489 Meadow Drive, Hamburg, New York, 14075. 2. The Defendant, Donna L. Heilman, is an adult individual residing at 547 Dogwood Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055-6176. 3. On December 30, 2004, at approximately 2:00 p.m., the Plaintiff, Patricia A. White, was a passenger in a motor vehicle operated by her husband, Eugene D. White, when said vehicle was stopped at a red light at the intersection of Route 15 and Dickinson Road in Camp Hill, Cumberland County, Pennsylvania. 4. On December 30, 2004, the Defendant, Donna L. Heilman, was operating a 2003 Chevrolet motor vehicle on Route 15, when she failed to stop and rear-ended the White vehicle, which was stopped ahead of her vehicle, with great force and violence. 5. The Defendant, Donna L. Heilman, was negligent, careless and reckless in the operation of her motor vehicle on or about December 30, 2004 and Defendant Heilman's negligence, carelessness and recklessness was the direct and proximate cause of the accident and Plaintiff Patricia A. White's injuries and damages, which are more fully set forth herein below. 6. The Defendant, Donna L. Heilman, was negligent, careless and reckless in the operation of her motor vehicle on December 30, 2004, generally and in the following particulars: a) In striking the rear end of Eugene and Patricia White's vehicle which was stopped ahead; b) in failing to pay attention to the roadway conditions and surrounding traffic ahead of her and thereby striking the rear of the Plaintiffs' vehicle; c) In traveling too fast forthe roadway conditions then and there existing; d) In failing to bring her vehicle to a stop in enough time to avoid striking and/or impacting the rear of Plaintiff's vehicle stopped ahead; e) In failing to be attentive to roadway and traffic conditions; f) In failing to hit her brakes in enough time to bring her vehicle to a stop before striking the rear of the vehicle ahead; g) In failing to take appropriate evasive action; h) In failing to sound her horn or give other warning of an impending accident; i) In violating those provisions of the Pennsylvania Motor Vehicle Code governing the safe operation of a motor vehicle upon the roadway; j) In failing to stop for the red light ahead; and k) In otherwise failing to stop before striking the rear of the Plaintiff's vehicle ahead, as she was required by the rules of the road, Pennsylvania statutes and local ordinances. 7. As the direct and proximate result of Defendant Donna L. Heilman's negligence, carelessness and recklessness aforesaid, the Plaintiff, Patricia A. White, has suffered the following injuries, some or all of which may be permanent in nature, as follows: a) Cervical disc herniation at the level of C4-5 with posteriolateral annular fissure; b) Cervical disc herniation and/or cervical disc bulging with radiating pain down her arms; c) Cervical strains/sprain with accompanying thoracic strain/sprain; d) Exacerbation of pre-existing degenerative spondylitic changes and aggravation of underlying spinal stenosis; e) Lumbar sprain and strains; f) Exacerbation and/or aggravation of pre-existing lumbardisc herniation and/or lumbar disc bulging in the Plaintiff's lower back; g) Aggravation of pre-existing lumbar degenerative arthritic changes; and h) Other severe and serious injuries. 8. As a result of the Defendant Donna L. Heilman's negligence, carelessness and recklessness aforesaid, the Plaintiff, Patricia A. White, has suffered the following damages: a) She has been forced to incur considerable medical cost and expense in the care and treatment of her injuries and will be forced to incur considerable future medical cost and expense in the continuing care of her injuries into the future; b) She has suffered a loss of earnings and an impairment of her future earning capacity; c) Pain, suffering, inconvenience, anguish and embarrassment; d) She has suffered a diminution in the quality of her life and a loss of the ordinary pleasures of life; and e) Other general damages. 9. The Plaintiff, Patricia A. White, is entitled to recover all damages properly allowable under Pennsylvania law to the fullest extent of the law, including recovery for non-economic losses and damages, such as pain, suffering and inconvenience. 10. The Plaintiff, Eugene D. White, was and is the husband of the wife/Plaintiff, Patricia A. White. 11. As a result of the Defendant's negligence, carelessness and recklessness in causing wife/Plaintiff Patricia A. White's injuries, the husband/Plaintiff, Eugene D. White, has suffered a loss of his wife's consortium, including a loss of his wife's services, society, comfort and assistance. 12. As a result thereof, the husband/Plaintiff, Eugene D. White, is entitled to recover all damages allowance under Pennsylvania lawforthe loss of his wife's consortium caused by her injuries suffered in this accident. WHEREFORE, the Plaintiffs, Patricia A. White and Eugene D. White, her husband, claim damages against the Defendant, Donna L. Heilman, for an amount in excess of the jurisdictional limits of the Arbitration Division of the Court of Common Pleas of Cumberland County, Pennsylvania and/or for an amount in excess of $50,000.00. JURY TRIAL DEMANDED Patricia A. White and Eugene D. White VERIFICATION We, Patricia A. White and Eugene D. White, do hereby state that the contents of the foregoing Complaint in Civil Action are true and correct to the best of our knowledge, information and belief. We understand that this Verification is made pursuant to the provisions of 18 Pa.C.S.A. §4904, relating to unsworn statements to civil authorities. Date: Date: (? ? ,b <) By Patricia A. White f?' ' By Eu ene D. White ra ?? V Zra "G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, CIVIL DIVISION NO. 06-7263 V. DONNA L. HEILMAN, Defendant. PRAECIPE FOR APPEARANCE (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #15202 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and CIVIL DIVISION EUGENE D. WHITE, her husband, Plaintiffs, NO. 06-7263 V. DONNA L. HEILMAN, Defendant. (Jury Trial Demanded) PRAECIPE FOR APPEARANCE TO: THE PROTHONOTARY Kindly enter the Appearance of the undersigned, Kevin D. Rauch, Esquire, of the law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., on behalf of the Defendant, Donna L. Heilman, in the above case. JURY TRIAL DEMANDED Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL. L.L.P. By: Kevin D. Rauch, Esquire Counsel for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR APPEARANCE has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 17TH day of January, 2007. Harry M. Paras, Esquire Tighe, Evan, Schenck & Paras Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222-1223 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: < ?-? Kepin D. Rauch, Esquire Counsel for Defendant C? r-a ? t l Y f, co 0 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs V. DONNA L. HEILMAN, CIVIL DIVISION NO.: 06-7263 Civil Term NOTICE OF SERVICE OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS DIRECTED TO THE PLAINTIFF Defendant JURY TRIAL DEMANDED Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I.D. #33739 TIGHE, EVAN, SCHENCK & PARAS Firm #629 Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant NOTICE OF SERVICE OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS DIRECTED TO THE PLAINTIFF TO: CURTIS R. LONG, PROTHONOTARY: Notice is hereby given that on the 19th day of January, 2007, Interrogatories and Requests for Production of Documents Directed to the Plaintiffs were served on counsel by first class U.S. mail, postage pre-paid. Attorney for Plaintiffs, Patricia A. White and Eugene D. White, herhusband r . 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Service of Interrogatories and Requests for Production of Documents Directed to the Plaintiff was served on the below listed person via first class mail, postage prepaid on this 19th day of January, 2007: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 1017 Mumma Road Lemoyne, PA 17043 TIGHE, EVAN, SCH5NCK & PARAS: Harry P 6aV`gsduire Attorne r Plaintiff , Patricia A. White and Eugene D. White, herhusband ?? ?? t-: „ t l?t ?-- Jr'>s ?l .. w-' ? ?,.,. C`? '? Z ; t,? -?:. ; --?^, '?°. ' ` 1 ?Y? ?. r3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, CIVIL DIVISION NO. 06-7263 V. DONNA L. HEILMAN, Defendant. TO: Plaintiffs You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereg or a jjud-gment Su'mers, McDonnell, Hudock, Guthrie & Skeel, L.L.P. ANSWER AND NEW MATTER (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #15202 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and CIVIL DIVISION EUGENE D. WHITE, her husband, Plaintiffs, NO. 06-7263 V. (Jury Trial Demanded) DONNA L. HEILMAN, Defendant. ANSWER AND NEW MATTER AND NOW, comes the Defendant, Donna L. Heilman, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, L.L.P., and Kevin D. Rauch, Esquire, and files the following Answer and New Matter and in support thereof avers as follows: 1. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that the collision occurred on the date and place identified. It is denied that the accident occurred at 2:00 p.m. to the contrary, it is believed and hereby averred that the accident occurred at 12:10 p.m. The remainder of the allegations in paragraph 4 are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 4. Admitted in part, denied in part. It is admitted that a collision occurred between the vehicles identified. The remainder of the allegations in paragraph 4 are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 5. Admitted in part, denied in part. It is admitted that the Defendant, Donna L. Heilman, was negligent in the operation of her motor vehicle on the date, time, and place of the subject accident. The remainder of the allegations in paragraph 5 state legal conclusions to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 6. Paragraph 6 and all of its subparts state a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 7. Paragraph 7 and all of its subparts state a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 8. Paragraph 8 and all of its subparts state a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 9. Paragraph 9 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 10. After reasonable investigation, the Defendant has insufficient information as to the truth or falsity of said averments, therefore said averments are denied and strict proof thereof is demanded at the time of trial. 11. Paragraph 11 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. 12. Paragraph 12 states a legal conclusion to which no response is required. To the extent, however, that a response is deemed necessary, said averments are denied generally pursuant to Pa.R.C.P. 1029(d) and (e). Strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant, Donna L. Heilman, respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiffs with costs and prejudice imposed. NEW MATTER 13. The motor vehicle accident in controversy is subject to the Pennsylvania Motor Vehicle Financial Responsibility Law and this Defendant asserts, as affirmative defenses, all rights, privileges and/or immunities accruing pursuant to said statute. 14. Some and/or all of Plaintiffs' claims for damages are items of economic detriment which are or could be compensable pursuant to either the Pennsylvania Motor Vehicle Financial Responsibility Law and/or other collateral sources and same may not be duplicated in the present lawsuit. 15. To the extent that the Plaintiffs have selected the limited tort option or are deemed to have selected the limited tort option then this Defendant sets forth the relevant provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law as a bar to the Plaintiffs' ability to recover non-economic damages. 16. This Defendant pleads any and all applicable statutes of limitation under Pennsylvania Law as a complete or partial bar to any recovery by Plaintiffs in this action. WHEREFORE, Defendant, Donna L. Heilman, respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiffs with costs and prejudice imposed. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL. kt. .P. By: Kevin D. Rauc , Esquire Counsel for Defendant VERIFICATION Defendant verifies that she is the Defendant in the foregoing action; that the foregoing ANSWER AND NEW MATTER is based upon information which she has fumished to her counsel and information which has been gathered by her counsel in the preparation of the lawsuit. The language of the ANSWER AND NEW MATTER is that of counsel and not of the Defendant. Defendant has read the ANSWER AND NEW MATTER and to the extent that the ANSWER AND NEW MATTER is based upon information which she has given to her counsel, it is true and correct to the best of her knowledge, information and belief. To the extent that the content of the ANSWER AND NEW MATTER is that of counsel, she has relied upon counsel in making this Affidavit. Defendant understands that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: / ' 4" ?/ ?? Donna L. Heilman #15202 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER AND NEW MATTER has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this ?? day of 2007. Harry M. Paras, Esquire Tighe, Evan, Schenck & Paras Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222-1223 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL L.L-,,P. By: K?vin`Pl RNuch, Esquire Counsel for Defendant r> ?? C:? ?- __ ;-? ? -r? ' ?--• ? _r_ am -, . ? r« -r -.. ?,r , r ? w -r-, r7-; -, f -? _ ...y ?.y., ^+r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D WHITE, her husband, v. Plaintiffs DONNA L. HEILMAN, Defendant JURY TRIAL DEMANDED CIVIL DIVISION NO.: 06-7263 Civil Term PLAINTIFFS' REPLY TO NEW MATTER Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I. D. #33739 TIGHE, EVAN, SCHENCK & PARAS Firm #629 Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant PLAINTIFFS' REPLY TO NEW MATTER AND NOW, comes the Plaintiffs, Patricia A. White and Eugene D. White, her husband, by their attorneys, Harry M. Paras, Esquire, and Tighe, Evan, Schenck & Paras, and file the following Reply to the New Matter set forth in the Answer and New Matter of Defendant, Donna L. Heilman, whereof the following is a statement: 1. It is admitted that the motor vehicle accident in controversy is subject to the Pennsylvania Motor Vehicle Financial Responsibility Law. As to any affirmative defenses, rights, privileges and/or immunities that Defendant may have accruing pursuant to said statute are denied as conclusions of law and strict proof thereof demanded. 2. The averments set forth in Paragraph 14 of Defendant's New Matter are denied as conclusions of law and strict proof thereof demanded. 3. The averments set forth in Paragraph 15 of Defendant's New Matter are denied as conclusions of law and strict proof thereof demanded. By way of further reply, pursuant to the applicable law, the Plaintiff is deemed to have selected the full tort option 2 under the applicable motor vehicle liability policy. The Plaintiff's cause of action is subject to and governed by the full tort option. 4. The averments set forth in Paragraph 16 of Defendant's New Matter are denied as conclusions of law and strict proof thereof demanded. By way of further reply, this suit was timely filed and initiated within the applicable statute of limitations. WHEREFORE, the Plaintiffs demand judgment in their favor. TIGHE, Attorney foN aintiffs, 1 Patricia A. White and Eugene D herhusband 3 White, Respectfully Submitted, VERIFICATION We, Patricia A. White and Eugene D. White, do hereby state that the contents of the foregoing Reply to New Matter are true and correct to the best of our knowledge, information and belief. We understand that this Verification is made pursuant to the provisions of 18 Pa.C.S.A. §4904, relating to unsworn statements to civil authorities. Date: Date: By( Patricia A. White By. Eug a D. White CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs' Reply to New Matter was served on the below listed persons via first class mail, postage prepaid on this ??day of - 4 _ , 2007: Kevin D. Rauch, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 1017 Mumma Road Lemoyne, PA 17043 TIPHE, EVAN, SCWNCK & PARAS: Y:. Harry M rIA,7Estuire Attorney r Plaintiffs, Patricia A. White and Eugene D. White, her husband n ra ? Q Si1 J N r t"i"t _"z s .. ?...E ' fly G, 14 P, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs V. CIVIL DIVISION NO.: 06-7263 Civil Term NOTICE OF DEPOSITION OF DONNA L. HEILMAN DONNA L. HEILMAN, Defendant JURY TRIAL DEMANDED Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I.D. #33739 TIGHE, EVAN, SCHENCK & PARAS Firm #629 Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) +? ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, Plaintiffs NO.: 06-7263 Civil Term V. DONNA L. HEILMAN, Defendant NOTICE OF DEPOSITION OF DONNA L. HEILMAN TO: Donna L. Heilman c/o Paul Murphy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 1017 Mumma Road Lemoyne, PA 17043 PLEASE TAKE NOTICE that the deposition of Donna L. Heilman has been scheduled for Monday, August 20, 2007 at 1:00 p.m, and will continue thereafter until said deposition is completed. The deposition will be taken upon oral examination before a Notary Public and recorded by stenographic means. The deposition will be held in the offices of Summers, McDonnell, Hudock, Guthrie & Skeel, LLP, 1017 Mumma Road, Lemoyne, PA 17043 Patricia A. White and Eugene D. White 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Deposition of Donna L. Heilman was served on the below listed persons via first class mail, postage prepaid on this day of July, 2007: Paul Murphy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 1017 Mumma Road Lemoyne, PA 17043 IGHE, EVAN, SCHE K & PARAS: Harry . P ra q ire Attorney for Plaintiffs n C_ ?, __.?. ? ?? ? rn ' ; _rs r • ; ? ?? Y ? '?"1 t. ?°' (? _ •0.. t -.-1 ? .3-?' -' w G? a ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs v. CIVIL DIVISION NO.: 06-7263 Civil Term MOTION TO SCHEDULE STATUS CONFERENCE DONNA L. HEILMAN, Defendant JURY TRIAL DEMANDED Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I.D. #33739 TIGHE, EVAN, SCHENCK & PARAS Firm #629 Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, CIVIL DIVISION NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant MOTION TO SCHEDULE STATUS CONFERENCE AND NOW come the Plaintiffs, Patricia A. White and Eugene D. White, her husband, by their attorneys, Harry M. Paras, Esquire, and Tighe, Evan, Schenck & Paras, and file the following Motion to Schedule Status Conference, whereof the following is a statement: 1. This is a civil action for personal injury sustained by the Plaintiff, Patricia A. White, resulting from a motor vehicle accident occurring on December 30, 2004, when the vehicle in which she was a passenger was rear-ended by the Defendant, Donna L. Heilman. 2. This action was initiated by a Praecipe for Writ of Summons filed in the Court of Common Pleas of Cumberland County, Pennsylvania, on December 26, 2006. 3. A Complaint in Civil Action was subsequently filed in January, 2007; defense counsel appeared on behalf of the Defendant; and the parties have engaged in mutual discovery, including the exchange of Interrogatories and Requests for Production of Documents as well as the depositions of the parties to this action. 2 4. The undersigned counsel, Harry M. Paras, Esquire, is the individual attorney responsible for this case and will be trial counsel. 5. No Judge has ruled upon any other issue in this action to date. 6. Counsel for the Defendant has indicated that the Defendant's insurance carrier, State Farm Insurance Company, desires to have the Plaintiff undergo a defense medical examination; Plaintiff's counsel has no objection to the same. 7. Plaintiffs' counsel is desirous of meeting with the Court by way of a status conference to determine appropriate time lines for completion of discovery; filing of pretrial statements; and scheduling of this case for trial. 8. The undersigned Plaintiffs' counsel has conferred with counsel for the Defendant, John A. Lucy, Esquire, and counsel agreed that a status conference would be necessary and appropriate at this time. WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an Order scheduling a status conference at the Court's convenience and availability. GFj, EyA", CH ryarryvr-aras &s uire Attorney for Plaintiffs, Patricia A. White and Eugene D. White 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion to Schedule Status Conference was served on the below listed persons via first class mail, postage prepaid on this rj''?/Iday of April, 2008: John A. Lucy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 1017 Mumma Road Lemoyne, PA 17043 HE, EVAN, SCHENCK & PARAS: Harry aras, Attorne or Plai 4 C? C7 ? I- c7 -n . r? rTl 1 un 3 APR 2008 'oy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, Plaintiffs V. DONNA L. HEILMAN, Defendant NO.: 06-7263 Civil Term ORDER OF COURT AND NOW, to-wit, this ?- day of April, 2008, the Court hereby schedules a Status Conference on M r ??a /rf 0 b1? 2008 at 1-50 a Vpm. before the Honorable Judge G"I in Courtroom No. / . At the status conference, trial counsel shall appear and be prepared to discuss scheduling deadlines for the completion of discovery, filing of pretrial submission statements; and the scheduling of this action for trial. BY TH J. 5 wj::? 7 , 0 I V: U/ S-3140 -13 g l/h t t PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs V. DONNA L. HEILMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7263 CIVIL TERM IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 19th day of May, 2008, after a status conference with counsel, it is hereby ordered and directed as follows: 1. The parties shall list this case to be tried during the November trial term. 2. Counsel are deemed attached to this Court for the week of November 17, 2008. 3. Defense counsel shall notify Plaintiffs' counsel within 10 days of today's date as to the time and place of any independent medical examination Defendant wishes to schedule. By the Court, "'Harry M. Paras, Esquire /For the Plaintiffs ? Kevin D. Rauch, Esquire For the Defendant Court Administrator i'a-i- ckt , t srs 1 - -ICL w 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, V. DONNA L. HEILMAN, Defendant. CIVIL DIVISION NO. 06-7263 NOTICE OF INTENT TO SEEK SANCTIONS (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, L.L.P. Firm #911 1017 Mumma Road, Suite 300 Lemoyne, PA 17043 (717) 901-5916 #15202 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and CIVIL DIVISION EUGENE D. WHITE, her husband, Plaintiffs, NO. 06-7263 V. (Jury Trial Demanded) DONNA L. HEILMAN, Defendant. NOTICE OF INTENT TO SEEK SANCTIONS PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 4019(4)(a)(2)(b) To: Harry M. Paras, Esquire Kevin Rauch, Esquire, intends to file a Motion for Sanctions pursuant to Pa.R.C.P. 4019 if full and complete discovery responses are not received within thirty (30) days. If the same is received within said thirty-day notice period, no Motion for Sanctions shall be filed. The sanctions sought shall include compelling discovery and any other sanctions the court finds reasonable. The Sanctions Hearing Order will require the presence of both the defaulting party and their counsel at said hearing, unless counsel for the defaulting party accepts full responsibility for the default, in writing, file within five calendar days of receipt of the motion. 1 By. Kevi D. Rauch, Esquire Counsel for Defendant, Donna L. Heilman DATE: ?? i Z ?' CERTIFICATE OF SERVICE I hereby certify that the Notice of Intent to Seek Sanctions Directed to Plaintiffs was served on the following counsel by first class mail on this 10th day of October, 2008. Harry M. Paras, Esquire Tighe, Evan, Schenck & Paras Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222-1223 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, L.L.P. By: Kevin D. Rauch, Esquire Counsel for Defendant t7 ?.? ?v ° tiJ ,? _o c? ? w`' `. m ,`? .? ? *? 1 ; ?- ? , '"? c? ?? c..; ..s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D WHITE, her husband, CIVIL DIVISION NO.: 06-7263 Civil Term Defendant PETITION TO SCHEDULE STATUS CONFERENCE Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I. D. #33739 One Gateway Center 420 Ft. Duquesne Blvd., Suite 1325 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) V. Plaintiffs DONNA L. HEILMAN, JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant PETITION TO SCHEDULE STATUS CONFERENCE AND NOW come the Plaintiffs, Patricia A. White and Eugene D. White, her husband, by their attorney, Harry M. Paras, Esquire, and file the following Petition to Schedule Status Conference, whereof the following is a statement: 1. This is a civil action for personal injury sustained by the Plaintiff, Patricia A. White, resulting from a motor vehicle accident occurring on December 30, 2004, when the vehicle in which Plaintiff, Patricia White was a passenger was rear-ended by the Defendant, Donna L. Heilman. 2. This action was initiated by a Praecipe for Writ of Summons filed in the Court of Common Pleas of Cumberland County, Pennsylvania, on December 26, 2006. 3. A Complaint in Civil Action was subsequently filed in January, 2007; defense counsel appeared on behalf of the Defendant; and the parties have engaged in mutual discovery, including the exchange of Interrogatories and Requests for Production of Documents, as well as the depositions of the parties to this action. 2 4. The undersigned counsel, Harry M. Paras, Esquire, is the individual attorney responsible for this case and will be trial counsel. 5. A status conference was held before the Honorable Judge Guido on May 19, 2008. 6. At that status conference, counsel for the Defendant, John A. Lucy, Esquire, indicated that the Defendant's insurance carrier desired to have the Plaintiff examined by a physician of its own choosing; Plaintiffs' counsel obviously had no objection to the same. 7. Subsequent to the status conference, the Plaintiff, Patricia White, was examined by a Dr. Walter C. Peppelman on October 9, 2008 and his narrative report was provided to the undersigned counsel by fax on December 31, 2008. 8. Thereafter, Dr. Peppelman issued an addendum to his defense medical report, which was received by the undersigned counsel on February 9, 2009. 9. At this time, all discovery appears to be completed and the Defendant's insurance carrier, State Farm Insurance Company, has conducted and received the report of a medical examination by a physician of its own choosing, Dr. Walter Peppelman. 10. As this Honorable Court may know, the Plaintiffs, Patricia and Eugene White, reside in the Buffalo, New York area and this accident occurred while they were passing through Pennsylvania en route to the Washington, D.C. area; as such, Plaintiff Patricia White's treating physicians are all located in the greater Buffalo, New York area. 11. Plaintiffs' counsel is located in Pittsburgh, Pennsylvania, and, of course, defense counsel is located in Harrisburg, Pennsylvania. 3 12. Plaintiffs' counsel will presumably have to travel to the Buffalo, New York area in order to secure the videotape depositions of Plaintiff's treating physicians for use at trial. 13. Given travel and weather conditions in the area, after conferring, Plaintiffs' counsel and defense counsel would prefer, with the Court's approval, to list this case for trial during the April 26, 2010 trial session. 14. The undersigned counsel requests a status conference with this Honorable Court in order to discuss with the Court giving this case a priority listing for the April 26, 2010 trial list, in consideration of the issues raised above. 15. By April 26, 2010, both Plaintiffs' counsel and defense counsel agreethatthe case will be ready for trial and will be ready to proceed with trial on April 26, 2010. 16. WHEREFORE, for all of the above reasons, the undersigned counsel respectfully petitions this Honorable Court to conduct a status conference, either in-person or by telephone, whichever suits the Court's convenience, to discuss the scheduling of this case for trial. 4 Patricia A. White and Eugene D. White CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petition to Schedule Status Conference was served on the below listed persons via first class mail, postage prepaid on this 23rd day of November, 2009: John A. Lucy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17050 2009 NOV 20 F1 L r B `1 V1 i L r,i `tf!A 10 DEC 0 2 2009 (n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs v. DONNA L. HEILMAN, Defendant ORDER OF COURT (1 -4 AND NOW, to-wit, this 3 day of Newearber, 2009, the Court hereby schedules a Status Conference on 40T 3 , d at 100 am4#k before the Honorable Judge CS in Courtroom No. , 5 . At the status conference, trial counsel shall be prepared to discuss scheduling of this action, including the filing of pretrial submission statements and the scheduling of this case for trial. BY J. FILE-ID' 20010E -3 l 3: 0 cull ref Jr.. l?13 f of - /? (,.:o DES ??? PATRICIA A. WHITE and IN THE COURT OF COMMON PLEAS OF EUGENE D. WHITE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. c_. DONNA L. HEILMAN, NO. 2006 - 7263 CIVIL TERM -' Defendant Z`- ORDER OF COURT AND NOW, this 15TH day of JANUARY, 2010, after conference with counsel we enter the following order: 1.) This case shall be tried during the APRIL 2010 term. 2.) Plaintiffs' counsel shall list the case for said trial term within two (2) weeks of today's date. 3.) Both counsel are attached to this Court for the trial term commencing APRIL 26, 2010. 4.) No continuance will be granted absent an unforeseen emergency. I ? H M. Paras, Esquire an'Y One Gateway Center 420 Ft. Duquesne Blvd., 13TH Floor North ?Jo ittsburgh, Pa. 15222-1435 A. Lucy, Esquire 100 Sterling Parkway, Suite 306 Mechanicsburg, Pa. 17050 t E.? rYt? t C£C? BJc=the Courty J / Edward E. Guido, J. PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. ------------------------------------------------------------------------------------------• CAPTION OF CASE (entire caption must be stated in full) PATRICIA WHITE AND EUGENE WHITE, her husband r. 1 201 A0 lei' G 0 (check one) ? Civil Action - Law ? Appeal from arbitration (other) (Plaintiff) vs. DONNA HEILMAN (Defendant) VS. The trial list will be called on March 30, 2010 and Trials commence on April 26, 2010 Pretrials will be held on April 7, 2010 (Briefs are due S days before pretrials No. O L. - 72!.3 Term Indicate the attorney who will try case for the party who files this praecipe: Harry M. Paras, Esquire Indicate trial counsel for other parties if known: John Lucy, Esquire This case is ready for trial. Date: January 14, 2010 Print Name: Harry M. Paras, Attorney for: Plaintiffs 41 as.o t?cL 44 e?? JU, ?-'2310,41s3 (2R- 11- `F PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs V. DONNA L. HEILMAN, Defendant #4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7263 CIVIL TERM JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Wednesday, April 7, 2010, before the Honorable Edward E. Guido, Judge. Present for the Plaintiffs was Harry M. Paras, Esquire. Present for the Defendant was John A. Lucy, Esquire. The Defendant has admitted negligence. The only issue is the nature and extent of the injuries, as well as the amount of damages. Neither party has any scheduling conflicts. They estimate the case will take two days to try. Since both the Plaintiffs' counsel and the Plaintiffs are from out of town, they would appreciate leading off on Monday, April 26th, or, in the alternative, having a date certain for the commencement of trial. There are no complicated legal issues. Settlement is unlikely. .., ?' r-r By the Court, i Edward E. Guido, J. Harry M. Paras, Esquire Attorney for Plaintiffs Prothonotary Court Administrator John A. Lucy, Esquire Attorney for Defendants srs ti IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, CIVIL ACTION NO.: 06-7263 Civil Term Plaintiff, VS. DONNA L. HEILMAN, Defendant. NOTICE TO ATTEND TO: Donna L. Heilman c/o John A. Lucy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 Ln You are directed to come to the Courtroom of the Honorable Edward E. Guido, 1 Courthouse Square, Carlisle, PA, 17013, on Monday, April 26, 2010 at 9:00 a.m., to testify on behalf of Plaintiffs, in the above case, and to remain until excused. If you fail to attend as required by this Notice to Attend, you may be subject to the sanctions authorized by Rule 234.5 of the Perfnsylvania Rule56f Civil Procedure., Esquire Date: Harry r sq ire Attorn for Plaintiffs I CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice to Attend was served on the below listed persons via first class mail, postage prepaid on this 12th day of April , 2010: John A. Lucy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17050 28t0 APR 22 PH 4: 1 t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, CIVIL DIVISION NO. 06-7263 V. DONNA L. HEILMAN, Defendant. MOTION IN LIMINE AND OBJECTION TO EXPERT TESTIMONY (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #15202 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, V. DONNA L. HEILMAN, Defendant. CIVIL DIVISION NO. 06-7263 (Jury Trial Demanded) MOTION IN LIMINE AND OBJECTION TO EXPERT TESTIMONY AND NOW, comes the Defendant, Donna L. Heilman, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and John A. Lucy, Esquire, and files the following Motion in Limine precluding certain testimony of Dr. Loubert Suddaby, and avers as follows: 1. This two vehicle accident occurred on December 30, 2004 at approximately at 12:15 p.m. on Route 15 at the intersection of Dickinson Street, Camp Hill, Cumberland County, Pennsylvania. 2. As a part of her case in chief, the Plaintiff took the videotape deposition for use at trial of Loubert Suddaby, M.D. (hereinafter "Dr. Suddaby") on April 17, 2010. 3. Prior to this videotape deposition, the Plaintiff properly submitted a Pretrial Memorandum with the expert report of Dr. Suddaby attached thereto. (See expert report of Dr. Suddaby attached hereto as Exhibit "A"). 4. In Dr. Suddaby's report, he states that "at present her cervical spine issues have stabilized, and, therefore, she his approaching or has approached her pre- accident status in this regard." (see Exhibit "A"). 5. Dr. Suddaby goes on to note that the Plaintiff may need additional future medical treatment (See Exhibit "A"). 6. At no time does Dr. Suddaby indicate that the Plaintiff would be surgical candidate in regards to her injuries from the subject accident or from her underlying pre- existing degenerative changes. 7. During the course of Dr. Suddaby's deposition, testimony was elicited that the Plaintiff may be at risk for a possible future surgery. (See deposition transcript of Dr. Suddaby at pages 37-38, lines 21-23 and 1-2, respectively attached as Exibit "B") 8. This testimony is speculative, and outside the permissible scope and limits of testimony under Rule 4003.5 (c). 9. Direct testimony of an expert at trial may not be inconsistent with, or go beyond, the fair scope of his report. (Pa.R.C.P. 4003.5) (c). 10. The question of whether the permissible limits of testimony under Rule 4003.5 (c) would be violated as to be determined on a case by case basis with the essence of the inquiry being fair. (Schweikert v. St. Luke's Hospital, 886 A.2d 265 (Pa. Super Ct. 2005). 11. Fairness is evaluated by whether the opposing party has sufficient notice of the expert's opinion to fashion a meaningful defense. Burton - Lister v. Siegel, 798 A.2d 231 (Pa. Super. Ct. 2002). 12. In this matter, there is no indication, in Dr. Suddaby's report, that the Plaintiff would be a candidate for any surgical intervention as a result from this accident. 13. In fact, Dr. Suddaby indicates that the Plaintiff had reached her pre- accident status in regards to her cervical spine issues. (See Exhibit "A") 16. Accordingly, the Defendant respectfully requests that this court enter an Order granting the Motion in Limine precluding Loubert Suddaby, M.D., in regards to the Plaintiff being a "surgical candidate at the of trial. WHEREFORE, Defendant, Donna L. Heilman respectfully requests this Honorable Court enter an Order precluding the Plaintiff from introducing the testimony of Loubert Suddaby, at trial. Respectfully submitted, SUMMERS) ONNELL, HUDOCK, GUTH & SK EL, P.C. Lucy, Esquire for Defendant i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, V. CIVIL DIVISION NO. 06-7263 DONNA L. HEILMAN, Defendant. (Jury Trial Demanded) ORDER It is hereby ORDERED, ADJUDGED, and DECREED, that Dr. Suddaby testimony at pages 37-38 at lines 21-23 and 1-10, respectively are hereby stricken. This testimony shall be redacted prior to presentation to the jury. BY THE COURT: Distribution List: John A. Lucy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 Harry M. Paras, Esquire Tighe, Evan, Schenck & Paras Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222-1223 J. Loubert S. Suddaby, M.D. FRCS C FACS Neurological Surgery 3775 Southwestern Boulevard Orchard Park, NY 14127 Phone (716) 667-1980 Fax (716) 667-1982 December 2, 2009 Harry Paras Attorney At Law One Gateway Center 420 Ft. Duquesne Blvd. 13`h Fl. North Pittsburg, Pennsylvania, 15222-1435 RE: Patricia White DOB: 06/29/1947 DOA: 12/30/2004 Dear Mr. Paras: Patricia White was initially seen in my office in regards to a motor vehicle accident on March 1, 2005, at the request of Dr. Shenoy. On that date she gave a history of having been involved in a motor vehicle accident that occurred on or about December 30, 2004. She said she was the seat belted passenger in a Volvo that was stopped at a red light when it was rear-ended by another vehicle. She was thrown forward and was restricted by her seat belt. She suffered no loss of consciousness and was able to exit the vehicle under her own power. She went home with her husband following the accident and the next day began noticing pain in her neck, as well as in the region of her left shoulder blade. She also noted pain in both arms. She had no specific numbness or weakness, or troubles with bowel or bladder control. Following the accident she was treated with chiropractic care, but in spite of this treatment her symptoms persisted and a neurosurgical consultation was requested. Her past medical history was significant for a breast lumpectomy, a thyroidectomy, and she had previously seen me in regards to problems relating to lumbar spinal stenosis. She had no complaints of significant neck problems prior to her motor vehicle accident. Her examination was noted for moderate restriction in her cervical spine ROM, but her neurological examination was WNL. An MRI scan of her cervical spine showed that she had a moderate degree of spinal stenosis at C5-6 with some foraminal narrowing. It was my impression that she had sustained injury to the soft tissue structures in her neck, as a consequence of the motor vehicle accident that she was involved in. I recommended continued chiropractic care and pain management. I also recommended a cervical discogram to assess the integrity of her cervical discs. April 26, 2005: She was seen in my office in regards to the injuries sustained in her accident. On this date she complained of pain in her neck radiating into her shoulders. She did have a discogram which showed the recreation of her pain at the C4-C5 and C5-C6 levels. She had a pressure feeling only at C6-7, although a tear was noted in this disc as well. Her post discogram/CT scan showed a small, left paracentral disc protrusion at C4-5 with a right posterolateral annular fissure. At C5-6 she had diffuse posterior osteophytes, most prominent on the right with some mild to moderate foraminal stenosis bilaterally, Pg 2 RE: Patricia White 12/02/2009 Moderate central stenosis was seen at C5-6. At C6-7 there was a small, right, paracentral annular fissure with no evidence of a definite disc herniation. She continued chiropractic care at that juncture, but remained symptomatic. Her physical examination was notable for persistent decrease in ROM of her cervical spine, limited because of pain. I recommended that she continue conservative management with Dr. Dragonette for chiropractic care and Dr. Bagnall for pain management. May 26, 2005: She was again seen in my office at which point she continued to have neck pain in spite of chiropractic care and pain management. A cervical epidural nerve block was pending at that time, and I recommended that if this additional conservative treatment measure failed that surgical intervention should be considered. Her physical examination was notable for persistent restriction in her ROM at a moderate degree. She remained neurologically intact. EMG/NCS were done and this did not show any evidence of a cervical radicular syndrome. I felt that her persistent pain related to the damage to the soft tissue structures in her neck, mainly the tears in the discs and the herniations, as indicated by her discography. June 23, 2005: She was again seen in my office and continued to undergo chiropractic care with some improvement in neck stiffness, as well as in her pain. She described some numbness in the fingers of her hands, as well as a burning pain across her shoulders and intermittent pain down her left arm. Her physical exam was noted for mild restriction in her cervical spine ROM, consistent with some improvement in her ROM, as she had described. She remained neurologically intact. At that juncture because of the slight improvement that was noted, she was advised to continue with conservative measures. November 26,2005: She was again seen in my office at which point she noted further improvement in her cervical spine pain. On this visit she was more concerned with back pain radiating into her left leg. Her physical examination was noted for some mild restriction in her cervical and lumbar spine ROM, but she was neurologically intact. I recommended that she have an updated MRI scan of her lumbar spine to assess pain issues in that region. She underwent subsequent nerve blocks in the lumbar spine on December 13, 2005 and on March 9, 2006, as well as on July 13, 2006. January 4, 2007: She was again seen in my office at which point she was not complaining significantly of neck pain, but was complaining of ongoing low back pain with pain radiating into her legs, with the left leg being worse than the right. She did not have any numbness but continued to take Darvocet, which she felt was not helping her pain. She was seeing Dr. Avellanosa for pain management and he prescribed a lumbar brace for her which she felt was helping. Her physical exam was notable for moderate restriction in her lumbar spine ROM with no evidence of neurological problems. A follow-up epidural nerve block was recommended, as well as Motrin 800 mg, 3x a day. January 9, 2007: She underwent a repeat epidural nerve block. February 27, 2007: At which point she did not get much benefit with the epidural nerve block, and continued to have pain in her back radiating mainly into her left leg. Her physical examination was notable for some mild restriction in her lumbar spine ROM and she remained neurologically intact. An updated MRI scan of her lumbar spine was recommended, as well as continued chiropractic care. August 22, 2007: She was seen in my office at which point the MRI had been repeated, and this showed evidence of facet arthritis at L4-5 with degenerative disc changes at L3-4, L4-5 and LS-Sl. I felt that her ongoing back pain related to a combination of degenerative disc disease, as well as facet arthritis. Her physical exam was noted for mild to moderate restriction in her himbar spine ROM, but she remained neurologically intact. I recommended a repeat epidural nerve block with a higher dose of cortisone and continued use of Motrin for control of her pain. Pg 3 RE: Patricia White 12/02/2009 September 6,2007: She underwent a repeat epidural nerve block without any difficulty. February 21,2008: She was again seen in my office at which point she continued to have ongoing low back pain with a feeling of weakness from time to time. She had occasional left leg pain which she described as a heavy sensation. She did not have any numbness or weakness. She was taking Motrin regularly, as well as Flexeril for muscle spasms. She noted that the epidural nerve that she had in September of 2007, really did not help her for a long period of time. Her physical exam was notable for moderate restriction in her lumbar spine ROM, but she remained neurologically intact. I recommended that she return to her chiropractor and that she continue with the Flexeril for muscle relaxation. She was also given a script for Darvocet for pain control. September 8,2008: She was again seen in my office at which point some cervical trigger point injections were administered. She tolerated this without difficulty. October of 2008: Repeat trigger point injections were administered to her cervical spine. She tolerated this without difficulty. November 18,2008: A repeat lumbar epidural nerve block was carried out. She tolerated this without difficulty. December 16,2008: She was again seen in my office at which point she had noted improvement with her epidural nerve block. Her examination was notable for some mild restriction in the lumbar ROM, but her neurological examination continued to remain normal. I recommended that she go as long as she could and when her symptoms warranted she would call me and I would repeat her epidural nerve block. June 18, 2009: She was again seen in my office at which point she noted continued improvement with chiropractic care and her epidural nerve block. Her physical examination showed mild to moderate restriction in her lumbar spine ROM, but she again remained neurologically intact. She continued to complain of some numbness in her leg, and an updated MRI scan, as well as repeat EMG/NCS were recommended. It was also recommended that she continue with chiropractic care. July 13, 2009: An updated MRI scan was preformed and this showed some mild disc bulging and desiccation at several levels in her lumbar spine, but no stenosis or cord compression could be delineated. Some neural foraminal narrowing was noted, but the nerves did not appear to be compressed. There was some lateral recess narrowing at L5-S 1, greater on the right than the left, with some impingement on the S I nerve roots. November 19,2009: She was last seen in my office and had another epidural nerve block with benefit. It was apparent that she seemed to have pain relief for about 3 months with the epidural nerve block and these needed to be repeated. Her examination was notable for moderate restriction in her lumbar spine ROM and she had some diminution of the right ankle reflex, but her neurological examination was otherwise "L. I recommended that she continue with the Motrin on regular basis, and that she continue the epidurals on 3 month intervals to keep comfortable. In summary, this lady appears to have sustained injuries to the soft tissues in her neck, as evidenced by her discogram. It is my belief that she sustained tears and disc herniations as the cause of this motor vehicle accident, however, it is also apparent that some pre-existing degenerative changes were present by way of some spondylitic change. In her lumbar spine, I feel that the problems she had there are largely an aggravation of a pre-existing lumbar condition. She did not complain significantly of lumbar pain immediately after the accident and, therefore, I feel the bulk of the issues relating to her lumbar spine are degenerative in nature and not directly related to the accident. Pg 4 RE: Patricia White 12/02/2009 At present her cervical spine issues have stabilized and, therefore, she is approaching or has approached her pre-accident status in this regard. Certainly, with a disc herniation one cannot completely exclude the possibility of this worsening over time. Her lumbar condition continues to be symptomatic and is in need of treatment by way of chiropractic care and epidural nerve blocks about 4 times a year. Again, she did have significant pre-existing problems in her lumbar spine and, therefore, it is difficult for me to attribute any of the treatments she is presently getting to her motor vehicle accident in a substantial fashion. I think the bulk of the injuries that she sustained from the accident relate to her cervical spine by way of the disc tears and herniations that were noted, and the accident did not cause the cervical stenosis or spondylosis that is noted. At present her cervical situation is quiescent and she is not getting any direct treatment from me in this regard. I hope this information is useful for your purposes. I am a duly licensed physician in the State of New York and affirm the contents of this report to be true under penalties of perjury. Sincerely, F ?` Loubert ?: -/daby, M.D. LSS/cfo L. SUDDABY, MD -- H. 37 PARRS -- 04/17/2010 1 Q. Can this condition of the annulus fissures, 2 can it worsen over time? 3 A. Yes, it can. 4 Q. And how does that happen? 5 A. How it happens is that the scar tissue is 6 never as strong as normal tissue, so it 7 provides a weakness and remember, the discs 8 are subjected to stresses and strains of day- 9 to-day living and in essence, every time you 10 jump or step down off a curb, there's a 11 certain jarring force that comes up your spin 12 and that force has to be dissipated and the 13 annulus does that by doing this kind of an 14 effect. 15 So, that tear is always subject. So, it's 16 like sewing up a tear on a cushion, if you 17 will. It still provides an area of weakness 18 that may open up at some point in the future. 19 Now, it may not, but it is still an area of 20 certain. 21 Q. Based upon the injuries that Pat White 22 suffered in the incident, is she at a future 23 increased risk of having neck surgery? 38 L. SUDDABY, MD -- H. PARAS -- 04/17/2010 1 A. I would say, yes. 2 Q. And why is that? 3 A. For the reasons that we've just elucidated, 4 that the scar tissue is not normal and it does 5 provide an area where the disc can rip and a 6 piece of disc material can protrude and 7 impinge on a nerve causing neurologic 8 dysfunction requiring surgery and in most 9 cases if they do rip, they will rip along the 10 lines of the previous annular fissure. 11 MR. LUCY: Can we go off camera for just 12 one moment? 13 VIDEOGRAPHER: Going off the record now. 14 The time is at approximately nine minutes 15 after 10. 16 MR. LUCY: I didn't want to interrupt the 17 Doctor. I usually make my objections off 18 camera, but I'll make objection to the extent 19 of any testimony for future surgery. It's my 20 understanding it's not in the report. I 21 believe the report says that she is getting 22 back to baseline as far as her neck 23 complaints, so that's my objection. I'm going 39 L. SUDDABY, MD -- H. PARRS -- 04/17/2010 1 to make an ongoing objection to any testimony 2 for future surgeries and I won't object any 3 further. 4 MR. PARRS: In response, I would just like 5 to point out that on page four of Dr. 6 Suddaby's report, he specifically states, 7 "Certainly, with a disc herniation, one cannot 8 completely exclude the possibility of this 9 worsening over time" and I think that based 10 upon that being in the report, that that 11 allows him to offer that testimony, but okay. 12 Objection noted back on the record. 13 VIDEOGRAPHER: Going back on the record 14 now. The time is approximately ten minutes 15 after 10. Please continue. 16 Q. All right. Dr. Suddaby, just to summarize, 17 what is your opinion to within a reasonable 18 degree of medical certainty as to the injuries 19 to Patricia White's cervical spine that were 20 caused by the motor vehicle accident of 21 December 30th, 2004? 22 A. I think that she sustained two -- three types 23 of injuries. The first is a cervical strain CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing MOTION IN LIMINE AND OBJECTION TO EXPERT TESITMONY has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 22nd day of April, 2010. Harry M. Paras, Esquire Tighe, Evan, Schenck & Paras Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222-1223 (Attorney for Plaintiffs) SUMMERS??NW)QNNELL, HUDOCK, GUTHRI ?? SKEOL, P.C. By: ( Lucy, Esquire for Defendant PATRICIA WHITE and EUGENE IN THE COURT OF COMMON PLEAS OF WHITE, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW vs. NO. 06-7263 CIVIL DONNA HEILMAN, Defendant VERDICT It being uncontested that the Defendant was negligent and that her negligence was a factual cause of harm, the jury awards the following damages: 1. To the Plaintiff, Patricia A. White, on account of past and future pain and suffering, embarrassment and humiliation, and the loss of the ability to enjoy the pleasures of life: S O 2. To the Plaintiff, Eugene D. White, on account of a claim for spouse's loss of consortium: $ O ??V Dat Foreperso i 2&w= A -7 PATRICIA WHITE AND EUGENE WHIT 15' - V S --- DONNA HEILMAN UR In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2006-7263 CIVIL, Judge: HESS I ? Attorney: 1far ry M - Pa `a S Attorney: ?D?n L%cci Date: G(D,u.(? ??o . o74/(J i ORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 1 INNNININNANINN APR26-20 c D1 2 immo INIINNN APR26-263 M w- G- H, ?AT+61aL?i D3 3 IN¦NINNommiN APR26-58 4 INNNNNommuN APR26-158 BARRICK, PATRICIA A 5 immoNINI¦NN APR26-27 SHERIFF, TAMMY L 6 INNNNNNNNNINN APR26-343 BLOOM, DARRYL M 7 INNNNI¦N¦¦NN APR26-302 ADAMS, JEFFREY- S 8 INNNNImomiN APR26-12 H ?Z 9 11NIIINMNINN APR26-59 HANAK, CHRISTINE A 10 IMENEEN111 APR26-18 ANSTINE, CAROLYN G 11 INNNIINNINNNENN APR26-90 LEHMAN,, JR GARY E 12 INNINNINNNINN APR26-120 MATTER, MICHAEL J 13 INNNNImNINNN APR26-142 BLOOD, GORDON J 14 INNININummoN APR26-316 GILL, DAVID. S 151016II110NIININ APR26-184 f 16 1NNNmNII mme APR26-3 17 INNNINNINNINNN APR26-113 -? j 181NINNgommoN APR26-130 19 1NN1000MININN APR26-234 CAREY, GREGORY W 20 INNNNIIINNINN APR26-237 YXAC uRGM --- - ?-vnzeua?i. p 21 INNNIIININININN APR26-98 STEWART, CHRISTINE K 22 ININNINNIINNNNNII APR26-57 KEIFER, TRISHA L In the Court of Commons Pleas of Cumberland County, PA., PATRICIA WHITE AND EUGENE WHIT Docket No. 2006-7263 CIVIL Judge: HESS _VS- DONNA HEILMAN Attorney: Attorney: Date: JURORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 23 imommmmus APR26-311 COLEY, CHARLOTTE R 24 immmo¦min APR26-11 BREAM, DANIEL A 25 IIe11sommN¦ APR26-105 SEIPLE, DONALD J 26 1mmoommus APR26-17 FARNER, LINDA K 27 Immmommon APR26-72 BLAHUSCH, KAREN M 28 Imem®mmim I APR26-93 BRADY, COURTNEY L 29 IIIImmoIMIinso APR26-34 NEWTON, CHRISTOPHER S 30 immmommon APR26-8 STUM, DENNIS R 31 32 33 G?C?.utiJf 34 35 36 37 38 39 40 41 42 43 44 i s j 20 10 NinY -3 P 11 2: 16 PATRICIA A. WHITE and EUGENE D WHITE, her husband, Plaintiffs v. DONNA L. HEILMAN, Defendant CIVIL DIVISION NO.: 06-7263 Civil Term MOTION FOR POST TRIAL RELIEF Filed on Behalf of: Plaintiffs, Patricia A. White and Eugene D. White Counsel of Record for this Party: Harry M. Paras, Esquire PA I.D. #33739 One Gateway Center 420 Ft. Duquesne Blvd., Suite 1325 Pittsburgh, PA 15222 (412) 391-8100 (412) 391-9972 (Fax) 0;k li- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PtN' 'N`SYLVANIA JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. CIVIL DIVISION WHITE, her husband, NO.: 06-7263 Civil Term Plaintiffs V. DONNA L. HEILMAN, Defendant MOTION FOR POST TRIAL RELIEF AND NOW come the Plaintiffs, Patricia A. White and Eugene D. White, her husband, by their attorney, Harry M. Paras, Esquire, and file the following Motion for Post Trial Relief pursuant to Pennsylvania Rule of Civil Procedure 227. 1, whereof the following is a statement: 1. The wife Plaintiff, Patricia A. White, was injured in a motor vehicle accident occurring on December 30, 2004, when the vehicle in which she was a passenger was rear-ended by Defendant Heilman's vehicle, causing her cervical injuries. 2. Jury selection in this action occurred on April 26, 2010 and the case proceeded directly to trial resulting in a verdict following a two-day trial on April 27, 2010. 3. The jury awarded "zero damages" to the Plaintiff, Patricia White, and the jury also awarded "zero damages" to the husband-Plaintiff, Eugene D. White, on his claim for loss of consortium. 2 VERDICT AGAINST THE WEIGHT OF THE EVIDENCE 4. At trial, the Defendant admitted negligence in the operation of her motor vehicle on December 30, 2004. 5. Paragraph 5 of the Plaintiffs' Complaint and Paragraph 5 of the Defendant's Answer was read into the record of the case; in answer to Paragraph 5 of the Plaintiffs' Complaint, the Defendant specifically admitted negligence in the operation of her motor vehicle on the date, time and place of the accident involving Patricia White on December 30, 2004. 6. The Plaintiff's medical expert, Dr. Loubert Suddaby, a neurosurgeon, testified that as a direct result of the motor vehicle accident the Plaintiff, Patricia White, suffered cervical sprain and strain; aggravation of underlying arthritic changes; and disctears and/or annularfissures in two cervical discs of her neck, causing prolonged pain and necessitating various medical treatments and modalities. 7. The Defendant had the Plaintiff examined by an orthopedic surgeon, Dr. Walter C. Peppelman, who testified at trial. 8. Dr. Peppelman, upon cross-examination, offered the following testimony: Q. "As I listen to your testimony, Dr. Peppelman, it is my understanding that you agree that Pat White did sustain injury that was caused by this motor vehicle accident; correct? A. Yes. 3 (Peppelman Transcript - Page 28 - Lines 11-15) So, yes, it was my opinion that the event did something in there that caused her neck pain, but it was my opinion that she had recovered from that. Q. Could diflexion/extension maneuvering of the discs in her neck have caused these fissures? Could it have? A. It may have, yes. (Peppelman Transcript - Page 41 - Line 23-25; Page 42 - Line 1-4) Q. In looking at your report there on the last page, you indicate, it is my clinical impression that the patient did sustain an aggravation of her pre-existing condition in her neck at the time of the motor vehicle accident. Then you state down below that I do believe that the aggravation-accident aggravated the pre-existing condition. You agree with those statements as we sit here today? A. Yes. Q. And those aggravations were due to the trauma of the motor vehicle accident on December 30, 2004; correct? A. Yes. (Peppelman Transcript - Page 45 - Lines 14-25; Page 46 - Lines 1-2) 9. In addition, in his direct examination, Dr. Peppelman testified that Plaintiff, Patricia A. White, sustained a sprain and strain and/or whiplash injuryto her cervical spine, resulting from the trauma of the motor vehicle accident. 10. The jury was instructed that the Defendant admitted negligence and, furthermore, that the Plaintiff suffered some agreed-upon injuries caused by the motor vehicle accident, but that the extent of the injuries was in dispute. 4 11. The jury's verdict was manifestly against the weight of the evidence in that Plaintiffs established the fact and, through expert testimony, established that she sustained damages in the nature of physical injuries and pain and suffering, necessitating medical treatment with ongoing pain and the risk of future cervical surgery. 12. Given that the Defendant admitted negligence in the happening of the accident, and that all of the medical evidence confirmed and agreed that the Plaintiff, Patricia A. White, suffered injuries directly caused by the accident, the jury's verdict was against the manifest weight of the evidence brought forward at the trial of this case. 13. There was further undisputed testimony that the husband Plaintiff suffered a loss of his wife's consortium as a result of the injuries and disabilities suffered by his wife resulting from the accident and, therefore, the jury's award of zero damages to the husband-Plaintiff for his loss of consortium claim was also against the manifest weight of the evidence, 14. Underthese circumstances, the jury's verdict was unjust, unfairand shocking to one's conscience. 15. The Plaintiffs request a new trial in this matter and/or request a new trial limited to the issue of damages only. 16. The Plaintiffs have requested thatthe Official Court Reporter, Laura Handley, transcribe the trial transcript; a true and correct copy of Plaintiffs' request for trial transcript directed to the Court Reporter, Laura Handley, is attached hereto and marked as Exhibit "A„ 5 WHEREFORE, the Plaintiffs file their Motion for Post Trial Relief with this Honorable Court and request that this Honorable Court grant them a new trial of this action and/or a new trial of this action limited to the issue of damages only. Respectfully ubmitted, Marry quire Attorney for Plainti s, Patricia A. White a d Eugene D. White 6 LAW OFFICE OF HARRY M. PARAS ATTORNEY AT LAW ONE GATEWAY CENTER MEDIATION AND ARBITRATION SERVICES 420 FT. DUQUESNE BLVD., 13 FL NORTH Scheduling Contact: PITTSBURGH, PENNSYLVANIA 15222-1435 Margie Thompson E-MAIL: margie®harryporas.com (412) 391-8100 FACSIMILE: (412) 391-9972 E-MAIL: hmp@harryparas.com A PROFESSIONAL CORPORATION April 28, 2010 Laura Handley Official Court Reporter 1 Courthouse Square Court Administrator's Office, Suite 400 Carlisle, PA 17013 Re: White v. Heilman No. 06-7263 Dear Ms. Handley: REQUEST FOR TRIAL TRANSCRIPT I request that you transcribe the entire trial transcript in the case of Patricia A. White and Eugene D. White, her husband, versus Donna L. Heilman which was tried before the Honorable Judge Kevin Hess in the Court of Common Pleas of Cumberland County, Pennsylvania, on April 26 and 27, 2010. Thank you for your attention to this request. you have any questions or comments concerning this request for transcript, please d not hesitate to contact my office. ry truly urs, ,._. _ k \, H M P/mt d PLAWI TWS EXHIBIT A CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Post Trial Relief was served on n the below listed persons via first class mail, postage prepaid on this 28th day of April, 2010: John A. Lucy, Esquire Summers, McDonnell, Hudock, Guthrie & Skeel, LLP 100 Sterling Parkway Suite 306 Mechanicsburg, PA 17050 Melissa H. Calvanelli District Court Administrator 1 Courthouse Square, Rm 400 Carlisle, PA 17013 Honorable Kevin A. Hess 1 Courthouse Square Carlisle, PA 17013 Laura Handley Official Court Reporter 1 Courthouse Square, Suite 400 Carlisle,rPA 17103 plarry I"arbe?Ls uire Attorney for Plaintiffb Lf D v - THE 2010 Pd 3: 9 f,{?.a• Vftl r - -_J "liar d ,! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, CIVIL DIVISION NO. 06-7263 V. DONNA L. HEILMAN, Defendant. DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: John A. Lucy, Esquire Pa. I.D. #203948 Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #15202 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and CIVIL DIVISION EUGENE D. WHITE, her husband, Plaintiffs, NO. 06-7263 V. DONNA L. HEILMAN, Defendant. (Jury Trial Demanded) DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AND NOW, comes the Defendant, Donna L. Heilman, by and through her counsel, Summers, McDonnell, Hudock, Guthrie & Skeel, P.C., and John A. Lucy, Esquire, and files the following Reply to Plaintiffs Motion for Post-Trial Relief and in support thereof avers as follows: 1. DISCUSSION If a jury finds that the harm suffered by the Plaintiff was so minor or insignificant that it is not compensable, then the jury is not required to compensate the Plaintiff. Pennsylvania law is clear that when the conceded injury is a minor injury that could be interpreted as a transient rub of life, the jury is fee to return a verdict in favor of the defendant. Van Kirk v. O'Toole, 857 A.2d 183 (Pa. Super. Ct. 2004). In Van Kirk, suit was brought for injuries sustained in a rear-end motor vehicle accident. Prior to trial, the defendant admitted negligence and at trial, the defense medical expert conceded a soft-tissue neck injury from the accident. Id. The court instructed the jury that it was permissible to award a verdict in the amount of zero if they found that the plaintiffs injury was so minor that is was not compensable. Based on the evidence presented at trial, the jury returned a verdict in the amount of zero and the plaintiff appealed. On appeal the Superior Court noted that "the determination of whether the pain is severe enough to be compensable is to be left to the jury." Van Kirk, 857 A.2d at 186. Further the court noted "that not every stretched muscle must result in an award for pain and suffering." Id. at 185. The Superior Court upheld the decision finding that the jury's verdict did not defy common sense or logic. Id. The instant matter is identical to Van Kirk. In this case, Ms. White was involved in an accident in which she was rear-ended by the Defendant, Donna L. Heilman. Further, the Defendant's Medical Expert, Dr. Walter Peppelman, has acknowledged injury. Specifically, that the subject accident caused Mrs. White to suffer a cervical sprain which would have resolved within six (6) to eight (8) weeks. 11. CONCLUSION The jury, as the ultimate trier of fact, possesses full authority in deciding whether to compensate the Plaintiff, and is under no obligation to do so. The existence of compensable pain is not a subjective evaluation, but an issue of objective credibility to be gauged by the jury. Though an injury may exist, it does not follow that a plaintiff is guaranteed compensable damages as a result. WHEREFORE, Defendant, Donna L. Heilman, respectfully requests this Honorable Court enter judgment in her favor and against the Plaintiffs with costs and prejudice imposed. Respectfully submitted, SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL. P.C. n A. ucy, Esquire i I for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing DEFNEDANT'S REPLY TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 7th day of May, 2010. Harry M. Paras, Esquire One Gateway Center 420 Fort Duquesne Blvd., Suite 1325 Pittsburgh, PA 15222 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEft. P.C. _ucy, Esquire for Defendant ~,~ T r nr r~C i of . ~ .. ~i1FF.~r~4i 210 ,~~~! 22 r~~~ I I ~ ~; PATRICIA A. WHITE and EUGENE D. WHITE, her husband, .Plaintiffs vs. DONNA L. HEILMAN, Defendant ~C.'' ;jar' "~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.06-7263 CIVIL IN RE: PLAINTIFFS' POST-TRIAL MOTIONS BEFORE HESS, J. ORDER AND NOW, this z Z ^'r day of July, 2010, the motion of the Plaintiffs for post-trial relief in the form of a new trial is DENIED. BY THE COURT, ~' Hazry M Pazas, Esquire For a Plaintiffs John A. Lucy, Esquire For the Defendant :rlm ~~/~,~ `~~ i A. Hess, P. J. PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs vs. DONNA L. HEILMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.06-7263 CIVIL IN RE: PLAINTIFFS' POST-TRIAL MOTIONS BEFORE HESS. J. OPINION AND ORDER This case is before the Court on Plaintiffs' motion for post-trial relief seeking a new trial. At trial, a jury refused to awazd compensation for pain and suffering to Plaintiff, Patricia A. White, for injuries allegedly sustained as a result of a motor vehicle accident. The jury also awarded "zero damages" to the husband-Plaintiff, Eugene D. White, on his claim for loss of consortium. On December 30, 2004, the Plaintiff, Patricia A. White, was a passenger in a motor vehicle operated by her husband, Eugene D. White. (N.T. 11). Plaintiffls caz was reaz-ended by a vehicle driven by Defendant, Donna L. Heilman, while stopped at a red light. (N.T. 64). Defendant has admitted that the subject accident was caused by her negligence. (Def.'s Answer and New Matter ¶ 5). At trial, Plaintiff testified that the impact was relatively mild and caused her body to move forward then backwazd. (N.T. 12). Plaintiff testified that she began experiencing pains in her neck and left shoulder blade as well as headaches, which prompted her to seek the services of her chiropractor. (N.T. 14-16). However, Plaintiff had been regularly treated by her chiropractor prior to the accident for pain in her lower back and neck. (N.T. 23). N0.06-7263 CIVIL At trial, the defense presented Plaintiff s medical records which indicate that she suffered from severe neck pain and headaches prior to the accident.. (N.T. 40). Later, Plaintiff sought the services of Dr. Suddaby for chronic neck, upper back, and shoulder pain. He ordered her to undergo MRI testing. (N.T. 15-16). Dr. Suddaby believed that Plaintiff sustained soft tissue damage in her neck and a herniated disk as a consequence of the motor vehicle accident. (Deposition of Loubert S. Suddaby, M.D., April 17, 2010, at 25). Dr. Suddaby also noted that Plaintiff suffered from pre-existing degenerative changes in her neck. (Deposition of Loubert S. Suddaby, M.D., April 17, 2010, at 28). At trial, the defense presented testimony from Dr. Walter Peppelman, an orthopedic surgeon who specializes in the field of spine surgery. (Deposition of Walter Peppelman, D.O., April 19, 2010, at 3; hereinafter "Peppelman Dep. at ~. Dr. Peppelman testified that the 1VIRI depicted degenerative changes which were common in any aging patient. (Peppelman Dep. at 15-16). Peppelman further testified that Plaintiff's injuries were insignificant and cannot be attributed to trauma because there were no MRIs taken before the injury and she had a prior history of neck injuries. (Peppelman Dep. at 41). Dr Peppelman testified that Plaintiff's injuries, if any, were limited to minor whiplash or strain/spraln injuries, but were not of the type that would be expected to result in chronic pain. (Peppelman Dep. at 24). Peppelman's diagnosis was that Plaintiff s degenerative changes were aggravated by the accident, but that she quickly recovered. (Peppelman Dep. at 23). He noted, also, that the medical professional(s) who treated Plaintiff after the motor vehicle accident did not place any physical limitations or restrictions upon her. (N.T. 43). 2 N0.06-7263 CNIL During her testimony, Plaintiff claimed that neck pain associated with the motor vehicle accident has prevented her from golfing. (N.T. 30). However, she later admitted that she had trouble golfing prior to the accident. (N.T. 44). Additionally, the defense presented medical records that demonstrate that Plaintiff experienced constant and severe neck pain well before the accident. (N.T. 41). Plaintiff also claimed that the accident has negatively impacted her daily life as she is no longer able to read for extended periods due to headaches. (N.T. 21-22). However, Plaintiffls medical records demonstrate that she suffered from headaches prior to the accident. (N.T. 43). Plaintiff claims that the accident has prevented her from participating in some recreational activities, however, Plaintiff's pre-existing degenerative injuries forced her to retire from a career as a dispatcher before the accident. DISCUSSION A new trial must be granted where a verdict is "so contrary to the evidence as to shock one's sense of justice." Henery v. Shadle, 661 A.2d 439, 441 (Pa. Super. 1995). Anew trial must not be granted simply because "the trial judge would have reached a different conclusion on the same set of facts." Id. Only where "the injustice of a verdict stands forth like a beacon" is a reversal based upon the inadequacy of a verdict appropriate. Hawley v. Donahoo, 611 A.2d 311, 312 (Pa. Super. 1992). Although an injury may result in pain, not every injury necessitates compensation. Yan Kirk v. O'Toole, 857 A.2d 183, 186 (Pa. Super. 2004). "The determination of whether the pain is severe enough to be compensable is to be left to the jury." Id. Where a jury believes a plaintiffls injury to be insignificant, they are not required to provide compensation. Majczyk v. Oesch, 789 3 N0.06-7263 CIVIL A.2d 717, 724 (Pa. Super. 2001). "Even though every muscle strain causes pain, it does not follow that all muscle pain is compensable." Yan Kirl~ 857 A.2d at 185. A jury must consider as uncontroverted evidence, any diagnosis made by the defense doctor that is not based on the Plaintiff s subjective complaints. Id. However, a jury may reject uncontroverted evidence of injury that it does not find credible. Majcryk, 789 A.2d at 724. "The test of whether a zero verdict can be upheld then becomes whether the uncontroverted injuries aze such that a conclusion that they are so minor that no compensation is warranted defies common sense and logic." Yan Kirk, 857 A.2d at 185. While a jury may not disregazd an obvious injury, they are free to disbelieve all that their common experience does not accept. Boggavarapu v. Ponist, 542 A.2d 516, 518 (Pa. 1988). A jury's verdict must not be overturned where the. jury possessed a reasonable basis to believe that a plaintiff's alleged pain and suffering can be attributed solely to a preexisting condition, and/or the jury did not believe that the plaintiff suffered any pain and suffering. Davis v. Mullen, 773 A.2d 764, 770 (Pa. 2001). Pennsylvania courts have been selective in overturning a jury's decision not to awazd compensation for pain and suffering. For example, in Yan Kirk the court held that it was not unreasonable for the jury to find that a passenger's injuries were not severe enough to warrant compensation for damages, despite the fact that the passenger experienced some pain. Yan Kirl~ 857 A.2d at 187. In Yan Kirk, the plaintiff brought suit for injuries suffered as a result of a reaz- end motor vehicle accident. At trial, the defendant admitted responsibility for the accident, but presented a medical expert who testified that plaintiff sustained asoft-tissue neck injury due to the accident. In this case, the court reasoned that the jury was justified in concluding that the 4 N0.06-7263 CIVIL plaintiff s injury was "no more than a transient rub of life for which no compensation for pain and suffering is due." Id. at 187. Pennsylvania courts' reluctance to overturn a jury's refusal to award compensation for pain and suffering is further evidenced in Majcryk. In Majcryk, the court affirmed the trial court's denial of a new trial. Majcryk, '~89 A.2d at 724. In that case, the plaintiff s vehicle was struck from behind while stopped at a traffic light by a vehicle that was traveling approximately five miles per hour. Id. at 721. At trial, the plaintiff's counsel presented disputed testimony that plaintiff suffered a herniated disk as a result of the accident. Id. However, the defense's doctor conceded that he believed the plaintiff was suffering from a cervical strain. Id. In making its decision, the court reasoned that "the jury was not required to award plaintiff any amount as it obviously believed that any injury plaintiff suffered in the accident was insignificant." Id. at 724. Not surprisingly, in circumstances where a plaintiff has suffered significant injuries, Pennsylvania courts have granted a new trial due to a jury's failure to award compensation for pain and suffering. For example, in Todd v. Bercini, 92 A.2d 538 (Pa. 1952); and Yacobonis v. Gilvickas, 101 A.2d 690 (Pa. 1954), the Pennsylvania Supreme Court granted the plaintiffs a new trial because the jury's award was "totally inadequate." Yacobonis at 692. In each case, the plaintiff suffered incapacitating injuries that were directly attributable to their accident and either prevented them from returning to work, resulted in extended hospitalization, or left them permanently disfigured. Like Van Kirk this case involves a plaintiff who sued to recover for injuries stemming from a mild car accident. As in Van Kirk, Plaintiff seeks a new trial because a jury refused to 5 N0.06-7263 CIVIL award compensation for pain and suffering despite the defendant's admission of negligence. Similar to Yan Kirk, Plaintiff sought the services of a chiropractor following the motor vehicle accident but had prior injuries to her back and neck. The case at bar is also similar to Majczyk another case where the alleged injuries were sustained during arear-end motor vehicle accident. The plaintiffls doctor presented testimony that plaintiff suffered a herniated disk as a result of a motor vehicle accident. The defense doctor noted that Plaintiff suffered from degenerative changes in the neck, though he conceded that the Plaintiff likely suffered from a cervical strain following the accident. As previously noted, the question at this juncture is not whether the trial judge would have made an award of damages based on the same facts. Rather, the question is whether the jury's verdict so defies common sense and logic that it represents a manifest injustice. We are unable to conclude that the jury's verdict, in this case, represented such a deviation from common sense as to require the award of a new trial. ORDER AND NOW, this ~-z-' day of July, 2010, the motion of the Plaintiffs for post-trial relief in the form of a new trial is DENIED. BY THE COURT, Harry M Paras, Esquire For the Plaintiffs John A. Lucy, Esquire For the Defendant 6 s-,F t? 1 1 ii } i`A 1 lri t'i ci;a i t_t`r4tstt'; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and CIVIL DIVISION EUGENE D. WHITE, her husband, Plaintiffs, NO. 06-7263 V. DONNA L. HEILMAN, Defendant. (Jury Trial Demanded) PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment in favor of the Defendant, Donna L. Heilman, and against the Plaintiffs, Patricia A. White and Eugene D. White, her husband. Kindly mark the docket as discontinued. Bv: / Jo fin A. Lucy, Esquire C unsel for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. WHITE and EUGENE D. WHITE, her husband, Plaintiffs, CIVIL DIVISION NO. 06-7263 v. DONNA L. HEILMAN, Defendant. PRAECIPE TO ENTER JUDGMENT (Jury Trial Demanded) Filed on Behalf of the Defendant Counsel of Record for This Party: Kevin D. Rauch, Esquire Pa. I.D. #83058 SUMMERS, McDONNELL, HUDOCK, GUTHRIE and SKEEL, P.C. Firm #911 100 Sterling Parkway, Suite 306 Mechanicsburg, PA 17050 (717) 901-5916 #15202 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE TO ENTER JUDGMENT has been mailed by U.S. Mail to counsel of record via first class mail, postage pre-paid, this 7th day of October, 2010. Harry M. Paras, Esquire Tighe, Evan, Schenck & Paras Four Gateway Center 444 Liberty Avenue, Suite 1300 Pittsburgh, PA 15222-1223 SUMMERS, McDONNELL, HUDOCK, GUTHRIE & SKEEL, P.C. By: Kevin D. Rauch, Esquire Counsel for Defendant