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HomeMy WebLinkAbout02-3158FELDMAN, SHEPHERD, WOHLGELERNTER 8, TANNER BY: MARK W. TANNER/DANIEL S. WEINSTOCK IDENTIFICATION NO.: 58738/72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased 50 Bonnybrook Road Lot 50 Carlisle, PA 17013 V. PAMELA KOZICK c/o Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and WOMEN'S HEALTH ASSOCIATES OF CARLISLE c/o Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL 246 Parker Street Carlisle, PA 17013 NOTICE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02 - J/S4P CIuel?r& 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 you defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 17013 Telephone: 717-249-3166 Toll Free: 800-990-9108 FELDMAN, SHEPHERD, WOHLGELERNTER 8 TANNER BY: MARK W. TANNER/DANIEL S. WEINSTOCK IDENTIFICATION NO.: 58738/72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased 50 Bonnybrook Road Lot 50 Carlisle, PA 17013 V. PAMELA KOZICK C/o Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and WOMEN'S HEALTH ASSOCIATES OF CARLISLE c/o Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL 246 Parker Street Carlisle, PA 17013 COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 40.1 - ,315 (?t UIC Plaintiff, by his attorneys, Feldman, Shepherd, Wohlgelemter & Tanner, hereby demands damages of the defendants herein, jointly and severally, in a sum in excess of this court's arbitration limit, plus costs rnd damages for pre judgment delay, upon causes of action of which the following are statements: 1. Plaintiff, Gerard Boullianne, is the duly appointed administrator of the Estate of Christian, ieceased, having been so appointed by the Register of Wills of Cumberland County on June 20, 2002. 2. Plaintiff is an adult individual and is a citizen of the Commonwealth of Pennsylvania, residing herein at 50 Bonnybrook Road, Lot 50, Carlisle. I Defendant, Pamela Kozick, an adult individual, is a citizen of the Commonwealth of Pennsylvania, with an office and place of business in care of Carlisle Regional Medical Center, 246 Parker Street, Carlisle. 4. At all times pertinent hereto, Pamela Kozick, a Certified Nurse Midwife, was engaged in the practice of Certified Nurse Midwifery, with an office and place in care of Carlisle Regional Medical Center, 246 Parker Street, Carlisle. 5. Defendant, Women's Health Associates of Carlisle, is a business entity, with an office and place of business in care of Carlisle Regional Medical Center, 246 Parker Street, Carlisle. 6. At all times pertinent hereto, Pamela Kozick was an actual or apparent agent, servant and/or employee of Women's Health Associates of Carlisle, acting in such capacity. 7. Defendant, Carlisle Regional Medical Center, formerly Carlisle Hospital ("CRMC"), is a corporation, organized and existing under and pursuant to the laws of the Commonwealth of Pennsylvania, with an office and place of business therein, at 246 Parker Street, Carlisle. 8. At all times pertinent hereto, CRMC owned, operated and maintained a hospital for the care and treatment of patients at 246 Parker Street, Carlisle. 9. At all times pertinent hereto, Pamela Kozick was an actual or ostensible agent, servant and/or employee of CRMC, acting in such capacity; CRMC's actual or ostensible agents, servants and/or employees also included any doctors, fellows, residents, interns, students, nurses or technicians who assisted, or were obliged to assist, in the management of Brenda Boullianne's labor and delivery of Christian Boullianne, deceased, as described in detail below. 10. At all times pertinent hereto, a healthcare provider/patient relationship existed between 3renda Boullianne and Christian Boullianne, deceased and each of the defendants; defendants therefore iad a duty to render care and treatment to their patients in conformity with acceptable medical standards. 11. Brenda Boullianne became pregnant in 1998, with a last menstrual period of April 9. -2- 12. She sought and indeed received prenatal care at the Well Baby Clinic at the defendant hospital. An estimated date of confinement of January 14, 1999 was established. 13. The pregnancy was insignificant for neurologic risk factors. 14. On the morning of January 26, 1999 (approximately 41 and 5/7 weeks gestation), Brenda Boullianne went into labor and was transferred from the radiology department to labor and delivery at the defendant hospital. 15. Spontaneous rupture of membranes occurred at 1:50 p.m., revealing clear fluid. 16. No later than 4:10 p.m., the fetal heart tone became severely bradycardic. 17. No later than 4:33 p.m., Brenda Boullianne was completely dilated, and indeed had been instructed to push. The fetal heart rate continued to be depressed, with intermittent decelerations. 18. Vaginal delivery was performed at 5:24 p.m. 19. Upon delivery, Christian Boullianne was severely depressed, with APGAR scores of 2,3 and 4. An arterial cord ph demonstrated profound acidosis, with a ph of 6.88 and a base deficit of 23. 20. Spontaneous respirations were not obtained until approximately 50 minutes of life, followed by the immediate onset of seizure activity. 21. Resuscitation was ultimately able to save Christian Boullianne's life for the time being, but not before profound hypoxic-ischemic brain damage occurred. 22. As a result of Christian Boullianne's severe and permanent brain damage, he suffered throughout his life from: a. seizures almost daily; b. diminished or absent reflexes throughout his body; C. a depressed state of consciousness; d. profound mental retardation; e. almost persistent irritability and pain; and -3- f. the need to be fed via epigastric tube. 23. As a further result of the brain damage Christian Boullianne suffered during the perinatal period as described above, he ultimately succumbed on February 9, 2001. 24. Christian Boullianne did not bring a claim for the above-described injuries during his lifetime. 25. Christian Boullianne is survived only by his two parents, plaintiff herein and his wife Brenda Boullianne, who share's plaintiff's address. 26. The negligence of Pamela Kozick included the following: a. failure to recognize an abnormal fetal heart tracing; b. failure to consult with a physician in light of abnormal fetal heart tracing; C. failure to more expeditiously deliver Christian Boullianne; d. failure to notify hospital personnel of a complicated delivery so that a representative of the pediatrics department could attend delivery; and e. failure to administer appropriate resuscitative efforts to Christian Boullianne upon his delivery. 27. The negligence of CRMC included the following: a. failure to properly train Pamela Kozick regarding the interpretation of fetal heart monitoring; b. failure to have adequate personnel available to manage Brenda Boullianne's labor and delivery; C. failure to have a representative of the pediatrics department attend the delivery of Christian Boullianne; d. failure to recognize Christian Boullianne's abnormal perinatal heart rate pattern; and e. failure to appropriately respond to Christian Boullianne's abnormal perinatal heart rate pattern by administering appropriate resuscitative efforts and expeditious delivery. -4- COUNTI WRONGFUL DEATH ACTION 28. Paragraphs 1 through 27 are hereby incorporated by reference as though fully set forth at length. 29. Plaintiff brings this action under and pursuant to the Pennsylvania Wrongful Death Act, and demands damages of defendants herein for loss of the financial contributions of the decedent and for the economic value of his services to his survivors. Plaintiff further demands damages for all other economic losses suffered by decedent's survivors, including medical, funeral and other expenses reasonably associated with his death. 30. Plaintiff further demands damages of the defendants for deprivation of his son's services, society and companionship, the loss of which he has endured and will continue to endure for an indefinite period of time. WHEREFORE, plaintiff demands damages of the defendants, jointly and severally, in a sum in excess of this court's arbitration limit, plus interest, costs of suit and damages for delay. COUNT II SURVIVAL ACTION 31. Paragraphs 1 through 30 are hereby incorporated by reference as though fully set forth at length. 32. Plaintiff brings this action under and pursuant to the Pennsylvania Survival Act, and demands lamages of the defendants for the conscious pain and suffering and emotional distress endured by decedent ip until the time of his death, as well as for the economic losses sustained by decedent's Estate. -5- WHEREFORE, plaintiff demands damages of the defendants, jointly and severally, in a sum in excess of this court's arbitration limit, plus interest, costs of suit and damages for delay. Feldman, Shepherd, Wohlgelernter & Tanner By: Mark W. Tanner Daniel S. Weinstock Attorneys for Plaintiff -6- VERIFICATION Gerard Boullianne hereby states that he is the plaintiff in the foregoing action and that the foregoing averments in the Complaint are true and correct to the best of his knowledge, information and belief. The language of said averments is that of counsel and not of plaintiff. Plaintiff has read the Complaint and to the extent that it is based upon information which he has given to his counsel, it is true and correct to the best of his knowledge, information and belief. To the extent that the language of the Complaint is that of counsel, he has relied upon counsel in making this verification. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Gerard Boulli e o w ? JU a? q ,O ?G lull I 1 1 ) J " '1 w I E? -? 0(/) VERIFICATION Gerard Boullianne hereby states that he is the plaintiff in the foregoing action and that the foregoing averments in the Complaint are true and correct to the best of his knowledge, information and belief. The language of said averments is that of counsel and not of plaintiff. Plaintiff has read the Complaint and to the extent that it is based upon information which he has given to his counsel, it is true and correct to the best of his knowledge, information and belief. To the extent that the language of the Complaint is that of counsel, he has relied upon counsel in making this verification. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Gerard Boulli e GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW PAMELA KOZICK; WOMEN'S HEALTH : NO. 02-3158 Civil Term ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE Please enter the appearance of the undersigned as counsel for Defendant, Carlisle Health and Wellness Foundation, successor to Carlisle Hospital, erroneously named "Carlisle Regional Medical Center, formerly Carlisle Hospital", in the above-captioned matter. Respectfully submitted, Date: FARRELL & RICCI, P.C. Joseph A. 'cci, Esquire Attorney I.D No. 49803 Front Street Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Health and Wellness Foundation CERTIFICATE OF SERVICE AND NOW, this ? 5? day of July, 2002, I, Joseph A. Ricci, Esquire, hereby certify that I served a true and correct copy of the foregoing Entry of Appearance upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Pamela Kozick c/o Carlisle Regional Medical Center 246 Parket Street Carlisle, PA 17013 Women's Health Associates of Carlisle c/o Carlisle Regional Medical Center 246 Parket Street Carlisle, PA 17013 c? Fri r V). c: 2? ?' ci? GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW PAMELA KOZICK; WOMEN'S HEALTH : NO. 02-3158 Civil Term ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of 2002, upon consideration of the Preliminary Objections filed by Carlisle Health and Wellness Foundation, it is hereby ORDERED and DECREED that said Preliminary Objections are GRANTED and Paragraph 30 of Count I is hereby stricken from Plaintiffs Complaint and all claims for loss of filial consortium are dismissed with prejudice. BY THE COURT: J. GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. PAMELA KOZICK; WOMEN'S HEALTH ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-3158 Civil Term JURY TRIAL DEMANDED TO: Gerard Boullianne, Administrator of the Estate of Christian Boullianne, Deceased, Plaintiff c/o Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Counsel for Plaintiff NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO PLEAD TO THE PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, FARRELL & RICCI, P.C. Date: Lsoer h A. Ri squ*r ney I. D. o. 49803 nt Street Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. PAMELA KOZICK; WOMEN'S HEALTH ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-3158 Civil Term JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT CARLISLE HEALTH AND WELLNESS FOUNDATION, SUCCESSOR TO CARLISLE HOSPITAL IMPROPERLY STYLED "CARLISLE REGIONAL MEDICAL CENTER, FORMERLY CARLISLE HOSPITAL" AND NOW COMES Defendant Carlisle Health and Wellness Foundation, successor to Carlisle Hospital, improperly styled Carlisle Regional Medical Center, formerly Carlisle Hospital, by and through its counsel Farrell & Ricci, P.C., by Joseph A. Ricci, Esquire and preliminarily objects to the Plaintiffs Complaint for the following reason: 1. DEMURRER TO COUNT I 1. The above-captioned matter is a Wrongful Death and Survival Action which seeks recovery of damages allegedly arising from the death of the Plaintiffs minor child. 2. Pursuant to Count I of the Complaint, the Plaintiff attempts to set forth a claim pursuant to the Pennsylvania Wrongful Death Statute. 3. Pursuant to Paragraph 30 of Count I of the Plaintiffs Complaint, it is alleged: "Plaintiff further demands damages of the defendants for deprivation of his son's services, society and companionship, the loss of which he has endured and will continue to endure for an indefinite period of time." 4. Paragraph 30 of Count I of the Plaintiffs Complaint attempts to set forth a claim for the alleged loss of the Plaintiffs minor son's consortium. 5. Pennsylvania law does not, and never has, recognized a claim of parents for the loss of a child's consortium. See Quinn v Pit?u 90 A. 353 (Pa. 1914); slackson Tasty Kake` 648 A.2d 1214 (Pa. Super. 1994); Schroeder v. Ear Nose & Throat Assoc. 557 A.2d 21(Pa. Super. 1989); Boarts V. McCord, 511 A.2d 204 (Pa. Super. 1986). 6. Pursuant to Pa.R.C.P. 1028(a)(4), this Court is empowered to dismiss from a pleading averments which fail to state a claim upon which relief can be granted. WHEREFORE, it is respectfully requested that this Honorable Court strike Paragraph 30 from the Plaintiffs Complaint and dismiss all claims for the alleged loss of filial consortium. Respectfully submitted, FARRELL & RICCI, P.C. Date: &JosephA Esquire . 49803 t Street Harrisburg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Health and Wellness Foundation CERTIFICATE OF SERVICE AND NOW, this --day of July, 2002, I, Joseph A. Ricci, Esquire, hereby certify that I served a true and correct copy of the foregoing Preliminary Objections upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Pamela Kozick c/o Carlisle Regional Medical Center 246 Parket Street Carlisle, PA 17013 Women's Health Associates of Carlisle c/o Carlisle Regional Medical Center 246 Parket Street Carlisle, PA 17013 *osephA. Esquire n c' I?'f. `°. ;.:? : ; -- I:. ' ? C ? ,... r rY i? ...? ?. C_ ?..- ..t.. a ? G. ;? _ ? ?T C. 1 ` '? 4 ?_ ? ? ti Ci ..?? THOMAS, THOMAS & HAFER, LLP By. Peter J. Cunt', Esquire Identification No. 16622 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7637 Attorney for Defendants GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, NO. 02-3158 CIVIL ACTION - LAW Defendants NOTICE TO PLEAD TO: Gerard Boullianne, Administrator of the Estate of Christian Boulliane, Deceased c/o Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 1845 Walnut Street, 25th Floor Philadelphia, PA 19103 You are hereby notified that you are required to respond to the enclosed New Matter within twenty (20) days of service or judgment may be entered against you. & HAjFFR, LLP J. Curry THOMAS, THOMAS & HAFER, LLP By. Peter J. Curry, Esquire Identification No. 16622 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7637 Attomey for Defendants GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, NO. 02-3158 CIVIL ACTION - LAW Defendants ANSWER WITH NEW MATTER OF DEFENDANTS, PAMELA KOZICK AND CARLISLE WOMEN'S CARE, f/d/b/a WOMEN'S HEALTH ASSOCIATES OF CARLISLE TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendants, Pamela Kozick and Carlisle Women's Care, f/d/b/a Women's Health Associates of Carlisle, and answer Plaintiffs Complaint as follows: 1.-2. The averments contained in paragraphs 1 and 2 of Plaintiffs Complaint are admitted. 3. The averments contained in paragraph 3 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted that Pamela Kozick is an adult individual and a citizen of the Commonwealth of Pennsylvania. In all other respects, the averments contained in paragraph 3 of Plaintiffs Complaint are denied. On the contrary, Pamela Kozick is employed at Women's Health Associates of Carlisle, 419 Stonehedge Drive, Suite 4, Carlisle, Pennsylvania 17013. 4. The averments contained in paragraph 4 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted that at all times relevant hereto, Pamela Kozick was a certified registered nurse midwife and that she was engaged in the practice of certified nurse midwifery. In all other respects, all other averments contained in paragraph 4 of Plaintiffs Complaint are denied. On the contrary, at all times relevant hereto, Pamela Kozick was employed by Carlisle Women's Care, 8 Brookwood Avenue, Carlisle, Pennsylvania 17013. 5. The averments contained in paragraph 5 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted that Women's Health Associates of Carlisle is a business entity. In all other respects, the averments contained in paragraph 5 of Plaintiffs Complaint are denied. On the contrary, Women's Health Associates of Carlisle is located at 419 Stonehedge Drive, Suite 4, Carlisle, Pennsylvania 17013. 6. The averments contained in paragraph 6 of Plaintiffs Complaint are denied. On the contrary, at all times relevant hereto, Pamela Kozick was an employee of Carlisle Women's Care, acting within the course and scope of her employment. 7.-8. The averments contained in paragraphs 7 and 8 of Plaintiffs Complaint do not pertain to the responding Defendants and no answer is required. 9. The averments contained in paragraph 9 of Plaintiffs Complaint set forth conclusions of law as opposed to statements of fact and no response is required. 10. The averments contained in paragraph 10 of Plaintiffs Complaint are admitted. By way of further answer, the responding Defendants believe and therefore aver that the care and treatment rendered to Brenda and Christian Boullianne, by Pamela Kozick, did comply with accepted medical standards. 11.-23. The averments contained in paragraphs 11 through 23 of Plaintiffs Complaint are denied generally in accordance with and pursuant to Pa.R.C.P. 1029(e). 24.-25. The averments contained in paragraphs 24 and 25 of Plaintiffs Complaint are admitted. 26. The averments contained in paragraph 26 of Plaintiffs Complaint set forth conclusions as opposed to statements of fact and no response is required. Nevertheless, said averments are denied and proof thereof is demanded at the time of trial. Furthermore, the responding Defendants believe and therefore aver that at all times relevant hereto, Pamela Kozick acted reasonably and in accordance with the required standards of medical care. 27. The averments contained in paragraph 27 of Plaintiffs Complaint do not pertain to the responding Defendants and no answer is required. However, to the extent that said averments are intended to explicitly or implicitly aver negligence or wrongdoing of any kind on the part of the responding Defendants, said averments are specifically denied and proof thereof is demanded at the time of trial. COUNTI WRONGFUL DEATH ACTION 28. Paragraphs 1 through 27 of this Answer to Plaintiffs Complaint are incorporated herein by reference as if set forth at length. 29. It is admitted that Plaintiff is bringing this action pursuant to the Pennsylvania Wrongful Death Act and that he is seeking damages permitted under said Act. However, the responding Defendants deny any liability or responsibility to the Plaintiff under the Pennsylvania Wrongful Death Act. 30. It is admitted that Plaintiff is also seeking damages for the "deprivation of his son's services, society and companionship". However, the responding Defendants believe and therefore maintain that paragraph 30 of Plaintiffs Complaint sets forth a claim upon which relief may not be granted under the laws of the Commonwealth of Pennsylvania. WHEREFORE, the responding Defendants demand judgment in their favor and against Plaintiff. COUNT II SURVIVAL ACTION 31. Paragraphs 1 through 30 of this Answer to Plaintiffs Complaint are incorporated herein by reference as if set forth at length. 32. It is admitted that Plaintiff is also bringing this action pursuant to the Pennsylvania Survival Act and that he is seeking the damages permitted under said Act. However, the responding Defendants deny any liability or responsibility to the Plaintiff under the Pennsylvania Survival Act. WHEREFORE, the responding Defendants demand judgment in their favor and against Plaintiff. NEW MATTER By way of further answer to Plaintiffs Complaint, the responding Defendants offer the following New Matter. 33. The responding Defendants believe and therefore aver that paragraph 30 of Plaintiffs Complaint sets forth a claim upon which relief may not be granted under the law of the Commonwealth of Pennsylvania. WHEREFORE, the responding Defendants respectfully request that paragraph 30 of Plaintiffs Complaint be dismissed and judgment entered in their favor. THOMAS & HAFER, LLP r J. GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. PAMELA KOZICK and CARLISLE WOMEN'S CARE, f/d/b/a WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-3158 CIVIL ACTION - LAW VERIFICATION I, Pamela Kozick, hereby state and aver that I have read the foregoing ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT which was drafted by my counsel. Thelactual statements contained therein are true and correct to the best of my knowledge, information and belief, although"the language is that of my counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penaltiesof 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. DA`Z`ED:-t r AMELA KOZICK, 7?' G SHERIFF'S RETURN - REGULAR CASE NO: 2002-03158 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOULLIANNE GERARD ET AL VS KOZICK PAMELA ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KOZICK PAMELA the DEFENDANT , at 1507:00 HOURS, on the 9th day of July 2002 at 419 STONEHEDGE DRIVE CARLISLE, PA 17013 by handing to VICKIE BOYLES, MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this ?,,,,L, day of o?avL A.D. othonotary So Answers: R. Thomas Kline 07/10/2002 FELDMAN SHEPHER WOHLGELERMTER By: SHERIFF'S RETURN - REGULAR CASE NO: 2002-03158 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOULLIANNE GERARD ET AL VS KOZICK PAMELA ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WOMEN'S HEALTH ASSOCIATES OF CARLISLE the DEFENDANT , at 1507:00 HOURS, on the at 419 STONEHDEGE DRIVE CARLISLE, PA 17013 VICKIE BOYLES, MANAGER 9th day of July , 2002 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this d nad day of .L A.D. rothonotary So Answers: R. Thomas Kline 07/10/2002 FELDMAN SHEPH R WOHLGELE TER By: AA / Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-03158 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOULLIANNE GERARD ET AL VS KOZICK PAMELA ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARLISLE REGIONAL MEDICAL CENTER DEFENDANT the at 1512:00 HOURS, on the 9th day of July , 2002 at 246 PARKER STREET CARLISLE, PA 17013 by handing to MAXINE BARRICK HR SPECIALIST a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs Docketing 6.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 19.45 Sworn and Subscribed to before me this day of L A. D. rothonotary So Answers: R. Thomas Kline 07/10/2002 FELDMAN SHEPHER By: ty CERTIFICATE OF SERVICE I, Elizabeth E. Steever, an employee of the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that I sent a true and correct copy of the foregoing document to all counsel of record by placing a copy of the same in the United States first-class mail, postage prepaid, addressed as follows: Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 1845 Walnut Street, 25th Floor Philadelphia, PA 19103 Joseph Ricci, Esquire Farrell & Ricci, P.C. 4423 North Front Street Harrisburg, PA 17110 By: Date: q/1 Z/Q Z THOMAS, THOMAS & HAFER, LLP FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER BY: DANIEL S. WEINSTOCK IDENTIFICATION NO.: 72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased COURT OF COMMON PLEAS CUMBERLAND COUNTY V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL No. 02-3158 PLAINTIFF'S RESPONSE TO NEW MATTER OF DEFENDANTS, PAMELA KOZICK AND CARLISLE WOMEN'S CARE, FORMERLY d/b/a WOMEN'S HEALTH ASSOCIATES OF CARLISLE TO PLAINTIFF'S COMPLAINT Plaintiff, by his attorneys, Feldman, Shepherd, Wohlgelernter & Tanner, hereby responds to the New Matter of Defendants, Pamela Kozick and Carlisle Women's Care, Formerly d/b/a Women's Health Associates of Carlisle to Plaintiff's Complaint as follows: 33. The averment set forth in this paragraph constitutes a conclusion of law, to which no response is required. WHEREFORE, plaintiff demands judgment against all defendants. Feldman, Shepherd, Wohlgelernter & Tanner By: Daniel S. Weinstock Attorneys for Plaintiffs FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER BY: DANIEL S. WEINSTOCK IDENTIFICATION NO.: 72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-3158 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of August, 2002, true and correct copies of Plaintiff's Response to New Matter of Defendants, Pamela Kozick and Carlisle Women's Care, Formerly d/b/a Women's Health Associates of Carlisle to Plaintiff's Complaint were served via United States first class mail, postage pre-paid upon the following: Peter J. Curry, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Joseph A. Ricci, Esquire Farrell & Ricci, P.C. 4423 North Front Street Harrisburg, PA 17110 Feldman, Shepherd, Wohlgelernter & Tanner By: Qj Daniel S. Weinstock Attorneys for Plaintiff ?_ ?) `?? r" f\7 :1 ? ? (? (' a., " ..r i ? ? _' ?_-, mil, ;_ C= `?_. ) I j (_7 ?C } _ ? c r. ? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must typewritten ansu mttte in up irate TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: Pre-Trial Argument Court X Argument Court GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW PAMELA KOZICK; WOMEN'S HEALTH NO. 02-3158 Civil Term ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants JURY TRIAL DEMANDED 1. State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant Carlisle Area Health and Wellness Foundation, successor to Carlisle Hospital, to Plaintiff's Complaint. 2. Identify counsel who will argue case: a. for Plaintiff: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25fl' Floor 1845 Walnut Street Philadelphia, PA 19103 Attorney for Plaintiff 215/567-8300 b. for Defendant: Lynn A. Matz, Esquire Farrell & Ricci, P.C. 4423 North Front Street Harrisburg, PA 17110 (717) 230-9201 3. I will notify all parties in writing within two days that this, case has been listed for argument. 4. Argument Court Date: February 12, 2003 ?4,:?Y)5tr Jo . acci, squir Ly . Matz, Esquire Attorney for Defendant, Carlisle Area Health and Wellness Foundation CERTIFICATE OF SERVICE AND NOW, this -20 *---&ay of December, 2002, I, Lynn A. Matz, Esquire, hereby certify that I served a true and correct copy of the foregoing F'raecipe for Argument upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Peter J. Curry, Esquire Thomas, Thomas & Hafer 305 North Front Street, Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Ly . Matz, Esquire n Tip , ? a i. GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW PAMELA KOZICK; WOMEN'S HEALTH : NO. 02-3158 Civil Term ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants JURY TRIAL DEMANDED STIPULATION OF COUNSEL The undersigned counsel for all parties to the above-captioned action hereby agree and stipulate that the Defendant, Women's Health Associates of Carlisle, formerly did business as Carlisle Women's Care. The parties further agree and stipulate that, at all times relevant hereto, the Defendant, Pamela Kozick, was employed by Carlisle Women's Care and acting within the course and scope of that employment. Finally, the parties agree and stipulate that all references in the pleadings to "Women's Health Associates of Carlisle" shall be deemed to refer to "Carlisle Women's Care." The undersigned counsel for all parties to the above- captioneded matter hereby further agree and stipulate that Carlisle Regional Medical 'center did not formerly operate as Carlisle Hospital. Rather, Carlisle Regional Medical Center is a separate and distinct corporate entity, which did not come into existence until June 19, 2001. On June 19, 2001, Carlisle Health Service Corporation was created by a corporate name change is the successor to Carlisle Hospital. Further, on June 19, 2001, the Carlisle Area Health and Wellness Foundation was created by corporate name change and is the successor to Carlisle Hospital and Health Services, because all existing liability of the Carlisle Hospital as related to patient care which existed on June 19, 2001, is the responsibility of the successor corporations, the correct corporate Defendant in the above-captioned matter should be named "Carlisle Area Health and Wellness Foundation." Therefore, the parties agree and stipulate that all references in the pleadings to "Carlisle Regional Medical Center" shall be deemed to refer to "Carlisle Area Health and Wellness Foundation." It is further stipulated and agreed between the parties of the above-captioned matter that Paragraph 30 of the Plaintiff's Complaint shall be deleted and that Paragraph 29 of the Plaintiffs Complaint shall be amended to indicate that the Plaintiff seeks recovery of all damages pursuant to the Pennsylvania Wrongful Death Statute, 42 Pa.C.S.A. §8301. It is further stipulated and agreed between the parties that the caption of the above- captioned matter shall be amended to read as follows: GERARD BOULLIANNE, Administrator of IN THE COURT OF COMMON PLEAS the Estate of CHRISTIAN BOULLIANNE, CUMBERLAND COUNTY, PENNA. Deceased, Plaintiff V. CIVIL ACTION - LAW PAMELA KOZICK and WOMEN'S HEALTH CARE ASSOCIATES OF CARLISLE, successor to Carlisle Women's Care; and NO. 02-3158 Civil Term CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants JURY TRIAL DEMANDED FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER aniel S. Weinstock, Esquire 9 W ° Attorney I.D. No. 7 25th Floor 1845 Walnut Street Philadelphia, PA 19103 215/567-8300 Counsel for Plaintiffs FARRELL & RICCI, P.C. Attorney l.). No. 49803 4423 Nor Front Street Hares urg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation & HAFER peter J. Cu/-o.?S sc ire aQ Attorney I.I(? 305 North I`treet, Six th Floor Harrisburg, PA 17108 (717) 237-7100 Counsel for Defendants Pamela Kozick and Women's Health Associates of Carlisle, fld/b/a Carlisle Women's Care CERTIFICATE OF SERVICE ANDNOW, this:?() day of January, 2003, I, Joseph A. Ricci, Esquire, hereby certify that I served a true and correct copy of the foregoing :Stipulation of Counsel and Order upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Peter J. Curry, Esquire Thomas, Thomas & Hafer 305 North Front Street, Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Joseph A. 'cci, Esquire '? TV > rn -C .i GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW PAMELA KOZICK; WOMEN'S HEALTH : NO. 02-3158 Civil Term ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants JURY TRIAL DEMANDED ORDER 0603 AND NOW, on this day ofG 200, upon review of the attached Stipulation of Counsel, it is hereby ORDERED and DECREED that the above-referenced matter shall have its caption amended to read as follows: GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. V. CIVIL ACTION - LAW PAMELA KOZICK and WOMEN'S HEALTH CARE ASSOCIATES OF CARLISLE, successor to Carlisle Women's Care; and NO. 02-3158 Civil Term CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants JURY TRIAL DEMANDED BY THE COURT: l <? J. r r GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. PAMELA KOZICK; WOMEN'S HEALTH ASSOCIATES Of CARLISLE; and CARLISLE REGIONAL MEDICAL CENTER, formerly Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, .PENNA. CIVIL ACTION - LAW NO. 02-3158 Civil Term JURY TRIAL DEMANDED TO: Gerard Boulhanne, Administrator of the Estate of Christian Boulhanne, Deceased, Plaintiff c/o Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Counsel for Plaintiff NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, FARRELL & RICCI, P.C. Date: 0 3 03 0 'Joseph Ricci, Esquire Attorney I. No. 49803 4423 N. F t Street urg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. PAMELA KOZICK; WOMEN'S HEALTH ASSOCIATES Of CARLISLE; successor to Carlisle Women's Care; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO. 02-3158 Civil Term JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT CARLISLE AREA HEALTH AND WELLNESS FOUNDATION TO PLAINTIFF'S COMPLAINT AND NOW COMES Defendant, Carlisle Area Health and Wellness Foundation, successor to Carlisle Hospital, by and through its counsel, Farrell & Ricci, P.C., by Joseph A. Ricci, Esquire, and answers the Plaintiffs Complaint as follows: 1. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. 2. Denied. After reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 3. Denied. The averments contained within this Paragraph refer to a Defendant other than the Answering Defendant; accordingly, no affirmative response is required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. By way of further answer, it is denied that Defendant Pamela Kozick had an office and place of business at the Carlisle Regional Medical Center, 246 Parker Street, Carlisle. To the contrary, it is believed and therefore averred, that Defendant Kosick was employed by Carlisle Women's Care, with a principal place of business at 419 Stonehedge Drive, Suite 4, Carlisle, PA 17013. 4. Denied. The averments contained within this Paragraph refer to a Defendant other than the Answering Defendant; accordingly, no affirmative response is required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. By way of further answer, it is denied that Defendant Pamela Kozick had an office and place of business at the Carlisle Regional Medical Center, 246 Parker Street, Carlisle. To the contrary, it is believed and therefore averred, that Defendant Kosick was employed by Carlisle Women's Care, with a principal place of business at 419 Stonehedge Drive, Suite 4, Carlisle, PA 17013. 5. Denied. The averments contained within this Paragraph refer to a Defendant other than the Answering Defendant; accordingly, no affirmative response is required. To the extent affirmative responses may be required, it is denied that Defendant Women's Health Associates of Carlisle had an office and place of business at the Carlisle Regional Medical Center, 246 Parker Street, Carlisle. To the contrary, it is believed and 2 therefore averred, that Defendant Women's Health Associates of Carlisle had a principal place of business at 419 Stonehedge Drive, Suite 4, Carlisle, PA 17013. 6. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied since after reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 7. Denied as stated. It is admitted that Defendant Carlisle Area Health and Wellness Foundation, successor to Carlisle Hospital, is a corporation organized and existing under and pursuant to the laws of the Commonwealth of Pennsylvania. It is denied that Defendant Carlisle Area Health and Wellness Foundation has a principle place of business at 246 Parker Street, Carlisle. To the contrary, the Answering Defendant's principle place of business is 274 Wilson Street, Carlisle, PA 17013. 8. Denied as stated. It is admitted that Defendant Carlisle Area Health and Wellness Foundation is the successor corporation to Carlisle Hospital and Health Services, which owned, operated and maintained a hospital for the care and treatment of patients at 246 Parker Street, Carlisle. 9. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. By way of further answer, it is denied that Defendant Pamela Kozick was an actual or ostensible agent, servant and/or employee 3 of Defendant Carlisle Area Health and Wellness Foundation. To the contrary, at all times material hereto, Defendant Pamela Kozick was an independent contractor in relationship to the Carlisle Hospital. 10. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. 11. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 12. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 13. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 14. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 15. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 16. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 17. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 18. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 4 e 19. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 20. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 21. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 22. Denied. The averments contained in this Paragraph and its subparts are denied in conformity with Pa.R.C.P. 1029(e). 23. Denied. The averments contained in this Paragraph are denied in conformity with Pa.R.C.P. 1029(e). 24. Denied. After reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 25. Denied. After reasonable investigation Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 26. Denied. The averments contained within this Paragraph and its subparts refer to a Defendant other than the Answering Defendant; accordingly, no affirmative response is required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. 5 27. Denied. It is specifically and unequivocally denied that Defendant Carlisle Area Health and Wellness Foundation was negligent in regard to the care and treatment of Christian Boullianne. To the contrary, at all times material hereto, the medical care rendered to Christian Boullianne was proper, appropriate and within the standard of care required for treatment of patients such as Christian Boullianne. By way of further answer, it is more specifically denied that: a. Denied. It is specifically and unequivocally denied that Defendant Carlisle Area Health and Wellness Foundation was negligent in a "failure to properly train Pamela Kozick regarding the interpretation of fetal heart monitoring." To the contrary, at all times material hereto, the Answering Defendant acted properly, appropriately and within the standard of care required in such situations. b. Denied. It is specifically and unequivocally denied that Defendant Carlisle Area Health and Wellness Foundation was negligent in a "failure to have adequate personnel available to manage Brenda Boullianne's labor and delivery." To the contrary, at all times material hereto, the Answering Defendant acted properly, appropriately and within the standard of care required for staffing of a labor and delivery suite. C. Denied. It is specifically and unequivocally denied that Defendant Carlisle Area Health and Wellness Foundation was negligent in a "failure to have a representative of the pediatrics department attend the delivery of Christian Boullianne." To the contrary, at all times material hereto, the Answering Defendant acted properly, appropriately and within the standard of care required for treatment of patients such as Christian Boullianne. d. Denied. It is specifically and unequivocally denied that Defendant Carlisle Area Health and Wellness Foundation was negligent in a "failure to recognize Christian Boullianne's abnormal perinatal heart rate pattern." To the contrary, at all times material hereto, the Answering Defendant acted properly, appropriately and within the standard of care required for treatment of patients such as Christian Boullianne. e. Denied. It is specifically and unequivocally denied that Defendant Carlisle Area Health and Wellness Foundation was negligent in a "failure to appropriately respond to Christian Boullianne's abnormal 6 perinatal heart rate pattern by administering appropriate resuscitative efforts and expeditious delivery." To the contrary, at all times material hereto, the Answering Defendant rendered proper and appropriate care within the standard of care required for treatment of patients such as Christian Boullianne. COUNTI WRONGFUL DEATH ACTION 28. Answering Defendant, Defendant Carlisle Area Health and Wellness Foundation, hereby incorporates by reference its responses to Paragraphs 1 through 27 of the Plaintiffs' Complaint as if more fully set forth herein at length. 29. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. 30. This Paragraph was withdrawn by Stipulation of counsel, approved by Order of Court dated February 7, 2003. WHEREFORE, Answering Defendant respectfully requests that judgment be entered in its favor and against the Plaintiff and that Answering Defendant be awarded appropriate costs and fees. COUNT II SURVIVAL ACTION 31. Answering Defendant, Defendant Carlisle Area Health and Wellness Foundation, hereby incorporates by reference its responses to Paragraphs 1 through 30 of the Plaintiffs Complaint as if more fully set forth herein at length. 7 32. Denied. The averments contained in this Paragraph are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. WHEREFORE, Answering Defendant respectfully requests that judgment be entered in its favor and against the Plaintiff and that Answering Defendant be awarded appropriate costs and fees. NEW MATTER 33. Plaintiff has failed to state a claim upon which relief can be granted. 34 Plaintiffs claim is barred and/or limited by the applicable Statute of Limitations. 35. Plaintiffs decedent's injuries, if any, were sustained as a result of natural or unknown causes and not as the result of any action or inaction on behalf of the Answering Defendant. 36. At all times material hereto, Answering Defendant provided full, complete, proper, reasonable and adequate medical care and treatment in accordance with the applicable standard of care. 37. No conduct on the part of the Answering Defendant was a substantial factor in causing or contributing to any harm which the Plaintiffs' decedent may have suffered. 8 11 . 38. If Plaintiffs decedent suffered any damage, the damages were caused by the conduct of others over whom the Answering Defendant had no control or right to control. 39. All claims and causes of action pleaded against the Answering Defendant are barred by the knowing and voluntary informed consent to the care provided to the decedent. 40. All physicians rendering medical care or treatment to the Plaintiffs decedent were independent contractors in relationship to the Answering Defendant Carlisle Area Health and Wellness Foundation and were not the agents, ostensible agents, servants or employees of Answering Defendant. 41. Insofar as any agent, servant or employee of the Answering Defendant Carlisle Area Health and Wellness Foundation or any person for whom it is or may be vicariously liable, elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, then said Defendant raises the "two schools of thought" defense. 42. To the extent it was required to do so, the Answering Defendant took all reasonable and necessary steps to make a proper and appropriate diagnosis and to the extent it may be determined that that diagnosis was in error, the Answering Defendant asserts that the error in diagnosis was a reasonable and legally justifiable error. 43. The claims of Gerard and Brenda Boullianne are barred by the expiration of the statute of limitations. 44. Medical expenses associated with the birth, care and treatment of Christian Boullianne through the time of his death are not recoverable in this action since such damages 9 are recoverable solely by the parents or natural guardians of Christian Boullianne and such claims are barred by the expiration of the statute of limitations. Respectfully submitted, FARRELL & RICCI, P.C. Date: 3 3 O Josep A. Ricci, Esquire---- Attorne .D. No. 49803 4423 Nor Front Street urg, PA 17110 (717) 230-9201 Counsel for Defendant Carlisle Area Health and Wellness Foundation 10 M-214 VERIFICATION I, M. Elizabeth Clever, Executive Director of Carlisle Health and Wellness Foundation, hereby verify that the facts set forth in the foregoing Answer with New Matter to Plaintiff's Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: 2(? CARLISLE HEALTH AND WELLNESS FOUNDATION Name: M. Eli beth Clever Title: Executive Director Carlisle Health and Wellness Foundation ., • CERTIFICATE OF SERVICE „ . AND NOW, this day of March, 2003, I, Joseph A. Ricci, Esquire, hereby certify that I served a true and correct copy of the foregoing Answer with New Matter upon all counsel of record by depositing a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 25th Floor 1845 Walnut Street Philadelphia, PA 19103 Peter J. Curry, Esquire Thomas, Thomas & Hafer 305 North Front Street, Sixth Floor P.O. Box 999 Harrisburg, PA 17108 - DLI c : FELDMAN, SHEPHERD, WOHLGELERNTER 8 TANNER BY: DANIEL S. WEINSTOCK IDENTIFICATION NO.: 72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-3158 PLAINTIFF'S RESPONSE TO NEW MATTER OF DEFENDANT, CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, TO PLAINTIFF'S COMPLAINT Plaintiff, by his attorneys, Feldman, Shepherd, Wohlgelernter & Tanner, hereby respond to the New Matter of defendant, Carlisle Area Health and Wellness Foundation to Plaintiff's Complaint, as follows: 33-44. The averments set forth in these paragraphs constitute, and are limited to, conclusions of law, to which no response is required or offered. By way of further response, to the extent any of such allegations are deemed factual in nature, said averments are denied are strict proof thereof, to the extent •elevant, is demanded at the time of trial. Feldman, Shepherd, Wohlgelernter & Tanner By: Daniel S. Weinstock Attorneys for Plaintiffs FELDMAN, SHEPHERD, WOHLGELERNTER 8 TANNER BY: DANIEL S. WEINSTOCK IDENTIFICATION NO.: 72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOA LLAE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-3158 CERTIFICATE OF SERVICE I hereby certify that on this 10th day of March, 2002, true and correct copies of Plaintiff's Response to New Matter of Defendant, Carlisle Area Health and Wellness Foundation, to Plaintiff s Comlamt were served via United States first class mail, postage pre-paid upon the following: Peter J. Curry, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108 Joseph A. Ricci, Esquire Farrell & Ricci, P.C. 4423 North Front Street Harrisburg, PA 17110 Feldman, Shepherd, Wohigelernter & Tanner By: 14 Daniel S. Weinstock Attorneys for Plaintiffs i- . -`r Dw_ c =?? GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PAMELA KOZICK: WOMEN'S HEALTH ASSOCIATES Of CARLISLE; successor to Carlisle Women's Care; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants NO. 02-3158 Civil Term JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE Please withdraw the appearance of the undersigned, Joseph A. Ricci, Esquire as counsel for Defendant, Carlisle Area Health and Wellness Foundation, successor to Carlisle Hospital, in the above-captioned matter. Date: Respectfully submitted, FARRELL & RICCI, P.C. Harrisburg, PA 17110 (717) 230-9201 oseph A. Ri Esquire ,ttorney I.D. o. 49803 N. Street ENTRY OF APPEARANCE Please enter the appearance of Michael M. Badowski as counsel for Defendant, Carlisle Area Health and Wellness Foundation, successor to Carlisle Hospital, in the above-captioned matter. Respectfully submitted, O N, ATTORNEYS Date: ?7'__7 Michael M.Badowski, Esquire Attorney I.D. No. (z 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the day of 2005, and addressed as follows: Mark W. Tanner, Esquire Daniel S. Weinstock, Esquire FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER 25th Floor 1845 Walnut Street Philadelphia, PA 19103 (Attorneys for Plaintiff) Peter J. Curry, Esquire THOMAS, THOMAS & HAFER 305 North Front Street Post Office Box 999 Harrisburg, PA 17108-0999 (Attorneys for Pamela Kozick and Women's Health Associates of Carlisle) MARGOLIS EDELSTEIN By: 0d-a vtu cretary ("J v ? ctl J'n a O :FJ Ui THOMAS, THOMAS & HAFERLLP ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 August 1, 2006 Mr. Curt Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 Re: Boullianne v. Kozick, et al Cumberland County No. 02-3158 Dear Prothonotary Long: Stephanie L. Hersperger (717)255-7239 shersperger@tthlaw.com Enclosed for filing please find the Motion for Status Conference of Defendants, Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care, with regard to the above-captioned case. As you can see by the Certificate of Service, all parties of record have been served. Please file the original and return the time stamped copy to this office. When the Status Conference has been scheduled, please return the executed Order in the self-addressed stamped envelopes for all parties. Thank you for your assistance. Yours very truly, THOMAS, THOMAS & HAFER, LLP Y Stephanie L. Hersperger SH/aea:442401.1 Enclosure cc: Daniel S. Weinstock, Esquire (w/encl.) Michael Badowski, Esquire (w/encl.) Lehigh Valley Office: 3400 Bath Pike, Suite 201, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 THOMAS, THOMAS & HAFER, LLP By: Peter J. Curry, Esquire Identification No. 16622 By: Stephanie L. Hersperger, Esquire Identification No. 78735 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7637 Attorneys for Defendants, Pamela Kozick and Women's Health Associates of Carlisle r/d/b/a Carlisle Women's Care UERARD BOULLIANNE, IN THE COURT OF COMMON PLEAS Administrator of the Estate of CUMBERLAND COUNTY, PA CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. NO. 02-3158 PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE CIVIL ACTION - LAW and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, Defendants MOTION OF DEFENDANTS, PAMELA KOZICK AND WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE, FOR SCHEDULING CONFERENCE AND NOW come Defendants, Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care ("Moving Defendants"), by and through their attorneys, Thomas, Thomas & Hafer, LLP, and hereby file this Motion for Scheduling Conference: 1. Plaintiffs initiated this medical malpractice action against Defendants for alleged negligence in the labor and delivery of Plaintiffs' decedent, Christian Boullianne, on January 26, 1999, and that same caused him severe and permanent neurological deficits. A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A".1 2. Plaintiffs specifically alleged that Midwife Kozick was negligent for (1) failing to recognize an abnormal fetal heart tracing; (2) failing to consult with a physician in light of abnormal fetal heart tracing; (3) failing to more expeditiously deliver Christian Boullianne; (4) failing to notify hospital personnel of a complicated delivery so that a representative of the pediatrics department could attend the delivery; and (5) failing to administer appropriate resuscitative efforts to Christian Boullianne upon his delivery. See Exhibit "A". 3. To date, substantial discovery has taken place in this matter, including the depositions of all the parties. 4. Defendants would like to schedule a status conference for the purpose of creating mutually agreeable case management deadlines to expedite the resolution of this matter or scheduling same for trial. 5. Deadlines would include fact discovery, expert discovery, any remaining dispositive motions and trial. WHEREFORE, Defendants, Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care, respectfully request that this Honorable Court grant Defendants' Motion and assign this matter to a judge for a scheduling conference for the imposition of certain ' Plaintiffs' decedent, Christian Boullianne, died on February 9, 2001. His death was not related to Defendants' alleged negligence. 2 case management deadlines. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: Z?06 -9 Peter J. C , Esquire Stephanie L. Hersperger, Esquire Attorneys for Defendants, Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care 442396.1 3 Ex h? bi+ A FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER BY: MARK W. TANNER/OANIEL S. WEINSTOCK IDENTIFICATION NO.- 58738172940 ATTORNEYS FOR PLAINTIFF `J 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 ;215) 567-5300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased 50 Bonnybrook Road Lot 50 Carlisle, PA 17013 V. PAMELA KOZICK c/o Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and WOMEN'S HEALTH ASSOCIATES OF CARLISLE :/o Carlisle Regional Medical Center ?46 Parker Street :arlisle, PA 17013 Ind 7ARLISLE REGIONAL MEDICAL. CENTER, formerly :ARLISLE HOSPITAL :46 Parker Street .arlisle, PA 17013 COURT OF COMMON PLEAS CUMBERLAND COUNTY No. O,? --3J5'p Cftu??,`T TRUE COPY FROM RECORD M Tolel kwny wfareoi, l here ume so my fund a+ei tf>t UIf, of said CoW a; caft e. Pa. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following Ili ges, you must take action within twenty (20) days after this complaint and notice are served, by entering vritten appearance personally or by attorney and filing in writing with the court you defenses or c t iections to the claims set forth against you. You are warned that if you fail to do so the case may j: r Iceed without you and a judgment may be entered against you by the court without further notice for any m. ney claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose m, ney or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT H./ VE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET F : RTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Libcrty Avenuc Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9108 FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER BY- MARK W. TANNER/OANIEL S. WEINSTOCK IDENTIFICATION NO.: 55738/72840 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERA" BOULLLA.IM, Administrator of the Estate of CHRISTIAN BOULLIANNF, Deceased 50 Bonnybrook Road Lot 50 Carlisle, PA 17013 V. PAMELA KOZICK c/o Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and WOMEN'S HEALTH ASSOCIATES OF CARLISLE Jo Carlisle Regional Medical Center 246 Parker Street Carlisle, PA 17013 and : ARLISLE REGIONAL MEDICAL CENTER, formerly . .ARLIST.E HOSPITAL !46 Parker Street .arlisle, PA 17013 I COMPLAYNIL' COURT OF COMMON PLEAS CUMBERLAND COUNTY No. Plaintiff, by his attorneys, Feldman, Shepherd, WohlgeJernter & Tanner, hereby demands damages c 1 the defendants herein, jointly and severally, in a sum in excess of this court's arbitration limit, plus costs an I damages for pre judgment delay, upon causes of action of which the following are statements: 1. Plaintiff, Gerard Boullianxic, is the duly appointed administrator of the Estate of Christian, di:i eased, having been so appointed by the Register of Wills of Cumberland County on June 20, 2002. 2. Plaintiff is an adult individual and is a citizen of the Commonwealth of Pennsylvania, residing he einat 50 Bonnybrook Road, Lot 50, Carlisle. 3. Defendant, Pamela Kozick, an adult individual, is a citizen of the Commonwealth of Pennsylvania, with an office and place of business in care of Carlisle Regional Medical Center, 246 Parkt Street, Carlisle. 4. At all times pertinent hereto, Pamela Kozick, a Certified Nurse Midwife, was engaged in the practice of Certified Nurse Midwifery, with an office and place in care of Carlisle Regional Medical Center, 246 Parker Strect, Carlisle. 5. Defendant, Women's Health Associates of Carlisle, is a business entity, with an office and dace of business in care of Carlisle Regional Medical Center, 246 Parker Street, Carlisle. 6. At all times pertinent hereto, Pamela Kozick was an actual or apparent agent, servant and/or mployee of Women's Health Associates of Carlisle, acting in such capacity. 7. Defendant, Carlisle Regional Medical Center, formerly Carlisle Hospital (" CRMC'?, is a orporation, organized and existing under and pursuant to the laws of the Commonwealth of Pennsylvania, i pith an office and place of business therein, at 246 Parker Street, Carlisle. 8. At all times pertinent hereto, CRMC owned, operated and maintained a hospital for the care a ed treatment of patients at 246 Parker Street, Carlisle. 9. At all times pertinent hereto, Pamela Kozick was an actual or ostensible agent, servant and/or a lployee of CRMC, acting in such capacity; CRMC's actual or ostensible agents, servants and/or UI iployees also included any doctors, fellows, residents, interns, students, nurses or technicians who a. ;isted, or were obliged to assist, in the management of Brenda Boullianne's labor and delivery of Cl ristian Boullianne, deceased, as described in detail below. 10. At all times pertinent hereto, a health care provider/patient relationship existed between Sr :nda Boullianne and Christian Boullianne, deceased and each of the defendants, defendants therefore ha) a duty to render care and treatment to their patients in conformity with acceptable medical standards. 11. Brenda Boullianne became pregnant in 1998, .with a last menstrual period of April 9. -2- 12. She sought and indeed received prenatal care at the Well Baby Clinic at the defendant hospital. An estimated date of confinement of January 14, 1999 was established. 13. The pregnancy was insignificant for neurologic risk factors. 14. On the morning of January 26, 1999 (approximately 41 and 5n weeks gestation), Brenda Bouliianne went into labor and was transferred from the radiology deparvncnt to labor and delivery at the lefendant hospital. 15. Spontaneous rupture of membranes occurred at 1:50 p.m., revealing clear fluid. 16. No later than 4:10 p.m., the fetal heart tone became severely bradycardic. 17. No later than 4:33 p.m., Brenda Boullianne was completely dilated, and indeed had been istructed to pttsh. The fetal heart rate continued to be depressed, with intermittent decelerations. 18. Vaginal delivery was performed at 5:24 p.m. 19. Upon delivery, Christian Boullianae was severely depressed, with APGAR scores of 2,3 and j,d An arterial cord ph demonstrated profound acidosis, with a ph of 6.88 and abase deficit of 23. 20. Spontaneous respirations were not obtained until approximately 50 minutes of life, followed b, the immediate onset of seizure activity. 21. Resuscitation was ultimately able to save Christian Boullianne's life for the timebeing, but R i n t before profound hypoxic-ischemic brain damage occurred. 22. As a result of Christian Boullianne's severe and permanent brain damage, he suffered t6 oughout his life from: a. seizures almost daily; b. diminished or absent reflexes throughout his body; C. a depressed state of cousciousness; d. profound mental retardation; e. almost persistent irritability and pain: and -3- f. the need to be fed via epigastric tube. 23. As a further result of the brain damage Christian Boullianne suffered during the perinatal period as described above, he ultimately succumbed on February 9.2001. 24. Christian Boullianne did not bring a claim for the above-described injuries during his lifetim 25. Christian Boullianne is survived only by his two parents, plaintiff herein and his wife Brend< Boulliannc, who share's plaintiffs address. 26. The negligence of Pamela Kozick included the following:. a. failure to recognize an abnormal fetal heart tracing; b. failure to consult with a physician in light of abnormal fetal heart tracing; C. failure to more expeditiously delii.ver Christian Boullianne; d. failure to notify hospital personnel of a complicated delivery so that a representative of the pediatrics department could attend delivery, and c. failure to administer appropriate resuscitative efforts to Christian Boullianne upon his delivery. 27. The negligence of CRMC included the following: a. failure to properly train Pamela Kozick regarding the interpretation of fetal heart monitoring; b. failure to haver adequate personnel available to manage Brenda Boullianne's labor and delivery; C. failure Lo have a representative of the pediatrics department attend the delivery of Christian Boullianne; d. failure to recognize Christian Bouilianne's abnormal perinatal heart rate pattern; and failure to appropriately respond to Christian Boullianne's abnormal perinatal heart rate pattern by administering appropriate. resuscitative efforts and expeditious delivery. -4- COUNT I MONGFUL DEATH ACTION 28. Paragraphs I through 27 are hereby incorporated by reference as though fully set forth at ength. 29. Plaintiff brings this action under and pursuant to the Pennsylvania Wrongful Death Act, and lemands damages of defendants herein for loss of the financial contributions of the decedent and for the conomic value of his services to his survivors. Plaintiff further demands damages for all other economic 1 asses suffered by decedent's survivors, including medical, funeral and other expenses reasonably ;sociated with his death. 30. Plaintiff further demands damages-of the defendants for deprivation of his son's services, :; )ciety and companionship, the loss of which he has endured and will continue to endure for an indefinite p :riod of time. WHEREFORE, plaintiff demands damages of the defendants, jointly and severally, in a sum in c:: cess of this court's arbitration limit, plus interest, costs of suit and damages for delay. COUNT II SURVIVAL ACTION V 31. Paragraphs 1 through 30 are hereby incorporated by reference as though fully set forth at lc:r gth. 32. Plaintiff brings this action under and pu mant to the Pennsylvania Survival Act, and demands d:u rages of the defendants for the conscious pain and suffering and emotional distress endured by decedent Lqi mtil the time of his death, as well as for the economic losses sustained by decedent's Estate. _.3_ •..i WHEREFORE, plaintiff demands damages of the defendants, jointly and severally, in a suns in excess of this court's arbitration limit, plus interest, costs of suit and damages for delay. Feldman, Shepherd, Wohlgelerater & Tanner By. Mark W. Tanner Daniel S. Weinstock Attorneys for Plaintiff -6- VERIIFTCATION Gerard Boullianne hcreby states that he is the plaintiff in the foregoing action and that the foregoing averments in the Complaint are true mid correct to the best of his knowledge, information and belief. The language of said averments is that of counsel and not of plaintiff. Plaintiff has read the Complaint and to the extent that it is based upon information which he has given to his counsel, it is true and correct to the best of his knowledge, information and belief. To the extent that the language of the Complaint is that of counsel, he has rclied upon counsel in making this verification. . This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 'ed' . f ?' - Gerard Boudli e CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, an employee of the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that I sent a true and correct copy of Defendants' Motion for a Scheduling Conference to all counsel of record by placing a copy of the same in the United States first-class mail, postage prepaid, addressed as follows: Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 1845 Walnut Street, 25th Floor Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Date: THOMAS, THOMAS & HAFER, LLP f ?1 By. Ashleigh E. emeyer h-.: -? 1 ....! .:, t _3 ? ::G F GERARD BOULLL Administrator of the Of CHRISTIAN BOULLIANNE, De Plaintiff V. PAMELA KOZICK d WOMEN'S HEALT ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE and CARLISLE REGIONAL MEDIC L CENTER, formerly CARLISLE HOSPIT Defendants ORDER OF COURT AND NOW, Defendants, Pamela N IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3158 CIVIL TERM 10 day of August, 2006, upon consideration of Motion of and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care, for I Scheduling Conference, a status conference is scheduled for Wednesday, October Ill, 2006, at 3:00 p.m., in chambers of the undersigned judge. Daniel S. Weinstock, Feldman, Shepherd, Wohlgelernter & Tar 1845 Walnut Street 25th Floor Philadelphia, PA 191 Attorney for Plaintifi Esq. ?'-r?-off BY THE COURT, dfNVAIASNN3d W111C? nr n,-s.'fiW?1? ? i: i i wn s i onn 9ooa r AdvioN,01,1.1LOdd 3Hi d0 3013-40-031H .1 Ap i Peter J. Curry, Esq. Stephanie L. Hersper P.O. Box 999 , Esq. Harrisburg, PA 1710 Attorneys for Defend is Pamela Kozick and omen's Health Associates of arlisle r/d/b/a Carlisle Won n's Care Michael Badowski, E 3510 Trindle Road Camp Hill, PA 17011 :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, Defendant NO. 02-3158 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of October, 2006, upon consideration of the Motion of Defendants, Pamela Kozick and Women's Health Care Associates of Carlisle, formerly doing business as Carlisle Women's Care, for Scheduling Conference, and following a Status Conference held in the chambers of the undersigned judge in which Plaintiff was represented by Daniel S. Weinstock, Esquire (participating by telephone), Defendants Pamela Kozick and Women's Health Associates of Carlisle, formerly doing business as Carlisle Woman's Care, were represented by Stephanie L. Hersperger, Esquire, and Carlisle Regional Medical Center, formerly, Carlisle Hospital, was represented by Stephen Banko, Jr., Esquire, standing in for Michael Badowski, Esquire, and pursuant to an agreement of counsel, it is ordered and directed as follows: 1. Plaintiff's expert reports shall be served upon Defendants' counsel within 30 days of today's date; 2. Defendants' expert reports shall be served upon the other counsel in the case within 60 days thereafter; any rebuttal expert reports of Plaintiff shall be served upon Defendants' counsel within 45 days thereafter; 4. Fact discovery shall be complete by the date that rebuttal reports of Plaintiff's experts are due; and 5. Counsel will list this case for trial during the GERARD BOULLIANNE, administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff inno '6 130 9QOZ A8VIOj\+j} ?HI do 3 l? lta-OjLq April 16, 2007, trial term. aniel S. Weinstock, Esquire 1845 Walnut Street 25th Floor Philadelphia, pa 19103 For the Plaintiff tephanie L. Hersperger, Esquire P.O. Box 999 Harrisburg, pa 17108 For Defendant Pamela Kozick and Associates of Carlisle f/d/b/a Carlisle Women's Care J-?-ephen Banko, Jr., Esquire, .O. Box 932 Harrisburg, PA 17108 For Defendant Carlisle Regional Formerly Carlisle Hospital pcb Women's Health Medical Center, w,Izlc J, ?b By the Court, r i PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( 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) (check one) Gerard Boullianne, Administrator of the Estate of Christian Boullianne, Deceased VS. Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care and Carlisle Regional Medical Center, formerly Carlisle Hospital (Defendant) (X ) Civil Action -Law ( ) Appeal from Arbitration 0l -3158 (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) Indicate the attorney who will try case for the party who files this praecipe: Peter J. Curry, Esquire -counsel for Pamela Kozick and Women's Health Associates Indicate trial counsel for other parties if known: Daniel S. Weinstock, Esquire -Plaintiffs counsel Michael Badowski, Esquire -counsel for Carlisle Regional Medical Center This case is ready for trial. Date: 3zR L02 Signed: Peter J. urry, Esquire Stephanie L. Hersperger, Esquire Attorneys for Defendant, Kozick and Women's Health Associates (Plaintiff) 'WI CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, hereby certify that a true and correct copy of the foregoing document was forwarded to all counsel of record by placing a copy of the same in the United States first-class mail, postage prepaid, addressed as follows: Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohgelernter & Tanner 1845 Walnut Street, 25th Floor Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein 3 510 Trindle Road Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP t Ashleigh E. Anglemeyer Date: 3 : ? ' ? ? ? ?? ? ? ?: ? },. ;, ? ?, ?) --h . . ..-,. GERARD BOULLIANNE,: IN THE COURT OF COMMON PLEAS OF Administrator of the Estate : CUMBERLAND COUNTY, PENNSYLVANIA Of CHRISTIAN BOULLIANNE, Deceased,: Plaintiff V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, Defendants CIVIL ACTION - LAW NO. 02-3158 CIVIL TERM ORDER OF COURT AND NOW, this 29`'' day of March, 2007, upon consideration of the attached letter from Stephanie L. Hersperger, Esq., attorney for Defendants Pamela Kozick and Women's Health Associates of Carlisle, and with the consent of all other counsel, the above-captioned case is placed on the April 2007 Civil Trial List. A PRE-TRIAL CONFERENCE is scheduled in chambers of the undersigned judge for Wednesday, April 11, 2007, at 3:30 p.m. BY THE COURT, i FO :11 {' 9u? U, M LGH l,i? .ii `i.. •.?`i j.l.tom. ?:..? 3 HI ?O Daniel S. Weinstock, Esq. Feldman, Shepherd, Wohlgelernter & Tanner 1845 Walnut Street 25th Floor Philadelphia, PA 19103 Attorney for Plaintiff Peter J. Curry, Esq. Stephanie L. Hersperger, Esq. P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendants Pamela Kozick and Women's Health Associates of Carlisle r/d/b/a Carlisle Women's Care Michael Badowski, Esq. 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant Carlisle Regional Medical Center, formerly Carlisle Hospital Cumberland County Court Administrator - AA?Vle&&?j 3/?1Q? :rc 14:08_MAR 21, 2007 TEL N0: 237-7105 *18330 PAGE: 2/7 THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 March 21, 2007 Via Fax Only 717-240.6462 The Honorable Wesley I Oler, Jr. CUMBERLAND COUNTY COURTHOUSE 1 Courthouse Square Carlisle, PA 17013-3387 Re: Boullianne Y. Kozick, et al Cumberland County No. 02-3158 Dear Judge Oler: www.ttmaw.com Stephanie L. Hersperger (717)255-7239 sherspergcr@tthlaw.com I represent Defendants, Pamela Kozick and Women's Health Care Associates of Carlisle, successor to Carlisle Women's Care, in regards to the above referenced matter. We, along with other counsel, were before your Honor for a Status Conference on October 11, 2006, at which time you established deadlines and indicated that Counsel was to list this case for trial during the April 16, 2007, trial term. I volunteered to list this case for trial for the various parties. A copy of your Honor's Order is attached for your convenience. Unfortunately, I inadvertently diaried the wrong deadline for listing this case for trial. Although I filed a Praecipe to List the Case for Trial, according to the Cumberland County Local Rules, it was filed late. We did not realize this mistake until yesterday when this case was not called at the Call of the List. This was a mistake on my part and I have already apologize to Counsel for Plaintiffs and I apologize to you and the Court. The reason I am informing your'Honor of this mistake is because this is a complex medical malpractice case involving 7 experts (4 for Plaintiffs, 3 for Defendants) and other healthcare personnel who had already been notified of the April 16, 2007, trial date and had made arrangements to attend same, and they will be seriously inconvenienced if this trial does not proceed at that time. I therefore am requesting that if there is any way that this case can be given a date certain for the April 16, 2007, trial terra, despite my failure to timely list same, that your Honor please consider doing so. Of course, I understand that this may not be possible. Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 14:09 MAR 21, 2007 TEL N0: 237-7105 #19330 PAGE: 3/7 a The Honorable Wesley J. Oler, Jr. March 21, 2007 PAGE 2 Thank you for your Honor's time and consideration regarding the above request and again, I apologize for this inconvenience. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Stephanie L. Hersperger SH/aea:489689.1 Enclosure cc: Daniel S. Weinstock, Esquire (w/encl.) VIA FACSIMILE ONLY 1-215-567-8333 Michael Badowski, Esquire (w/encl.) VIA FACSIMILE ONLY 717-975-8124 APR 09 2007 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff, VS. PAMELA KOZICK; WOMEN'S HEALTH ASSOCIATES OF CARLISLE, Successor to Carlisle Women's Care; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MEDICAL MALPRACTICE DOCKET NO. 02-3158 JURY TRIAL DEMANDED ORDER Iq??L AND NOW, this (a R day of Mh, 2007, in accordance with the attached Stipulation of counsel and in accordance with Pennsylvania Rule of Civil Procedure 229, IT IS HEREBY ORDERED AND DIRECTED that Defendants, Carlisle Regional Medical Center, Carlisle Hospital, Carlisle Area Health and Wellness Foundation, are dismissed, with prejudice, from this action and the prothonotary and parties hereto are directed to remove said Defendants from the caption of all future filings. BY THE COURT: v 1;1,,' 7p, i?` 7 PO :? Wd I f ?.Idv HE 1?U\ ?. v 1 J 1 V 4,; 17 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff, VS. PAMELA KOZICK; WOMEN'S HEALTH ASSOCIATES OF CARLISLE, Successor to Carlisle Women's Care; and CARLISLE AREA HEALTH AND WELLNESS FOUNDATION, Successor to Carlisle Hospital, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MEDICAL MALPRACTICE DOCKET NO. 02-3158 JURY TRIAL DEMANDED STI14JI ATION OF COUNSEL TO DISWSS IIEFENDANTSj CARDS" MIONAL MEDICAL CENTER/CARLISLE HOSPITAL/CARLISLE ARM HULT H AND W ASS FOUNDATION, PURSUANT TO PAJLC.P. N ZM It is hereby stipulated and agreed to, by and between counsel for all parties, that Defendants, Carlisle Regional Medical Center, Carlisle Hospital, Carlisle Area Health and Wellness Foundation, be dismissed with prejudice from the above-captioned case in accordance with Pennsylvania Rule of Civil Procedure No. 229. It is understood that this Stipulation applies only to the dismissal of the aforementioned Defendants without affect on Plaintiff's ability to continue with the prosecution of their claim as against Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care. 1 N0.732 P.5/5 APR'. 4. 2007 3:29PM FELDMANSHEPHERDWOHL.G a FELDMAN, SHE MA WOMGMXkN-MR TANNM WENSTOCK Date: `l 3 7 By: Date: By: el S. Weinstoc squire ?.ttorney for Plaintiff, Gerard Boullianne, Mmiaistrator of the Estate of quistian Bouniaune. Deceased THOMAS, THOMAS & HAFER $eter J. Curry, Esquire 4 torney for Defendants, Pamela Kozick and Women's Health Associates of Carlisle Vd[W& Carlisle Women's Care MMGOUS EDELSTEIN Date: By: Achael M. Badowski. Esquire .kttoruey for Defendants, Carlisle Regions) lvledical Center, Carlisle Hospital, Carlisle .4,.rea Health and Welluess Foundation 2 04/02/2007 13:46 FAX ? 003/003 MAR-29-M07 09:52 THOMAS THOMAS & HAFER 717 237 7105 P.04 :ti•' • I I':I .I )11Ir`N. qr l l'I I I IRi ). V11()11 l,(rl .l ; ,; ;.s'''f' .? .K•,,; ec t ..iP' : m„ VV1;1N?'i'()f:]? ,r 4 ,.z.., t?i???? •",' I, ).tl,;: r• . ?. ...., .. - I).laiic'I ?, ?Vr:llT?trrr.}:, l:?sl?iil•c T ; +i' l'1,; I?Irtll'lllri, ( i171.i1t•ll '?;1'14111l.Illrlt', Atlnrnc?V ; j?•im t•?!Lrilrtsni?ll-rll(?1' nt' l.lul f•:?t'n1? t?f ,_ ;, ...• a l; ,tt{lit?nlY?,. U?:?:Ir;l•,rrrl ?;:?,'?ti ?,V;.., Christian :y l'I1(51`1:1 1()?tAS & IIr1FER ?u; var+' t ' • lid,; '*?°?"'',• , /?llt?l'11r`?' 1 r:l,'Ilrl?l? a?lllr•:lii )EL'iY%1•t?I? ':'??, ,?: and Wot -Ii kl Nf1 11111 i Car" ± ?? ?yr 51 V . 26. t. {Ill 11:. ! -' ;,. +3: ic?ll,m( i\ 1.1 111V ;T? ??'? I' Itrlant,t (:?Irli,lt:?l?,•r?;irxtl:Yl •' ".-'' °"• ..??'•?,;, .• ?\Ittlts??:?! I•Irr 1)1; ts. •?';`'•'`'??•'=; ' ?{, ? ?'"?? • y ' , r.T', l l{"lr?li: I''l1YF Illi?i, Chi I«{t? 'r ';. ;;"y " 1Yr1. ? r11'r„1 Flr.,?tllli iltttl ?'1'r?llrtr;?sl?rlr?rltl?iiii?,?1 :•? ;?+:.'^'. y'. ! •?.r 1 ? l7 •'..TM'?,•''; i'' !'rti•'? Mme. TOTAL P,04 v THOMAS, THOMAS & HAFER, LLP By: Peter J. Curry, Esquire Identification No. 16622 By: Stephanie L. Hersperger, Esquire Identification No. 78735 By: Gerryanne Cauler, Esquire Identification No. 90539 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7637 Attorneys for Defendants, Pamela Kozick and Women's Health Associates of Carlisle r/d/bla Carlisle Women's Care GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE f/d/b/a CARLISLE WOMEN'S CARE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 02-3158 CIVIL ACTION - LAW RESPONSE TO PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM OFFERING EVIDENCE OR TESTIMONY PERTAINING TO THE CARE RENDERED BY BRENDA BOULLIANE TO HER SON CHRISTIAN BOULLIANE ON THE DATE OF HIS DEATH AND NOW, come Defendants, Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care ("Responding Defendants"), by and through their attorneys, Thomas, Thomas & Hafer, LLP, and hereby file this Reply to Plaintiff's Motion in Limine: I. Admitted. 2. Admitted. 3. Denied. Defendants deny that Christian's brain damage and cerebral palsy were caused by the care rendered by Nurse Midwife Pamela Kozick. It is further denied that Christian's brain damage and cerebral palsy were the proximate cause of his death and that there were concurring causes or subsequent causes that contributed to his death. 4. Admitted. 5. Admitted. 6. Admitted in part. Denied in part. It is hereby admitted that Defendants have not joined Mrs. Boullianne as an additional defendant in this matter. However, it is denied that Defendants have not provided an expert opinion regarding the cause of Christian Boullianne's death. As stated above, Defendants' expert Dr. Paul Douglass addressed the proximate cause of Christian's death suffocation. Dr. Douglass addresses this issue as one of causation to the child's death. 7. Admitted as stated, but the rule of civil procedure pertaining to Irrelevant Evidence Pa. R.E. 402 is not applicable to this issue. 8. Admitted as stated, but the rule of civil procedure pertaining to Irrelevant Evidence Pa. R.E. 403 is not applicable to this issue. 9. Denied. Defendants will introduce evidence regarding the cause of Christian Boullianne's death, but strongly contend that said evidence is relevant to the determination of this action. 10. Denied. The proffered testimony is relevant to the cause of Christian Boullianne's death. In fact, Plaintiff has produced expert testimony regarding the cause of Christian's death. This testimony directly links Christian's death to his handicaps that he allegedly suffered due to the negligence of the Responding Defendants. Please see Exhibit "A". A true and correct copy of Dr. Dlugos' supplemental expert report is attached hereto as Exhibit "A". 2 WHEREFORE, Answering Defendants respectfully request that this Honorable Court deny Plaintiff's Motion and enter an Order in the form attached hereto and allow all relevant testimony regarding the cause of Christian Boullianne's death. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Peter J. C , Esquire Stephanie L. Hersperger, Esquire Gerryanne Cauler, Esquire Attorneys for Defendants, Pamela Kozick and Women's Health Associates of Carlisle f/d/b/a Carlisle Women's Care 495039.1 3 Ex??e;? A (JH The Children's Hospital of Philadelphia 34th Street and Civic Center Boulevard, Philadelphia, PA 19104-4399 Division of Neurology Ph. 215-590-1719 Fax 215-590-1771 March 21, 2007 Mr. Daniel S. Weinstock, Esq. RE: Boullianne, Christian Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock DOB: 01126/99 25`h Floor, 1845 Walnut Street Philadelphia, PA 19103 Dear Mr. Weinstock: This note will serve as an addendum to my original report dated September 5, 2006. Since that time, I have reviewed the following additional information: 1) Expert report from Bradley Quade, MD, PhD 2) Expert report from Felicia Rohrbaugh, MSN, CNM 3) Expert report from Paul Douglass, MD 4) Expert report from Dr. Altshuler, MD There is no clinical evidence to support Dr. Quade's suggestion of a hypoxic-ischemic injury prior to the day of delivery or of chronic uteroplacental insufficiency - birth weight and head circumference are normal. This case meets all of the essential ACOG/AAP criteria for acute intrapartum hypoxic-ischemic encephalopathy (HIE). This acute intrapartum asphyxia was responsible for the child's brain injury, disabilities and early death. If the acute intrapartum asphyxia had not occurred, it is my opinion that Christian would have been developmentally normal, with a normal life expectancy. These opinions are provided with a reasonable degree of medical certainty. Please contact me if you require additional information. Sincerely, Dennis J. Cofessor ugos, M.D. Assistant of Neurology and Pediatrics E i i..? , MAR 2 8 2007 ' APR o 1i?>? • l r i II y..' ? wa fi ?. " L ? •f 7 .':MSS =V • a • ?< ^ L c 4+ ' , R s - r L 41 14 41 ' t° 0 4 a$.?: ..4i • 4 N OD n? W Z I Q m 0 0 V AQ co ' l W LO N . r 0 O O h r D O to W O tD r Ln r ate' ? r V K Q 8 V • A " CERTIFICATE OF SERVICE AND NOW, this I GJoday of , 200, I, Gerryanne Cauler, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a hand delivered true and correct copy of the foregoing document was delivered by Peter J. Curry, Esquire to all parties at time of trial: Daniel S. Weinstock, Esquire Feldman, Shepherd, Wohlgelernter & Tanner 1845 Walnut Street, 25th Floor Philadelphia, PA 19103 Joseph Ricci, Esquire Farrell & Ricci, P.C. 4423 North Front Street Harrisburg, PA 17110 Gerryanne auler 4 -771 4.' t ,.* GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased, Plaintiff vs. PAMELA KOZICK and WOMEN'S : HEALTH ASSOCIATES OF CARLISLE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3158 CIVIL VERDICT QUESTION NO. 1: Do you find that Pamela Kozick was negligent? Yes X No If you answered Question No. 1 "Yes," proceed to Question No. 2. If you answered "No," your verdict is for the defendant and plaintiff cannot recover and you should return to the Courtroom. QUESTION NO. 2: Do you find that the negligence of Pamela Kozick was a substantial factor in bringing about harm to plaintiff, Christian Boullianne? Yes No If you answered Question No. 2 "Yes," proceed to Question No. 3. If you answered "No," your verdict is for the defendant and plaintiff cannot recover and you should return to the Courtroom. A QUESTION NO. 3: State the amount of damages awarded under the Wrongful Death Act, including: a. Hospital, medical, funeral, burial, and estate administration expenses incurred. b. All sums that the decedent would have contributed to the support of his family between today and the end of his life expectancy. c. An amount that will fairly and adequately compensate his family for the monetary value of the services, society, and comfort that he would have given to his family had he lived, including such elements as work around the home, provision of physical comforts and services, and provision of society and comfort. Total damages awarded under the Wrongful Death Act: $ QQ3,-It.(ol d0 5.0 1 000.00 '1 • .9? QUESTION NO. 4: State the amount of damages awarded under the Survival Act, including: a. The value of the net amount that the decedent would have earned between today and the end of his life expectancy. Again, net earnings for this period are determined as follows: you must first calculate the total amount of the decedent's gross earnings between today and the end of his life expectancy; from this amount you must deduct the probable cost of his necessary and economical living expenses required to sustain life during this period (together with the amount of monetary contributions he would have made to his family during this period (which you have already awarded under the Wrongful Death Act)). b. An amount that will fairly and adequately compensate for the mental and physical pain, suffering, and loss of enjoyment of life's pleasures that the decedent endured from the moment of his injury to the moment of his death as a result of decedent's negligence. Total damages awarded under the Survival Act QUESTION NO. 5: TOTAL DAMAGES: You should return to the Courtroom to render your verdict. 1%5()0)0c)C).00 $ X00 pad a 0 0 a}a? 3,47I . e I qja a ?aoa? Date: Foreperson. Jude Clerk/Proth 3 _taf? CASE NO.: COURTROOM NO • a `r ©u??su4Vn - d VS Paws-?a 07&J, I?o?s 4ekwL 4s da'es ?Q?I?sle R DOCKET NO.: _ 2303114#14 4L DATE: y ?6 -G 7 Juror # Name 11 1, 1 111111." Random No. 83 BURTON, GERARD M -2141350746 ((/ ?/\ R+/' ?' n GPEIGL 1 Y Y 11 V L, 1 1 1Li? `? ? / 77 LEBO, RANDAL B. ?y -1900215939 ((( 6 87 WINWARD, DORINE M. -1737202876 CT (kvsz -1 hfl7814J?3D 5 _ 107 HOOVEN, ROSEMARY L. -1546850060 10 95 SHERMAN, BARRY -1196148580 i 1 115 SHULTZ, DAVID L. -1130973120 t2 T02 6ER6iG,4kQWA4nE) E. 720136490 is 3 105 MENTON^STEVEN ELWOOD - ^ # i y 92 HAHN, MARY J. -553976751 16 93 MARTIN, PENNY -267444162 i =,/ 89 ROSENBERRY, ROBERT L. -133919982 f•! rkj 409 = 16 -z 23 A 80 YOCUM, CHARLES M., JR. C! 419530680 tl r? ? v; 69 WILSON, DONALD L. 452555234 26 81 PETERS, JOYCE 456403801 7 94 ZIMMERMAN, LELA 589324007 r8 100 HOLLENBAUGH, MARIE S 999754344 29 117 GRAYBILL, LEON 1120884846 30 98 MASSIE, SANDRA L. 1219068771 31 76 BOWMAN, DANIEL 1281233132 2 116 LYONS, JOSEPH A JR 1611129665 31) 108 EATER, MELISSA L. 1686213349 3-4 70 OATES, KEITH E. JR. 1755975867 67 SCHOFFSTALL, DANIEL E. 1762517396 36 72 GARRETT, LORI 1889268065 Monday, April 16, 2007 Page 1 of 2 Juror # Name Random No. 68 VAUGHN, MICHAEL T 1897635589 n l{CSS 7f1Q2dQQOr1r?r-' E) 118 DEPPEN, ROBERT JR. 2103795543 40 96 MUMPER, BEVERLY A 2106202989 Monday, April 16, 2007 Page 2 of 2 FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER & WEINSTOCK BY: DANIEL S. WEINSTOCK/CAROLYN M. CHOPKO IDENTIFICATION NO.: 72940/94968 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-3158 PLAINTIFF'S PETITION FOR APPROVAL OF ALLOCATION OF SETTLEMENT PROCEEDS BETWEEN WRONGFUL DEATH AND SURVIVAL ACTIONS Plaintiff, Gerard Boullianne, Administrator of the Estate of Christian Boullianne, Deceased, through his counsel Feldman, Shepherd, Wohlgelernter, Tanner & Weinstock, hereby moves this Honorable Court to enter an Order to approve the settlement of claims for wrongful death and survival and to allocate the proceeds of that settlement. In support of the within Petition, plaintiff avers as follows: 1. This medical malpractice action arises from the wrongful death of Christian Boullianne. 2. A trial in this matter was held before the Honorable Kevin A. Hess, Court of Common Pleas Cumberland County, beginning April 16, 2007 and ending April 20, 2007. 3. On April 20, 2007, the jury returned a verdict in the amount of $2,273,471.61, $273,471.61 for wrongful death and $2,000,000.00 for survival action. 46 4. All interested parties in this matter have agreed to a settlement of the above matter for the sum of the verdict, $2,273,471.61. 5. Plaintiff requests that the proceeds of the settlement be allocated the same as the jury's allocation, to wit $273,471.61 for wrongful death and $2,000,000.00 for survival action. WHEREFORE, plaintiff requests that the Court enter an Order approving settlement in allocation in accordance with this Petition. FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER & WEINSTOCK t /?)//J - iel S. stock Carolyn M. Chopko Attorneys for Plaintiff -2- CERTIFICATE OF SERVICE I hereby certify that on this 16th day of May, 2007, true and correct copies of the foregoing Plaintiff s Motion for Approval of Allocation of Settlement Proceeds Between Wrongful Death and Survival Actions was served via First Class Mail, postage prepaid, upon the following: Peter J. Curry, Esquire Thomas, Thomas & Hafer 3400 Bath Pike, Suite 302 Bethlehem, PA 18017 FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER & WEINSTOCK A EL S. WEINSTOCK CAROLYN M. CHOPKO Attorneys for Plaintiff ??? ?.,?. ?''.'c-;t ? ? ?, .` :? -, `?`?? ;r '?'?t •? ~??' MAY 182007,N4 FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER & WEINSTOCK BY: DANIEL S. WEINSTOCK/CAROLYN M. CHOPKO IDENTIFICATION NO.: 72940/94968 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL ORDER COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-3158 AND NOW, this .Z ~ day of /"*7 , 2007, upon consideration of plaintiff's petition to approve settlement of wrongful death and survival action, it is ORDERED that the proceeds of the settlement in the amount of $2,273,471.61 are to be allocated the same as the jury's allocation, to wit $273,471.61 for wrongful death and $2,000,000.00 for survival action. BY THE COURT: i ' lit I FELDMAN, SHEPHERD, WOHLGELERNTER & TANNER BY: DANIEL S. WEINSTOCK IDENTIFICATION NO.: 72940 ATTORNEYS FOR PLAINTIFF 25TH FLOOR 1845 WALNUT STREET PHILADELPHIA, PA 19103 (215) 567-8300 GERARD BOULLIANNE, Administrator of the Estate of CHRISTIAN BOULLIANNE, Deceased V. PAMELA KOZICK and WOMEN'S HEALTH ASSOCIATES OF CARLISLE and CARLISLE REGIONAL MEDICAL CENTER, formerly CARLISLE HOSPITAL COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-3158 ORDER TO DISCONTINUE AND END Kindly mark the above matter discontinued and ended upon payment of your costs. FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER, WEINSTOCK & DODIG DAN EL S. EIN OCK CAROLYN M. CHOPKO Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this Yd day of September, 2009, a true and correct copy of the Order to Discontinue and End was served via United State first class mail, postage pre-paid upon the following: Peter J. Curry, Esquire Thomas, Thomas & Hafer 3400 Bath Pike, Suite 302 Bethlehem, PA 18017 FELDMAN, SHEPHERD WOHLGELERNTER, TANNER, WEINSTOCK & DODIG D i S. Wei oc Carolyn M. Chopko Attorneys for Plaintiff -2- FILED-DJ Fia OF THE MOTHONOTAPY 2009 SEP -S fit 9= 53 PE YLVAN#A.