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R. Slephen Shlbll, EJqulrt
Anomey 1.0. No. 19258
RHOADS 8< SINON
One South Markel Square, 12th Floor
P.O. BOI 1l~6
Hlrrhburl, Pennsylvanfl 17108.11~6
Attorney. ror Plalnllff.
PATRICIA A. SWANK and
RODIIEY II. SWANK, her husband,
Plaintiffs
v.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
I
I NO.
I
FRANK KOTZ,
De fendant
JURY TRIAL DEMANDED
.. .. II .. .. II .. .. II ..
NOT I C B
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this complaint and Notice are served,
by entering a written appearance personally or by' attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a jUdgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER Tb .YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CAlIIlOT AFFORD (JllE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FWD OUT WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
CUMBERLAND COUNTY COURTHOUSE, 4TH FLOOR
1 COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17Q13-3398
(717) 240-6200
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'01 EXHIBIT
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'JUL 1 4 \993
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17108-U<46
PATRICIA A. SWANK an~ .
RODNEY H. SWANK, her husband,
Phintitta
v.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
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CIVIL ACTION - LAW
NO.
;;)O,;}..3 iuJ /99 3
FRANK KOTZ,
Detendant
JURY TRIAL DEMANDED
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NOW COME Plaintitta, Patricia A. Swank and Rodnay H.
Swank, her husband, by their attorney., RHOADS '.S~NON, and tile
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the within complaint, .e tollow.1
1. Phintitta are Patricia A. Swank and Rodney H.
Swank, her husband, adult individuals who reside at 637 Cedar
Ridge, Mechanicsburg, Cumberland County, Pennsylvania 17055.
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2.
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Detendant is Frank Kotz, an adult individual whose
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last known addresa is 200 North Street, IIarrisburg, Dauphin County,
PennsYlvania 17101.
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RECEIVED
!JUL 1 4 1993. ~
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f. pain that interferec1 with sleep anc1 perfonin9
her nonal c1aily activitie.,
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persistent stiffnese, spasm., sorenesa,
tenc1erness in the effected areaSI
anc1
1.
a bulging disc at C4-C61
pain in both legs and anSI
submission to physical therapy which inoluded
ultrasound, hot pack treatment, and a tens unitl
disc herniation on the right at the C5-6 area, with
mild neural foraminal narrowing at C6-71
forced to undergo the pain and trauma of major
spinal surgery by submission to an operative
procedure called an anterior cervical discectomy,
C5-6 and interbody fusion of C5-61
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m. placement in a rigid Nswport collar for four week.
post-surgery, then placement in a soft collar for
several additional week.,
n. KRI confination that C4-5 had progressed from a
bUlging disc to a herniated discI
o. the inability to sit or lay down for extended
periods of time, pain upon raising her hands over
her head, especially in the morning and at night,
constant headaches, aching in her arms and legs that
extends to her ankles;
p. a two-inch scar in the crease of her neck Which
represents the entry l'cation for the surgery; and
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q.. required assistance with simple activities of daily
living.
9. As a direct and proximate result of the injuries she
sustained, Plaintiff Patricia Swank continues to suffer pairl ~nd
REC~IVED ' I~
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WHEREFORE, Plaintiff Rodney Swank demands jUdqment
against Defendant Frank Kotz for 1081 of consortiua in 'an amount in
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excess of Twenty Thousand Dollars ($20,000.00), together with
interest, costs of suit, and delay damages, if applicable.
By:
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R. Steph
Attorney 1.0. No. 19258
One South Market Square .
P.O. Box 1146 .;
Harrisburg, PA 17108-114&'
(717) 233-5731
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Date:
60UO
Attorneys for Plaintiffs
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VKRDI'YCATIOIf
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Patricia A. SwanJc, depo... ancS .ay., subject to the
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penalties ot 18 Pa. C.S. 14904 relating to unsworn tal.itication to
authorities, that the tacts Bet forth in the toregoing complaint
are true and correct to the best of her knowlecSge, intormation ancS
beliet.
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pat~a . SW~
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discharged, and by these presents do for myseIC ,..................., my.................... heirs, executors, administrator. and
IIsill'"S, release and forevu discharge the said ...~....::::J<{).1.::.7c........................................,............
................................................'......,'..............................................................................................................................,.................
and al\ other penons, firms or corporations from al\ claims, demands, damages, actions, or cause.s of actloo, on
account 01 damage to property, bodily injuries or death, resulting, or to result, from an accident to ..~~,~.&...
...........a..I.....~.~........................................... which occurred on or about the .........~..r..............................
day 01 ..............~....., 19..9..1, by reason of ...................~......q.,.~.~.\&:7.ft::....._.._._,._
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...................................................................................................................................................................."...................................
.........................................................................................................................................................................................
and 01 and lor all claims or demands whatsoever In law or in equity, whic~J ................, my................ heirs, executors,
administrators, or assigns can, shall or may have by reason of any maller, cause or thing whatsoever prior to tl
date hereof.
)1 Is ltttbrrstoob uttb "grub l1JaI this Is a full and final release of all cWms 01 every Dlture
and kind whatsoever, and releases claims that are known and unknown, suspected and unsuspected,
~Ils Jlfurt~rr !ttbrrstnob uttb "grrrb I~al any party hereby released admits no liability to the
undersigned or any others, shall not be estopped or otherwise barred I rom asserting, and expressly reserves the right
to assert any claim or cause of action such party may have against the undersigned or any others.
)11 mUnt'ss JD~t'rrof. I............ have hereunto set my............ hand.... and seal.... this .g.!:!::,.....
day 01 .....~....................., 19..f...J....
IN THIl PlL\ENCIl or /J .
..):;,.l.p1:=....'ff..~.~.....'................ v.<.a!~~~C]f22............... (Stsl)
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637 Cede r lUdge
.............................................................................................. Stre<
Mechanicsburg, PA 17055
.................................................................................. Town-State
CAT. 0llN4
PIlI/lTm III U.S.A.
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PACTUAL .al"rtmnrmn
3. On Saturday, February 20, 1993 at about 2130 p.m.,
Plaintiff's husband, Rodney H. Swank, was driving his 1992 Saab
9000 CD Northbound on North Sporting Hill Road. patricia A, Swank,
was a front seat passenger.
4. Mr. Swank's vehicle had slowed to enter the driveway
into the Hollywood Shopping Plaza with the car's right turn signal
fully activated and illuminated.
5. Following directly behind the Swank vehicle, at the
same time and direction, was a 1986 Chrysler LeBaron being driven
by Defendant Rebecca Ann Hughes.
6. Miss Hughes admitted to Hampden Township Police that
just prior to impact, she looked away from the roadway to change
the radio station, looked back to the road and saw the Swank
vehicle slowing to enter into the Shopping Plaza. Miss Hughes then
attempted to stop her vehicle by hittIng the brakes causing her
vehicle to skid approximately thirty (30') feet before colliding
with the Swank vehicle which was almost at a complete stop. The
violent impact caused the Swank vehicle to collide into the vehicle
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e. careless disregard for the safety and property of
others; and
f. failure to keep alert and maintain a proper lookout
for the presence of other motor vehicles on the
streets and roadways.
10, As a direct and proximate result of the conduct of
Defendant, Plaintiff suffer~d and continues to suffer eevere and
painful injuries, including the following:
a. severe pain in the head area, particularly on both
sides of her neck, pain in her right arm, left leg
and lower back;
b. achiness in the top of her arms and a severe case of
hives on her neck;
c. numbness and tingling in her arms, fingers and low
back and leg pain;
d. exacerbation of a pre-existing disc herniation;
e. loss of appetite due to trauma;
f. increased leg pain, cervical spine pain and daily
pain that radiated into her shoulders from her neck;
g, chronic strain and sprain which caused her to go
through a personality disorder and depression;
h. forced to undergo the pain and trauma of major
spinal surgery by submission to an operative
procedure called an anterior cervical diskectomy at
C4-S with left iliac crest bone graft and anterior
cervical plating C4-S, CS-6; and
i. a two- inch scar in the crease of her neck which
represents the entry location for the surgery and a
2" scar on her hip due to bone graft.
.4.
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R. Stephen Shib1a, Esquire
Attorney 1.0. No. 19258
Jennifer M, McHugh, Esquire
Attorney 1.0. No. 66723
RHOADS & SINON
One South Market Squere, 12th Floor
Post Office Box 1146
Harrisburg, Pennsylvanie 17108
Attorneys for Pleintiff
PATRICIA A. SWANK,
Plaintiff
v.
REBECCA ANN HUGHES,
Defendant
. . . . . . . . . . . . . . . . . . . .
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
NO. 94-2795-CV
JURY TRIAL DEMANDED
AMENUMENr TO COMPLAIN[
NOW COMES Plaintiff Patricia A. Swank by her attorneys,
Rhoads & sinon, and files the within Amendment to Complaint, as
follows I
1. Count II of Plaintiff's Complaint is hereby
withdrawn.
'y' ~5 :'r"~~~tb(_
R. Stephe Sh bla
Jennifer M. McHugh
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
Datedl December 30, 1994
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1
2 NAME
3 PATRICIA A. SWANK
4 BYI MR. BLACK
5 BYI MS. MCHUGH
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13 DEPOSITION EXHIBIT
14 1. DIAGRAM
15 2. DOCUMENT
16 3. DOCUMENT
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WITNESSES
DIRECT
CROSS
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125
EXHIBITS
PRODUCED AND MARKED
101
101
125
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1 STIPULATION
2 It is hereby stipulated by and between counsel
3 for the respective partiee that eealing, certification and
4 filing are hereby waived; and that all objectione except ae
5 to the form of the question are reserved to the time of
6 trial.
1
8 PATRICIA A. SWANK, called as a witneee, being
9 duly sworn, teetified ae followel
10 DIRECT EXAMINATION
11 BY MR. BLACK I
12 Q Good afternoon, Mise Swank. My name is Craig
13 Black. We have juet been introduced. I represent Rebecca
14 Hughes relative to an action that you conunenced in
15 Cumberland County referable to an automobile accident which
16 occurred to my information on February 20th of 1993.
11 I represent Mre. Hughee in that action. I am
18 here today to take your deposition. As we etart your
19 depoeition today, there ie a couple guidelinee or rulee that
20 I would ask that you observe with respect to your
21 deposition. And thoee are very eimple mattere, but they'll
22 help to make a clear and complete deposition and tranecript
23 for ue.
24 The firet one ie that, ae you know, your
25 teetimony is going to be taken down by a stenographer
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1 today. That is going to be transcribsd into a written
2 record. Your counsel informs me that you would like the
3 opportunity to read over that and to make any corrections on
4 an errata sheet which is perfectly is okay and is your
5 right.
6 Nevertheless, what I would ask you to do is make
7 sure that any responses which you would make to any
8 inquiries that I put of you today be made verbally. The
9 stenographer cannot take down gestures of the head, nods,
10 shrugs of the shoulders, things of that nature, so try to
11 keep your answers verbal as much as possible.
12 During the course of the deposition, there may be
13 sometimes when my questions become a little bit convoluted,
14 long or otherwise unintelligible to you.
15 If that happens, please make sure to let me know
16 and I will be happy to either rephrase the question or try
17 to make it understandable to you.
18 If you do respond to the question, I am going to
19 assume two things. First of all, I am going to assume that
20 you understood the question as it was phrased. And
21 secondly, I am going to assume that the answers that you are
22 giving to me are full and complete to the best of your
23 information and knowledge as you sit here today.
24 If at any point in time during the course of the
25 deposition you would like to confer with your counsel, you
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1 certainly have that right, indicate that to me and I will
2 certainly allow you that courtesy.
3 Similarly, if you would like to take a break for
4 a matter of personal convenience, indicate that to me and I
5 will accommodate you as well.
6 Do you understand those instructions?
7 A Yes, I do.
o Q Are they agreeable with you?
9 A Yes.
10 Q As we start today, have you taken any type of
11 medications, either prescription medications or
12 over-the-counter medications within the past 24 hours?
13 A Yes. I take Feldene.
14 Q Feldene?
15 A Uh-huh.
16 Q Do you know what kind of dosage you are taking,
17 the strength of the Feldene?
10 A I should have that in my records what I take.
19 MS. MCHUGH: Do you remember it?
20 THE WITNESS: I think it is five hundred
21 milligrams.
22 BY MR. BLACK:
23 Q When was the last time that you have taken a dose
24 of the Feldene?
25 A Just -- I take it around lunch time.
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1 0 How often do you take it per day?
2 A I take it every day.
3 0 Just one?
4 A One a day.
5 0 One tablet?
6 A If I have major spasms or a lot of discomfort, I
7 am allowed to take two a day.
8 Q Who prescribed the Feldene for you?
9 A Dr. Turgeon.
10 Q I am not familiar with Dr. Turgeon. What kind of
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physician is he?
A A neurologist.
Q And do you know why Dr. Turgeon has prescribed
the Feldene for you?
A Yes, because of the continuing headaches and
muscle spasms in my neck.
Q Do you experience any side effects from the
Feldene?
A No, I do not, as long as I eat with the pill.
Q Is there any reason that you believe that the
effect of the Feldene would in any way render you unable to
answer
A No.
Q -- truthfully and correctly all of the inquiries
that are put to you today?
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A No, no.
o Let's start with your full name.
A patricia Ann Swank.
o Miss Swank, where do you currently reside?
A 457 Garden Drive, Mechanicsburg, 17055.
o How long have you resided there?
A Since May 15th, 1995.
o Prior to that where did you reside?
A At 421 Garden Drive, Mechanicsburg, PA, 17055.
The same complex.
o Is this an apartment complex?
A Yes. Townhouses.
o !low long had you resided at the 421 Garden Drive.
address?
A I was there from May of -- or June of 1994 until
March of 1995.
17 0 Okay. Prior to that, where did you reside?
18 A At 637 Cedar Ridge Lane, Mechanicsburg, 17055.
19 0 When did you start residing at that address?
20 A Oh, gosh. 198 -- I think 1988.
21 0 You resided there continuously until June of
22 1994?
23 A Uh-huh.
24 Q So you were residing at the Cedar Ridge address
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at the time that this automobile accident happened in
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February of 1993?
A Correct.
o Does anyone currently reBide with you?
A Currently, no.
o Has anyone resided with you since May of 1995 at
the 457 Garden Drive address?
A No.
o When you resided at 421 Garden Drive addresB, did
anyone reBide with you?
A Yes. No. Can I go back?
o Sure. Would you like to clarify one of our prior
answers?
A Yes. Did you already ask me if anybody was
living with me at 637?
o No.
A So no, it is no for 421 and 457 is no, no one
resides with me.
18 0 Now that you have prompted me to it, did anyone
19 reside with you at 637 Cedar Ridge Lane address?
20 A Yes, my husband.
21 0 And his name?
22 A Rodney H. Swank.
23 Q When did you last reside with Mr. Swank?
24 A June of 1994.
25 Q Are you still husband and wife?
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1 A Yes.
2 0 Has there been any consideration given to filing
3 for divorce proceeding or have they been filed?
4 A They have been filed, but they're on hold.
5 MR. BLACK: Could we go off the record?
6 (Discussion held off the record.)
7 BY MR. BLACK:
8 0 So as I understand your testimony, you resided
9 with Mr. Swank up until June of 1994?
10 A Correct.
11 0 Do you know does he still reside at 637 Cedar
12 Ridge Lane address?
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Yes, he does.
Are you presently employed?
No.
When were you last employed?
October 27th, 1995.
Who were you employed by in October of 1995?
Gallagher Bassett Services.
And where is that located?
B Flowers Drive, Mechanicsburg, 17055.
What did you do for Gallagher Bassett Services?
I was a senior claims adjuster.
And what type of claims did you adjust?
Workers' compensation.
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1 Q What led to your termination or your
2 A The lack of performing my job duties which
3 included an attendance record of three days off due to my
4 neck injury.
5 Q Were you provided with a written explanation for
6 the reason for your termination?
7 A Yes, but I refused to sign it.
a Q Do you have a copy of that in your possession or
9 is it available to you?
10 A In my car I have it.
11 Q Could you make a copy of that and provide that to
12 your counsel?
Sure.
So they can provide me a copy of that, please?
Yes, Okay.
Do yuu recall what the contents of the notice
13 A
14 Q
15 A
16 Q
17 stated?
18 A
19 Q
20 A
I don't -- what was all included on it?
Yes.
A list -- they were more accusations made against
me that were false, and then -- in regards to the job itself
and then it said probation or put on notice due to three
days of absence in a nine month period which was found to be
excessive.
Q Did you believe that the reasons set forth on
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1 your notioD of tormination from Gallagher Bassett were
2 8uperflllollll?
3 ^ Yoa.
4 0 III d YOII take /lny action or do you plan to take
5 any aut.lon Lo R"ok reinstatement with Gallagher Bassett
6 Borvlee""R a Renior claims adjuster?
7 ^ You moan to try and get my job back?
8 0 Yes.
9 ^ No.
10 0 Is there a particular reason why you have decided
11 not to pursue reinstatement?
12 ^ Yos, for several reasons. No.1, I -- No.1, I
13 wlla told by my supervisor that she understands that I have
14 headaches Ilnd 1 live in pain every day, but I am there to
15 bs -- I was hired to do a job and they expect that to be
16 done. H I had pain, they did not have any sympathy for me
17 at all, I melln it was just -- in that type of job to be
18 honest with you, trying to work on a computer answering the
19 phono, writing, et cetera, some days it just killed me. And
20 I don't know if I could go back to working a job like that
21 Ilny more.
22 0 Did you make known the physical discomfort that
23 you were having to any of the of your supervisory
24 personnel at Gallagher Bassett?
25 ^ Yes, I did, yes.
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o Who did you make those complaints k10wn to?
A Beth !louse who was my supervisor.
o Beth?
A !louse. !l-o-u-s-e. A new supervisor who was
Margie !less.
o Margie?
A M-a-r-g-i-e. The girl who did some of my
clerical work was Kitty Burdick, B-u-r-d-i-c-k. Martin
Essic who was the general manager knew about my injury, and
the regional manager. Also Dean -- oh, my gosh, I forget
Dean's last name. Dean Snyder. I am sorry.
o Did you ask Gallagher Bassett Services to
accommodate you in any way with respect to the discomforts
that you were having?
A Yes. I tried to make my doctors appointments as
far as late in the day. I only had just a few, maybe three
appointments since I was there.
I took my medications, I left my medications on
my desk. And I was told that even though I had three
doctors appointments that was still too excessive and I was
literally told that they have to they have to stop.
o In this three days of absences, were they over a
period of how long?
A Nine months, And then I had one day about two
weeks before I was terminated, I had a really bad day with
13
1 my neck and I wae crying at my desk, I couldn't do my job.
2 And I had so much pain everywhere that I asked my supervisor
3 if I could leave, and they did have a fit about it. But
4 they let me go home and I did make up the time.
5 0 Now, am I to understand there that these three
6 absences that you had over the course of the nine months,
7 were they full day absences or partial day absences?
B A They were full days.
9 0 You also mentioned about taking some time off to
10 attend office visits with your physicians?
11 II Uh-huh.
12 0 Were those office visits scheduled during the
13 days that you were absent during that nine month period or
14 were they in addition to?
15 A They were in addition.
16 0 How many occasions did you leave your work to
17 attend office visits with physicians?
18 A I would say in that period one, two, three, I had
19 maybe four.
20 0 So as I understand your testimony, over that nine
21 month period, there were four occasions when you left early
22 in order to attend office visits with your physicians?
23 A Uh-huh.
24 0 Generally how early would you leave, how much
25 time would you request?
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A I only had to make up -- I would either do it
during my lunch period or I get an hour for lunch, so I
would make the appointment maybe at 1100 o'clock because I
can take lunch any time I want to. One time I made an
appointment at 3130 and I did not take a lunch. Our office
closes at 4130. So I left at 3130 and that was my lunch
hour from 3130 to 4:30.
If by chance -- because I had to run all of the
way over to Union Deposit for my office visits, I worked
at -- off of 114 in Mechanicsburg. It would take me 25
minutes to get there. I would make up the fifteen or twenty
minutes.
Q Was there ever an occasion where you actually
lost time from work as a result of attending an office visit
with a physician?
A Well, I would lose whatever extra time of getting
17 back from my lunch period. Is -- am I understanding your
18 question correctly?
19 Q Well, let me rephrase it.
20 lIad you ever lost compensation because of your
21 inability to complete a full workday as a result --
22 MS. MCIIUGII: Is this over the nine month period?
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BY MR. BLACKI
Q Yes. Over the -- well, while you were by --
A I was paid a sick day. If I was off for my neck,
15
1 I was paid a sick day. Is that what you are asking?
2 0 No, I am not asking you about the days that you
3 were totally out of the office.
4 A You mean if I missed a period of time, no. In
5 that nine month period, no.
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o So on all occasions that you missed some time in
order to attend a visit with one of your physicians during
that nine month period, you were either able to make those
visits either over your lunch time or otherwise put in make
up time in order to put in your required number of hours?
A Correct, right.
o What hours did you work for them?
A My normal hours were 8130 to 4130. I would work
anywhere. I was always in the office no later than 8100
o'clock, and there for awhile I was working until 6130, 7100
o'clock at night.
o Were there required numbers of hours that you
were supposed to work or did you just work until the
required
A Required was 8130 to 3130. I was also told if
you can't get your work done in that period of time, you do
need to work the extra hours.
o Were you compensated on an hourly basis or a
salary?
A Salary. I was not paid for any overtime.
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What was your salary?
30,000 a year, $1,250 semi-monthly.
Bi-weekly, is that what I understand?
Is that how they considered it? It was -- it's
Q
A
Q
A
5 every 15th and every 30th or 31st, so it's twice a month.
6 Q Okay. 'i'hat might work out differently?
7 A They consider that Berni-monthly,
8 MS, MCHUGHI It was not quite two weeks.
9 BY MR. BLACK I
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Q Did you ever receive a promotion or increase in
wage or decrease in wage while you worked for them?
A No.
Q So when you started with them, you were hired at
$30,000 a year and that continued through your termination
in October of 1995?
A Correct, yes.
MS. MCHUGH I Just wait till he finishes asking his
questions. She can't take down two people --
BY MR. BLACK I
Q Other than your missing what Gallagher Bassett
deemed to be an excessive number of days or having excessive
absences, do you remember any other reasons that they told
you why you were being terminated?
A Juot that I wasn't performing my job the way they
wanted me to.
17
1 Q Did you inquire of them for any more specifics
2 with respect to what they meant by you Weren't performing
3 your job the way they wanted you to?
4 A No. At the time of the termination, Martin had
5 told me that things were not working out. I had no idea I
6 was going to be terminated.
7 I knew my neck issue was an issue becauee I had
8 been told by my previous supervisor on many occasions, but
9 other than the notice that I will be getting to you with
10 accusations that my boss made about me which were incorrect,
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17 and was told that Gallagher Bassett still has the right to
18 appeal, so I guess....
19 Q I take it they contested it at the first level,
20 they contested your entitlement to unemployment
21 compensation?
22 A I don't think they contested it, they -- the only
23 notice I got today, unemployment had sent them like three
24 forms for them to complete.
25 The only thing they did is took one of the forms
that was basically the only notices that I have ever gotten
in regards to my job and my functions.
Q Did you file for unemployment compensation?
A Yes, I had.
Q Did you receive that?
A Yes. I went -- had to finally sign for my check
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and put was unable to meet company standards and never
completed any of the other paperwork and sent it back to
them.
Q Do you know what you are going to be receiving as
far as unemployment compensation benefits on a monthly
basis?
A $311 per week.
Q As you sit here today, do you have any prospects
for any other positions?
A Yes, I do. I have an interview tomorrow.
Q Okay.
A I just sent out six resumes yesterday.
Q Who is your interview tomorrow with?
A EBI Insurance Company.
Q So you are actively looking for work?
A Yes, I am.
Q Has any physician told you in the last two or
three months that there are any restrictions which would
physically prohibit you from engaging in full-time work?
A The only thing I had been told is that the type
of job I do sitting behind a desk working on a computer,
answering the telephone, that I am going to experience
discomfort in my neck from all of the types of movements
that I have.
Q "as any physician restricted you in any way from
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engaging in full-time work?
A No. No.
o Okay. When you first started with Gallagher, did
you inform them at that time that you had problems with your
neck?
A I did -- I didn't when I was hired, but when I
was going through the initiation type process, I did let
them know.
o Did they inquire of that before you were hired?
A No.
o Prior to working with Gallagher Bassett, -- do
you know exactly what your date of hire was with them, when
you first started with them?
A Yes, it was February 14, 1995. It was
Valentine's Day.
o Prior to working with Gallagher Bassett, were you
employed?
A
Yes.
o
A
By whom were you employed?
Inservco Insurance Services.
o Do you remember what your first date of
employment with Inservco Insurance Services was?
A April of 1993.
o What did you do for Inservco Insurance Company?
A I was an insurance claims representative.
20
1 Q And in what particular area did you --
2 A Workers' compensation.
3 Q Was the work that you performed for Inservco
4 Insurance Services similar to the type of work that you were
5 performing at Gallagher Bassett Services?
6 A No. Gallagher Bassett Services, I was more
7 involved in new claims where at Inservco I was involved in
8 existing claims.
9 Gallagher Basset.t there was a lot more stress
10 involved in that job than there was at Inservco.
11 Q How so?
12 A Inservco you more or less worked independently
13 and worked your files on your own. Gallagher Bassett, I was
14 receiving up to ten new claims a week. And I had all of the
15 partials that had to be paid to all of our claimants
16 throughout, all of our clients.
17 I held all of the partials and all of the big
18 accounts. It was my responsibility to also pay all of those
19 people. So I had a tremendous amount of work load on my
20 desk that needed to be done on a daily basis.
21 Q When you were at Gallagher Bassett, will you give
22 me an estimate on the number of claims that you were
23 handling?
24 A 170 pending.
25 Q And how many claims were you handling when you
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workod at Inservco?
A Dh, maybe 110, but all of the -- I didn't have
to -- like all of the people at Inservco, they were paid
weekly, like I didn't have to figure out. There they got
the same paycheck every single week. These people were on
permanent disability. Where at Gallagher Bassett, a lot of
these claims were new claims, were -- they were paid a
couple weeks. It was totally different.
It was files that had to be monitored, everyone
of them had to be monitored on a daily basis.
o When you started working with Gallagher Bassett,
did they provide you with a job description?
A Yes, I think they did.
o Did that include what your job duties and
responsibilities were?
A Yes, I had.
o Do you have a copy of that?
A I believe I do.
o Could you see if you could provide that to your
counsel
A Sure.
o -- who in turn can provide that to me?
How about your position with Inservco, did you
have a job description there?
A Yes. I didn't get that until later. If you
22
1 are -- I may have a copy of that, I am not sure. I might
2 have disregarded it.
3 Q If you could look and see if you still have that,
4 I would appreciate it as well and provide a copy of that to
5 your counsel.
6 MS. MCHUGHI This is the job description at
7 Inservco?
8 MR. BLACK I Yes, for both Gallagher and Inservco.
9 BY MR. BLACK:
10 Q Why did you -- did you leave your position at
11 Inservco or were you let go or laid off or terminated from
12 that position?
13 A No. I -- at -- the job was basically referred to
14 me if I was interested in interviewing for the position.
15 Q The job at Gallagher?
16 A Yes.
17 Q So you left Inservco of your own volition?
18 A Right, it was an increase in pay.
19 Q What were you earning when you left Inservco?
20 A My base salary was I believe 24,5. And then I
21 got paid overtime since I handled the state accounts so the
22 state actually paid me overtime. So my compensation
23 averaged about 26,5 yearly which included the overtime.
24
Q
Are you asserting a wage loss claim in connection
25 with your claim against Miss Hughes in this proceeding?
23
1 MS. MCHUGII: Let me check. It's fairly broad.
2 (Discussion held off the record.)
3 TilE WITNESS: I wasn't compensated, I had to go
4 through my auto policy.
5 BY MR. BLACK:
6 Q Well, do you believe that the injuries that you
7 sustained in the automobile accident in February of 1993
8 have resulted in your losing any compensation from your
9 employment?
10 A Can you repeat that?
11 Q Yes.
12 Do you believe that the injuries that you
13 sustained in the automobile accident in February of 1993
14 resulted in your losing any time from work that you weren't
15 compensated either by your motor vehicle insurance, some
16 other type of disability insurance?
17 A I was always covered by some type of disability
18 whether it was my auto insurance or sick pay.
19 Q Do you believe or have you been told -- let me
20 strike that. That's a compound ~~estion. Let me ask it in
21 two parts.
22 Do you believe that the injuries that you
23 sustained in the February 1993 automobile accident will lead
24 to any wage diminishment for you in the future?
25 A Yes, I do.
24
1 0 Have you been told by anyone that the injuries
2 that you sustained in the automobile accident on February of
3 1993 will result in your inability to work full-time or in
4 your inability to earn what you were earning at the time of
5 the accident?
6 A Well, I don't have any type of restrictions, but
7 I have -- just again told that I will have, you know, just
8 problems, I will have the headaches and spasms and that type
9 of thing, is that what you are asking me?
10 0 Has anyone of your physicians ever told you that
11 the injuries that you sustained may result in a degree of
12 disability for you in the future?
13 A Yes.
14 0 Have any of those physicians told you that that
15 disability would result in your inability to work?
16 A Later on in the future.
17 0 Who told you that?
18 A Dr. Turgeon.
19 0 When did he tell you that?
20 A Just recently at one of my visits. Let's see. I
21 think my first visit was on August 17th. lie had just
22 indicated that with the traumas in my neck that later on in
23 life I may develop arthritis and that type of thing.
24 0 Did he specifically tell you that the sequela
25 from injuries will result in your ability into work?
25
1 A No, I am sure I can find some type of
2 employment. If I can't do a desk job, I can find some other
3 type of employment.
4 Q Did he te 11 you it may result in your inability
5 to perform the type of job duties that you are doing
6 presently?
7 A I would -- I guess I would have to say no.
8 Q Now, you indicated that you believe that the
9 injuries that you sustained in the 1993 automobile accident
10 will impair your ability to work in the future. Why do you
11 believe that?
12 A Because I know what it is like to have headaches
13 every day and spasms.
14 Q Anything else? Any other reasons?
15 A I know what it is like to live in pain every day
16 behind a desk.
17 Q Any other reasons that you believe that you won't
18 be able to work?
19 A Well, I can guaranty YOII there are days at
20 Gallagher Bassett where I couldn't do my total functions,
21 Q Do you want to take a break?
22 A Yes.
23 (Brief recess.I,
24 BY MR. BLACK I
25 Q Miss Swank, do you feel like you arc able to
26
1 proceed?
2 A
3 0
4
Yes, I am sorry.
That's okay.
We were talking about future wage diminishment or
5 wage loss on into the future. And we WAre discussinlJ your
6 beliefs with respect to whether or not you believe that you
7 will ever experience wage loss as a result of inability to
B engage in employment in the future.
9 And you provided me with a couple of reasons why
10 you believe that you may have some problems with that in the
11 future.
12 Is there anything that you would like to add with
13 respect to that?
14 A Well, my major concern is if I find another
15 desk another job behind the desk, am I going to go
16 through the same thing with the spasms and the headaches and
17 not be able to perform that job.
18 What my goal right now is maybe to find a job
19 still in the same industry but maybe something that I don't
20 have to be behind a desk all of the time, that gives me a
21 little bit of flexibility to either being outside of the
22 office, but something that I could move around a little bit
23 rather than Bitting behind a desk,
24 0 Did you have the same type of pain and epaems
25 when you were working for Inservco as you oxperienced when
27
1 you worked for Gallagher Bassett?
2 A I didn't have the migraine headaches basically
3 until I started working for Gallagher. I had headaches, but
4 the headaches had increased when I was working at
5 Gallagher. And the spasms had also increased when I started
6 working at Gallagher Bassett.
7 0 Were you able to continue and work with any type
8 of physical symptoms that you experienced while you were at
9 Inservco?
10 MS. MCIIUGlIl Could you repeat that question? I
11 didn't understand i to
12 TilE WITNESSl Yes.
13 BY MR. BLACKl
14 0 Were you able to continue working without
15 interruption through any type of physical symptomatology
16 that you experienced while you were working at Inservco?
17 A Yes. At Inservco, if I needed to get up from my
18 desk, I could get up from my desk.
19 0 So you were restricted from being able to get up
20 at Gallagher Bassett?
21 A Well, I had a lot more phone calls and a lot more
22 involved, a lot more new claims.
23 The job itself was more involved than my job at
24 Inservco. My job at Inservco was not as stressful as my job
25 at Gallagher Bassett,
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I still experienced the spasms, but I didn't
experience them as severe as I did at Gallagher Bassett.
Q So you believe that the additional stress that
you experienced while at Gallagher Bassett was basically the
triggering factor for your increase in the
A Yes, just like on weekends, the weekend the pains
aren't that bad, As soon as I go back to work, that's when
I started experiencing the headaches and the muscle spasms.
Q As you sit here today, was there any periods of
time where you were unable to work subsequent to the
automobile accident in February of 1993 where you weren't
compensated for your wage loss either by your motor vehicle
insurance or some other type of disability type of plan?
14 A No.
15 Q Now, you started with Inservco in April of 1993.
16 prior to that, were you also employed?
17 A Yes.
1B Q Where were you employed then?
19 A Consumers Life Insurance Company. I am sorry, I
20 had to think.
21
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24
25
Q Where is Consumers Life Insurance Company where
did you work?
A They were located on the Camp Hill bypass in Camp
Hill.
Q When did you start working for Consumers Life?
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A Oh, my God. I left there in '93, April of 1993.
And then started there, '93 '92, '91, 1991, I think April of
1991.
o What did you do for Consumers Life?
A I was a conservation analyst.
o What does a conservation analyst do for Consumers
Life?
A Basically tried to conserve business. I would
also review life insurance policies with the customers if
they called in and had any questions in regard to the life
insurance policy. It was my responsibility to provide them
with computer illustration.
I trained the agents basically on questions about
a life insurance policy. Prevent business from being
transferred to another insurance company by another agent
who was soliciting our business.
So basically the whole thing was trying to
conserve the business, prevent monies from going out.
o Did you start with Consumers Life as a
conservation analyst?
21 A Yes, I did.
22 0 That's what your title throughout your --
23 A Yes, uh-huh,
24 0 You were working with the Consumers Life at the
25 time of the accident in February of 1993?
30
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1 A Correct. Oh, yes, I guess I did -- yea, I did.
2 0 Why did you leave Conaumers Life?
3 A The company was sold.
4 Actually I left before the whole tranaition had
5 occurred. I was one of the -- there were eight people that
6 were chosen to stay. I was one of the eighth persona, but I
7 left before the whole transition was actually over.
8 0 Did you believe that there would no longer be a
9 place for you at Consumers Life?
10 A Yes, we were guaranteed that. You were told
11 right now there is -- we have joba. There is eight people
12 that have been asked to stay. They couldn't give ua any
13 timeframe. It could be one week, two weeks, it could be
14 nine montha, it could be two years. It was a day to day.
15 0 I am sorry. What was your last salary at
16 Consumers Life?
17 A I guess 24,000. 24, 24 or 25.
18 0 Was it pretty much a lateral move for you from
19 Consumers Life to Inservco?
20 A Yes.
21 0 I would like to get a little idea of your
22 educational background.
23 Did you go to high school?
24 A Yes, I did.
25 0 Did you graduate from high school?
IJ
\..6__',
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A Yes, I had.
Q Where did you go to high school?
A Cumberland Valley.
Q What year did you graduate?
A 1980.
Q After graduation from Cumberland Valley, did you
find any post-secondary education?
A No, I went right to work.
Q Where did you start after graduation from
Cumberland Valley?
A Signa Insurance Company.
Q Since your graduation from Cumberland Valley High
School, have you taken any type of vocational or technical
courses?
A I have taken courses in adjusting claims.
Q As a result of taking those courses, have you
been given any type of certification or have you succeeded
to any type of degrees or matriculated in any way into any
program?
A No, I still have a couple more courses in order
21 to get my certificate.
22 Q What certificate are you working toward?
23 A I started with the Pennsylvania -- the PA 15
24 courses and the AIC courses in workers' compo
25 Q Were you -- will you achieve a designation as a
32
1 resul t of
2 A
3 Q
4 A
5 Q
6 that?
Yes, I will.
What will that designation be?
I guess it's just a designation for AIC.
When do you anticipate being able to complete
7 A I am taking the course. Actually I am taking the
8 course. I am taking another course right now. I am taking
9 the PA 34. While I am not employed, I figured I might as
10 well keep myself busy, I would have actually three or four
11 more courses to take.
12
13
14
15
16
17
Q Do you plan to enroll in any other type of
schooling after completion of this certification?
A I am going to continue whatever job, I am working
at that time. I will continue to my education.
Q Your education specifically relative to your
employment?
18 A Right.
19 Q Do you plan to enroll in any type of college
20 courses or anything of that nature to obtain either a
21 bachelor or an associates degree?
22 A No, because I would have to start over. I don't
23
24
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have a college degree,
Q Okay.
A At this point,
22
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Q Okay. Let's talk a little bit if we can about
the accident Fsbruary 20th.
Do you recall being involved in an automobile
accident that day?
A Yes, I do.
Q Can you tell me what time the automobile accident
took place?
A 2130 in the afternoon.
Q And were you driving or were you a passenger in a
10 car?
11 A I was a passenger.
12 Q Who was driving the car?
13 A My husband, Rodney Swank.
14 Q What kind of car were you riding in?
15 A 1992 Saab 9000 CD.
16 Q Were you seated belted?
17 A Yes.
18 Q And where did the accident take place?
19 A We were heading northbound on Sporting lIill Road
20 waiting to make a right hand turn into a shopping plaza.
21 Q Okay. Do you remember what the weather
conditions were that day?
A Sunny, clear and cold.
Q Was there any type of precipitation on the
ground, any snow or anything of that nature?
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A No. Everything -- it had snowed weeks prior to
that.
o Do you recall if thare was any snow piles along
the roadways at all?
A I guess there could have been along the roadway.
I know there was a snow somewhere around that time.
o You don't have a specific recollection of whether
there was or wasn't?
A I think there was snow on the ground, but there
was no type of road condition or anything. It was dry roads
if that's what you are asking me.
o Well, what I am asking is if there was any snow
along the berms or any piled up snow that would have in any
way impeded anyone's vision in your judgment?
A Oh, in my judgment, no.
o Where were you coming from at the time that the
accident happened?
A We were out running errands. I guess we were
coming from Carlisle. We went to a furniture store.
o And where were you headed?
A We were heading to the beer distributor.
o Can you describe for me what you recall about how
the accident took place?
A I remember we made a left hand turn. We were
coming from the Carlisle Pike. We made a left-hand turn at
35
1 the light. And there is a side road to go up into the
2 plaza. And Rod put his turn signal on and there was a
3 another gentleman that was coming out of that road.
4 And we had to wait till he decided what he was
5 going to do. So we were almost I would say at a complete
6 stop or at least very much slowed dovln waiting to make a
7 right hand turn when all a sudden, I just remembered an
8 impact of being hit in the back and then just watched the
9 car go forward and go into that gentleman that was coming
10 out of the plaza where we wanted to turn up. And we ended
11 up hitting him.
12 Q As I recall your testimony, you were heading
13 north on Sporting Hill Road, is that correct?
14 A Yes. Yes.
15 Q North Sporting Hill Road.
16 A Well, I didn't know that there was a north or
17 south.
18 Q I don't that either.
19 A It's just Sporting Hill Road. But we were
20 heading this way, so that would be north.
21 Q You were heading north on Sporting Hill ROAd?
22 A Yes.
23 Q At the time that your car was impacted, do you
24 recall whether or not your vehicle was still on Sporting
25 Hill Road?
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1 A Yes.
2 0 Or have you started to make the turn into the
3 shopping plaza?
4 A No, we were still on Sporting Hill Road.
5 0 Okay, The vehicle that was being operated by the
6 other individual that was attempting to come out of the
7 shopping plaza, where was the location of that car vis-a-vis
B Sporting Hill Road? Had that actually entered on to
9 Sporting Hill Road?
10 A I don't have a clue. When the accident occurred,
11 I had severe pain in my neck and my husband got on his car
12 phone and he called for an ambulance. He called 911.
13 I didn't move. I was scared to death. I didn't
14 move. And when the ambulance people got there, I was not
15 allowed to move my head.
16 I was put into like this wooden thing behind me
17 and a wooden thing in front of me. I was put in the a
18 collar right away, so I never saw -- I never saw her car, I
19 never saw anything.
20 0 Well, I --
21 A I was totally
22 0 I want to make sure you understand my question
23 because I am not sure that you did.
24 I am not talking about the car that struck you.
A Oh.
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Q I am talking about the other car that was trying
to exit from
A I am sorry, okay.
Q That was trying to exit from the shopping plaza.
Do you know where the position of that car was vis-a-vis
Sporting Hill Road?
A He was coming out of the plaza. He was not on
Sporting Hill Road. He was on the side road that we wanted
to turn up into.
Q Is the entrance and exit to that particular
shopping plaza at the point that you tried to make the turn?
A Uh-huh.
Q Is that controlled by any traffic control device?
A No.
Q Are you capable of drawing or -- not to scale,
but making a drawing of the location of where your
automobile would have been, the automobile that was exiting
the shopping plaza and what you recall the position at least
of the automobile being driven that hit you?
A I can't tell you anything about the car behind
me. I don't know anything in regards to her. I just felt
the impact and I just watched ourselves go right into being
pushed right into this other car.
Q Okay.
A Can I do a diagram in regards to that, but....
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o Let'a do that, if you will. It'a understood thia
is not to acale and that we're not all artiata, I would juat
like to get aome kind of an underatanding with renpect to
the phyaical layout of the roadway and where your vehicle
was.
A Okay. This is Sporting Hill Road. Thia is where
we wanted to turn up, then here is the plaza. So we wore
here. Turn signal on to make a right hand turn here. He
was here. We were already sort of angled to turn to the
right here.
All I just rememher something hit us and I guees
he was out a little further here. Pushed us, then just
pushed us right into him. (Indicatingl.
I remember him getting out of the car and yelling
at us, and that's all I remember.
o We're not going to be able to make a whole lot of
sense out of this on the transcript unless we put some
labela here. Okay.
So what I am trying to do ia label the roadways
and so forth.
I am going to place an X in a rectangular bOK
which is -- I think that you earlier deacribed ae being the
car that you were a pasaenger in?
A Uh-huh.
o Ie that correct? Did I place that in the correct
39
1 rectangular box?
2 A Yes.
3 Q The X depicts your automobile?
4 A Uh-huh.
5 Q There is another rectangular box whioh is almost
6 I guess perpendicular to the one that I marked an X in. I
7 am going to mark an 0 in that rectangular box.
8 Now, that rectangular box depicts the automobile
9 which was in the intersection -- or not in the intersection,
10 but at the entryway to the shopping plaza where you intended
11 to travel, is that correct?
12 A Uh-huh.
13 Q Do you know this road that leads up into the
14 shopping plaza, is that a private driveway to the shopping
15 plaza or is that another road?
16 A That -- this road -- I don't think this road
17 exists any more, but I am just letting you know from what I
18 remember because I don't think you can go, I am not sure, I
19 don't go over there that often.
20 I don't know what this is. This may just be
21 this at one time was a road that you can exit in or you can
22 exit out. I don't know Hit is any more.
23 Q Well, at the time, was it actually a roadway or
24 was it --
25 A It's a road. It was a road that you can exit in
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1 and there was a road that you can exit out. There was
2 enough room and ahould be enough room for two cara.
3 0 You don't know the name of that roadway by any
4 chance?
5 A No, it was the road -- the mall was right here,
6 so it wasn't a road name. It was part of the parking -- of
7 the parking lot.
BOlt waan't an intersecting road, it was actually
9 on to that parking lot itself?
10 A Yes. It was a road on to -- that went onto the
11 parking lot.
12 0 Okay. And the roadway that you were on, and I am
13 going to write down here is north or North Sporting lIiH
14 Road, right?
15 A Uh-huh.
16 0 Well, it's Sporting
17 A Well, it's Sporting Hill Road.
IB Q I am going to write that underneath the most
19 lowest parallel line.
20 Now, do you recall the entrance to the shopping
21 plaza, the road which we have depicted here and was shown
22 with the car label with the zero, ie that a two lane accesa
23 road or is it just an open parking lot?
24 Is it wide enough I guess to accommodate two cars
25 is my que at ion?
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1 A Yes, it -- from what I remember, it was always a
2 road that was wide enough for two cars.
3 Q What were the circumstances that prevented you
4 and your husband from gaining access to that shopping plaza?
5 A I think this guy here was further over like
6 toward -- he wasn't all of the way on his side. He had
7 taken over a little bit of our side to prevent us from
8 turning in, so we had to wait until he decided what he was
9 going to do before we could turn in.
10 Q And do you recall whether or not there were any
11 obstructions that would have prevented him from being able
12 to get further onto the right side of that access area?
13 A Well, I don't know, maybe I should clarify this.
14 I think -- I am not sure if I noticed it, but I
15 remember overhearing Road -- I believe Rod had mentioned
16 that there wasn't enough room to turn in. I don't really
17 remember like exactly where he was located,
18 I remember he was on that street, but I don't
19 really remember whether or not -- I personally don't since I
20 wasn't driving. I don't remember whether or not he was --
21 where he was exactly on that road and how much room there
22 was, I wasn't paying attention,
23 Q Well, I don't want you to speculate. That's
24 fine.
25 A So I don't --
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1 Q If you don't know, simply say I don't know.
2 A All I romember, I just remember seeing the car
3 there and I remember Rod creeping up to make a right hand
4 turn which I later on heard that maybe there wasn't enough
5 room for him to move up.
6 He was waiting for him to do something.
7 But I remember seeing the car there. I remember
8 when we hit it, bu t I don't remember exactly where he was
9 sitting on that road. Do you know what I mean?
10 Q Okay. Do you know what distance there was
11 between the car that your husband was driving and you were a
12 passenger in?
13 A There seemed like there was quite a few distance.
14 Q Do you know in foot, yards?
15 A I am trying to think. Sorry. I would say
16 several feet.
17 Q Distance is hard to approximate for you?
18 A Yes, it is. I was surprised. I mean I had
19 enough time that I could still watch us as we hit him so
20 there must have been some distance between him and us.
21 Like it wasn't something that I just looked up
22 and we were into this car. I watched us go into this car.
23 Q Do you recall whether any measurements were done
24 of any skid marks at the scene of the accident?
25 A That's I think all in the police report.
43
1 There again, I didn't know what was going on. I wasn't
2 involved because I wasn't allowed to move. I was put in a
3 neck brace right away so I never got out of the car.
4 As a matter of fact, they couldn't get the seat
5 belt off of me because it had jammed.
6 Q All right. Let's talk about what happened to you
7 inside of the passenger compartment.
8 Do you recall at the time that your vehicle was
9 initially struck what position that you were in?
10 A I was just sitting straight up in the passenger
11 side with my seat belt on.
12 Q Do you recall whether or not your head was
13 resting against the headrest on the seat?
14 A No, I think I was talking.
15 Q Do you recall whether or not you had your head
16 turned one way or the other or if it was straight ahead?
17 A I don't recall. I don't know. I know after
18 the -- at the impact, I know I was looking straight because
19 I was watching us go into the other car, but at the time
20 when I was hit, I don't recall.
21 Q Do you recall your neck jerking forward or
22 backwards or any movements of your neck at the time?
23 A No, everything happened so fast. I don't know.
24 Q Do you remember anything at all about the
25 mechanism
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A I remember the eeat belt got real tight. I
remember feeling the seat belt.
Q Okay.
A But that's all I can remember.
Q Did any part of your body come in contact with
some of the dash or the glass windshield?
7 A No. The police officers told us if we didn't
8 have our seat belts on, we would have gone through the
9 windshield.
10 Q Was there damage done to your automobile?
11 A Yes.
12 Q And do you remember whether or not that damage
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was repaired?
A Yes, it was repaired.
Q Do you know what the cost was to repair thA
damage to your automobile?
A No, I don't. I let my husband handle that.
Q Do you know whether or not there were any
photographs taken of the damage to your automobile?
A Yes. Someone took -- Rod had showed me or
showed there was a picture that they were passing around
when I was in at Harrisburg Hospital, so I think someone had
taken a picture of both vehicles.
Q Do you of a photograph?
MS. MCHUGH: No.
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THE WITNESSI I don't know whatever -- I don't
know whatever really happened to them, I don't even know
who took the pictures.
BY MR. BLACK I
o You don't have possession of those right now?
A Who me?
o Yes.
A I personally don't. I don't think Rod does
either, but I can find out.
o other than that one photograph, do you know of
any other pictures that were taken of the automobile, of the
damage that was done to the automobile?
A I don't know. I don't know if -- whether he took
it, took pictures, I don't know.
o At the scene of the accident, do you recall
having any conversation with anyone?
A I had conversations with my husband and I had
conversations with the ambulance people.
19 0 Did you have any discussions with Rebecca Hughes?
20 A No. I never even saw her.
21 0 She never came up to speak with you?
22 A No.
23 0 Did you have any discussions with a gentleman
24 that was operating the vehicle that was obstructing the
25 entryway here to the shopping plaza?
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A All I remember is after we had hit him, he got
out of his car and started yelling at us. And my huoband
just said Trisha, just don't move, sit there, and he went
out to talk to him. So that's all. I didn't have any
conversation with him.
Q Do you remember what he was yelling?
A He was mad because we hit him.
Q And do you remember what he said or __
A He swore at us, but I don't remember his exact
words.
Q Did you seek medical attention for any injuries
12 that you received in the accident?
13 A Yes, I did.
14 Q Okay. Old you seek attention that same day or
15 later on?
16 A I was taken from the scene by ambulance to
17 Harrisburg Hospital.
18 Q And do you know what ambulance company
transported you to the Harrisburg Hospital?
A I guess that would be Lower Allen.
MS. MCHUGHl I have no idea.
THE WITNESS, Actually we wanted them to take me
to the Osteopathic Hospital, but they wanted -- they only
took me to Harrisburg, so I think it was just Upper Allen or
Lower Allen.
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1 BY MR. BLACK I
2 0 You wanted them to take you to Community
3 Osteopathic?
4 A Uh-huh, because that's where my treating
5 physician is. lie works in that hospital.
6 0 They took you to lIarrisburg 1I0spital?
7 A Yes.
8 0 What did the ambulance crew do for you or what
9 did the medics do for you?
10 A I know they put me -- took them awhile to get me
11 out of the car. And I remember them just putting two stiff
12 boards like in front of me and back in me. Putting a stiff
13 collar on telling me not to move, not to turn my head in any
14 degree, and just to let them do all of the work.
15 And they put me -- they carried me into the
16 ambulance. And there was a guy there that was with me that
17 kept like holding my hand saying it's going be okay and that
18 type of thing, and they rushed me to the hospital.
19 0 You said that it took them awhile to get you out
20 of the car?
21 A Yes.
22 0 Did they have a difficulty being able to get the
23 car door open or why did it take them so long?
24 A No. They were concerned because I had previous
25 surgery to the neck, because I had a previous injury, and
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they didn't know what they were dealing with.
o What type of senaationa were you feeling at the
time?
A Severe pain in my neck area. Down my right arm.
Some pain in my lower back and in my leg. It waa like a
atabbing pain in my neck area.
o Which leg were you having pain in?
A I think it waa my left leg.
o And you say the aevere neck pain, you alao had
pain in your right arm?
A Uh-huh.
o Waa it a radiating type of pain that extended
from your neck down through your arm, or waa it a aeparate
type of pain that you were having in your arm?
A No, the pain goes from my neck down my arm.
o How far down your arm did you feel the pain
extending at that point?
A I believe all of the way down to my fingera.
o And you aaid it was a stabbing type of pain that
you felt in your neck area?
A Uh-huh.
o What type of pain were you having in the lower
back?
MS. MCHUGH, You have to aay yea or no.
THE WITNESS' Yea. Pardon?
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BY MR. BLACK I
o What type of pain were you having in your lower
back?
A Just like a pain, just an uncomfortable pain, but
not a severe pain.
o Was it kind of like a dull ache?
A No. It was pain. I know the difference between
an ache and a pain.
o Was the pain that you were having in your low
back, did that extend down into your leg or was the pain
that you were having in your leg separate from what you were
having in your low back?
A Well, see, I have had pain that I have had no
back pain, but had pain down the legs because of my neck.
So to answer your question, I don't know if the
pain was coming from my neck or if the pain was coming from
my back.
o Am I to understand by that that you had, prior to
this particular automobile accident, occasions when you had
pain in your neck which would extend down into your leg?
A Before the surgery.
o Before which surgery?
A Of the first car accident.
o Okay. Well, there has been a couple surgeries.
We have had some medical records and from what we found,
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there are two surgeries that we noted one which tOllk place
on August 26 of 1992, and another surgery which was took
place on May 3rd of 1994. So we must be taking about the
August 26, 1992 surgery?
A Uh-huh.
Q So before that?
A Yes.
Q So before that surgery you had occasions when the
9 neck pain that you were experiencing radiated all of the way
10 down into your leg?
11 A Uh-huh.
12 Q And that
13 A Yes.
14 Q We're talking about your left leg?
15 A No, I had -- at the time, now we're jumping from
16 one issue to another issue. Is that
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Q No, what I want to know is you indicated to me in
your answer that there had been occasions previously when
you had pain in your neck that exte~ded into your leg?
A Uh-huh.
Q And we have established that that experience took
place prior to the surgery which you had in August of 1992?
A Correct.
Q My question to you is, the pain that extended
from your neck into your leg, did that extend into your left
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leg, your right leg or both of your legs?
A Both of my legs.
Q Were there any occasions prior to the surgery in
August of 1992 when the neck pain which you were
experiencing extended into your arms?
A Yes.
Q And were there occasions when the neck pain that
you were experiencing prior to that surgery in August of
1992 extended into your right arm?
A Uh-huh, yes.
Q How frequent would that happen?
A Prior to the surgery?
Q Yes.
A Every day.
Q How about after the surgery, did it ever --
A None. No pain down the legs, no pain down either
arm.
Q Now, after the surgery in August of 1992, were
there any occasions where the neck pain ever extended down
into your legs?
21 A No.
22 Q What did they do for you at Harrisburg Hospital?
23 A They put me in a room, which I laid there for
24 probably an hour or so and they took x-rays just to make
25 sure that there was nothing broken, and they didn't want to
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do -- the doctor that had examined my x-rays and everything
came into the room and indicated that there was no treatment
that they could give me because of my prior recent surgery.
And recommended that they could give me some
medication to relieve the pain, but advised that I try to
get ahold of my previous surgeon and have him examine me.
In other words, they literally told me they were
afraid, they didn't -- there was nothing that they could do
for me without having any of my records in front of them.
Q Do you recall whether or not they took any
x-rays?
A They did take x-rays.
Q Did they go over the results of those x-rays with
you?
A No. All I was told was that they did not see any
abnormal -- abnormality to the x-rays.
Q Did they undertake any other type of diagnostic
testing?
A No.
Q You said they feel that they could not treat you?
A Uh-huh. I am sorry, Yes.
They recommended that because I had previous
surgery and they had no information in regards to my surgery
or any records, that they did not feel comfortable in
providing me any further treatment.
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o Did they indicate to you any types of treatment
that they thought might be appropriate for someone else to
provide to you?
A No. They told me that what they could do, they
wanted me to stay in the soft collar and recommended that
my surgeon was out of town and recommended that I try and
contact him immediately.
In the meantime they had given me a shot of
Toradol and I believe that was a strong shot of 50
milligrams.
Q Okay.
A And recommended that I wear the soft collar and
do not take it off.
Q Is there anything else that they did for you at
15 the Harrisburg Hospital?
16 A No.
17 Q Were you discharged that same day?
18 A Uh-huh, yes.
19 Q How much time did you spend at Harrisburg
20 Hospital that day?
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A I think about four hours.
Q When you left Harrisburg Hospital, was the pain
that you were having in your neck any better?
A No.
Q lIow about the pain in your right arm?
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A I don't recall -- I don't remember. I don't -- I
know that I was still in pain, but I don't remember exactly
where the pain -- whether or not I still had the pain.
I know the shots started taking effect when I
started leaving the hospital.
o Do you remember whether or not you were having
any pain at that time in your lower back area?
A I don't believe so.
o How about in your leg, left leg?
A No, I think -- I -- God, I don't remember to be
11 real honest with you.
12 0 Were you able to walk out of the hospital?
13 A They took a wheel chair and wheel chaired me to
14 the car, and then from there I stood up and my husband got
15 me into the car.
16 0 Did you go home from there?
17 A Yes, I had.
18 0 Were you able to walk from your car then into
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your home?
A Yes, I did.
o Who was the Burgeon that you were treating with
prior to this particular automobile accident?
A Dr. Walter Peppelman.
o And were you able to get in touch with Dr.
Peppelman within a day or so after the accident?
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1 A Y~s. Well, he was out of town in California.
2 And we made an emergency call and he took the next flight
3 home which I guess was that Monday and left his conference
4 meeting that he had in California and came home just to eee
5 me.
6 0 When did you firet Bee Dr, Peppelman?
7 A I think it was probably -- I think around maybe
8 three days after the accident. I think he came home that
9 Tuesday, and the accident occurred, what, Saturday.
10 So it was either three or four days, I don't
11 remember exactly.
12 0 Between the time that you left Harrisburg
13 Hospital and the time that you first saw Dr. Peppelman after
14 you came back from California, did you see any other
15 healthcare providers in that period of time?
16 A No.
17 0 Were you --
18 A And I didn't want to because Peppelman was the
19 only one that knew my history of my neck.
20 0 Were you undertaking any medication during that
21 period?
22 A I continued to taka the Toradol.
23 0 So they had prescribed you some additional
24 Toradol while you were at Harrisburg Hospital?
25 A Yes.
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o Other than Toradol, were there any other types of
treatmsnts or braces or orthodics or anything that YOll were
using?
A I kept moist heat on it and I continued to wear
my collar, and I did nothing but lay in bed until I saw
Peppelman,
o Now, when you saw Dr. Peppelman on the first
occasion after the fist accident, what did he do for you?
A I went in to see him because I had a lot of pain
10 in the neck and I had pain in the right arm.
11 And I still had I had tingling in the right
12 fingers. And he took x-rays to make sure -- I think he took
13 x-rays. Oh, God. I don't remember.
14 I know he had examined me and gave me Lodine,
15 told me to continue to put moist heat on it. And I
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believe I think he took x-rays. I can't remember.
o Did Dr. Peppelman, to your knowledge, perform any
type of diagnosis of what your condition was when you first
saw him after the accident?
A He was -- he was concerned because I had just had
previous surgery. But I think at that point he wanted to
wait and see if my symptoms had decreased or whether they
were increasing before he was going to do additional
testing.
o Do you recall when you next saw Dr. Peppelman?
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A I think I saw him pretty frequently, like every
two weeks and then gradually it went to monthly.
o Did your condition improve?
A No.
o At the time of the accident, were you having any
particular problems with your neck area?
A Previous from the time of that surgery, I had
just your normal aches and pains after post surgery, but I
had no pain down the arms and I had no pain down the legs.
o Were you undergoing any type of treatment for any
neck or other symptomatology during the period between the
surgery that you had in August of 1992 up to the point of
the accident in February of 1993?
A No, no.
o You are certain?
A Other than moist heat and my medications, no.
o Okay. Those moist and medications, were you
administering to yourself?
A Yes. I lived on moist heat for years.
o So as I understand it, after the surgery in
August of 1992, basically the pain that you were
experiencing in your neck, arm, back and legs had pretty
much abated?
A Yes.
Q And starting with the automobile accident in
58
1 February of 1993, you started to experience symptomatology
2 in those area?
3 A Correct.
4 Q Had pain in those areas?
5 A Correct.
6 Q Now --
7 A I still had -- previous from that surgery in 1992
8 when I started increasing my activities, yes, I did develop
9 like achiness in the neck area, but I didn't have the pain,
10 you know, down the arms and legs.
11 Q Did Dr. Peppelman ever tell you what injuries
12 that he believed that you sustained as a result of this
13 automobile accident in 1993?
14 A I -- I am trying to think if he ever gave me a
15 diagnosis.
16 He -- I think at that point after the accident,
17 he thinks that I -- from the impact that I aggravated the
18 neck, but I don't think there was a specific diagnosis that
19 was given.
20 Q Other than Dr. Peppelman --
21 A I know, okay.
22 Q Go ahead.
23 A Well, I do know that Peppelman had told me that
24 according to his records and everything, I was recovered
25 from my previous injury.
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1 0 Okay. Had you been discharged from Dr.
2 Peppelman's care prior to thia accident?
3 A Yes.
4 0 In February of 1993?
5 A Yes.
6 0 Do you know when you were discharged by him?
7 A I had been diacharged on a couple occaaions. I
B think I waa diachacged ahortly after I got my neck brace off
9 back in October of '92, and then I know in November of 1992
10 I made a doctor'a appointment just basically to review
11 things with him on what my daily activitiea could be and
12 what I could gradually atart doing.
13 And that waa probably towarda the end of November
14 of 1992.
15 And then in January of 1993, I atarted -- I used
16 to work out all of the time since I was -- got out of high
17 school. I had worked out every other day from the time that
IB I was eighteen years old.
19 So I was always used to being in shape and I was
20 very active and I was constantly always doing some type of
21 activity.
22 I started -- he told me that I could start
23 working out again, and I started doing a few exercises on my
24 Solorflex.
25 And at that point in January when I started my --
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to increase my activities, like he said I could, I started
experiencing a few spaams in my neck.
Q Okay. Did you go back to see Dr. Peppelman with
respect to those?
A Yes, I did.
Q And were you under his care and treatment for
that?
A Yes, I was.
Q And that would have been January of 1993?
A Correct.
Q What kind of treatment was he rendering to you at
that time?
A All I did at that point is got moist heat and
some anti-inflammatory just to relieve the spasms.
Q So he instructed you in using moist heat?
A Uh-huh.
Q And he gave you a prescription for some
medications?
A Uh-huh.
Q Was there any other treatment that he was
providing to you?
A No. And I believe in January then I was released
from his care again.
Q And you think that you were released in January
of 1993?
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A Uh-huh.
Q Other than Dr. Peppelman, have there been any
other healthcare providers that you have seen relative to
the injuries that you sustained -- strike that.
Since you started seeing Dr. Peppelman three or
four days after the accident, have there been any other
physicians that you have seen with respect to injuries that
you sustained in the automobile accident of February of
1993?
A Of February of 1993, the only physician that I
was treating with was Dr. Peppelman.
Q Other than Dr. Peppelman, Harrisburg Hospital,
and the ambulance crew, there has been nobody else who has
treated you for injuries relative to the February 1993
accident?
A No. I also went to physical therapy.
Q Okay. That was as a result of referral by Dr.
Peppelman?
A Wait, did I go to therapy? Oh, God. I can't
20 remember.
21
22 remember.
23
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25 now.
No, I went to physical therapy then. Oh, I can't
MS. MCHUGH: Well, just take a deep breath.
THE WITNESS: I am getting them all confused
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No, he tried me in physical therapy.
BY MR. BLACK:
a So you believe that you may have had some
physical therapy?
A I did have physical therapy.
a What type of treatment modalities were being
administered by the physical therapists?
B A Moist heat. And God, what is that electro
9 stuff . Oh, ultrasound.
10 a Okay.
11 A And I think massaging.
12 a Do you remember how long that you went through
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therapy, physical therapy?
A I think they were short periods because every
time I went to physical therapy, I was -- I would leave in
more pain. Physical therapy was not helping me.
a You relate that to Dr. Peppelman?
A Yes.
a That it wasn't helping you?
A Yes. Yes.
Q Did he continue requesting that you attend
physical therapy?
A No.
Q Do you recall after the accident in February of
1993 whether you had one or more than one course of physical
63
1 therapy?
2 A Oh, God, I can't remember. Oh, my God, I can't
3 remember. I can't remember.
4 Q Just to the best of your recollection.
5 A Well, you know what, I don't -- let's see. I was
6 going to Mechanicsburg Rehab, maybe I only went -- I know I
7 went to the Mechanicsburg Rehab. That was it.
a Q Okay. So you were -- you recall --
9 A Are you talking about after my second Burgery? I
10 mean I guess that's all still included?
11 Q Yes.
12 A I went to physical therapy then after my second
13 surgery.
14 Q Okay.
15 A So are you including that because I am not
16 including that.
17 Q Well, I am asking you -.
18 MS. MCHUGH: I guess that's the confusion. Are
19 you talking first surgery or second surgery? Is that what
20 your question is?
21 THE WITNESS: I am all confused now because I --
22 BY MR. BLACK:
23 Q I am not relating it to the surgery, I am
24 relating it to the injuries that you received in the
25 automobile accident and the treatment that you received for
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ttlose injuries.
MS. MCHUGH: The 1993 accident, so this would have
been --
,
MR. BLACK: Right.
MS. MCIIUGH: Post?
THE WITNESS: The second one?
MS. MCHUGH: Right.
THE WITNESS: So yes, I did have physical therapy
before I had surgery.
BY MR. BLACK:
Q Okay. We're talking about the surgery in 1994.
A Right, right, which was related to the injury of
February of 1993.
Q Okay. You believe that the surgery that was
performed in 1994 was related to the injuries that you
received in the automobile accident of February of 1993?
A Absolutely.
Q What is your understanding of the type of surgery
that was performed in 1994?
A 1994, the fusion that they had -- the previous
surgery that I had undergone back in August of 1993, I had
had numerous x-rays done every two weeks to make sure that
the fUBion was complete.
And every x-ray showed that that fusion was a
completed fusion until after the second car accident. I had
65
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an MRI done and it indicated and showed that that fusion was
no longer completed.
3 Q Okay. So it's your understanding that the fusion
4 that was performed, I want to clarify something, you refer
5 to it as a surgery in August of 1993?
6 A '92.
7 Q Do you mean the surgery of August of 1992?
B A Yes, '92, I am sorry.
9 Q So it's your understanding that the fusion
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procedure that was done in August of 1992 was somehow
damaged as a result of the August or the February of 1993
automobile accident?
A Yes.
Q And that the surgery that was done in 1994 was to
correct the damage that was done to the fusion previously
performed in August of 1992?
A Yes, and also to include another ruptured dusk.
Q Well, tell me about that. You didn't mention
another ruptured disk?
A Okay. I had -- after the second car accident, I
was feeling fairly good until the second car accident of
February 20, 1993 which then I started experiencing pain
every day, I couldn't sleep at night. I had pain down the
right arm.
I had a lot of discomfort in the right shoulder.
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I had pain down the legs that had continued and never laid
off until finally somebody did something and supposedly I
had another, I had another herniated disk that was all of
the way on the canal was pinching the nerves which was
causing all of the pain in the right arm and legs which I
did not have previous to that second car accident.
Q Okay. Who told you that you had a herniated disk
in your neck after the automobile accident in February of
1993?
A I saw the MRI previous to my surgery and I saw
how that disk was all of the way out in the canal.
Q So it was Dr. Peppelman that told you that?
A Yes.
Q And is it your understanding that this herniated
disk that you were referring to here, that Dr. Peppelman
told you that that was at a different location than the
location where the herniated disk existed that you had the
operation for in August of 1992?
A Yes.
Q Have you ever been told by anyone that the
herniated disk for which you had the operation in 1994 was
caused by the automobile accident that you had in 1991?
A No.
Q No one ever told you that?
A Nope.
67
1 Q Do you recall anyone eVer telling you that an MRI
2 report that was taken prior to thiB accident in February of
3 1993 showed a herniated disk at the C-4, C-5 area?
4 A No. No one told me that.
5 I was told at my first Burgery that there were
6 two bulging disks, and that the -- that one of them ended up
7 rupturing. That -- I was told nothing about the C-4,5.
B And when Dr. Peppelman went in and did the
9 surgery of August of 1992, if there was any other herniated
10 diBk, that disk would have been repaired.
11 Q Okay. The herniation, the disk -- herniated diBk
12 that Dr. Peppelman repaired in the 1992 surgery, do you know
13 at what location that was?
14 A 5-6.
15 Q Okay. I want to go back just a second. There is
16 a couple questions I forgot the ask you with respect to the
17 accident.
IB Do you know of any witnesses that observed the
19 accident?
20 A I -- I -- I remember when I was sitting up, there
21 were cars everywhere. I don't know if anybody got out, I
22 don't know. I don't know.
23 I know there were a lot of people there. There
24 were a fire trucks. There were a lot of ambUlances, but
25 that should be -- a lot of it on the police report if there
6B
1 wae any
2 Q You didn't talk to anybody that was a witness to
3 the accident?
4 A Nobody came to me. The only people that came to
5 me was my husband and the ambulance people, that was it.
6 0 Since the time that the accident happened, have
7 you ever had any communications with anyone who's
B represented to you that they observed the accident?
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A No.
o Did your car have air baga?
A The left side does. The driver'e side did.
o Did the air bag deploy?
A No, and it won't on a rear ended collision.
o All right. Are you currently treating with any
physicians for the injuries that you eustained in the 1993
automobile accident?
A Yes, I am.
o Who are you treating with frequently?
A Dr. Gerald Turgeon.
Q Is that G-e-r-a-l-d?
A Correct.
o T-u-r-g-e-o-n?
A T-u-r-g-e-o-n.
Q O-N.
Is Dr. Turgeon an M.D. or D.O., do you know?
69
1 A He's a neurologist. So he would be --
2 0 Well, he could still either be an M.D. or 0.0.,
3 you don't know that?
4 A He's not an M.D., it would be a D.O.
5 0 He's a D.O.?
6 A Yes.
7 0 Did you see him out at the Community General
B Oateopathic Hoapital?
9 A No. He is now in the same office complex as Dr.
10 Peppelman. Dr. Peppelman referred me to Dr. Turgeon.
11 0 Do you still care and treat with Dr. Peppelman at
12 all?
13 A No, because he has put me under the care of Dr.
14 Turgeon.
15 0 When is the last time you saw Dr. Peppelman?
16 A Let's see. I tried to make an appointment in May
17 of 1995, but he was out of town. I went to see my family
IB doctor -- maybe April of 1995. No wait, April to May. May
19 to June. I believe June, June of 1995.
20 0 June of this year?
21 A Yes, June of 1995.
22 0 And was that a scheduled follow-up visit with Dr.
23 Peppelman or did you call into his office to make specific
24 arrangements to see him?
25 A I have been calling Dr. Peppelman's for months
..-,..
70
1 complaining of continuing pain and spasms and I wanted some
2 type of medication to relieve my headaches.
3 I never got returned phone calls, nobody ever got
4 back to me. So finally I believe it WIIS in IIl1gllat I called
5 Dr. Peppelman's office cryl.ng and left II nasty message on
6 his assistant's voice mail indicating that I wanted to be
7 referred to a doctor that can help me. I want somebody to
B help me relieve these muscle spasms and these headaches.
9 At that time I didn't have an appointment to go
10 back in. I think -- I believe I had another follOW-lip
11 appointment which I did for August of 1995 with Peppelman.
12 But I called him between -- before that
13 appointment because I couldn't handle the spasms or the
14 headaches any more.
15 lie recommended that he do something, so I didn't
16 go back to that follow-up appointment wl.th Peppelman in
17 August, instead I went to Dr. Turgeon.
IB Q My question was the June 1995 visit with Dr.
19 Peppelman, was that a scheduled follow-up visit with him or
20 did you call him specifically?
21 A That was another follow-up.
22 Q So that was a scheduled follow-up?
23 A Yes.
24 Q When was the last Lime before this June of 1995
25 visit that you had Been Dr. Peppelman?
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A I guess it wao March of 1995.
Q Were you to soe him on a frequoncy of every so
many montha or oomething?
A Yes. I wont -- if 1 didn't see h l.m, I mario phone
calls complaining of tho continuing pain. And I was then
in 1995, I was in on an every three montho bRois with Dr.
Peppelman.
Q Was Dr. Peppelman treating you in any manner in
1995?
A Well, I ended my physical therapy in January of
1995.
Q Okay. Was there any other treatment that Dr.
Peppelman rendered to you in 1995?
A Continue the medication of the Lodine and
continue the moist heat, continue my exercises, and wanted
me to get involved in the -- an exercise program at a
facility which he chose me to go to Dr. Zeliger's facility,
Central Penn Fitness Center, because they have got equipment
called life -- equipment that's similar to physical therapy
equipment.
He's the only facility in thia area that has the
equipment.
And he wrote me out a prescription to go there
for three months and to try and do a conditioning exercise
program on my own versus having to go through the physical
72
1 therapy.
2 Q Did you follow through with that?
3 A Yea, I did.
4 Q And did you complete that p~ogrBm?
5 A Yes, I had. And then there were times whe~e from
6 working out it was irritating my neck and I would develop
7 spasms and then I would quit for a couple weeks, then I
B would go back.
9 Q Was that done under the -- or strike that.
10 Was that done under the observation or control of
11 a physical therapist?
12 A Yes. There was a physical therapist that was
13 working with me.
14 Q So you weren't there cart blanche?
15 A I wouldn't say a physical therapist, I would say
16 they have licensed trainers at the facility. He wasn't
17 necessarily a physical therapist. But had his degree in,
IB you know, exercise program who made sure -- I mean he had my
19 chart.
20 This equipment everything was done computerized.
21 It's not like nautilus. It's a whole -- I can't work on
22 nautilus. Nautilus does not make me feel good. But this
23 particular equipment is very similar to Dr. Peppelman's
24 equipment in his physical therapy room. And it does help to
25 condi tion. What you are trying to do is build the muscles
73
1 up around the neck area.
2 Q Did you design your own program or wore you
3 auisted?
4 A No.
5 Q With some of the trainers or individuals which
6 oversaw the program, or did they assist in designing the
7 program?
B A I had a professional trainer desigll a program for
9 me.
10 Q Okay. Did you ever go back to Dr. Peppelman with
11 the complaints about the exacerbated pain that you were
12 having as a result of doing the program?
13 A I never got an appointment, but I called and
14 informed them of that and told his assistant Betsy to inform
15 the doctor that I am still continuing with pain, but like I
16 said, on numeruus occasions nobody ever got back to me.
17 Q Did Dr. Peppelman ever recommend to you that you
IB undergo any other or future surgical type of procedures?
19 A No.
20 Q Did he ever recommend that there be any type of
21 diagnostic procedures undertaken to ascertain why you were
22 with continuing to have the pain?
23 A He didn't have any idea why I was continuing to
24 have the pain and that's why he referred me to another
25 doctor.
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Q Okay. Do you have any plans to see Dr. Peppelman
in the future?
A No.
Q You were discharged from his care as far as you
are concerned?
6 A Aa far as I am concerned.
7 Q Right. Now, Dr. Turgeon, you first saw him when?
B A I believe it was August of 1995.
9 Q And how many times have you seen Dr. Turgeon
10 since you first saw him in August of 1995?
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A Three to four times.
Q When are you next scheduled to see him?
A This month.
Q lias Dr. Turgeon recommended that you undergo any
type of diagnoatic procedures to determine the nature of
your pain?
A He says that the Dr. Turgeon's recommendation
at this point, the only way to try and relieve the spasms
and the headaches is to undergo steroid iniections,
20 Q Okay.
21 A And I have not agreed to do those at this point.
22 Q lias he told you what he believes to be the cause
23 of the spasms and pain that you are having in your neck
24 area?
25 A Yes, due to two traumas to my neck.
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Q Did he tell you what the purpoBe of the steroid
injection or what they would do?
A They would help relieve the headaches and the
muacle spasms.
Q Did Dr. Turgeon ever talk about scar tiaaue in
any of his diacusBions with you?
A No. The diacussions he has had with me is that
the type of injuries that I have sustained, that there
probably never will be a period or I will always continue to
have the headacheB and the Bpaams, and I was told that.
Q Did Dr. Turgeon ever have any x-rays taken?
A No, he did not.
Q How about an MRI, did he ever refer you for an
MRI?
A No.
Q How about a CAT scan?
A No.
Q How about a myelogram?
A No.
Q He never did he ever order any type of diagnostic
studies for you?
A No. He felt the spaBm in my neck and he even
made a comment he couldn't believe them. He knows that --
the headaches he said were all neck related.
And he suggested that I be on medication on a
._--_.--._------_.~---_._.-
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daily basis, which he chose Feldene. There for awhile I was
also on muscle relaxants and tho Feldene.
3 Q The muscle relaxants were also presnribed by Dr.
4 Turgeon?
5 1\ Yes.
6 Q What kind of muscle relaxant?
7 A Oh, God. Well, Dr. Peppelman did put me on
B Flexer 11, so they did put me on muscle relaxants also, but I
9 couldn't take them. I get very sick to my stomach.
10 And Dr. Turgeon put me on two different ones, but
11 they didn't do anything. One of the medications I was on I
12 took once and they gave me aide effects.
13 Q Did Dr. 'l'urgeon discontinue the Lodine and
14 replace it with the Feldene?
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A Yes.
He thought it that waa more of a medication that
I could he told me there is a possibility I may always
have to take it.
Q Other than the medication and the discussion with
respect to the steroid injections, is there any other
treatment that Dr. Turgeon recommends for your condition?
A Not at this point.
Q Did he talk to you about any possible future
treatment that you may need?
A No, we didn't get into that. Right now his
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concern is to just try and calm the headaches and the spasms
down.
Q Okay. Other than Dr. Turgeon, is thers anyone
elss that you are seeing presently for your problems?
A No.
Q lIave you ever treated with a chiropractor?
A No.
Q Now, you were involved in another automobile
accident in 1991, is that correct?
A In 1991?
Q Yes. Was it 1991?
A No, April of 1992.
Q April of 1992. Okay.
A I was going to say.
Q You sustained injuries to your cervical area as
well in that automobile accident?
A Yes.
Q And you understand what I mean when I say
cervical area, your neck?
20 A Yes.
21 Q Did you also treat with Dr. Peppolman for those
22 injuries?
23 A Yes, I was gradually later referred to him.
24 Q Who did you first see with respect to those
25 injuries that you -- the neck injuries that you sustained
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in --
A I first went to Seidle Hospital that weekend
because the pain increased. And from there I went to see
Bernie Zeliger, Dr. Zeliger.
Q Okay.
A Then I was under his care. And because the pain
had not decreased and I wasn't getting any better, he then
referred me to Dr. Peppelman.
At that time Dr. Peppelman was working in his
practice.
Q Other than Dr. Zeliger and Dr. Peppelman, did you
see any other healthcare providers?
A Yes. Before conservative treatment with Dr.
Peppelman, it was Dr. Patterson, and he was a neurologist.
And all he did was put me on drugs.
Q Had you quit seeing Dr. Patterson at the time
that you started seeing Dr. Zeliger, or were you seeing them
at the same time?
A I started seeing Bernie Zeliger first, then I
went to Dr. Leland Patterson.
Q Okay.
A Because Dr. Zeliger couldn't, you know, he
couldn't figure he couldn't help me.
Q Then he referred you to his colleague?
A He didn't refer me, I just chose to see -- oh, I
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chose to see Dr. Leland Patterson. And then, yes, I did go
back to Bernie too. I went to see a neurologist too to find
out, maybe he knew something different than a D.O. would not
know, an orthopedic surgeon.
And then after Dr. Leland Patterson just wanted
to put me on strong medications, as a matter of fact what
ended up happening, when I ran out of the medication that
Leland Patterson put me on because I was feeling better, I
had pain everywhere, and that's when I went back to Dr.
Peppelman.
MS. MCHUGH: Back to Zeliger.
THE WITNESS: No, I went back -- well, at Zeliger
who then put me back to Peppelman.
BY MR. BLACK:
Q Were Zeliger and Peppelman in practice together
at that time?
A Yes.
Q They subsequently went their own ways?
A Right.
Q Now, other than Seidle Hospital, Dr. Zeliger,
Peppelman and Dr. Patterson, is there anyone else that you
were seeing with respect to the injuries that you sustained
in that 1992 automobile accident?
A I was in physical therapy.
Q Okay.
BO
1 A That again was at Dr. Zeliger's. It was also
2 with Mechanicsburg Rehab Center.
3 Q Were those the only two physical therapy groups
4 that you saw?
5 A Oh, you know, where else I went to was the
6 facilities next to Barry Moore's office in Mechanicsburg.
7 Oh, no, that is Mechanicsburg Family -- that is
B Mechanicsburg Rehab, I am sorry. They moved their facility
9 to there.
10 Q Okay. Are there any other physicians that you
11 saw or healthcare providers, other physical therapists, Dr.
12 Zeliger, Dr. Peppelman, Dr. Patterson, your initial
13 evaluation at Seidle Hospital?
14 A No. Once in a while I would see my family
15 doctor.
16 Q Who is family doctor?
17 A Dr. Ann Bogdon.
IB Q When is the last time that you saw Dr. Bogdon?
19 A It's been awhile since I have seen Dr. Bogdon,
20 only because she was out on maternity leave and she only
21 works part time.
22 Q Does she have an associate or colleague in her
23 office who you saw instead?
24 A I saw a doctor in May of 1995 for -- I was having
25 pain in my neck and shoulder area. And I called Dr.
Bl
1 Peppelman's office. Dr. Peppelman was out of town again.
2 And Betsy, his assistant, told me to go see my family
3 doctor, and --
4 Q Do you know the name of the doctor that you saw
5 in May of 1995 at your Family Practice Center?
6 A It was a female, and I can't remember her name.
7 Q Did she administer any treatments or do anything
B for you?
9 A She had suggested -- I was still on muscle or
10 on anti-inflammatories, on the Lodine. She continued
11 told me to continue taking the Lodine.
12 And it was her recollection that the muscle from
13 my neck area were going into this shoulder area and causing
14 the pain in the shoulder.
15 Q Was this physician also a D.O. physician?
16 A I don't know.
17 Q If I use the term osteopathic manipulative
IB therapy, do you understand what that is? Did you ever hear
19 that term before?
20 A Yes, I did.
21 Q Do you know what that is?
22 A A licensed --
23 Q Well, doctors of osteopathy sometimes perform
24 manipulative therapy similar to -- not similar to, but the
25 nature of almost like a chiropractic manipulation?
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A Oh.
Q Have your ever had any doctor, Bogdon or any of
her colleagues in family practice
A They never touched me.
Q -- perform that on you?
A No.
Q Have any of the osteopathic physicians that you
have seen ever done any type of manipulative therapy or
9 adjustments with respect to your neck or back?
10 A 'l'he physicians themselves?
11 Q Yes.
12 A No, no.
13 Q Any of their assistants?
14 A Physical therapy did like manual traction and
15 that type of thing.
16 Q Okay.
17 A But Mechanicsburg Family Practice, whenever -- it
IB was probably a waste of time to go see them, but whenever I
19 went to see them again, they said we recommend that you go
20 back to Dr. Peppelman.
21 Q Has Dr. Bogdon always been your family physician?
22 A For the last couple years, I would say at least
23
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three to five years.
Q Who did you seo as a family physician before that
time?
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A I didn't have one. So I guess maybe I had been
going to Mechanicsburg Family Practice a lot longer, maybe
the laet ten years. But I have had other doctors other than
Dr. Bogdon.
5 Q But always at Mechanicsburg Family Practice?
6 A Yes, yee.
7 Q Do you have any records from them at all?
B MS. MCHUGH: I think I might have a copy of the
9 note from May of 1995.
10 (Brie f recess. ) .
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BY MR. BLACK I
Q I think when we left off, Miss Swank, with
establishing that you pretty much had your family and
general practice care taken care of by Mechanicsburg Family
Practice for the past ten years.
Do you recall at all having any other general or
family physicians other than Mechanicsburg Family Practice?
A No, not since I was a kid.
Q Do you believe that you sustained any injuries to
your lower back as a result of the automobile accident in
February of 1993?
A I was concerned because shortly after the
accident I did have discomfort in the lower back. But I
really -- I never -- I never have discomfort in my lower
back.
04
1 Q Have you ever been required to treat with any
2 medical physician for the lower back complaints that you had
3 after the February 1993 automobile accident?
4 A Dr. Peppelman wanted to do an MRI on the lower
5 back since I had complaints of the lower back. And
6 because -- I had tile pain in the legs, becausp previously
7 before my first surgery I had pain also in my legs, not my
B lower back at all, but I had pain in my legs that were
9 diagnosed coming from my neck area. So I suggested that we
10 do the MRI of the neck, find out if there is any problem
11 there, and we put the lower back we put the lower back
12 off because of my second surgery.
13 I no longer had pain down the legs. So we never
14 did do the MRI on the lower back.
15 Q As you sit here today, have you had any lower
16 back pain within the past month?
17 A No.
IB Q How about within -- since the beginning of 1995?
19 A I had a little bit because I started working out
20 again. I am back to the facility and there is certain
21 exercises that I can and can't do.
22 But normally, no, I never -- I never have
23 problems with my lower back or pain in my lower back.
24 Q When was the last time that you recall having
25 pain in your lower bock after the automobile accident in
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A From tho time maybe a month, two months after the
accident and any time after that never.
Q How about the leg pain, do you still have leg
pain today?
A No.
Q When was the last time that you recall having leg
pain?
A The leg pain has been quite sometime now. I
still get discomfort in the right arm occasionally when I
was working at Gallagher Bassett when I would have real bad
spasma, but now that I have been on the Feldene on a daily
basis, I don't have pain in the right arm or down the legs.
Q I guess I want to try to get a little bit more of
a clear picture of the last time that you recall having pain
in your legs. You said it's been some time.
Have you had any pain in the legs during calendar
year 1995?
A No.
Q Have you had any pain in the legs since the
operation that you had in 1994?
A No.
Q Do you recall if you have had any pains in the
legs during the entire calendar year 1994?
A Oh, I don't remember. Well, let me go back now.
86
1 No, no, I didn't have pain in the legs in 1994, no, I don't
2 have pain in the legs, no.
3 Q Do you recall how long it was after the accident
4 when you stopped having any pain in your legs?
5 A Just within -- when I woke up from the surgery, I
6 didn't have pain in the legs.
7 Q Now, are we talking about the first surgery or
B the second surgery?
9 A Well, both of them.
10 Q Well, my recollection of your testimony was that
11 you had pain in -- some pain in your legs after the accident
12 in February of 1993. Am I mistaken in that?
13 MS. MCHUGHI Could I interject? I think the
14 confusion is if you said, you know, from your surgery in
15 1994 onward, did you have pain in your lower back, legs,
16 then you said entirely in 1994, so maybe a better way to ask
17 it would be say to say presurgery 1994, did you have any
IB pain in your legs.
19 BY MR. BLACK:
20 Q Well, what the problem is I am trying to identify
21 when she laat recalls having pain in her legs after the
22 accident in 1993.
23 A I stopped having pain in the legs from the second
24 car accident after I had surgery.
25 Q In 1994?
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A Right.
Q Okay. Up until that time you had complaints of
pains in your legs?
A Well, I can't say -- it wasn't like a -- it would
be the pains in my lege, I didn't really get the paina in my
legs were not eevere until shortly before the surgery. I
mean I had discomfort in the legs, but I didn't have the
major discomfort until before the surgery.
Q You had surgery to your lower back prior to
either of the automobile accidents, isn't that correct?
A Correct.
Q What type of surgery did you have to your lower
back?
A 19BO, I had a laminectomy of L-4,5, L-4,5, L-4,
5-1. No fusion was done. 19B8 basically what ended up
having since there was no fusion done, the vertebrae sort of
collapsed, and impinged on the nerves and ruptured another
disk. So I had surgery again in -- let me try to think what
month that was. It might have been May of 19BB.
And I had one follow-up visit with that surgery
and I never ever again had back pain.
Q The surgery that was done in 19BB, that was a
fusion procedure?
A No.
Q What was the procedure that was done then?
BB
1 A My understanding when the vertebrae collapsed, it
2 I guess ruptured another disk and there was some nerve
3 damage because it was pinched because the vertebrae had
4 closed in on the holes so I had some nervo repair done and a
5 little bit of work done on one of the -- on the disk. It
6 guess it was L-4,5.
7 Q Have you ever been told that the complaints that
B you had of pain in your legs were caused by the injuries
9 that you sustained in your lower back area?
10 A Nope.
11 Q Have you ever been told that the pain that you
12 experienced in your legs was a result of a sciatic nerve
13 impingement?
14 A Nope.
15 Q Who treated you for your --
16 A Are you talking about the -- you mean when I had
17 for -- are you asking me if I had pain in my legs during my
IB back -- I am confused.
19 MS. MCHUGHI Are you --
20 BY MR. BLACK:
21 Q Let me rephrase the question.
22 Have you ever been told that the pain that you
23 were experiencing in your legs --
24 A Now.
25 Q Let me finish the question. Have you ever been
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told that the pain that you experienced in your legs after
the automobile accident in February of 1993 was in any way
related to your low back problem?
A No.
Q Were you ever told that the pain that you
experienced in your lega after the automobile accident in
February of 1993 was related to a sciatic nerve impingement?
B A Nope.
9 Q Have you ever asked anybody about that?
10 A No, because I never treated again for my back.
11 Q Do you recall, did you ever tell Dr. Peppelman
12 that you had lower back surgery?
13 A Oh, yes, Dr. Peppelman knew.
14 Q Did you tell Dr. Zel1ger that?
15 A Yes.
16 Q And did you tell Dr. Turgeon that?
17 A Yes.
IB Q What caused the problem with your lower back?
19 A They don't know. I had fallen down a flight of
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steps and I was in two car accidents, but I had never been
treated for a back injury. They -- I might have been
nobody really diagnosed -- nobody could really determine
whatever really caused the injury.
Q Now, you \11~re involved in two automobile
accidents. Are thoso Lho two accidents that we're
90
discussing here today, the 1992 and 1993 accident?
A No, there -- these were just little minor
accidents in high school when I was maybe a freshman in high
school.
Q Did any of those accidents result in any ongoing
medical treatment for you?
A Nope.
Q Do you believe that you sustained any injury as a
result of either of those accidents?
A No.
Q Do you know the year that they occurred in?
A 1976.
Q Both of them were in 1976?
A Yes, I think 1976 when I was a freshman.
Q What year was it when you fell down the flight of
stairs?
A I think that was 1979.
Q Did you treat with any physicians for the
injuries that you sustained in that accident?
A No, or maybe that was 197B. That may have been
even 197B.
Q You didn't seek any medical care at all?
A No, no, I didn't, until I started having back
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pain.
Q In sorry if I asked this. I didn't write down in
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my notes. Who did you treat with with respect to the low
back problems?
A My first treatment was with Dr. Ralph Bentz.
Q Okay. Did you treat with anyone else?
A No.
Q Dr. Bentz is
A Oh, well, go ahead.
Q If you had some more to add, go ahead.
A Well, the second doctor was Dr. Barry Moore.
Q Dr. Moore is a neurologist?
A Yes.
Q Dr. Bentz is an orthopedic surgeon?
A No, Dr. Bentz was a neurologist.
Q Other than Dr. Bentz and Dr. Moore, did you Bee
any other healthcare providers?
A No.
Q For your low back problem?
A No.
Q When is the last time that you would have seen
Dr. Bentz or Dr. Moore?
A Last time I saw Dr. Moore was two weeks after my
back surgery. 198B.
Q Do you believe that the injuries that you
sustained in the 1993 automobile accident are currently
prohibiting you from engaging in any activities?
92
1 MS. MCHUGHl You said 19B3, did you mean 1993?
2 MR. BLACKI 1993, excuse me.
3 MS. MCHUGHl Okay.
4 THE WITNESSl I am sorry, could you repeat your
5 question?
6 BY MR. BLACKl
7 Q Certainly. Do you believe thal the injuries that
B you sustained in the automobile accident in 1993 have
9 currently restricted you from engaging in any activities?
10 A Yes, I do.
11 Q What activities in specific do you believe that
12 those injuries have restricted you from engaging in?
13 A I am never going to be able to ski again. I
14 can't play raquetball, I can't play tennis. I can't run. I
15 can't roller blade. I can't go bOWling with my friends.
16 That really bothers me.
17 Q What is it about your condition that precludes
IB you from the ability to go skiing?
19 A Well, I can't do any type of jump. I would -- a
20 mogul or if somebody would hit me, all my doctors have told
21 me if I ever got hit again, that I could end up doing my
22 damage to my neck.
23 Q How about playing raquetball, what is it about
24 your condition that would preclude you from playing
25 raquetball?
93
1 A Juet the force of ueing the raquet. I can't even
2 play badmitton. To hold my neck up this way, I can't do
3 it. Tennis, just the ball coming toward the raqueL and
4 trying to hit the raquet just aggravates my neck.
5 Q How about running?
6 A The pressure from running on the ground sort of
7 like vibrates into my neck.
a Q Roller blades?
9 A It gives me headaches.
10 Q I am sorry?
11 A Roller blading, again if I would ever fall, I
12 could end up doing more damage to my neck.
13 Q How about bowling?
14 A I can't lift a ball, I can't lift anything heavy.
15 Q Are there any other activities that you --
16 A I can't do anything. Like when I go exercise, I
17 can't lift anything over the head. I can't watch
IB fireworks. I have to lay down because I can't keep my head
19 up long enough.
20 House cleaning, doing any type of washing dishes
21 kills me every time I wash dishes. Driving a car sometimes
22 is difficult when you want to turn your neck and you can't
23 turn it that far.
24 Q Do you still drive?
25 A Uh-huh.
94
1 Q Is there anything else?
2 A No, just my regular, you know, any time I do any
3 type of increasing -- I can't run the sweeper. I am very
4 cautious though of things that I do on a daily basis.
5 Believe me, I don't do anything. I finally just started
6 working out again.
7 Q The restrictiona on the active sports such as
B skiing, running, roller blading, raquetball and tennis, you
9 pretty much had those restrictions ever since you had your
10 initial neck surgery in 1992, isn't that correct?
11 A Uh-huh.
12 Q So it really haan't been any change in your
13 ability to engage in those activities?
14 A No. No. When 1 went to see Dr. Peppelman in
15 November of 1993, Dr. Peppelman told me that I could ski and
16 I could do all of those activities. It -- the only thing
17 that's preventing me from doing all of this now is a second
IB car accident, again going through two surgeries where I live
19 now, be apasm every day that, I didn't have prior to that
20 second surgery.
21 Q Has a physician told you that you shouldn't ski?
22 A Yes. Dr. Turgeon told me.
23 Q Has a surgeon, physician told you shouldn't play
24 raquetball?
25 A Yes. Should not play tennis, should not run.
95
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1 Q Dr. Turgeon has told you all of this?
2 A Yes.
3 Q And you never had discuBaions with any other
4 physician about those type of restrictions before the
5 automobile accident in February of 1993?
6 A Before the surgery of February of 1993, I was
7 told that I could resume all daily activities that I used to
B do.
9 Q Well, I don't think there was a surgery in
10 February of 1993. You mean the accident?
11 A The I mean the accident, prior to the accident
12 of February of 1993.
13 Q So you were told by Dr. Peppelman that you could
14 do all of these activities?
15 A Uh-huh.
16 Q 1I0w often did you ski before?
17 A My husband is a big skier. He was the --
IB MS. MCIIUGH: Let him finish the question.
19 TilE WITNESSI oh.
20 BY MR. BLACK:
21 Q How often did you ski before you had the accident
22 in February of 1993?
23 A I didn't ski at all in 1992. I mean I juat got
24 out of the neck brace in October of 1992. I wasn't about to
25 take the chance to go out on that slope.
96
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1 Q 1I0w often did you ski before you hlld the Ilurgory
2 or before you had the accident?
3 A Every Saturday.
4 Q In April of 1992?
5 A Every Saturday, every Sunday, and maybe onn or
6 two nights during the weekdays.
7 Q Where would you aki?
B A Up at Houndtop or we would go to -- oh, God,
9 local areas, I can't even remember all of the names now.
10
Oh, we went to Vale. Elk Mountain. Vermont,
11 North Carolina. '1'hen, well, Rod takea trips without me,
12 but....
13
Q
How often did you play raquetball beforo tho
14 automobile accident in 1992?
15
A
1 used to play. I hadn't played for a "ouple
16 years, but there for awhile I was playing at leaot once or
17 twice a week. I was playing tennis. During the uummnrtime,
IB weekends, weekdaya I was running, I was working out. I waR
19 riding by bike.
20 I don't ride my bike now because 1 11m afraid I f I
21 fall, you know, or run into -- I will run into the Dame
22 situation again.
23 Q 1I0w often did you roller blade prior to tho
24 accident?
25
A
Well, I did, MId I want. to I"ollo!" hllldn. I novol"
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1 roller bladed, but I want to roller blade.
2 Q So you have never done that before?
3 A No, I used to ice skate. I can't ice skate any
4 more.
5 Q How often would you go ice akating?
6 A We used to go ice skating whenever it was cold on
7 the weekend or during the night.
B Q How about bowling? How often did you go bowling
9 before the accident?
10 A That was just a leisure. I used to be able on a
11 league when I got out of high school. And then we were --
12 just do it as fun with friends.
13 It wasn't something that I do on a regular
14 basis. But it's nice, you know, every once in a while
15 with -- we're with a group of people and they suggest let's
16 go bowling for something fun something, different to do on a
17 weekend, I can't do it.
IB Q You can go with them, but you can't bowl?
19 A Right.
20 Q Have you ever had to hire anyone to do any of
21 your housework for you?
22 A No, my husband did it.
23 Q How about since you have been separated from your
24 husband, have you had to hire anybody to do any of your
25 housework?
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No, I don't run the sweeper. My sinter will nome
2 over and she will do it.
3 Q How about your problems with helng nhlo to
4 drive. Have you had to hire anyone to drivo you nnywhllrQ ur
5
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A
No, the ollly Umo peoplu hlld 10 tllkn Ion Illlywh"rll
7 was when I was ill my collar alld short.1y IIft"r my -- IIhnrt.1y
B after my surgeries, but if I move my body, I kllow how to
9 drive, I know where to look. And inolond of turning my
10 neck, I just turll my uppor body no ) could IInll hohllld mil.
11 And another thing I call' t do, II you Wf1l.t. 10
12 know, I can't sit like in a pooitlon liku thlll 10. /I 111111)
13 period of time.
14 If I am having conversat iOIl with plll1pl 0, I hllve
15 to have a converaation with them ill front of 11111. nnll' I.
16 kept my neck turned for a certain period of 1,1111" III I '1nl n
17 spasm and a headache within ten, fift.onn mlllulnll.
IB
Q
You position your body so I.hilt you III" I nil j Ill)
19 them?
20
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Yes. And thal' a how I ','oul d pl1l1l 1.1011 my work
21 apace. I would make aure thaI. nvorytldlllJ wns dlrnntly ill
22 front of me. r OVell <Jol. hnlldpholllln 101 lilY phollll no )
23 wouldn't have any typn 01 t hill with , hn pholllJ.
24 (Indicating. ) . h/lv" tlllld nV1I1 yl. h I Ill).
25
Q
Alld hall /lilY olln-- /lilY 01 youl phynlclans told
",J '
99
1 you physically why you are having these problems with
2 continued pain and stiffness and ao forth?
3 A Yes, because of the trauma of two injuries back
4 to back.
5 Q What I mean is physically what is wrong with your
6 body that is producing the continued complaints of pain and
7 so forth?
B A What is causing the muscle spasms?
9 Q Yes.
10 A I don't know.
11 Q Has any physician ever told you what they suspect
12 to be causing the muscle apasms?
13 A Yes, juat -- they basically have explained that
14 it is due to the trauma of the injuries.
15 I asked Dr. Turgeon if it could be because I am
16 not active as I was. He aaid no, that has nothing to do
17 with it, you are still conditioned enough. He said it
IB wasn't anything to do -- because I was not in any type of
19 condition or anything.
20 Q Other than Dr. Turgeon, do you have any plans to
21 eee any other physicians with respect to your problems?
22 A No. But I just want somebody to help me. I want
23 somebody to cure me,
24 Q Have YOll had any medical bills that have not been
25 paid for by your automobile insurance?
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A Yes.
Q lIave there been any automobile billa that have
not been taken care of by like Blue Cross Blue Shield or any
supplemental health insurance benefits that you have?
A My health insurance right now is only paying BO
percent. I -- the hospital bill from the 1993 surgery
or -- or 1994 surgery, only 00 percent of that hospital bill
was paid. I still have remaining -- I still owe the 20
percent of all of my physical therapy, all my doctor visits,
everything.
Q Have you put together a recapitulation of what
your outstanding medicals are?
MS. MCHUGH: Yes, yes.
THE WITNESS: The other situation I am going to
run into, if I get this divorce with my husband, I am going
to lose any health insurance and who's going to cover
pre-existing conditions?
BY MR. BLACK:
Q You have exhausted the entirety of your medical
20 benefits on your first party policy?
21 A Yes.
22 Q Automobile policy?
23 A Yes.
24 MR. BLACK I If you could provide that
25 recapitulation?
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MS. MCHUGH I Sure.
BY MR. BLACK:
Q Do you want to take a break for a minute, I won't
be much longer?
A No.
Q Mrs. Swank, you commenced a lawsuit with respect
to the automobile accident that was -- that you were
involved in in 1992, is that correct?
A Yes.
Q That lawsuit was filed on behalf of yourself and
your husband against Mr. Kotz, K-o-t-z, is that correct?
A Yes.
MR. BLACK: I would like to have -- we will mark
this one part, this diagram, then mark that No.2.
(Documents produced and marked Swank Exhibit Nos.
1 and 2. I .
BY MR. BLACK:
IB Q Are you ready?
19 A Yes.
20 Q I am going to hand you what has been marked as
21 Swank Exhiblt No. 2. This is a multi-page document. I
22 would just ask you to take a few seconds and review that and
23 I;hen let me know when you are ready to proceed?
24 A I have ringing in my ear. You are going to have
25 to wait for a little bit.
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Q Let me know when you are ready to go.
MS. MCIlUGlI: Why don't we take a break?
(Brief recess.).
MS. MCHUGH: Do you want to review this document?
TilE WITNESS I Read all of this. (Witness reading
document) .
BY MR. BLACK I
Q Are you ready to go forward?
A Yes.
Q I am showing you what is a nine-page document.
The front sheet is a notice sheet followed by a notice in
spanish, then the third page is entitled complaint and the
captioned is Patricia A. Swank and Rodney H. Swank, her
husband versus Frank Kotz.
It's filed in the Court of Common Pleas of
Cumberland County and docketed No. 202 Civil 1993.
This document was produ~ed in connection with
some discovery and it purports to be a copy of a complaint
that was filed on your and your husband's behalf against
Mr. Kotz as a result of an automobile accident on April 24,
1992.
Have you ever seen this document before?
A Yes.
Q Is this in fact the lawsuit that you and your
husband filed against Mr. Kotz relating to the automobile
103
1 accident on April 24, 1992 and the injuries that you
2 sustained as a result of that automobile accident?
3 A Yes.
4 Q Did you prior to the filing of this document with
5 the court have the opportunity to read it?
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A I don't remember it, but I know I have one.
Q All right. I would ask you to turn to the last
page of that document.
A I guess I signed it.
Q The last page is headed verification. It says,
quote, Patricia A. Swank IB Pennsylvania Consolidated
Statutes No. 4904 relating to unsworn falsification to
authorities, that the facts set forth in the foregoing
complaint are true and correct to the best of your
knowledge, information and belief.
And there is a signature line underneath of which
is typed Patricia A. Swank date 6-12-1993. Above the
signature line is a handwritten signature.
Do you see what I am referring to?
A Yes.
Q Is the handwritten signature that precedes the
typewritten signature, is that your signature?
A Yes.
Q Does that refresh your recollection with respect
to whether or not you reviewed the contents of this
104
1 complaint prior to its filing with the court?
2 A Yes.
3 Q Now, in paragraph eight of the complaint, you
4 talk about various injuries that you sustained as a result
5 of that accident, specifically Subparagraph H. You indicats
6 that you sustained a bulging disk at C-4, C-6. Subparagraph
7 K, you relate to, quote, disk herniation on the right at the
B C-5,6 area with mild neuroforaminal narrowing at C-6 - 7.
9 End of quote.
10 At subparagraph L you allege, quote, forced to
11 undergo the pain and trauma of major spinal surgery by
12 submission to an operative procedure called an anterior
13 cervical discectomy, C5-6 and interbody fusion of C5-6. End
14 of quote.
15 Subparagraph N, you also, quote, MRI confirmation
16 that C4-5 had progressed from a bulging disk to a herniated
17 disk. End quote.
IB Do you recall reviewing those specific
19 allegations of injuries when you reviewed this complaint
20 prior to filing it with the Court of Common Pleas of
21 Cumberland County?
22 A I guess.
23 MS. MCHUGH: I don't want you to guess, I want you
24 to know. Do you remember or you don't remember?
25 THE WITNESS: Do I remember reading it? I guess I
105
1 read it.
2 BY MR. BLACK,
3 Q To the best of your knowledge at the time that
4 you read this, reviewed it and signed the verification, were
5 those allegations true?
6 A Yes, they're written down, yes. This information
7 came from the doctor reports and the MRIs.
B Q But you recall reading over that and believing
9 that those allegations were trne?
Yes.
What actually took place if anything with respect
particular lawsuit, has there been a dispoaition of
10 A
11 Q
12 to this
13 it?
14 A
15 Q
16 A
Yes, the suit was settled.
Do you recall when it was settled?
Oh, I think September of 1993.
MR. BLACK, Let's have this marked aa Exhibit
17
lB
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Number 3.
(Document produced and merked Exhibit No.3.)
BY MR. BLACK:
Q I am going to hand you now what has been marked
as Exhibit No.3. And again, I would ask you to take a few
seconds to review that and let me know when you are ready to
proceed.
A Okay.
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Q What I have handed you is a document that is
entitled release in full. It purports to be a release by
patricia Swank and Rodney Swank to Frank Kotz in
consideration of $75,000. It is dated the Bth of September
1993 and there bears two siqnatures underneath the date.
Do you recognize this document?
A Yes.
Q And was this document, the release that you
signed in exchange for a settlement of $75,000 with Mr. Kotz
relative to the allegations in the lawsuit that we just
talked about that you commenced against him in the Court of
Common Pleas of Cumberland County?
A Yes.
Q The signature that appears on the first signature
line, do you recognize that signature?
16 A Yes.
17 Q And can you tell me whose signature that is?
IB A My Rignature.
19 Q Underneath that is another handwritten
20 signature. Do you recognize that signature?
21 A My husband's signature.
22 Q Do you know his signature to be as is imposed on
23 that line?
24
25
A
Q
Yes.
And again, this release document was executed by
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you and your husband in exchange for the stated
consideration of $75,000 to Mr. Kotz?
3 A Yes.
4 Q All right.
5 The complaint that we previously referred to,
6 Exhibit No. 2, specific allegations refer that we went over
7 before paragraph eight.
8 A Paragraph eight.
9 Q Yes. I am going to give you the subparagraph in
10 a second. BK.
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12
13
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15
16
17
IB
19
20
At the time that you executed this particular
release agreement that's marked Exhibit No.3, was it your
understanding that the release was to effectuate a release
of Mr. Kotz for your allegations of injuries in the nature
of a disk herniation of the C-5, C-6 area?
A Yes.
Q And was it also your understanding that this
release was to effectuate a release for claims of injuries
in the nature of a herniate disk at the C4,5 area?
A Yes, because I wasn't being treated for a
21 herniated disk at C-4,5 area.
22 Q But you knew that such existed at that time?
23 A No, I didn't.
24 Q Well, the complaint and subparagraph A or
25 subparagraph BN indicates MRI confirmation that C-4,5 had
lOB
1 progressed from a bulging disk to a herniated disk. Did I
2 read that correctly?
3 A Yes, you did.
4 Q And you reviewed that before you signed it?
5 A Well, obviously I did.
6 Q You had discussions with Dr. Peppelman in the
7 summer of 1993 regarding potential surgery to your neck, is
B that correct?
9 A Did we talk about surgery in 1993.
10 Q In the summer of 1993?
11 A Let's see. I didn't have surgery until May of
12 1994, so no.
13 MS. MCHUGH: Are we talking first surgery or
14 aecond surgery?
15 MR. BLACK: Well, she already had one surgery at
16 that time.
17 MS. MCIIUGH: Okay.
IB THE WITNESS: No, we never talked about additional
19 surgery.
20 BY MR. BLACK I
21 Q When is the first time that you recall discussing
22 additional surgery with Dr. Peppelman?
23 A When we got the results of the MRI prior to the
24 surgery date.
25 Q Is it your testimony that prior to the surgery
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4
date, prior to the MRI that was performed immediately before
the surgery that you did not know that there was a
herniation of the C-4, C-5 area?
A I waa not aware that I had any further injury
5 from the firat accident. I was not -- I mean I just got
6 done having surgery. If I had another herniated disk at the
7 C-4,5 area, why didn't Dr. Peppelman or somebody fix it. It
B didn't need to be fixed. And there was previous MRI reports
9 that indicated that that herniated disk didn't even exist.
10
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IB
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Q Well, that's a good question.
My question to you though is did you or did you
not have discussions with Dr. Peppelman in the summer of
1993 regarding additional surgery to your neck?
A Summer of 1993? You mean has he -- I don't
understand. No, at that point, no, we have not -- he had
not indicated to me that surgery would be needed.
Q Had Dr. Peppelman informed you in the summer of
1993 that you had a herniation to the C-4, C-5 level of your
neck?
A No.
Q Okay. When is it that you believe that you first
learned that you had a herniation to the C-4, C-5 level of
your neck?
A Right before my surgery when he -- it had showed
up in the MRI.
tiJ
...
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Q Okay. You have claimed aome additional injuries
in your complaint and I would juat like to ask you a few
queations about those.
One of the injuries that you allege, you had some
scarring as a result of the numerOUB surgeries that you had
to undergo.
Do you recall in thia proceeding claiming
injuries in the nature of scarring?
A Yes.
Q You have indicated that you have some scarring in
the crease of your neck, is that on the back area?
A No, right here. (Indicating). Okay.
(Indicating.) Right in the crease.
Q Do you have any photographs that depint that at
all? Have you had any photographs taken?
A I had of the first one. This is the statement,
went into the same -- scarring into the same area twice, so
I have pictures, I believe I have any pictures from the 5-94
surgery. But I have pictures of wh~t it looked like before,
I don't think I have any pictures --
Q Do you believe that the scarring that you
presently have is any worse than the scarring that existed
prior to the surgery that you had in 1994?
A No.
Q In the neck area?
111
1 A No. It'a right in the same area. It's pretty
2 much the same.
3 Q Part of the injuries that you claimed in your
4, complaint against Mr. Kotz also included the scarring that
5 you had in your neck area.
6 A Yes.
7 Q And that was for an injury for which you released
B Mr. Kotz and you made a release with respect to the
9 Deposition Exhibit No.3, is that correct?
10 A Uh-huh.
11 Q Are there any other areas of scarring that you
12 have that you are claiming are resultant from the automobile
13 accident in February of 1993?
14 A Yes, the one on my hip.
15 Q Have you had any pictures of that particular
16 scarring taken?
17 A No, but it's still an ugly scar. It's very
IB noticeable.
19 Q
20 A
21 Q
22 A
23 it?
24
25
How long is the scar?
Probably about an inch and a half.
And how wide is the scar?
I don't know. It's like -- how do I describe
MS. MCHUGH: Inches?
THE WITNESS: It's not that thick. It's not a
112
1 thin line, it's not like this. It's thicker. It's probably
2 maybe three or four times thicker than this one.
3 BY MR. BLACK:
4 Q Okay. Well, that's hard to -- would you think
5 that is it a quarter inch wide or wider and a quarter
6 inch?
7 A No, it's not as wide as a quarter inch.
B Q Maybe an eighth of an inch?
9 A Yes, I guees an eighth.
10 Q Is it on your right or your left hip?
11 A Left.
12 Q And is it an in area that is visible when you are
13 wearing a bathing suit or anything of that nature?
14 A Yes, it is.
15 Q Have you had any incidents where you were overly
16 embarrassed because of existence of the scar?
17 A Yes, and I have had people point it out.
IB Q How many occasions have people pointed it out?
19 A Several occasions. It's right on the hip area.
20 Nobody from -- I would say more or less people that I know
21 instead of stranger. I mean a stranger is not going to come
22 up to me. Well, I know it's there. And a few of my friends
23 when I am out in a bathing suit know it's there.
24 Q Do you believe that in any way has impaired your
25 ability to engage in any type of work that you may have
\,01
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done, any type of -- do you ever do any modeling or anything
of that nature?
A I was going to before my second -- before the
second car accident.
Q Had you made application to modeling schools
or --
A No, a girlfriend of mine is in the business and
she wants to get me into it.
9 Q What is her name?
10 A Carolyn picking.
11 Q Where is Miss picking live?
12 A She lives in Mechanicsburg.
13 Q Do you know a more precise address?
14 A She lives at Cedar Ridge, but I don't know the
15
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number of her -- she is a -- she does makeup, she's a makeup
artist for a lot of models.
Q Did she have certain jobs lined up for you?
A She had made some contacts with people in
Lancaster.
Q Were you scheduled to d~ any modeling?
A No, I never really totally started anything.
Q 1I0w long was it before the automobile accident
that you had talked with Miss Picking with regard to this
modeling?
A We had -- let's see. I met her. We had talked
114
1 about it off and on for quite sometime now. I mean I don't
2 know any effect that -- it wasn't any -- I never started it
3 becauae of any particular thing.
4 It's just -- I didn't start doing any type of
5 modeling because I can't move. So if -- it wasn't so much
6 the hip area, it was the movement that I had problems with.
7 Q Do you believe that the scarring has precluded
B you from doing any modeling?
9 A Oh, I think it could be covered up with makeup.
10 Q So you don't think it's hurt you as far as your
11 ability to engage in modeling?
12 A No, no, no, I guess not.
13 Q You also have indicated that you underwent a loss
14 of appetite as a result of the injuries that you received?
15 A Yes.
16 Q Hae that caused any physjcal problems?
17 A Just nauseated. When I am in pain, I don.t want
IB to eat. I am underweight. And I get naueeated a lot.
19 Q Is it the result of the nausea that you have lost
20 your appetite or the other way around?
21 A I have been told that with pain a lot of times
22 you lose an appetite and you -- when you don't eat, you get
23 nauseated.
24 Q Has any physician told you that there -- that you
25 have any type of medical problem because of the loss of
115
1 appetite or is that engendered any additional medical
2 problems for you?
3 A ~n: the only thing that I have, you know, I have
4 gotten had to take Zantac and stuff because of being on
5 medication for the anti-inflammatory. The pain drugs that I
6 have been on, they practically eat your stomach. I have
7 been on Zantac.
B Q Another question, what do you presently weigh?
9 A 123.
10 Q What did you weigh at the time of the accident in
11 February of 1993?
12 A About 130 maybe.
13 Q Okay. How about at the time of the accident in
14 1992?
15 A Oh, I probably weighed about 135.
16 Q Do you feel that you are underweight today?
17 A Yes.
IB Q Do you still have a loss of appetite today?
19 A Yes.
20 Q Have you expressed a concern about that with any
21 of your phynicians?
22 A Yes, I have. I only get the loss of appetite
23 when I am in pain. If I am not in pain, then I have an
24 appetite and I will eat.
25 Q Have they -- any of the physicians recommonnod
_-.t.._..
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1 any type of treatment for your loss of appetite?
2 A No, just to be concerned about it.
3 Q You alBo allege that you had a Bevere caBe of
4 hivea on your neck. When did that occur?
5 A That waB right after the second car accident and
6 I don't know, nobody ever indicated why or anything so....
7 Q Was that a --
B A I don't know. It could have been the nerve. It
9 could have. I don't know what it was.
10 Q Did you ever have to seek medical treatment for
11 it?
12 A No.
13 Q \lave you ever had any hives --
14 A No.
15 Q -- Bince that time Bince immediately after the
16 accident?
17 A I have never had hives before, period.
IB Q You haven't had any since?
19 A No.
20 Q I don't know if I asked you. Did you take any
21 photographs or do you have any photographB of your hip area,
22 the scarring on your hip?
23 A No. But I could still take them because they're
24 still noticeable.
25 Q Okay. I B there any discoloraU on to the
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9
scarring?
A Yes.
Q What kind of discoloration? Is it black and
blue"
A It's a bluish, bluish pink, bluish pink color I
guess.
Q Do you have any plans to have any type of
cosmetic surgery done to either your scarring on your neck
or your hip?
10 A No.
11 Q Okay. Let me just take two seconds. I think I
12 am about done.
13 A I do know, I might have permanent damage in my
14 hip area because of this graft.
15 Q What kind of damage?
16 A I still --
17 Q Have you been told that you may have in your hip
IB
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25
area?
A I have talked to Peppelman, and it's -- and I
have talked to Dr. Turgeon. I still have numbness. The
whole left side, not up in the hip area, but down along I
guess this area like on the sides of my butt cheek actually
is still completely numb and I get a stabbing sensation in
it.
Q On the front side?
11B
1 A
2 Q
3 A
4 here.
5 Q Of your buttocks?
6 A Uh-huh.
7 Q And then you are pointing to your left side, the
B same side where the surgery was done?
9 A Yes. Well, the hip, the bone was taken out right
10 here which you can feel it and this right here where I still
11 have numbness all right here. (Indicating. I
12 Q Has that caused any difficulty?
13 A Yes. I still can't sleep on a water bed on my
14 left side. I can't lay on the floor on my left side. And
15 every once in awhile, I get excruciating pain like a knife
16 digging right in there.
17 Q Have any of your physicians told you why they
IB believe that you are having that numbness and pain in
19 your
On the eide.
On to your --
I would say directly in the -- on the side right
20 A Yes, they told me becall re in a lot of cases what
21 happene when you are very thin, and you have bone which is
22 also from your hip area, a lot of times it can't be
23 prevented, but they may hit a nerve.
24 Q So it may have been secondary to the operative
25 procedure that they either touched upon or crushed or
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somehow severed a nerve?
A Yes.
Q That's resulting in the problem?
A Right. And if I didn't have another disk that
had to be removed, I would have never had to take bone from
a hip.
Q Have you commenced any type of lawsuit or any
action against any of the physicians involved?
A No, because that's a chance that you take.
Q That was disclosed to you as a potential risk of
11 the surgery?
12 A It was disclosed. It's very painful and you can
13 always yes, there are -- people that will continue to
14 have a pain in that area.
15 Q You sleep on a water bed?
16 A Yes. It's a soft sided water bed.
17 Q So you just can't lay on your left side?
IB A No.
19 I have been told that usually after a year that
20 it should subside and feel better, but....
21 Q lias the numbness given way a little bit at all?
22 A From the time of the surgery, yes. Out where it
23 is now, it's been like that for months.
24 Q How about the stabbing pain sensation, have they
25 let up?
120
1 A No, I still get those. I don't get them often,
2 but I get them to where -- I don't want to say that it
3 paralyzes the leg, but when it goes through there, I
4 don't -- I just, you know, I am just stiff until it goes
5 away.
6 Q 1I0w often do you have those pains now?
7 A One maybe every two weeks.
B Q How long do they last?
9 A Just for a couple seconds.
10 Q After that, do you have a recurrence of those
11 within a short period of time
12 A I could, I could or I won't get another one for
13 maybe another two or three weeks, but I still get them. And
14 I have inquired about it to both Peppelman and to Turgeon,
15 but there is nothing that they can do.
16 Q All right. One last question -- well, I
17 shouldn't say that.
IB Other than your neck problems and the hip pain
19 that you are having, are you having any other problem that
20 you associate with injuries resulting from the 1992 -- 1993,
21 February 1993 automobile accident?
22 A No, it's just the headaches, the spasms and the
23 hip.
24 Q And just so I make sure that I understand this,
25 you have been compensated for any loss of work that you
121
sustained to date by an insurance, either wage loss?
A YeA.
Q Is there a disability benefit program that you
have or wage loss disability benefit program?
A No.
Q You did have that while you were at Inservco?
A No.
Q So all of the amounts that have been paid to you
for the time that you have missed from work have been made
by your automobile insurance carrier?
A Yes.
Q Do you know if there are any wage loss benefits
that remain available to you under the coverages in this
policy?
A
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Q
A
Q
A
Q
loss?
Yes, there is still remaining.
Now, how much?
Probably about 45,000.
Do you know what your limits were?
50, 50,000 for income.
So have you been paid about $5,000 worth of wage
A Yes.
Q Thank you.
A The first car accident was compensated under --
my employer paid for it all.
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Q That was relative to workers' compensation
matter?
A No. Just because I had been with the company,
they paid it under -- I had disability insurance then.
That's why. Inservco I didn't have disability insurance so
that's why it was paid under my auto insurance.
Q Were your medical bills in the first accident
paid for by your automobile insurance or by your employer?
A Automobile.
Q So your automobile insurance paid for the medical
bills in the first accident, but your employer paid for your
wage loss?
A Yes.
Q And in the second accident your automobile
insurance has paid out all of the medical lost benefita that
you were entitled to, and has paid out about 5,000 of
$50,000 worth of wage loss benefits?
A Yes.
Q All right.
A Now, I am still in a situation where I have got
to find a job that I am able to perform. Right now I am on
unemployment and I am right now I have loss of wages. I
mean I am losing 700 bucks a month right now.
Q Well, I don't -- we don't want to get
argumentative about the cause of that. Out you are going to
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provide a copy of the notice of termination to your counsel,
right?
A Uh-huh.
Q Okay. I just lost my train of thought.
A I don't have a notice of termination.
Q You have a letter?
A I just have a letter that they gave me a couple
months ago or maybe two months ago that I refused to sign,
but I didn't get anything when I was terminated.
Q And the exact date of -- your last day that you
worked for them was October 27 of 1995?
A That's correct.
Q This letter you are talking about was given to
you approximately two weeks before that?
A Oh, it was October 2nd I believe.
Q And did they tell you in that letter that your
last day would be --
1B A No.
19 Q October 27th?
20 A No.
21 Q When were you informed of that?
22 A October 27th at 4120 in the afternoon.
23 Q Okay. Okay.
24 The coverage, the health insurance coverage that
25 you have preaent.1y, is that provided by nIlle Cross, Ulue
124
1 Shield?
2 A No, it's provided through Signa.
3 Q And do you know your policy number? Can you
4 provide that to your counsel?
5 A Yes, I can provide that.
6 Q To provide to me?
7 A Yes. Oh, you know what --
B Q An addr.eas where you submit your claims?
9 A Well, I have it because I have --
10 MS. MCIIUGH: Do you want the other bill ?
11 THE WITNESSI Right there.
12 MS. MCIIUGHI (lIanding).
13 You can have that copy, Craig.
14
15
16
17
IB
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25
BY MR. BLACK:
Q Okay. Other than the Signa health insurance, is
there any other health insurance that you have available to
you to cover your medical bills?
A No.
Q And similarly other than the auto insurance, do
you have any other disability insurance or any other type of
wage loss insurance that's available to you to cover any
wage loss that you may incur?
A No.
Q All right. Okay. Thank you very much. That's
all I have.
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A Thank you.
MS. MCHUGH: I just have a couple questions.
CROSS-EXAMINATION
BY MS. MCHUGH,
Q Tricia, counsel was asking you about activities
that you are restricted from. And I am just wondering, was
there a summer activity that you and your husband would do
together?
A Sailing.
Q And how often would you sail?
A We had our own boat. We used to sail every
weekend.
Q And where would you sail?
A The Chesapeake. We went to the islands. We used
to take summer trips.
Q Was this a social activity as well?
A Yes.
Q What an activity that you --
A I used to race too. I can't race any more. I
forgot about that.
MS. MCHUGH, I have nothing further.
REDIRECT EXAMINATION
BY MR. BLACK:
Q When you say the islands, you mean the Caribbean
Islands?
126
1 A Yes.
2 Q When is the last time that you and your huaband
3 sailed together to either the Chesapeake or down to the
4 Caribbeans?
5 A May of 1992. Well, actually it was the first
6 weekend in June, so I would say June of 199 -- June of oh,
7 God, '93.
B Q So you were able to sail the Chesapeake and down
9 to the -- where did you sail at that time?
10 A No. What ended up happening is friends of ours
11 were getting married. This trip had been planned for a
12 year. My husband has hia captains license. They wanted to
13 get married in the islands, and they wanted to sail. They
14 enjoy sailing.
15 I didn't do any work when I went sailing in May,
16 I was in severe pain, I ruined everybody else's vacation.
17 As a matter of fact, the only thing that relieved
IB my pain, I couldn't even snorkle, snorkling hurt to try to
19 hold my head up. And basically we went for two weeks and
20 our best friends got married. And we were also in their
21 wedding so we took them sailing for ten days.
22 Q Before that trip, when WAS the last trip that you
23 ~nd your husband went sailing either or the Chesapeake or
24 the Caribbean?
25 A We had our own boat and sold that. Let's see,
127
1 and then we used to charter and we used to go with friends.
2 I would say when we had our old boat, we used to
3 do it every weekend. And when we would go with friends, we
4 would probably maybe do it once or twice a month.
5 Q It's true, is it not, after you had the
6 automobile accident in 1992, that the amount of time that
7 you and your husband spent sailing was basically
B non-existent?
9 A Right, because it waa wintertime.
10 Q And after that well, the automobile accident
11 that you had in 1992, was in April of 1992, is that correct?
12 A Right.
13 Q Did you Bail at all in the summer of 1992?
14 A No.
15 Q And that waa basically because --
16 A Wait a minute, did I? 1992, no, no. I was in
17 severe pain that summer. No, I did not.
IB Q And that was basically because of the injuries
19 that you sustained in that accident in April of 1992?
20 A Yes, that and we didn't have a boat.
21 Q What happened to your bet?
22 A We sold it.
23 Q Did you sail that knowing you weren't going to be
24 sailing in the future? Is that one of the reasons that you
25 sold the boat?
128
1 A No, no, we sold it for financial reasons.
2 Q So --
3 A Actually we wanted to buy a house.
4 Q Did you buy any other boate?
5 A No.
6 Q So at that point you wouldn't have had a boat to
7 go sailing in unlesB you borrowed one or rented one?
B A Right, but in the same time we had been looking
9 to buy another boat.
10 Q When did you look to buy another boat?
11 A Oh, doing it every summer when I was with him.
12 Q Would you look for another boat in the summer of
13 1992?
14 A No, he was still, but I didn't. I didn't lJo
15 anywhere.
16 Q When did you sell the boat?
17 A Oh, 1991, 1990. 1991 I think.
IB Q Did you ever go sailing after you sold the boat?
19 A Yes.
20 Q With your husband?
21 A Yes.
22 Q Did you Bail the Caribbean?
23 A No.
24 Q Sailed the Chesapeake?
25 A Yes.
1 Q
2 A
3 Q
4 boat?
5 A
6 weekend.
7 Q
129
Sailed with friends?
Yes.
Didn't sail as often, however, after you sold the
Well, yes, we didn't have access to a boat every
It was too expensive to charter.
Is that what you would do, charter boats when you
B want to go?
9 A Yes.
10 MR. BLACK: That's all I have.
11 MS. MCHUGH: Nothing.
12 RECROSS EXAMINATION
13 BY MS. MCHUGH:
14 Q I have one question. Did you receive medical
15 clearance to go on that vacation in May of 1993?
16 A
17
IB
19 p.m. )
20
21
22
23
24
25
Yes.
MS. MCHUGH I Nothing further.
(Whereupon, the deposition was concluded at 7:09
"'~J:..' .~\
. ..' , r.Pl~
.?\.. -. "., .
. ........
I' ','
" .
" '
R. Stephen Shlbll, Elqulrt
Anomey 1.0. No. 19251
RHOADS" SINON
One South Market Square, 12th Floor
P.O. Box 11~6
HIITI,bur., Ptl1nsylvanll 17108.1 H6
Anomey. (or PllfmiIT.
PATRICIA A. SWANK and
ROONEY H. SWANK, her husband,
Plaintiffs
v.
: IN THE COURT OF COHHON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
: CIVIL ACTION - LAW
NO.
FRANK KOTZ,
.
.
Defendant
JURY TRIAL DEMANDED
.. .. .. .. .. It .. .. .. ..
HOT I C I:
YOU HAVE BEEN SUED IN COURT. It you wish to de tend against
the claims set torth in the tOllowing page., you mu.t take action
within twenty (20) day. after this Complaint and Notice are .erved,
by enterinq a written appearance peraonally or b)" attorney and
filing in writing with the Court your derense. or objections to the
claims set forth against you. You are warned that it you rail to
do so the case may proceed without you and a judg1Dent may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relier
requested by the Plaintiff. You lIIay 10s8 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.
COURT ADMINISTRATOR
CUMBERLAND COUNTY COURTHOUSE, 4TH FLOOR
1 COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17Q13-3398
(717) 240-6200
..
II EXHIBIT
18-l:''''t\t:~
()\ I-lll ~' ':J'
REr.r'\/r:"1)
'JUL 1 4 1993
C~
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, ,
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.
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all caused by the negligence, careleeenes. and reckle.s disregard
of Defendant as s.t forth below.
7. Th. negligence, carelesene.. and reckle.. disregard
of Defendant consists, inter Al1&, of the following,
a. violation of 75 Pa, C.S. 13322,
b. failure to operate his vehicle with regard to the
presence of other traffic around hi.,
c. failure to keep alert and maintain a proper lookout
for the presence of other motor vehicle. on the
streets and roadways, and
d.
turning his vehicle into oncollling traffic causing.
the aforementione~ accident.
.
,',
8. As e direct and proximate result of the conduct of
,
Defendant, Plaintiff Patricia Swank suffered end. continued to
suffer severe and painful injuries, including inhr alla, the
follOWing,
. . ~
a. neck pain radiating down her left anD and headaches,
b. sprained neck,
c.
strain and sprain to her cervical spine,
i
"
, ~ 4 . . . _,
constant sharp pain or achines8 around the neck arid
scalp areas, radiating into her left al"1ll, and
headaches at night with nausea" · '.
e. tenderness and tightness in the neck, shOUlder. and ,
scalp areas, ". ~,'
d.
"
.
, RECEIVEO., ,'",
f ' . ~ ,
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';- ',' !JUL " 4 ,1993: :", ",~",t': ~~~'
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.
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paln that interfered with sleep and pertondng
her normal daily a~tivitiea,
pershtent stittne.., spasma,
tenderness in the ettected areas,
and
aorenelll,
a bUlging dilc at C4-C6'
pain in both legl and arml'
Iubmileion to phYllical therapy which included
ultrasound, hot pack treatment, and a tenl unit,
dilc herniation on the right at the C5-6 area, with
mild neural foraminal narrowing at C6-7,
forced to undergo the pain and trauma of major
Ipinal aurgary by IUbeission to an operative
procedure called an anterior cervical discectoey,
C5-6 and interbody fUlion of C5-6,
.
..
placement in a ~illid Newport collar for four weeka
poat-aurllery, then plac...nt in a aoft collar for
leveral additional weeka,
KRI confirmation that C4-5 had progrelaed froD a
bulging dilc to a herniated di8c,
the inability to sit or lay down for extended
periods of time, pain upon raising her hands over
her head, especially in the morning and at night,
constant headaches, aChing in her arms and legB that
extends to her ankles,
a two-inch scar in the crease ot her neck which
.r.p~esents the entry location for the 6urgery, and
required assistance with simple activitiel of daily
living. .
n.
o.
p.
q.
9. A. a direct and prodmate u6ul t of the injuries she
sustained, Plaintift Patricia Swank continues to suffer pairl and
.4.
REC~IVED
JUL I 4 W93
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" .,' . " . ~. RELE S . ,I.FULL:l:tr;:'.:: .)1 , , ' );; ~ :'~
r" , .', t:,..~ .r, .,v~'t.... _ . '... , _ ",' 1'1,'
~ItOW all ..l1 by t~rs. Ifrrll.nt., '~~t'I:~..q,,~:.~.:.~....A..:...~.~~.....
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lor the lole consideration or'~...., ..~.~,~..~.f?....$.@........... Donau,
to me ........ ,..In hand paid by~... ............. ........................................................."......... have relwed and
dilcharged, and by thue presents do lor mYlelf ..................... my.................... heirs. exccu:ors, admlnhtraton and
1II1gns, releue and lorever discharge Ihe laid ...~......:::K{),i::::k;..............,......................................
..................................................................................................................................................................."....................................
and all other penonl, firml or corporations Irom all claims, demands, damages, aCllons. or caUse.l 01 action. on
Rccount 01 damage 10 property, bodily injuries or death, ruuhlng, or to result, Irom an accident 10 ..:::t.?~.~.;'"
...........a..,.....~.~....................................... which occurred on or aboullhe ........~..r..............................
day 01 .............~....., 19..9..:?,by reason 01 ...................~......q.,.~.~.~~........._._.-
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...............................".....................................................................................,.................................................................................
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and 01 and lor all claims or demand I whatloever in law or in equity, which I ................. my................ heirs, executors,
administrators, or assigns can, shall or may have by reason 01 any mailer. cause or thing whalsoever prior to the
date hereol.
II III Ittllrrllloob attll '-grub that this II a lull and final release 01 all claim. 01 every nature
and kind whauoever. and rtleases claims that arc known and unknown, IUlpected and unluspcded.
~IIII )iurt~rr Ittll.rllloob suh '-grub t~st any party hereby released admil. no liability to the
undersigned or any othen, Ihall not be estopped or otherwise barred lrom asserting, and expressly reserves the rilht
10 assert any claim or cause 01 action such party may have againsllhe undersigned or any others.
ll1 ltUl1.U .~.rrof, I ...."..".. have hereunlo set my............ hand.... and seal.... this .J..!!.::......
day Ol......~....................., 19..f..J....
IN Tnl raLSENCI 0' /J
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637 Cedar Ridge S
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.!C,17<41
..
II EXHIBIT
I s.v,~" Ie. >>3
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CAT.llIS194
1'l1lHlm IN U,S,A,
PATRICIA A. SWANK, and
RODNEY H. SWANK, her husband,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.: 94-2795-CIVIL TERM
REBECCA ANN HUGHES,
Defendant
CIVIL ACTION - LAW
MOTION FOR SUMMARY JUDGMENT OF DEFENDANT.
REBECCA ANN HUGHES
Defendant, Rebecca Ann Hughes, by and through her attorneys,
McKissock and Hoffman, P.C., moves this Honorable Court for an
Order granting summary Judgment in her favor pursuant to
Pa.R.C.P. 1035, and in support thereof states as follows:
1. This action involves claims by Plaintiff, Patricia A.
Swank, that she sustained personal injuries as a result of an
automobile collision between a vehicle in which she was a
passenger and a vehicle driven by Defendant, Rebecca Ann Hughes,
on February 20, 1993. Plaintiff alleges that the accident was
caused by the negligent conduct of the Defendant..
2. Prior to the accident of February 20, 1993, the Plaintiff
was involved in an earlier motor vehicle accident on April 24,
1992. As a result of the April 24, 1992 accident Plaintiff
suffered personal injuries.
The specific allegations of negligence are set forth in
paragraph 9 of Plaintiff's Complaint. See:
Defendant's Appendix in Support of Motiun For Summary
Judgment (hereinafter "Appendix") at 3.
3. On June 17, 1993, Plaintiff and her husband, Rodney
Swank, filed suit in the Court of Common Pleas of cumberland
county against Frank Kotz for inter AliA, bodily injuries
allegedly sustained by patricia Swank in the April 24, 1992
accident.2
4. On September B, 1993, Plaintiff and her husband, executed
a document entitled "Release in Full," which has the legal and
operative effect of releasing and dismissing any and all injury
claims of Plaintiff against Defendant Rebecca Ann Hughes.'
5. Said "Release in Full" was executed almost seven months
after the occurrence of the February 20, 1993 accident for which
Plaintiff presently makes claim. At the time of her execution of
the Releas~, Plaintiff was fully cognizant of all injuries she
had sustained in the February 20, 1993 accident and the cause of
those injuries. 4
6. By virtue of the clear wording of the "Release in Full"
signed by Plaintiff on September B, 1993, Plaintiff released not
only Frank Kotz from claims relating to the April 24, 1992
accident, but also released Defendant Rebecca Ann Hughes from all
legal claims arising from the accident of February 20, 1993. The
2
Patricia A. Swank and Rodnev H. Swank v. Frank Kotz;
2023 civil 1993.
,
A complete copy of the "Release in Full" executed by
Plaintiff on September B, 1993 is found in the Appendix
llt 2.
4
~ Transcript of deposition of Patricia A. Swank,
dated November 15, 1995 at pages 46-56; 61-63, and 70-
76. Appendix at 6.
2
relevant portions of the Release in Full which operate to release
Plaintiff's claims against Defendant Rebecca Ann Hughes for
injurieB arising from the February 20, 1993 accident are as
follows:
"I, Patricia A. Swank...have released and discharged,
and by these presents do for myself, my heirs,
executors administrators and assigns, release and
forever discharge...all other oersons, firms, or
corporations from all claims, demands, damages,
actions, or causes of action, on account of...and ~
all claims or demands whatsoever in law or equity,
which I, my heirs, executors, administrators, or
assigns can, shall or may have by reason of any matter.
cause or thina whatsoever orior to the date hereof."
(emphasis added.)
7. By virtue of the "Release in Full" executed by plaintiff
on September B, 1993, Plaintiff is barred from pursuing any
personal injury or other claims against Defendant Rebecca Ann
Hughes arising from the accident occurring on February 20, 1993.
B. Pursuant to Pa.R.C.P. 1035, Summary Judgment shall be
entered where there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
9. There are no outstanding material facts in dispute
relative to the within Motion. It is undisputed that Plaintiff
signed the "Release in Full" attached as an exhibit hereto.' It
is further undisputed that at the time of execution of the
"Release in FUll", Plaintiff's cause of action against Defendant
Rebecca Ann Hughes had accrued and Plaintiff was aware of the
elements of her cause of action against Defendant.
,
See Plaintiff's deposition transcript at p. 106, lines
1-25; p. 107 lines 1-3; Appendix at 6.
3
94-2795 CIVIL TERM
On September 8, 1993, after the accident In the present case, plaintiff herein, Patricia
A. Swank, executed a "Release In Full" as follows:
I Patricia A. Swank and Rodney H. Swank for the sole consideration of
seventy five thousand dollar., to me In hand paid by Frank Kotz have
released and discharged, and by these presents do for myself, my heirs,
executors, administrators and assigns, release and forever discharge
the said Frank Katz and all other persons, firms or corporations from
all claims, demands, damages, actions, or causes of action, on
account of damage to property, bodily Injuries or death, resulting, or to
result, from an accident to Patricia A. Swank which occurred on or
about the 24 day of April, 1992, by reason of auto accident and for
all claims or demands whatsoever In law or In equity, which I, my heirs,
executors, administrators, or assigns can, shall or may have by reason
of any matter, cause or thing whatsoever prior to the date hereof.
(Emphasis added).
In Buttermore v. Allqulppa Hospital, 522 Pa. 325 (1989), Buttermore was
Involved In an automobile accident with Frances Moser on December 3, 1981.
Buttermore was then treated In the Allqulppa Hospital for Injuries received In that
accident. On November 14, 1983, Buttermore executed a release In settlement of his
claim against Frances Moser for $25,000. The release provided:
l{We being of lawful age, for myself/ourselves, my/our
heirs, administrators, executors, successors and assigns hereby
remise, relesse, acquit and forever discharge Frances Moser, et
a!. His/her successors and assigns, and/or his, her, their, and
each of their associates, heirs, executors and administrators and
any and all other persolls, associations and/or corporation.,
whether known or unknown, suspected or unsuspected, past,
present and future claims, demands, damages, actions, third
party actions, causes of action, or suits at law or In equity,
Indemnity of whatever nature, for or because of any matter or
thing done, omitted or suffered to be done, on account of or
arising from damage to property, bodily Injury or death
resulting or to result from an accident which occurred on or
about the 3rd day of December, 1981 at or near Allqulppa,
-2-
94-2795 CIVIL TERM
Pennsylvania for which I/We have claimed the said Francel
MOler, et al. to be legally liable, but this release shall not be
construed as an admission of such liability. (Emphasis added).
On November 30, 1983, Buttermore Instituted suit against Allqulppa Hospital
alleging that the treatment In that facility aggravated the Injuries he sustained In the
November 14, 1983 automobile accident, and that his condition worsened as a result
of such negligent treatment. The Supreme Court of Pennsylvania concluded that the
release was general and broad enough to release Allqulppa Hospital for any liability
to Buttermore. The court noted that the operative language contained In that release
was Identical to that contained In a release In Haslelrode v. Gnagey, 404 Pa, 549
(1961) where:
[t]hls Court held that a release given to a particular Individual and "any
and all other persons. . .. whether herein named or not" was
applicable to all tort.feasors despite the fact they were not specifically
named. (Emphasis added).
In Hasselrode, the plaintiff was Injured on August 24, 1956, when he was a
passenger In an automobile driven by Frank R. Carnegie when It collided with a truck
owned by William D. Gnagey, trading as Gnagey Dairy Company. For consideration
on December 19, 1956, Hasselrode released Frank Carnegie In a document that
provided that he:
remised, released, and forever discharged, and by these presents do for
myself, my heirs, executors and administrators and assigns, remise,
release and forever discharge the said Frank R. Carnegie, his
successors and assigns, and/or his, her, their and each of their
associate, heirs, executors and administrators, and any and all other
persons, associations and corporations, whether herein named or
referred to or not, of and from any and every claim, demand, right, or
.3.
94.2795 CIVIL TERM
cause of action, of whatsoever kind or nature, either In law or In equity,
arlllng from or by reason of any bodily and/or perlonallnJurl.1 known
or unknown sustained by me, and/or damage to property, or otherwise,
al the relult of a certain accident which happened on or about the
24th day of AugUlt, 1958, for which I have claimed the laid Frank R.
Carnegie to be legally liable, but this release shall not be construed as
an admission of such liability. (Emphasis added).
On August 1, 1958, Hasselrode Instituted a suit against the Dairy Company for
damages arising out of the accident on August 24, 1956. The Dairy Company Joined
Frank R. Carnegie as an additional defendant. The Supreme Court of Pennsylvania
upheld a dismissal of the suit against the Dairy Company and Camegle stating:
An examination of this release Indicates Its breadth and
comprehension. By Its terms, Hasselrode released not only Carnegie,
but "any and all" other per60ns, associations and corporations
regardless of whether they are named or referred to In the releBle.
Not only are the persons released all Inclusive but such persons are
released of "any and every" claim or cause of action arising out of the
accident of August 24, 1956. The Intent of the parties must be gleaned
from the language of the release; such language clearly and
unequivocally shows the Intent of the parties that Hasselrode was
releasing his claims not only against Carnegie but agalnlt -any and
all" persons, Including the Oalry Company, Involved In the accident
of Augult 24, 1958. (Emphasis added).
In Republic Inlurance v. Paul Oavls Systeml of Pittsburgh South, _ Pa. _,
670 A.2d 614 (1995), the Republic Insurance Company, as subrogee of the holder of
one of Its homeowner's policies, sought recovery from Paul Davis Systems (PDS) for
damages to the policy holder's residence. The facts as set forth by the Supreme
Court of Pennsylvania were:
On May 23, 1988 the Insured's residence suffered storm damage.
PDS was hired to repair the damage. PDS commenced by removing the
roof, but allegedly failed to take precautions to protect the remaining
.4.
94-2795 CIVIL TERM
structure from rain. On June B, 19BB, a rainstorm occurred, causing
further damage to the structure. Republic paid for substantially all of the
damages. Later, the Insured sued Republic alleging that there were
additional unrelmbursed losses. Republic settled the claim by making
an additional payment of $5,000, and obtained a release.
Republic, as subrogee of the Insured, commenced the present
action alleging that the losses Incurred during the June B, 19BB
rainstorm were attributable to the negligence of PDS. In defense, PDS
Interposed the release which Republic had obtained from the Insured.
PDS asserted that the release was a general one containing language
broad enough to bar Republic's claim. (Footnote omitted).
The release obtained from the Insured did:
release, acquit, discharge and Indemnify Republic Insurance Company,
their underwriters and any and all other perlon., firms partnerships
and corporations (hereinafter Released Parties) which are and might be
claimed to be liable to their heirs, administrators, executors, successors
and assigns from any and all action I, cause of action, claims, Joinders
and demands of whatloever kind or nature as a result of those losses
which occurred on May 23, 19BB and June B, 19BB, Including, but not
limited to, all matters which have been raised or which could have been
raised, In the action flied by Releasor(s) at No. 97 of 19B9, In the Court
of Common Pleas of Allegheny County, Pennsylvania, Civil Division-
Arbitration. (Emphasis added).
CIting Buttermore v. Allqulppa HOlpltal, lupra, the Supreme Court of Pennsylvania
stated:
When the parties to a release agree not to sue each other or
anyone else for a given event, It Is well recognized that this can provide
a discharge of others. . . who have not contributed consideration for the
release. (Emphasis added).
The Supreme Court then concluded:
Given the language releasing "all other perlonl- from "any
and all actions" of "whatsoever kind or nature," and the Ipeclflcatlon
that the release II "not limited to" matterl that were or could have
been railed In the contract claim against Republic, the decision of
-5-
94-2795 CIVIL TERM
the Superior Court that the release did not apply to tort claims against
PDS was without basis. Indeed, It would be difficult to conceive of
language more clear, pertinent, and all.lnclullve. The trial court,
applying the ordinary meaning of the release, properly concluded that It
was an effective bar to Republic's action. Accordingly the order of the
Superior Court must be reversed. (Emphasis added). (Footnote
omitted).
The operative language In the release In the case sub jug Ice Is:
I . . . for the sole consideration of seventy five thousand dollars. . .
paid by Frank Kotz . . . release and forever discharge. . . Frank Kotz
and all other persons, firms or corporations from all claims. . . on
account of damage. . . resulting. . . from an accident. . . which
occurred on . . . the 24 day of April, 1992, by reason of auto accident
and for all claims . . . which I . . . may have by reason of any matter,
cause or thing whatsoever prior to the date hereof.
Patricia A. Swank released only Frank Kotz and all other persons, firms and
corporations for all damages resultlnQ from the accident on April 24, 1992, "by reason
of [that] auto accident and for all claims. . . which I . . . may have by reason of any
matter, cause or thing whatsoever prior to the date hereof." The words "any other
matter, cause or thing whatsoever prior to the date hereof' are part of the clause
specifically referring to the accident caused by Frank Kotz, not the accident allegedly
caused by Rebecca Ann Hughes on February 20, 1993. The facts In the three release
cases decided by the Supreme Court of Pennsylvania are distinguishable. In
Hlslelrode, plaintiff sought recovery for Injuries that were all suffered on Augult 24,
1956; In Buttermore, plalnllff sought recovery for Injuries that aroee out of an
accident on December 3, 1981, for which she received treatment that was rendered
al a relult of that accident; and In Republic, plaintiff sought recovery for damages
.6.
.
94-2795 CIVIL TERM
to his property on June 8, 19B8, and for alleged faulty repairs to that damaged
property. In contrast In the present case, Patricia Swank seeke recovery for
damages against Rebecca Ann Hughes for Injuries resulting from a separate accident
on February 20, 1993, that Is unrelated to and does not arise from the occurrence of
the April 24, 1992 accident with Frank Kotz.
The separate and distinct event that forms the basis of the present case was
not encompassed In the subject matter of the release that Swank gave to Frank Kotz
on 8eptember B, 1993. Hughes was not a party to that release; she gave no
consideration; and the date of her accident with Swank on February 20, 1993, was
not set forth In the release as was the specific date of the Kotz accident on April 24,
1992. See, Harrity v. MAdlcal College of Pennlylvanla HOlpltal, 439 Pa. Super. 10
(1994); Youngren v. Presque lite Orthopedic Group, Inc., 876 F. Supp. 76 (W.D.Pa.
1995). Since the separate accident with Swank on February 20, 1993, was
completely unrelated to the accident of April 24, 1992, for which Swank released
Frank Kotz, we conclude, viewing the Kotz release as a whole, that the parties did not
Intend to release Rebecca Hughes for any liability arising from her accident with
plaintiff.
.7.
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PATRICIA A. SWANK, and
RODNEY H. SWANK, her husband,
Plaintiffs
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
v.
NO.1 94-2795-CIVIL TERM
REBECCA ANN HUGHES,
Defendant
CIVIL ACTION - LAW
KOTIO. rOR IUKKlRY JUDGKIMT or DlrIKDAMT.
RIDICCA &IV HUGBII
Defendant, Rebecca Ann Hughes, by and through her attorneys,
McKissock and Hoffman, P.c., moves this Honorable Court for an
Order granting summary Judgment in her favor pursuant to
Pa.R.C.P. 1035, and in support thereof states as followSI
1. This action involves claims by Plaintiff, patricia A.
swank, that she sustained personal injuries as a result of an
automobile collision between a vehicle in which she was a
passenger and a vehicle driven by Defendant, Rebecca Ann Hughes,
on February 20, 1993. Plaintiff alleges that the accident was
caused by the negligent conduct of the Defendant..
2. Prior to the accident of February 20, 1993, the Plaintiff
was involved in an earlier motor vehicle accident on April 24,
1992. As a result of the April 24, 1992 accident Plaintiff
suffered personal injuries.
The specific allegations of negligence are set forth in
paragraph 9 of Plaintiff's complaint. ~I
Defendant's Appendix in support of Motion For summary
Judgment (hereinafter "Appendix") at 3.
3. On June 17, 1993, Plaintiff and her husband, Rodney
Swank, filed suit in the Court of Common Pleas of Cumberland
County against Frank Kotz for inter AliA, bodily injuries
allegedly sustained by Patricia Swank in the April 24, 1992
accident.2
4. On September 8, 1993, Plaintiff and her husband, executed
a document entitled "Release in Full," which has the legal and
operative effect of releasing and dismissing any and all injury
claims of Plaintiff against Defendant Rebecca Ann Hughes.)
5. Said "Release in Full" was executed almost seven months
after the occurrence of the February 20, 1993 accident for which
Plaintiff presently makes claim. At the time of her execution of
the Release, Plaintiff was fully cognizant of all injuries she
had sustained in the February 20, 1993 accident and the cause of
those injuries. 4
6. By virtue of the clear wording of the "Release in Full"
signed by Plaintiff on September 8, 1993, Plaintiff released not
only Frank Kotz from claims relating to the April 24, 1992
accident, but also released Defendant Rebecca Ann Hughee from all
legal claims arising from the accident of February 20, 1993. The
2
patricia A. Swank and Rodnev H. Swank v. Frank Kotz;
2023 Civil 1993.
)
A complete copy of the "Release in Full" executed by
Plaintiff on September 8, 1993 is found in the Appendix
lit 2.
4
~ Transcript of deposition of Patricia A. Swank,
dated November 15, 1995 at pages 46-56; 61-63, and 70-
76. Appendix at 6.
2
relevant portions of the Release in Full which operate to release
Plaintiff's claims against Defendant Rebecca Ann lIughes for
injuries arising from the February 20, 1993 accident ~re as
follows:
"I, Patricia A. Swank...have released and discharged,
and by these presents do for myself, my heirs,
executors administrators and assigns, release and
forever discharge...all other cersons, firms, or
corporations from all claims, demands, damages,
actions, or causes of action, on account of...and tQ[
all claims or demands whatsoever in law or equity,
which I, my heirs, executors, administrators, or
assigns can, shall or mav have bv reason of anv matter.
cause or thinQ whatsoever crior to the date hereof."
(emphasis added.)
7. By virtue of the "Release in Full" executed by Plaintiff
on September a, 1993, Plaintiff is barred from pursuing any
personal injury or other claims against Defendant Rebecca Ann
Hughes arising from the accident occurring on February 20, 1993.
a. Pursuant to Pa.R.C.P. 1035, summary Judgment shall be
entered where there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
9. There are no outstanding material facts in dispute
relative to the within Motion. It is undisputed that Plaintiff
signed the "Release in Full" attached as an exhibit hereto.' It
is further undisputed that at the time of execution of the
"Release in FUll", Plaintiff's cause of action against Defendant
Rebecca Ann Hughes had accrued and Plaintiff was aware of the
elements of her cause of action against Defendant.
,
See Plaintiff's deposition transcript at p. 106, lines
1-25; p. 107 lines 1-3; Appendix at 6.
3
'ACTUAL BAClOROUllD
3. On Saturday, February 20, 1993 at about 2130 p.m.,
Plaintiff's husband, Rodney H. Swank, was driving his 1992 Saab
9000 CD Northbound on North Sporting Hill Road. Patricia A. Swank,
was a front seat passenger.
4. Mr. Swank's vehicle had slowed to enter the driveway
into the Hollywood Shopping Plaza with the car's right turn signal
fully activated and illuminated.
5. Following directly behind the Swank vehicle, at the
same time and direction, was a 1986 Chrysler LeBaron being driven
by Defendant Rebecca Ann Hughes.
6. Miss Hughes admitted to Hampden Township Police that
just prior to impact, she looked away from the roadway to change
the radio station, looked back to the road and saw the Swank
vehicle slowing to enter into the Shopping Plaza. Miss Hughes then
attempted to stop her vehicle by hitting the brakes causing her
vehicle to skid approximately thirty (30') feet before colliding
with the Swank vehicle which was almost at a complete stop. The
violent impact caused the Swank vehicle to collide into the vehicle
.2.
e. careless disregard for the safety and property of
others; and
f. failure to keep alert and maintain a proper lookout
for the presence of other motor vehicles on the
etreets and roadways.
10. As a direct and proximate result of the conduct of
Defendant, Plaintiff suffered and continues to suffer severe and
painful injuries, including the following:
a. severe pain in the head area, particularly on both
sides of her neck, pain in her right arm, left. leg
and lower back;
b. achiness in the top of her arms and a severe case of
hives on her neck;
c. numbnees and tingling in her arms, fingers and low
back and leg pain;
d. exacerbation of a pre-existing disc herniation;
e. loss of appetite due to trauma;
f. increased leg pain, cervical spine pain and daily
pain that radiated into her shoulders from her neck;
g. chronic strain and sprain which caused her to go
through a personality disorder and depreesion;
h. forced to undergo the pain and trauma of major
spinal surgery by submission to an operative
procedure called an anterior cervical diekectomy at
C4-S with left iliac crest bone graft and anterior
cervical plating C4-S, CS-6; and
i. a two- inch scar in the crease of her neck which
represents the entry location for the surgery and a
2" scar on her hip due to bone graft.
.4.
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Patricia A. swank and Rodney
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Rebecca Ann Hughes
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Sumtnnftll in
Civil Action-Law
...-----.------------------.--.----.
R. stephen Shibla, Esq. (717)233-5731
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P.O. Box 1146
Harrisburg, PA 17108
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.1 94-2795-CIVIL TERM
PATRICIA A. SWANK.
plaintiff
REBECCA ANN HUGHES,
Defendant
CIVIL ACTION - LAW
ANSWER AND NEW MATTER OF
DEFENDANT REBECCA ANN HUGHES TO PLAINTIFF'S COMPLAINT
NOTICE
~ ~ Kithin Named Plaintiff:
You are hereby notified to plead to the enclosed Answer And
New Matter within 20 days from service hereof or a default judgaent
may be entered against you.
AND NOW, comes the Defendant, Rebecca Ann Hughes by and
through her counsel, McKissack , lIoff.an, P.c., and files the
following Answer and New Matter to the Plaintiff's Complaint.
1.
Denied.
After reasonable investigation Answering
Defendant is without sufficient information to form a belief as to
the truth of the averments contained in paragraph one of
Plaintiff's complaint. strict proof, if relevant, is demanded upon
the trial of the matter.
2. Admitted. It is admitted that Defendant has pled that
Plaintiff is Rebecca Ann Hughes. By way of further Answer it ie
acknowledged that the Defendant currently resides at 409 South
11th Avenue, Apt 1-F, Philadelphia, Pennsylvania 19147.
3. Admitted.
4. Admitted in part, denied in part. It is admitted that on
or about Saturday, February 20, 1993 at or about 2:30 P.M., Mr.
Swank slowed his 9000 CD Saab motor vehicle to enter into the
driveway of the Hollywood Shopping Plaza. After reasonable
investigation Answering Defendant is of insufficient knowledge and
information to form a belief with respect to Plaintiff's
allegations that at the time Mr. Swank slowed his vehicle that he
had the right turn signal fully activated and illuminated. strict
proof, if relevant, is demanded upon the trial of the matter.
5. Admi tted.
6. Admitted in part, denied in part. It is admitted that
Rebecca Hughes stated to the Hampden Township Police Department
that prior to impact she looked away from the roadway to change the
radio station and her vehicle. It is further admitted that at the
time Ms. Hughes looked back to the road she saw the Swank vehicle
slowing to enter the shipping plaza. It is also admitted that Ms.
Hughes then attempted to stop her vehicle by hitting the brakes and
causing her vehicle to veer to the right in an attempt to avoid an
impact with the Swank vehicle. After reasonable investigation
Answering Defendant is of insufficient knowledge and information to
form a belief with respect to Plaintiff's allegations that
Defendant's vehicle skidded approximately thirty (JO') before
cOlliding with the Swank vehicle which was almost at a complete
stop. Further, Defendant's characterization that the impact was
a"violent impact" is denied. It is admitted that Ms. Hughes was
cited by the Hampden Township Police Department for driving at a
2
10. The averments on paragraph 10 of plaintiff's complaint
constitute a conclusion of law to which no responsive pleading is
required. To the extent that said averments are fact specific and
do not constitute conclusions of law same are specifically denied.
After reasonable investigation, Answering Defendant is of
insufficient knowledge and information to form a belief as to the
truth of said averments and strict proof thereof is demanded at the
trial of the matter.
11. The averments contained in paragraph 11 of Plaintiff's
complaint constitute conclusions of law to which no responsive
pleading is required. To the extent that said averments do not
constitute conclusions of law same are denied. After reasonable
investigation Answering Defendant is of insufficient knowledge and
information to form a belief as to the truth of said averments.
strict proof, if relevant, is demanded upon the trial of the
matter.
WHEREFORE, Defendant demands that judgment be entered in her
favor and against plaintiff and the Plaintiff's complaint be
dismissed with prejudice together with the costs of the action.
COUNT II
Loss of consortiUII
12. The averments contained in paragraphs 1 through 11 of
Defendant's Answer are incorporated more fully as if set forth
herein.
13. The averments contained in paragraph 13 of Plaintiff's
complaint constitutA a conclusion of law to which no responsive
4
pleading is required. To the extent that said allegations do not
constitute a conclusion and are fact specific same are denied.
After reasonable investigation Answering Defendant is of
insufficient knowledge and information to form a belief as to the
truth of said averments. strict proof, if relevant, is demanded
upon the trial of the matter.
WHEREFORE, Defendant respectfully requests your Honorable
Court to enter judgment in her favor and to dismios Plaintiff's
complaint with prejudice together with the costs of the action.
NEW MATTER
14. Answering Defendant incorporates all prior paragraphs as
if as set forth at length.
15. Plaintiff's claims are barred in whole or in part by the
provisions of the Pennsylvanian Motor Vehicle Financial
Responsibility Law, 75 Pa. C.S.A. 51701 et seq.
16. Plaintiff's claims are subject to the provisions of the
Pennsylvania Motor Vehicle Responsibility Law, 75 Pa, C.S.A. 51701
et seq.
17. Plaintiff's damages, if any, may have been caused by
individuals who are not presently parties to this action rather
than to any actions or inactions of the Defendant.
lB. Plaintiff's claim may be barred by the provisions of a
Release Agreement which she has entered into with parties not
presently party to the within action.
5
were approximately caused by the actions or inactions of defendant as set forth In paragraphs
1-13 of Plaintifrs Complaint,
21. Denied, Plaintiff is advised by counsel that the avennents of
paragraph 21 constitute conclusions of law to which no responsive pleading is required,
22, Denied, Plaintiff is advised by counsel that the avennents of
paragraph 22 constitute conclusions of law to which no responsive pleading is required, To the
extent a responsive pleading is required, it is specifically denied that the negligent act and/or
omissions of other individuals or entities constitute an intervening or superseding cause of
Plaintifrs injuries, To the contrary, Plaintiff's injuries and damages were directly caused by
the negligence and carelessness of Defendant as set forth in paragraphs 1-13 of her Complaint.
23. Denied, Plaintiff is advised by counsel that the avennents of
paragraph 23 constitute conclusions of law to which no responsive pleading is required, To the
extent a response is required, it is specifically denied that Plaintiff injuries and damages were
caused by the acts, omissions or factors beyond the Defendant's control or legal right to control
To the contrary, Plaintiff's injuries and damages were directly caused by the negligence and
carelessness of Defendant as set forth in paragraphs 1-13 of Plaintiff's Complaint.
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R. Stephen Shibla, Esquire
Attorney 1,0, No, 19258
Jennifer M. McHugh, Esquire
Attorney I,D, No. 66723
RHOADS Ex SINON
One South Market Squsre, 12th Floor
Post Office Box 1146
Hsrrisburg, Pennsylvania 17108
Attornsys for Plaintiff
PATRICIA A. SWANK,
Plaintiff
v.
REBECCA ANN HUGHES,
Defendant
. . . . . . . . . . . . . . . . . . . .
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-2795-CV
JURY TRIAL DEMANDED
AMENDMENT TO COMl!LAINT
NOW COMES Plaintiff Patricia A. Swank by her attorneys,
Rhoads & sinon, and files the within Amendment to Complaint, as
follows:
1. Count II of Plaintiff's Complaint is hereby
withdrawn.
Dated: December 30, 1994
R~D(S_~ SINON S}-)
J(I ) I f '\ t
By: ',: -j;. (J h~,,..j_--.- 1,::)___-
R. Stephen Shibla
Jennifer M. McHugh
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
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2. The Complaint alleges that Plaintiff Patricia A.
Swank was severely injured when the vehicle in which she was a
front seat passenger was struck from behind by a vehicle driven by
Defendant Rebecca Ann Hughes.
3. On or about December 27, 1994, Defendant's counsel,
through a record copy service, served Plaintiff's counsel with a
subpoena, a copy of which is attached hereto as Exhibit "B,"
requesting the psychological records of Plaintiff from Hoffman
Psychological Associates.
4. There exists no legal basis or authority for a
Defendant, in an automobile accident claim, to subpoena and/or
request the psychological records of Plaintiff.
5. No claim is being made for compensation of
psychological services and there is no claim for psychological
injury or emotional distress.
6. The information sought by Defendant is being sought
in bad faith, is confidential, privileged and irrelevant and would
cause unreasonable embarrassment to Plaintiff.
7. By statute, the information is privileged and not
subject to discovery pursuant to 42 Pa, C.S. 15944 (1990).
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3. On Saturday, February 20, 1993 at about 2:30 p.m.,
Plaintiff's husband, Rodney H. Swank, was driving his 1992 Saab
9000 CD Northbound on North Sporting Hill Road. patricia A. Swank,
was a front seat passenger.
4. Mr. Swank's vehicle had slowed to enter the driveway
into the Hollywood Shopping Plaza with the car's right turn signal
fully activated and illuminated.
5. Following directly behind the Swank vehicle, at the
same time and direction, was a 1986 Chrysler LeBaron being driven
by Defendant Rebecca Ann Hughes.
6. Miss Hughes arlmitted to Hampden Township Police that
just prior to impact, she looked away from the roadway to change
the radio station, looked back to the road and saw the Swank
vehicle slowing to enter into the shopping Plaza. Miss Hughes then
attempt~d to atop her vehicle by hitting the brakes causing her
vehicle to ekid approximately thirty (30') feet before colliding
with the Swank vehicle which was almost at a complete stop. The
violent impact caused the Swank vehicle to collide into the vehicle
.2.
e. careless disregard for the safety and property of
others; and
f. failure to keep alert and maintain a proper lookout
for the presence of other motor vehicles on the
streets and roadways.
10. As a direct and proximate result of the conduct of
Defendant, Plaintiff suffered and continues to suffer severe and
painful injuries, including the following:
a. severe pain in the head area, particularly on both
sides of her neck, pain in her right arm, left leg
and lower back;
b. achiness in the top of her arms and a severe case of
hives on her neck;
c. numbness and tingling in her arms, fingers and low
back and leg pain;
d. exacerbation of a pre-existing disc herniation;
e. loss of appetite due to trauma;
f. increased leg pain, cervical spine pain and daily
pain that radiated into her shouldere from her neck;
g. chronic strain and sprain which caused her to go
through a personality disorder and depreeeion;
h. forced to undergo the pain and trauma of major
spinal surgery by submission to an operative
procedure called an anterior cervical diskectomy at
C4-S with left iliac crest bone graft and anterior
cervical plating C4-S, CS-6; and
1. a two-inch scar in the crease of her neck which
represents the entry location for the surgery and a
2" Bear on her hip due to bone graft.
.4.
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PRAECIPE FOR [,ISTING CASE fOR ARGUMENT
(Must be typewritten and Gubnitted in duplicate)
TO TilE PROTIlONOTARY OF CUMBERLAND COUNTY:
Please list the within I1\'.ltter for the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
PATRICIA A. SWANK, and
RODNEY Il. SWANK, her husband,
(Plaintiff)
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REBECCA ANN IlUGIlES,
(Defendant)
No. 94-2795 CivilAction-La\~ 19 95
1. State matter to be argued (Le., plaintiff's notion for new trial. defendant's
dB11llI'rer to CCIllplaint. etc.):
Defendant's Motion For Summary Judgment
2. Identify counsel who will argue case:
for plaintiff: Jennifer Mcllugh, Esquire
IIddress: RIlOADS & SINON
One South Market Street, P.O. Box 1146
Ilarrisburg, FA 17108-1146
for def~t: B. Craig Black, Esquire and/or Melissa Morris,
Address: McKissoC'k & Hoffman, P.C. Esquire
105 North Front Street, Suite 20J
Ilarrisburg, PA 17101
3. I will notify all parties in ....Titing within t\toO days that t:lrlB case has
been listed for argurent.
(a)
(b)
4 . hrgurent Court Date:
June 26, 1996
Dated:
JUN 0 4 1996
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within rratter for the next !\rglJl1eJ1t Court.
---------------------------------------------------------------------------------------
CAPTION OF CIISE
(entire caption must be stated in full)
PATRICIA A. SWANK,
No.1 94-2795
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REBECCA ANN HUGHES
CIVIL TERH
(Deferxlant)
No. 2795
Civil Action
lcjl4
1. state rratter to be argued (Le. I plaintiff's rrotion for new trial. deferxlant's
demurrer to complaint. etc.):
Defendant's Motion For Judgment Of Non Pros
2. Identify coWlSel who will argue case:
Stephen Monaik, Esq.
Rhoads & Sinon
One South Market Street. PO BOK 1146
Harrisburg, PA 17108-1146
Edwin A.D. Schwartz. Esq.
McKissack & Hoffman, P.C.
105 North Front Street, Suite 205
Harrisburg, PA 17101
J. I will notliI' all parties in writing within 00 days that tlUB case has
been listed for argurent.
(a) for plilintiff:
Address:
(b) for defendant:
IIddress :
4 . I\rglJren t Court Da te :
December H, 1999
IBted: ~tJ. l0 1'1:'''1
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5. On January 24, 1996, Defendant filed a Motion for summary
Judgment.
6. On July IB, 1996, the Honorable Judge Edgar B. Bayley
entered an Order denying Defendant's Mocion for Summary Judgment.
7. Notwithstanding the filing of an Entry of Appearance by
Defendant's additional counsel, Edwin A.D. Schwartz, Esquire, on
November 3, 199B, and an Entry of Appearance by Plaintiff's
substitute counsel, Stephen l~oniak, Esquire, on November 25, 199B,
there has been no docket activity in this matter for approximately
3 1/2 years.' A true and correct certified copy of the docket in
this action is attached hereto and made a part hereof as Exhibit
"AII.
B. The only activity that has occurred in this case since
Judge Bayley's Order of July IB, 1996, (notwithstanding the
aforementioned Entries of Appearance l is sporadic communication
between counsel, a majority of which have been prompted by
Defendant's counsel,
1 It is important to note that the respective filings of
Entries of Appearance by Mr. Schwartz and Mr. Moniak, did not alter
or change the nature of the case.
Mr, Schwartz entered his appearance to assist Defendant's
present counsel, B, Craig Black, in the defense of the case. Both
Mr. Schwartz and Mr. Black are members of the firm McKissack &
Hoffman, P,C,
Mr, Moniak is believed to have entered his appearance when
Plaintiff's previous counsel, Jennifer McHugh, Esquire, relocated
to the Philadelphia area. Both Mr. Moniak and Ms. McHugh are
members of the firm of Rhoads & Sinon, LLP.
..
!I. Defendant represents that in light of the fact that this
matter involves alleged injures sustained in a motor vehicle
accident that occurred on February 20, 1993 (over 6 1/2 years ago) 1
the pleading having been closed since December 30, 1994 (almost 5
years ago) 1 and there has been no substantive docket activity in
this matter since Judge Bayley's Order of July 1B, 1996
(approximately 3 1/2 years ago) that the matter is ripe for entry
of an Order of Judgment of Non Pros.
10. Notwithstanding the fact that this case involves an
accident that occurred more than 6 1/2 years ago, the Plaintiff has
failer'l to conduct any discovery in this case. In fact, despite
Defendant's continued efforts to develop and formulate a viable
defense in this matter, Plaintiff has failed, and continues in her
failure, to take any action toward the advancement or prosecution
of her claim.
11. The complete want and failure of the Plaintiff to pursue
this action is evidenced by the fact that, to date, Plaintiff hasl
a) failed to serve any discovery requests on the
Defendant (ie. Interrogatories, Request for
Production of Documents, etc,) 1
b) failed to schedule or conduct the deposition
of the Defendant,
c) failed to identify and/or provide any expert
reports that casually link Plaintiff's alleged
injures to the accident 1 and
d) failed to provide supplemental responses to
Defendant's discovery requests, as required
under the Rules of Civil Procedure.
..
. .
. .
15. Plaintiff's failure to conduct any discovery of the
Defendant and Plaintiff's failure to fulfill her obligations to
continually supplement her responses to the discovery previously
served upon her by the Defendant precludes the Plaintiff from even
establishing a prima facia claim against the Defendant despite the
lapse of more than 6 1/2 years since the date of the motor vehicle
accident.
16. Plaintiff's failure to undertake any discovery in this
case evidences a complete lack of due diligence in proceeding with
her claim.
17. Plaintiff cannot show a compelling reason for the delay.
18. As a result of Plaintiff's failure to proceed with due
diligence in pursuit of her claim, Defendant has incurred actual
prejudice which will lmpair her ability to successfully defend this
action.
19. Pursuant to C.C.R.P. 206-2(b), on November 2, 1999,
Defendant's counsel attempted to obtain concurrence to this Motion
from Plaintiff's counsel, and in response thereto, Plaintiff's
concurrence to the instant Motion was not granted.
PYS510
1994-02795
Cumberland County Prothonotary'a Office
Civil CaBe Inquiry .-
SWANK PA'I'RICIA A 1'1' lIl. (VB) IIUGIIES REU~;CCA ANN
Page
1
Reference. No'. .':
Case Type.....: WRIT OF SUMMONS
Judgment.i....: .00
Judge Ass gned: BAYLEY EDGAR B
Disposed Desc. I
------------ COBe Comments -------------
F11od... ....,:
1'1mo. t . I . t. . I :
ExecutJon Date
Jury Trial....
Diaposed Date.
lIigller Crt I.:
lIiqhor Crt 2.:
5/2511994
1:00
0/00/0000 '
0/00/0000
................................................................................
General Indox Attorney Info
SWANK PATHICIA 1\ PLAIN1'IF!' MONIAK S'I'EplmN
637 CEDAR HIDGE
MECIIANICSBURG 1'1\ 17055
SWANK HODN~;Y II PLAINTIFF MONIAK S1'EPHEN
637 Clm1\1l HIDGE
MECII1\NICSBUHG 1'1\ 17055
HUGHES REBECCA ANN DEFEND1\NT IlL1\CK B CRAIG
4415 WER1'ZVILLE R01\() SCIIWAH1'Z EDWIN A 0
ENOLA 1'1\ 17025
**........................................l.................,t,.................
* Date Entries *
.........................................#l..........................."........
5/25/1994
7/06/1994
7/12/1994
7/25/1994
9/29/1994
10/06/1994
10/06/1994
11/07/1994
12/08/1994
1/03/1995
1/06/1995
2/01/1995
1/25/1996
3/06/1996
3/08/1996
6/05/1996
7/19/1996
11/05/1998
12/01/1998
- - - - - - - - - - - - - FIHST ENTHY - - - - - - - - - - - - - -
pH1\ECIpE 1'011 WRI'I' OF SUMMONS IN CIVIL ACTION
WRIT OF SUMMONS ISSUED 5/25/94
------------------------------~------------------------------------
PRAECIPE TO REISSUE WRIT OF SUMMONS BY R STEplIEN SIIIBL1\ - WRIT RE-
ISSUED
-------------------------------------------------------------------
SIIERIFF'S RETURN FILED (SIIFF SERVED DEFT 7/7/94)
SHEHIFF'S COSTS $33.92 PD ATTY
-------------------------------------------------------------------
PRAECIPE FOR ENTRY OF 1\PPEAH1\NCE FOR DEFENDANT BY B CHAIG BLACK ESO
----------------.----.-----------------------------------------------
PRAECIPE 'ro ImTlm RULE 1'0 FILE COMPLAINT AND RUI,E TO FILE BY B
CRAIG BI.ACK
------------------------------ .------------------------------------
COMpLA IN1' - C I V 1 I. 1\C'l'ION
-------------------------------------------------------------------
CEHTIFICATE OF SERVICE
-------------------------------------------------------------------
CER1'I FICA'!'E OF SERVICE
-------------------------------------------------------------------
REPLY TO NEW MATTER
------------..------------------------------------------------------
AMENDMENT TO COMPL1\INT
-------------------------------------------------------------------
PLAI N'l'IFF' S MO'I'ION '1'0 OU1\SII SUBPOENA AND MOTION FOR A PROTECTIVE
OIlDER 1\ND RULE 'ra SHOW CAUSE BY JUDGE J WESLEY OLER JR
-------------------------------------------------------------------
S'I'IpULlI'I'ION
-------------------------------------------------------------------
MOTION FOR SUMMAIlY JUDGMENT OF DEFENDANT REBECCA ANN HUGHES
------------.-------------------------------------------------------
pR1\ECIpF. FOil LISTING C1\SE FOil 1\IlGUMEN'1' BY ,JENNIFER M MCHUGH ESO
-------------------------------------------------------------------
PLA J N'I'IFF' S PRAEC I PE '1'0 WI'I'IIDIl^W FOil 1\IlGUMEN'1' BY R S'l'EPIIEN SHIBLA
ESO
-.--... - ---.--..---.-..--.---------.----------------------------------------
PR1\EC I pE FOil 1.1 S'I' I NG CASE FOil ^,IGUMEN1' BY B CIlA IG BL1\CK ESO
- . -. ~ -.- -..---------- _.--- ---------------------------------------
OPINION ANll OIl1JEH - DA1'ED 7/19/96 - IN Ill' MO'I'ION OF DEFENDANT FOR
SUMM1\RY ,IUllGMEN'1' - DENIIW -- BY EIlG1\1l B Il1\YI,EY J - COPll,S MAILED
7/22/96
EN'l'IlY OF API'EAIl^NCI, FOR DEFENIl1\N'1' BY EIlW IN 1\ D SCHWAH'I'Z ESO
----------..----------.---.----.---..------------..----------------------
~~~~~!~~_~~~_~~T~~_~F_~~~~1\~~~~~_~~~_~~~~_~~_~:~~~~~_~~~!~~_~~9____
PATRICIA A. SWANK,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.1 94-2795-CIVIL TERM
CIVIL ACTION - LAW
v.
REBECCA ANN HUGHES,
Defendant
PRABCIPB
Please mark the above captioned matter as settled, satisfied
and discontinued with prejudice.
Respectfully submitted,
-.-.
Datel /-II~oO
ephen Moniak, Esquire
Attorney 1.0. No. 80035
Rhoads & Sinon
One South Market Square
P.O. Box 1146
Harrisburg, PA 17101
(717) 233-5731
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f)
Defendant filed a Motion for Summary Judgment
on January 24, 1996; and
g)
The Honorable Judge Edgar B. Bayley entered au
Order denying Defendant's Motion for Summary
Judgment on July 18, 1996.
3 .
In light of the fact that this matter involves alleged
injuries sustained in a motor vehicle accident that occurred on
February 20, 1993 (over 6 1/2 years ago); the pleadings having been
closed since December 30, 1994 (almost 5 years ago); and there has
been no substantive docket activity in this matter since Judge
Bayley's Order of July 18, 1996 (approximately 3 1/2 years ago),
Defendant, by and through her counsel, filed a Motion for Judgment
of Non Pros with the Honorable Court on November 3, 1999.
4. On the Bame date Defendant filed her Motion for Judgment
of Non Pros (November 3, 1999), Plaintiff, by and through her
counsel, served her first and only set of discovery requests
consisting of Plaintiff's Fist Set Interrogatories Directed to
Defendant, Rebecca Ann Hughes, and Plaintiff's First Set of Request
for Production of Documents Directed to the Defendant, Rebecca Ann
Hughes (hereinafter "Plaintiff's First Discovery Requeste"). A
true and correct copies of Plaintiff's First Discovery Requests
are attached hereto and made a part hereof as Exhibit "A".
5. Prior to the Bervice of Plaintiff's First Discovery
Requests on November 3, 1999, Plaintiff had failed to conduct !nl
discovery in this case.
6. Despite the lapee of more than 6 1/2 years since the date
of the motor vehicle accident which serves as the basiB for the
instant action and the fact that the pleadings having been closed
for almost 5 yearB, together with the fact that there haB been no
substantive docket activity in thie matter for almost approximately
3 1/2 years, Plaintiff is now attempting to conduct discovery in
response to the Defendant's pending Motion for Judgment of Non
ProB.
7. Prior to the reBponsive filing of Plaintiff's First
Discovery Requests, Plaintiff had failed to take any action toward
the advancement or prosecution of her claim.
8. This complete want and failure of the Plaintiff to pursue
her alleged claim has resulted in actual prejudice to the Defendant
and served as the basis for Defendant's pending Motion for Judgment
of Non ProB.
9. In light of Plaintiff's continued failure to conduct any
discovery in this matter prior to the Defendant's filing of her
Motion for Judgment of Non ProB, Defendant asserts that Plaintiff's
First DiBcovery Requests are not propounded in good faith and are
simply an attempt to bolster and support her position in reBponding
to the Defendant's pending Motion for Judgment of Non ProB.
..
attorney/client privilege; or, In the alternative, produce the said mallar at said time to permit
Inspection and copying thereof.
DEFINITIONS AND INSTRUCT~
(A) "You" and "your" refers to the person or persons to whom these
Requests are propounded,
(8) "And" and "or" shall be construed conjunctively and disjunctively so
as to bring within the scope of this Request for Production any information which might
otherwise be construed to be outside its scope.
(C) The word "documenl" means any correspondence, memoranda,
inter-office communication, inlra-office communication, agreemenl, minute, report, note,
schedule, book of account, ledger, invoice, receipl, purchase order, pleading,
questionnaire, conlract, bill, check, draft, diary, log, proposal, bid, recording, telex,
telegram, drawing, picture, table, graph, chart, map or survey, including the originals
and working, handwritten drafts of all of Ihe above and any copies thereof which are
different from the original by way of interlineation or notation, including any Iranscript or
summary of the foregoing and any other tangible date compilations from which
information may be used, including word processor systems.
(D) If you claim that Ihe subject matter of a document or oral
communication is privileged you are required to identify the document or communication
by stating the following information:
(1) Its nature (e,g" letter, memorandum, tape recording, etc,);
(2) Its date (or if it bears no date, (he date when it was prepared);
(3) The name, address, employer and job position of the signer or
signers (or if there is no signer, of the person who prepared il);
(4) The name, address, employer and job position of the person, if any,
to whom the document was sent;
(5) The name, address, employer and job position of each person
known or believed (0 have originals of copies of the documents; or
2
(6) A brief statement of the subject mailer of the document; and state
each ground or basis on which you contend that the document or oral communicallon Is
privileged.
(E) If you do not have possession, custody or control of a document
request, but know who does have possession, custody or control, you are required to
identify the document and the person who has possession, custody or control in the
manner requested In subparagraph (D) thereof,
YOU ARE REQUESTED TO PRODUCE THE FOLLOWING
DOCUMENTS:
1, Any and all documents referred to, relating to or pertaining to any
answer to any Interrogatory,
2, Any and all documents containing information relating to any answer
to any Interrogatory,
3, Any and all investigation reports, except those protected from
discovery, prepared by you or by anyone on your behalf in regard (0 the evaluallon and
litigation of the instant acllon,
4. Any and all curriculum vitae for each and every person whom you
expect to call as an expert witness at trial.
5. Any and all expert reports from each person whom you expect to call
as an expert witness at tria!.
6, Any and all writings, memoranda, reports, statemen(s and records,
etc" which you, your company and/or client possess concerning the case, investigation or
review of the Plaintiffs and his case.
7, All documents in your possession, custody or control prepared in
anticipation of litigation or trial of this case, except those documents which disclose the
mental impressions of your allorney or your allorney's conclusions, opinions, memoranda,
notes or summaries, legal research or legal theories, and except those documents
prepared in anllcipation of Iitigallon by your representatives to the extent that they would
disclose the representatives' mental Impressions, conclusions or opinions respecllng the
value or merit of the claim or defense,
3
,
.4
. ..
.
.. - ....
These shall ba daamed to be continuing Interrogatorlas. If, between the
time of your answers and the time set for hearings or trial of this case, you or anyone
acting on your behalf, Including Inquiries of all attorneys, Investigators, or anyone else
acting on your behalf, learn of further Information not contained In your answars, you
are undar a duty to promptly notify the undersigned of such further information by
way of a supplemental Answer. The Plaintiffs reserve the right to conduct additional
discovery.
DEFINITIONS TO Il'lITERROGA TORIES.
The following definitions are applicable to each Interrogatory and are
Incorporated by reference in each Interrogatory. The Interrogatories must be read in the
light of these definitions and your Answers must be responsive to the Interrogatories as so
defined:
1. "Document": The term "document" means any written. recorded.
printed, typed, or other graphic matler of any kind or nature, however produced or
reproduced, whether sent or received or neither, including drafts or copies bearing
notations or marks not found on or in the original, and includes but is not limited to:
(a) all lelters or other forms of correspondence of communication,
including envelopes, notes, telegrams, cables, telex messages, messages
(including reports, notes, notations and memoranda of or relating to
telephone conversations or conferences);
(b) all memoranda, reports, test results, financial s(atements or reports,
notes, transcripts, (abulations, studies, analyses, evaluations, projections,
work papers, corporate records or copies thereof, lists, comparisons,
questionnaires, surveys, charts, graphs, summaries, extracts, statistical
records, compilations;
(c) all desk calendars, appointment books, diaries;
(d) all books, articles, press releases, magazines, newspapers, booklets,
circulars, bulletins. notices, instructions, manuals;
(e) all minutes or transcripts of all meeting; and
(I) all photographs, microfilms, phonographs, tapes or other records,
punch cards, magnetic tapes, discs, data cells, drums, print-outs, and other
data complications from which information can be obtained,
2
.
.
- ,
'.
INTE-RROGATORIES
1. Personal Information -- State:
(a) Your full name;
(b) Each other name, If any, which you have used or by which you
have been known;
(c) The name of your spouse at the time of the accident In
question and the date and place of your marriage to such
spouse;
(d) The address of your present residence and the address of
each other residence which you have had during the past five
years;
(e) Your present occupation and the name and address of your
employer;
(0 Date of your birth;
(g) Your Social Security number;
(h) Your military service and positions held, If any;
(I) The schools you have attended and the degrees or certificates
awarded, If any;
0) all stales In which you have been licensed to drive; and
(k) have you ever had your driver's license suspended or
revoked for any reason,
ANSWER:
6
- ..
.
ANSWER:
4. State with particularity the factual basis for each claim or defense you
are asserting In this case.
ANSWER:
5. Witnesses ..
(a) Identify each person who
(1) Was a witness to the accident in question through sight
or hearing and/or
(2) Has knowledge of facls concerning the happening of
the accident in question or conditions or circumstances
at the scene of the accident in question prior to, at lhe
time of, or after the accident.
(b) With respect 10 each person so Identified, stale that person's
exact location and activity at the time of the accident In
question.
ANSWER:
8
, .
. .... t
(0)
The dates of Issuance and expiration of your current
IIcense(s);
The Identity of the authority that issued your IIcense(s);
(d)
(e)
(f)
The number of your Iicense(s);
The nature and duration of any revocation or suspension of
your Iicense(s);
(g)
The special restrictions, if any, imposed on your license.
ANSWER:
9. If you have been charged with any criminal violations or have been
cited as a result of the accident In question, describe the charges and identify all
documents filed or served In connection with those charges,
ANSWER:
10. If you know of the existence of any photographs, motion pictures,
video recordings, maps, diagrams, or models relevant to the accident In question, state:
(a) The nature or type of such item;
(b) The date when such item was made;
10
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Ih." "pl.lallff' 'd.m.g"" if .a~. m.~ h." b"a oouaed b~ 'adW"u." whO .~. aol
".;'aOY ,.rtY 10 ~I' .dlon r.~" ~.n 10 .nY .,'Ion' or I~.cl~n' 01 Ih. ~I.nd.a\. \NII~
re' .cI 10 aU'" .,.g.llon, ,'.'. ,I.'. ",h I.cI or "rcu""l.nce wh~'h ~ou ",nten
,ug"rIB Ihl' oonl,allon, 'd,nll~ e.'h wime" wllh .n"",dg' ,el.",e ,olh" oonl.nlmn .nd
'd.a,"~ ,.,h doc,...nl whi'" d'''''''"'' ,ele" 10, or In ,n~ w.~ ,erlOl'" 10 \h. Inlor"'.Uon
contained In said allegation,
At~5WER'.
36. 'n ,....reph I. 01 ~our An'we' wllh N.w ....lIer ~oU ".,e lhat
"PI,lnlllf' d.I"" .re h.,red .ndlor 1I",lIed b~ Ihe ,,,,I,lon' 01 ~e pan",~w.a'.
C"""".II,e Negllg.nce /1&'. "e,,,ooll< m{e,red 10 p.. C.SA ;4101. . \NIlh re"ecl I~
aU,h .lleg,lIon, ,Ie.,e ,1.le each l,cI or "rcu""..nca wh,~h yoU "!ntand ,u,,~rt, Ih"
ooalealloo, idenll~ each w,ne" wllh .a"..edg. rel,lI,e 10 Ih" conl,a,,,n .nd "en'>IV e''''
docum,nl .hi,h d,,,U,,e,. rei." 10, or in .n~ w.~ ""In' \0 Ihe ,alor",.lIoo con..,ned "
said allegation,
ANSWER:
37. In ,,,....ph 20 01 ~our An'w., wllh New ...,,'e, ~ou ,1.1.. In ,.rt,
Ih.t 'PI.\nII\f' .,leged InIUlIe' W." nol ,,,,,,,,.Iel< oouBOd by .n~ .cIIoa, or la.clloa, 01
Delend.n\." W'Ih ,."ac'IO aU,h .1I...llon. ,Ie". ,.... e.ch ,.,1 or ",,,,",,..~ce wh~h
~oU con'end ,u"orIB lhi' coaleallon. idenllIV each w\ln." wah .n""led.. rei''''. 10 Ih"
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OOOI.OUon'od Id.ollfy each do",meol ",,<h dl."'....' '.'." to, Olio ooy w.y p.rt.lno \0
the Information contained In said allegation,
ANSWER:
3U, 10 por.g"pn 2\ of you' Ao.we' w'" N.w Ma\l.' YOU .lel., 10 part,
\hat "Pla\otlW. clelm' are barr'" by th. .""II",b~ Slatul. 0' L1mUal\OO''" won resp.'1 10
.u'" alle"\\r>O, pi.... .lele ..", fa" 01 """m.leo," whl,n YOU oooleod .uPp~rt. thl.
oooleol\oo, Id.ollfy ."n ,,\10'" wUh 'ooW~dge,.laIN"O thl. ""leol~O aod Id'oI'ly ea""
dOCUmeol whl'" dl.OU....' ",,,.10,01 io ao' way p.rta'o' \0 Ih"O'OImel~O ooolaloed 10
said allegation,
ANSWER:
..' 10 p.reg"pn 22 of you' Ao.we, wun NeW M.U" you .1.1e, 10 p.rt,
lhel: "'!h' oegl~.ol "I 'OillOl adm,..loo. of othe' 10dN\dU.I. 01 .otllle' oo..tllUIe an
loleN.ol09 0I.uporsed'09 ",.. of the loiurle. alleg'" sU.leloed by PI.loIlff." ,I/J\th resped
10 sU,n .,~"Uoo, plea.. .I.le ."n lad or ,,<,um.lao," whl,h you oooleod sUpport.lhI'
oooleoUOo, ~eollfy e"n wllo'" witn ,,,,,.'edg. ,.,.Uv. 10 Inl. oooleoUOO .od ~.0I1fy e.'"
documeol whl,n dl"U....' re'." \0, 01 10 .oy w,y p.rt.'o, 10 th.,o'OIm.'\Oo ooolelo'" In
said allegation,
ANSWER',
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