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HomeMy WebLinkAbout94-04944 I . " d , , II J ~ ~ ~ ~ / /1, ~ ~ j " , , , ~ ~ ~ ~ ," , , " JOSEPH J. HALDET AND I BARBARA A. HALDET, HUSBAND I AND WIFE, I Plaintitts I I V. I I PENN HARRIS COMPANY, A I PENNSYLVANIA CORPORATION, I t/d/b/a RADISSON PENN I HARRIS HOTEL AND CONVENTION CENTER, 13 IN THE COURT or COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA Detendant CIVIL AC'l'ION - LAW NO. 94-4944 CIVIL TERM IN REI PRETRIAL CONFERENCE At a pretrial conterence held Wednesday, June 19, 1996, betore the Honorable Harold E. Sheely, President Judge, present tor the Plaintiffs was Edward E. Guido, Esquire. Trial counsel for the Defendant will be Zygmunt R. Bialkowski, Jr., Esquire, however, he was not available for the pretrial conference and appearing on his behalf was Michael T. savitsky, Esquire. This is a jury trial which should take no longer than one and one-half days to complete. On this case defense counsel will not be available Monday, July 8th, but he will be available on Tuesday, July 9th. Since I will not be available either on Monday the 8th, this will be a good case for me to start on Tuesday, and I have informed the attorneys that I will start this case on Tuesday. Plaintiff, on October 23rd, 1993, was attending a convention at the Defendant's premises in Wormleysburg. The pretrial memorandum of the Plaintiff. indicate. that the Plaintiff and other people were .eated on a .tage which had been covered by carpet by the Defendant. The pretrial memorandum indicate. that during the cour.e of the meeting Mr. Bollinger, who waB a member of the executive committee and who was also seated on the stage, fell from his chair. As the Plaintiff went to assist Mr. BOllinger, hi. right foot became caught in a separate hole that was also covered by carpet causing him injuries. The Defendant has now admitted liability, and, theretore, as part of the direct testimony ot the plaintiffs only tive witnesses will be called. They will be Mr. , Mrs. Maldet, Dr. Cho, Dr. DeMuth, and Dr. Small. Dr. Small is a Ph.D., and he will be appearing in person. That is the reason tor a definite date to commence this trial. I would ask that counsel prepare a stipulation as to medical bills and wage loss so that other witnesses need not be called to establish those facts. Plaintiff requested permission to amend Paragraph 14 of his complaint to include aggravation of a pre-existing condition of his left knee. This was agreed to by counsel for the Defendant at the pretrial conference, and, therefore, Plaintitf may amend the complaint accordingly. The only outstanding issue concerns the pictures ot the accident scene which were taken immediately after the accident and apparently would ehow the hole that Mr. Maldet fell throu9h in the carpet. I will take a look at the caee law and I will enter an order at a later date takin9 care of this i..ue. The Defendant will only be callin9 one witne.., and that will b. Dr. David C. Baker, and he will be appearin9 by video depo.ition. It would seem that the Plaintiff had numerous phy.ical problema prior to this accident, and I think the issue for the jury in this case will be what injuries were caused by this accident and what effEct these injuries have had on the Plaintiff. Another issue concerns future medical expenses. It has been indicated that perhaps the doctors will be testifying aa to possible future medical needs of the Plaintiff; however, in their depositions they have not stated any dollar and cent amount for these future medical expenses. I ask counsel for the Plaintiffs to brief this issue because I am not certain at this time whether or not Plaintiffs can have the jury speculate on future medical expenses where there has been no medical testimony indicating how much the future medical expenses would be. Plaintiffs have demanded $500,000.00, and as of the pretrial conference the Defendant had made no offer. i' ?;; ell I:: Lr: r.,~ .. ,i.f' ~~' N . , t- .~ " . , , , , , :\ ~ ":;'j $F 1,...... J ...". .- ~I f,:)I, C..., !:k; T,IU. ,: i(iJ -.'1' I "1' lJ.. i. to, '.lr.~ I" t:;~ r\' II, 'I' '.j U (j\ ~) 'I, " SAIDIS, GUIDO, SHUFF .. MASLAND 26 W, HI.h S....t Carll.le,PA without the use of a cane, traveled extensively, and enjoyed life thoroughly. Since the time of this accident, he has had ccnstant pain in his left knee (he had surgery for a torn meniscus shortly after the accident) and his right hip. His treating physician describes the pain in his right hip as intractable. Although he has had some good daysr he has had more bad days than good. Since the time of the accident, he has consistently taken various narcotic drugs for the pain. These drugs range from percocet to and including a morphine derivative. According to his physiciansr he will be required to take these drugs for the rest of his life. He will also have difficulty walking. In factr he will never be able to walk again without the use of a cane and/or cumbersome leg and hip brace. Since the accident Plaintiff has been consumed by the pain. Because of his love for his job, he forced himself to work. He is unable to travel without great difficulty. His relationship with his wife and family have been greatly affected. C. Delay Damaqes: The accident occurred on October 23, 1993. The Complaint was filed on September 1, 1994. Since there have been no offers of settlement from Defendantr delay damages are in issue. III. STATEMENT or PRINCIPAL ISSUES or LIABILITY AND DAMAGES There are no complicated legal issues in connection with liability. liability. The possibility exists that Defendant may admit If this is done, Defendant indicates that it will 3 SAIDIS, GUIDO, SHUFF & MASLAND 26 W, "Iah Sued CIIU.le,PA object to the introduction of any pictures showing the holes in the stage. However, since the nature, extent and causation of Plaintiff's injuries are disputed, it is Plaintiff's position that the pictures are necessary in order that the jury may fully understand the mechanics of the accident. Plaintiff also intends to make a motion in limine to amend paragraph 14 of his Complaint to include aggravation of a pre- existing condition in his left knee. Although the Complaint did aver the aggravation of a pre-existing conditi.on of the right knee, it did not mention a pre-existing condition in his left knee. However, all of the medical reports provided to Defendant shortly after the accident clearly stated that the injury to his left knee may have been an aggravation of an asymptomatic pre- existing condition rather than a new injury. The case of ~J.naota v. Milliken, 428 A.2d 600, 286 Pa. Super. 117 (1981) is directly on point and would dictate the allowance of the amendment. IV. WITNESSES The Plaintiff may call some or all of the following witnesses: .Joseph Maldet' I . ( I Barbara Maldet' " , "".....1 . t ", " , I hi' , Jay J. C 0, M.D. ' \ ~,..c_ William DeMuth M D - l""'II""~"'1 " 1\' 1'(' I" , .. ,.J 1;. .~ I' ,.\, . , " Kenneth Small, Ph.D.- 'I .... ~--Representative from the Disabled American Veterans William N. Wall John J. Baldwin Paul Kiner Diane Baker Daniel Barry Dwayne Deist Frances Dietrich Donald Graffius , --"'J '. '~ , \f'~ "- ~ ~l-" ,.(,. . ( .'l'~-::r~;_1 l",~ ;~'~lI")")/PL r {., ~. , .c. f'l v -""'\. 4 po. it ion of the Defendant with respeot to the damages being olaimed by the plaintiff is a. set forth in the report of Dr. David C. Baker dated April 26, 1996, a oopy of whioh i. attaohed hereto. Dr. Baker has been deposed for purpose. of trial. 3. A etate.ent a. to tbe prinoipal i..ue. of liability and d..age.. Liability is admitted. The prinoipal issues ooncerning damages are what injuries did the Plaintiff sustain as a result of the aooident at the Penn Harris, what treatment has the Plaintiff received which is related thereto, and whether the Plaintiff's current medical condition and complaints are as a result of the injuries received in the acoident at the Penn Harris, or are a result of prior medical and physical conditions of the Plaintiff. 4. A .Wllllluy of legal bsue. regudinq admissibility of t..tiaony, eXbibit8, or any other .atter, and leqal authorities reUed on. Plaintiff has indicated that he will introduce photographs depicting the condition of the risers at the Penn Harris at the time of the accident. These photographs would only be r.levant for purposes of establishing liability. Since the Defendant is admitting liability, the said photographs are not relevant and would only serve to inflame and unfairly prejudice the jury. 5. The identity of witn..... ~o b. called. Dr. David C. Baker, M.D., F.A.C.S. (by video tape). .. A li.t of exhibit. with bri.f identifioation of .aoh. (a) Report of Dr. David C. Baker dated April 26, 1996 (b) Various exhibits which were marked for purposes of identification during the trial deposition of Dr. Baker. Counsel has not yet received the transcript of the deposition. 7. Th. ourr.nt .tatu. of .ettlement n.qotiation.. Plaintiff's demand is $500,000; there has been no offer DAVID C. BAKER, M.D., F.A-C.S. BELVEDERE MEDICAL CENTER 8S0 Walnut Bottohl Road CarUsle, PA 17013 (717) 243-9010 eOlr~ Clrtiril~ in Orthopl.41c 5ur9.ry H.mbt[ ~.rlc.n ~c.d.my of Orthop.edic IUftlOn' April 26, 1996 Blalkowaki & Smllky 1006 Pittston Avenue P.O. Box 1216 Scranton, PA 18S01.1216 RE: Joseph Maldet Dear Sir: I performed an Independenl Medical Exeminalion on Joseph Maldet in my offic:o at BSO Walnut Bottom Road, Cutisle, PA on Joseph Maldet on April 26, 1996. The foUowing is a report of that exunlrWion: Mr. MaIdel relates a history of the bUury etating that on October 23, 1993 he wu on a sllie II the Penn Harri.a Hotel when standing he somehow fell, landing into the back of a chair and part of a riser. ThiI WII apparcndy part of the sllie apparatus, At that lime he WII employed with the Disabled American Veterll1l and WII the local ex~utive and this accident occurred while at a Disabled American Veteran convcnlion. The patient alatcl thai at that lime he had immediate pain in the right hip II weU II in the left knee, Despite therapy and aurgical treatment of the left knee, he states he has had pcnistcnt pain in these joints. MST MEDICAL HISTORY: Significant for having two myocardial infarttions, He has also had surgery for colon canc:or in 1971. He takes multiple medications including Cogentin, Prilos~, Carafate, Scrax, Cardizcm, Benadryl. He also takes Morphine or a Morphine-like substance (1 Methadone). Past Medical History is also significant for having five surgeries on his right knee that resulted from an !l\iury to the right knee that he sustained on a radiation accident while in the servic:o. Put Medical History is also significant for being involved in a motor vehicle accident in Augusl of 1995. He sustained an !l\iury to his left st.oulder without a fracture or dislocation that apparcndy l'CIlultcd in left upper extremity reflex sympathetic dystrophy. Subi~tive complaints at this lime rclW~ the left hip and knee: The patient states that he has bW'llina in the right hip all the lime, He has problems with stcp8. He states that the more he flexes his knees, the more hia hip hurts. 11 does wake him up at night. He localizes the pain to the lateral aspect of the hip at the troclwttcr region and not the groin. Pile 2 RE: Joseph MJldct With respect to subjective complainla 10 the lell knee, he slales thai ilgrinds,cJ1lllchCll, and pops. He slalca that arthrOlCOplC sW'8ery was performed by Dr, DeMuth in March of 1994 Uld it did nol help. He .wished he hid never hAd it done,. '!be patient is cUlTCl\dy nol working. He stales thai becallle Qf his physical problcnt8 he is not able to work, ~ EXAMlliAlJQ}l..; Mr, MAldet is an a1en orienlc:d male who presenled wearing a righl lower e"tmnity brace with a pelvic band, This encompasses his righl calf and his righl knee with a hinge al the knee and the pelvis, On his left knee he wore II canvas hinged knee brace, The patienl slales that he had difficulty standing withoUI his brscCll or walking withoul his bracca. He also uaed a cane for ambulatory aasislance, ElI.Imlnation of the hips reveal no visible abnonna1itica. There is no erythema, wannth, soft tillue swelling of either hip. He does have Ienderncss 10 palpation at the greater trochanteric region. Trcndclenberg sign is negative bilaterally. He haa symmetrical range of motion of the hips on inlernal and e"lernaI rotation, although they go to 3Ci' of e,,1ernaI rotation and 2Ci' of internal rotation and callies the patienl significant pain in the lP'eater trochanteric region, It is importanlto nole thai stroking the skin also call1ed pain. This was done over the greater trochanter, With respect to the \'.nees, he has a SO tle,uon contracture on the left and full extcnaion on the left. He flexes to the left to IISo and fle"e8 10 the righllo lOCi'. No ligamentous instability is present He docs have two SCIllll over the right knee at the medial aspect of the knee, one 6 cm, and oblique, one COITCsponding to the joint line and 8 cm. There is no ligamenlous instability bilalc:rally with a negative anterior and posterior Drawer lest. Medial and lateral collateralligamenla are intact in extension and 3Ci' of flexion, There is diffuse tenderness about the mediallllpect of the knee and varus and valgus stressing causes pain diffusely about the knee. There is lome patellofemoral crepitus on range of motion, Palpation of the laleral joinl does not cauae II much pain along the medial joint line. NEUROLOGIC EXAMINATION: There is no thigh or calf atrophy. They arc symmetric with equal thigh circwnference and equal calf circwnference measured al equal distanl poinla above the superior pole of the patella and inferior pole of the patella respectively, There is no detectible neW'Ologic dcficila with good strength in lA, LS and S1. No refle" asymmetry in IA and 81. The patient has negative straight leg raise test in thai no sciatica is reproduced at e"lcn.8ion of the hips. There are no visible abnormalities of the Iwnbar spine other than a very slight scoliotic cW'Ve, REVIEW O.E.X-RAYS: X-ray of the right hip taken on June 10, 1994 shows no evidence of osteoarthritis. There is one area of ossification adjacent to the greater trochanler aa well as a very thin linear density along the lateral cortex below the grealer trochanter, Done scan taken one month lalc:r in July of 1994 showed no uptake in the region of the hip with slight increased uptake in the medial margin of the righl knee. MRI's of both hips on July 19, 1994 show no abnormalities, MRI of both hips on 3/10/94 shows no abnonnalities. Initially the patient told me he had his surgery in March of 1994, but from Dr. DeMuth.s noles, it appelllll that he performed the sW'8ery on April 24, 1994. PliO] RE: Joseph Maldet REVIEW OF RECO~ I reviowed recorda from Dr. Cho, Dr. DeMuth, Seidlo Memorial Hospllll Rehabililation Center and it II important to noto that thore WII no operative note in tho report. However, in . letter to Edward Guido, Dr. DeMuth llatel that ho did not know whether tho fall from tho ltaao precipitated Ilia .ymptorM. "Tho changel that wore found in hil knee wm rather chronic in nature and would be e"pected to be a ~ult uf . lpecific event in my opinion." Baaed on tho diaanOlI. from tho MRI and Dr. DeMuth'1 poltop diagnosll, he had a loft kneo arthrOlCOpy with partial medial moniBccctomy and lhaving of tho medial femoral condylo. Thil would correspond with the MRI findinga of a medial monilclII tear. Shaving tho medial femoral condylo would cOlTClpond to removing articular c8l1ilago that waa frayed &om tho end of tho bono, .pecifically tho medial femoral condyle, It is aIIo important to note that tho patient il on Morphino, Ho llatel that this is more for tho loft .houlder and loft hand problem. Theso are not specifically evaluated by me. It is important to address tho ,,-ray findin&s II on ono report from tho plain film of JWlO 1994 tho pos.ibility ofpcriosteal new bone formation WII railed. This could represent a response to iJUwy with new bone fonning, Iimilar to those reformed with fraclw'c healing. This could occur widt.out the presence of a complote fracture. Tho fact that this did not occur is confirmed by the bone scan of July 1994 which showed no uptake in this region. If the Changca leen on tho plain films were the results of an il\iwy that WII Ili1I motabolically activo, there would be increased blood flow to this arca and increased uptake in the bono phase of the bono scan. Thi. was not dilcovorcd. OBJECTIVE FINDINGS: The patient demonstrates few objective findings to suggcat lignifieant Wldcrlying pathology. Ho has many lubjective complaints and during tho e"amination he demonstrates hyporc"asgeration of Iymptoma II demonstrated by ItrOking the skin over the right hip. Ho also has pain in tho right hip with jlllt gendo rotation of tho pelvis in a standing position, This should not be e"pected to initate either the femoral acetabulum articulation or the greater trochanter. Thcae arc anaJogOIII to the "Waddell's ligna" II demonstrated for hyporo"asgeration of Iymptoms during an examination of tho lumbar spino. He also demonstrated pain with bllically every position of the e"amination, He also demonstrated pain with any maneuver pcrfonncd during the e"amination despite the genlleness. II is important to note that his hip did move comfortably with rango of motion symmetric with the other side. There was appropriate intcm!ll and extcma1 rotation with no tlell.ion contracturo about the hip and normal extension. This WII symmetric bilaterally. It is also important to note that with relpcct to the left knee, there was no effiJaion and there was good and apptopriate range of motion. IMPRESSION: Possible trochanteric bunitis as a result of a fall on the right hip. It is impossible to evaluato this, given tho patient's hypere"asgcration of symptoms manifested during e"amination, It is known that quite severe cases of trochanteric bursitis will give a positive bone sean, His bone scan was negalive by July of 1994. With respecllo tho left mee, I agree with Dr, DeMuth that the findings probably represenl chronic changes. I do nol think ono fall causes osteoarthritic changes in the articular cartilago unless it i. an iJUwy that has resulted in a discrete focus of osteochondritis dissecans. This waa nol fOWld in this patient in that Dr. DeMuth did not code for this. This is an iJijwy that usually OCCIlI'1l in YOWlger patients. The patient, in all likelihood, position of the Defendant with respect to the damages being claimed by the plaintiff is as set forth in the report of Dr. David c. Baker dated April 26, 1996, a copy of which is attached hereto. Dr. Baker has been deposed for purposes of trial. 3. A .tatement a. to the prinoipal i..ue. of liability and dUlaqe. . Liability is admitted. The principal issues concerning damages are what injuries did the Plaintiff sustain as a result of the accident at the Penn Harris, what treatment has the Plaintiff received which is related thereto, and whether the Plaintiff's current medical condition and complaints are as a result of the injuries received in the accident at the Penn Harris, or are a result of prior medical and physical conditions of the Plaintiff. ... A .Wlllllary of legal issue. regarding admissibility of te.timony, eXhibits, or any other matter, and legal authorities reUed on. Plaintiff has indicated that he will introduce photographs depicting the condition of the risers at the Penn Harris at the time of the accident. These photographs would only be relevant for purposes of establishing liability. Since the Defendant is admitting liability, the said photographs are not relevant and would only serve to inflame and unfairly prejudice the jury. 5. The identity of witnesses to be called. Dr. David C. Baker, M.D., F.A.C.S. (by video tape). I. A list of exhibits with brief identification of eaoh. (a) Report of Dr. David C. Baker dated April 26, 1996 (b) Various exhibits which were marked for purposes of identification during the trial deposition of Dr. Baker. Counsel has not yet received the transcript of the deposition. 7. The ourrent status of settlement negotiations. Plaintiff's demand is $500,000; there has been no offer DAVID C. BAKER, MD., F.A.C.S. BELVEDERE MEDICAL CENTER 8S0 Walnut Bottom Road CarUsle, PA 17013 (717) 243-9010 IOlrd t.rtlflld lh Orthop.'d1c IUf91ry Hlmber ""'.rican ~c.d.",y or Orthoplt41C IIUfv.onl April 26, 1996 Bialkowski & Savi18ky 1006 Pittston Avenue P.O. Box 1216 Scranton, PA 18S01-1216 RE: Joseph Maldet Dear Sir: I pcrfonned an Independent Medical Examinalion on Joseph Maldet in my office at ISO Walnut Bottom Road, Carlisle, PA on Joseph Maldet on April 26, 1996. The following is a report oflhat exarninalion: Mr. Maldet relates a history of the bUury stating that on October 23, 1993 he was on . ataae at the Penn HIniJ Hotel when standing he somehow feU. landing into the back of a chair and part of a riser. This was apparently part of the slaie apparatus. At that time he was employed with the Disabled American Veterana and was the loca1 executive and this accident occuncd while at a Disabled American Veteran convention. The patient atates dlat at that time he had immediate pain in the right hip as weD 8ft in the left knee. Despite therapy and aurgict1 treatment of the left knee, he states he has had pcnistcnt pain in these joints. PAST MEDICAL HISTORY: Significant for having two myocardial infarctions, He has alao had surgery tOr colon cancer in 1971. He takes multiple medications including Cogcntin, Pri108CC, Carafatc, Serax, Cardizem, Benadryl. He also takes Morphine or a Morphine-like subetance (1 Methadone). Past Medical History is also significant for having five surgeries on his right knee ~ resulted from an bUury to the right knee that he sustained on a radiation accident while in the service, Past Medical History is also significant for being involved in a motor vehicle accident in August of 1995. He sustained an injury to his left shoulder without a fracture or dislocation that apparcndy resulted in left upper extremity reflex sympathetic dystrophy. Subiective complaints at this time reiilldlna the left hip and knee: The patient stales tmt he Iw burning in the right hip all the time. He has problema with steps. He states that the mol'll he flexes his knees, the more his hip hurts. It does wake him up at nighl. He localizes the pain to the lateral aspect of the hip at the trochanter region and not the groin, PliO 2 RE: Joseph MaIdel With I'ClpecllO lubjectlve complainll to the left knee, he ltalea thAt It arinds,crunchea, IIId popa. He ltatee thAt arthroscopic IlIIJery WM perfonned by Dr. DoMIIlh In March of 1994 IIId It did nol help. He "w1lhed he hid n~er had II done." The patlenl il cUlTC1llly nol working. He IlAIel that because of his phylh:a1 problema he II not Ible to work. PHYSICAL EXAMINATION: Mr. MaIdel Is III alCIt oriented male who presented wearina a right lower extremity brace with a pelvic band. ThIs encompasscs his righl calf and hIa right knee with a hinge at the knee IIId the pelvll, On his left knee he wore a canvas hinged knee brace. The patient llales thaI he had difficulty ltanding without his bracea or walking without hll bracea. He allO used a CIllO for IIIlbulaloly Mslltance. Examlnallon of lite hips reveal no visible abnonnaJitics. There is no erythema, warmth, lOft tislUC swel1ing of either hip. He docs have tenderness to palpation at the greater trochanteric region. Trendclenberg .Ign is negative bilaterally. He hM .ymmetricaJ range of motion of the hips on inlcmaland extcmaJ rotation, although they go 10 300 of extema1 rotation IIId 200 of Internal rotation and causes the patient significant pain in the grealcr trochanteric region. It Is important to note that stroking the skin also cauaed pain. This WM done over the grealer trochanler. With relpecllo the knees, he baa a SO flexion contracture on the left and fW1 exlcnlllon on the left. He flexes to the left 10 11 SO and flexes to the right 10 1000. No ligamentous Instability II present He doct have two .CArl over the right knee at the medial aspect of the knee, one 6 cm. and oblique, one com:sponding to the joint line IIId 8 cm. There II no IigamenlOUl Instability bilatcralJy with a negative anterior IIId posterior Drawer leal Mcdlalllld lalcral collateral ligamenta arc intact In extension and 300 of flexion. There il diffuse tcndcmesl about the medial aspect of the knee and varus and valgus stressing cause. pain diffiJaely about the knee. There i. lomo patcllofemoral crepitus on range of motion. Palpation of the lateral joint does not cause M much pain along the medial joint line. NEUROLOGIC EXAMINATION: There is no thigh or calf atrophy. They an: symmetric with equal thigh circumference and equal calf circumference measured at equal distant points above the luperior pole of the patella and inferior pole of the patella respectively. There il no detcctible neurologic deficita with good .trength in U, LS and S1. No reflex asymmetry in L4 IIId S 1. The patient baa negative Itraight leg raise test in that no sciatica is reproduced at extension of the hips. ThCl'e are no visible abnomWitiea of the Iwnbar spine other than a very slighl scoliotic cwve. REVIEW OF X.RA YS: X-ray of the right hip taken on June 10, 1994 shows no evidence of osteoarthritis. There is one area of ossification adjacent to the grea!cr trochanter II well as a very thin linear density along the lalcral cortex below the greater troclwller, Bone scan taken one month later in July of 1994 showed no upUke in tho region of the hip with slight increaaed uptake in the medial margin of the right knee. MRI'. of both hips on July 19, 1994 show no abnonnallties. MRI of both hips on 3/10/94 shows no abnormalities, Initially the palicnttold me he had his surgery in March of 1994, but from Dr, DeMuth's notes, it appcars that he performed the surgery on April 24, 1994, PliO 3 RE: 10eeph MaIdel REVIEW OF RECOR,OS; I revlowed recorda from Dr. Cho, Dr. DeMuth. Scldlo Memorial Hoepllal Rehabllitation Cenler and It is importanl to note that thero wu no operative note in tho report. However, in a loiter 10 Edward Guido, Dr. DeMuth .tates that he did not know whether tho fall from tho .laio precipitated hia .ymploml. "The changes that were fOWld in his knee wen: rather chronic in nature IIld would be expected to be a result of a apecific ovent in my opinion." Bued on the diagnoeis from tho MRI and Dr. DeMuth'. postcp diagnosis, he had a left knee arthroscopy with par1ial medial mcnlacectomy and shaving of the medial femoral condyle. ThIs would corrcapond with the MRI findings of a medial mcniJcustear. Shaving the medial femoral condyle would cOll'Cspond to removing articular cartilage that was frayed from tho end of the bone, apecifically the medial femoral condyle. It is also imporlAntto note that the patient is on Morphine. He states that this is more for the left shoulder and left hand problem. Thcae aro notspccifica1ly evaluated by me. It is important to address the x-ray findings II on one report from the plain film of 1111\e 1994 the pos.ibllity of periosteal new bone formation was raised. This could represent a response 10 i1UurY with new bone forming, similar 10 those refonned with fracture healing. This could occur without the presence of a complete fracture. Tho fact that this did nol occur is confinned by the bone scan of 1u1y 1994 which showed no uptake in this region. If the clw1gca seen on the plain films were the results of an bUwy that WII still metabolically active, there would be increased blood flow to this area and increased uptake in the bone phase of the bone scan. This was not discovered. OBJECTIVE FINDINGS: The patient demonstralcs few objective findings 10 suggest .ignificant Wldcrlying pathology. He has many subjective complaints and during the exunlnation he demonstrates hypcrcxaggeration of aymploms as demonstrated by stroking the skin over the right hip. He also has pain in the right hip with just gende rolation of tho pelvis in a standing position, This ahould nol be expected 10 initate either the fcmtoral acetabulum articulation or the greater trochanler. These arc analogous to the "Waddell's aigtlll" as demonstrated for hyperexaggeration of .ymploms during an examination of the lumbar apine. He also demonstrated pain with basically every position of the examination. He also demonstrated pain with any maneuver pcrfonned during the examination despite the gendencss. It is important to note that his hip did move comfortably with range of motion symmetric with the other side. Then: was appropriate intema1 and extema1 rotation with no flexion contracture aboulthe hip and nonnal extension. This was symmetric bilaterally. It is also important to note that with respect to the left knee, there was no effusion and there was good and appropri.te range of motion. IMPRESSION: Possible trochanteric bursitis as a rcault of a fall on the right hip, It is impossible to evaluate this, given the patient's hyperexaggeralion of symptoms manifested during examinalion. It is known that quite sovere cases oftrochantcric bursitis will give a positive bone scan. His bone scan was negative by July of 1994. With respect to the left knee, I agree with Dr. DeMuth that the findings probably represent chronic changes. I do nol think one fall causes osleoarthritic changes in the ar1icular cartilage unless it i. an i1\iW'Y that baa reaulted in a discrete focus of osteochondritis dissecans. This was not found in this patienl in that Dr. DeMuth did nol code for this. This is an il\iwy thai usually occurs in younger patienla, The patient, in all likelihood, SHERIFF'S RE'l\1RN CCl'+lONWEAL'IH OF PENNSYLVNHA, C'OUN'I'Y OF CI.MBERLI\ND In the Cour-t of Common PleaD of Cumberland County, Pennsylvania No. 94-4944 Civil Ter-m Complaint in Civil Action Law and Notice Joseph J. Maldet and Bar-bar-a A. Maldet, husband and wife VS Penn Har-r-1s Company, a Pennsylvania Cor-par-at ion t/d/b/a Radisson Penn Har-r-is Hotel & Convention Center- M ichae 1 Bar-dck , ShBcI.:lillOtX Deputy Shedff of C\.rnberland County, Pennsylvaniar who being duly sworn acconling to law, says, that he seNed the within Com laint in Civil Action Law Penn Har-r- is Company, a PA Cor-p. t a upon Radisson Penn flar-r-is flotel & , the defendant, at Convention Center- p.M. III1IW EDST, on the 6th day of September- and Notice 2:34 o'clock ,1994at Route 11 . 15 and Er-for-d Road, Camp flill , Cunber-land County, Pennsylvania, by handing to Dean Bliss, Gener-al Manager- of defendant Penn Har-r-is Company a true and attested copy of the Complaint in Civil Action Law and Notice r and at the same time dir-ecting his attention to the contents ther-eof and the "Notice to Plead" endor-sed ther-eon. Sheriff's Costs. Docketing Service AffidavIt Sur-char-ge 14.00 8.40 So answers. . r'~~~p~ 2.00 24,40 R. Thanas Kline, Sher-iff Pd. by Atty. 9-8-94 ~I by /8 ,. ) //z--<~-l<') _J......-<___, ~ , Deputy Sheriff SWorn and subscr-ibed to bafor-e roo this /Sr:!:- . day of '",~J.'[I .t~,:,,-, 19 ,; '/ A.D. -"-'- '. .I"-'I'JJ'~ '7/" r.( (....... ;. ',....'r; !_ f J' . . ~_ Prothonotar-y SAIDIS, GUIDO, SHUFF ... MASLAND 16 W, Hllh 5'..., ClIli,l., PA 4, At said time and place the Defendant was in the business of owning and operating a hotel and convention center. 5. At said time r the Defendant had been contracted to provide accommodations for the Fall Executive meeting of the Disabled American Veterans Department of Pennsylvania. 6. At said time and placet Plaintiffs were guests at Defendant's establishment and at~~nding the aforesaid Fall Executive meeting. 7. The accommodations provided by Penn Harris for the said Executive Meeting includedr inter aliar a stage consisting of two (2) sets of 4' x 8' risers placed together. 8. The stage was set up with two podiums and numerous chairs. 9. During the course of said meeting, the chair of a member of the party on the stage fell through a hole in the stage injuring said individual. 10. While attempting to aid said member, Plaintiff Joseph J. Maldet's right foot got caught in anoth~r hole in the stage, causing him the serious and severe injuries and damages hereinafter set forth. 11. The holes referred to in paragraph 9 and 10 above were concealed by carpeting covering the stage. 12. Plaintiff Joseph J. Maldet's injuries and damages set forth herein were the direct and proximate result of the negligence of Penn Harrisr its agents, servants and employees, then and there occurring. 3 SAlDIS, GUIDO, SHUFF '" MASLAND 26 W, HI.h Stml CorIl.I., PA 13. Defendant, its agents, servants and employees, were negligent generally and in the following particulars I (a) In failing to provide safe accommodations for Joseph J. Maldet while he was a guest and/or business invitee; (b) In failing to properly erect and/or maintain said stage; (C) In failing to warn Plaintiff Joseph J. Maldet of the dangerous condition of the stage which it knew or should have known existed; (d) In failing to properly inspect the stage before allowing it to be used. (e) In concealing the dangerous condition from Plaintiff Ma1det. 14. As a direct and proximate result of the negligence of Defendant, its agents, servants and employees then and there occurring, plaintiff Joseph J. Ma1det sustained the following serious and severe injuries, some or all of which may be permanent: (a) Injuries and damages in and about the right foot, ankle, hip and buttocks; (b) Aggravation of a previous injury to his right knee; (C) Injuries and damages in about the left knee; (d) Emotional trauma; (e) Disfigurement; 4 SAJDlS, GUIDO, SHUFF " MASLAND 26 W, HI.h Sire" Cull.le, PA (f) Shock and injuries to the nerves and nervous system. 15. As a result of the injuries aforesaid, Joseph J. Maldet has been damaged as follows: (a) He has suffered and will continue to suffer great pain, inconvenience, embarrassment, humiliation, discomfort, distress and mental anguish; (b) He has been and will be required to expend large sums of money for surgical and medical attention; (c) He has been and will be deprived of his earnings; (d) His earning power has been reduced and permanently impaired; (e) He has been and will be deprived of his ability to enjoy the pleasures of life. WHEREFORE, Joseph J. Maldet demands judgment against Penn Harr is in an amount in excess of $25,000.00. demanded. A jury trial is COUNT .1.l 16. The allegations of paragrap:t 1 through 15 above are incorporated herein by reference. 17. As a direct and proximate result of the negligence of Defendant as set forth above, Plaintiff Barbara A. Maldet has lost and will continue to lose the consortium, society, comforts and assistance of her husband, Plaintiff Joseph J. Maldet. 5 VlRIrICATIOIf I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. DATED: !~~O.f y ~i~ 8 Respectfully Submitted, BIALKOWSKI &I S Y SKI, JR., ESQUIRE t neys for Defend nt F rat Floor, PNU Bull n 1006-1016 Pittston Avenue Scranton, Pennsylvania 18505 (717) 343-9988 Attorney 1.0. No. 19431 " "';',.. '-,.) ,." . . .' ~~, --: . t., ':1 .. ," , j ,{, ,,' " , '--' " , , -.. I , " , , , 3. After reasondble Investigation the De(endantls wllhout knowledgp. or information su((lclent to (orm a belle( o1S to the truth o( the allegations contained In paragraph 3 o( the Plainti((sr Complaint and the said allegations arc, therefore, deemed denied and placed in issue. Strict prool thereof h dp,manded at the trial o( this case. 4, Admilled. S. Denied as alleged, On the contrary, atlhe time alleged the De(endant had a c()ntractual relationship with the Disabled Amencan Veterans to provide certain arrangenlcnls to the Disable Americ.lIl Veterans in accord,lIlce with the terms and conditions o( the v.uious documents which comprise the contractual understanding 01 the Delendant and the Di,abled American Veteran" 6. Alter reasonabll' investigation the De(endant js without knowledge or information su((icient to (orm a belie( as to the truth o( the allegations contained in paragraph 6 01 the Plainti((s' Complaint and the said allegations are, therefore, deemed denied and placed in issue. Strict proof thereof is demanded at the trial o( this case, 7. Denied as alleged, On the contrary, the De(endant provided to the Disabled American Veterans, in accordance with its Agreement, a stage consisting o( live sets 01 six (eet by eight (eet risers pl,lCed together, 8. Denied as allel\ed, On the conlrary, the stage was set up with one podium and approximately twelve chairs. 9-12. After reasonilbl(! investigation the De(endam is without knowledge or 3 Information sufficient to form a belief as to the truth of the allegations contained In paragraphs 9 through 12 inclusive of the Plaintiffs' Complaint and the said allegations arer therefore, deemed denied and placed in Issue, Strict proof thereof is demanded at the trial of this case, By way of further answer, the allegations contained in paragraphs 9 through 12 inclusive of the Plaintiffs' Complaint contain conclusions of fact and of law to which no response is required under the Pennsylvania Rules oi Civil Procedure and they are, therefore, deemed denied and placed in issue, Strict proof thl'reof is demanded at the trial in this case, 13. Insofar as the allegations contained in paragraph 13 of the Plaintiffs' Complaint, and ih 5ubparts, aver, infer or allege that the Defendant knew of any dangerous condition of the ~lage lhey are specifically denied. It is further specifically denied that the Defendant concealed any dangerous condition of the stage of which it was aware as the Defendant W,15 not aw.ue of any dangerous condition of the stage. The ren1.lining allegations contained in paragraph 13 oi Ihe Plainliffs' Complaint, and its subparts, (ontain conclusions of fact and of I.lW to which no response is required under the Pennsylvania Rules of Civil Procedure and they are, therefore, deemed denied and placed in Issue. Strict proof thereof is demanded at the trial in this case, 14-15. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief .1S 10 the truth of the allegations contained in paragraphs 14 through 15 inclusive of the Plaintiffs' Complaint and the said allegations are, 4 therefore, deemed denied and placed in Issue. Strict proof thercof is demanded at the trial of this case, By way of further answer reference is 1Il00de to the prOn?l'(tlng p.Jrolgraphs of this Answer which arc incorporolted herein by reference as fully oIS though the same were here set (orth at length. NEW MATTER By way of (urther answer the Defendant avers the following New Maller: 1501. If the accident occum',1 as alleged, the condition complained of did not create a reasonably foreseeable risk proxilllate to the Injuries, 15b. Plaintiffrs injuries, as alleged, were caused by other persons or parties which were intervening, superseding causes of Plaintiff's alleged injuries, 15c. The causal negligence of the Plaintiff was greater than any negligence on the part of the Defendant. Therefore, 42 Pol, C.S. 91102 is a bar tll Plaintiff's recovery. In the alternative, the Defendant avers that any recovery arising from this cause of action must be diminished in accordance with the Pennsylvania Comparative Negligence Act, 15d. The Plaintiffs' claims and any rights to recover .Igainst the Defendant are barred in whole or in part by 11ll' applicable Statutes of limil.llions, other si"1ilar Statutes, contractual provisions and other fundamental principles of I.\w including estoppel, waiver and l.lChes, 15e. The Plaintiff knowingly .lJ1d volunl.Jrily expo-cd himself to the hazards 5 complained ofr and said conduct cOlIStltutes an assumption of the risk and bars Plaintiffs' claims Jgalnst the Defendant. 15f. Plaintiff's Complaint falls to state a cause of action upon which relief can be granted. 15g. To the extent Plaintiff or any party avers or allempts to .1Pply the provisions of Pa, R. c.P. No. 238 against this Defendant, It is averred that said rule is unconstitutional under the Federal and Slate Constitutions, 15h. In the event that the Plaintiff has already or in the future enters into any settlement with, or executes any release of any present or future Defendant or Additional Defendant or any non-party, Plaintiff's claims against this Defendant are reduced by the greater of (a) the amount of consideration or payment received or 10 be received by Plaintiff, or (b) the proportionate or pro-rata share of liability of the sellled or released party or non- party as determined pursuant to the applicable comparative negligence statute, 151. All actions taken by the Defendant with respect to the Plaintiff were proper, lawfl,ll, correct and in fl,lll accord with all applicable statutes, regl,llations, customs, laws and usages. WHEREFORE, the Defendant demands judgment in its favor. COUNT II 16. In answer 10 paragraph 16 of the Plaintiffs' Complaint reference is made to paragraphs 1 through 15 inclusivl' of this Answer which are incorporated herein by 6 reference as fully as though lhl' same were here set forth 011 length. 17. After re.lsonable investigation the Defend.lntls wllhout knowl,'dge or Information sufficient to forl11 II belief as 10 the trulh of the dllegations corll,llned In paragraph 17 of the Plaintiffs' Complaint and the Solid .llIegdlions .lre, therefore, deemed denied and placed in issue, Strict proof thereof is den1.lI1ded at the trial of this Cdse, By way of further answer reference is made to the procl'l>ding paragraphs of this AllSwer which are incorporated herein by reference as fully as though the same were here set forlh at length. NEW MATTER By way of further answer the Defendant avers the following New Maller: 1701. If the .lCcidl'nt occurred as allegl>d, the condition complained of did not create a reasonably foreseeable risk proximate to the injuries. 17b. Plaintiff's injuries, as alleged, were caused by other persons or partlfls which were intervening, superseding causes of Plaintiff's alleged injuries. 17c. The causal negligence of the Plaintiff was greater than any negligence on the part of the Defendant. Therefore, 42 Pa, C.S. ~7102 is a bar to Plaintiff's recovery. In the alternative, the Defendant avers that any recovery arising from this cause 01 action must be diminished in accordance with the Pennsylvania Comparative Negligencf Act. 17d. The Plaintiffs' claims and any rights to recover .1gainst the D. rendant arc barred in whole or in part by the applicable Statutes of limitations, other simil-ir 7 Statutes, contractual provlslollS and other fundamental principles of law Including estoppel, waiver and laches, 17c. The Plaintiff knowingly and voluntarily exposed himself to the haz.Jrds complained of, and said conduct constitutes an assumption of the risk and bars Plaintiffs' claims against the Defendant. 17f. Plaintiff's Complaint f.IIls to state a cause of action upon which relief can be granted. 17g. To the extent Plaintiff or any party avers or attempts to apply the provisions of Pa, R, c.P. No. 238 against this Defendant, it is averred that said rule is unconstitutional under the Federal and State Constitutions. 17h. In the event that the Plaintiff has already or In the future enters into any settlement with, or executes any release of any present or future Defendant or Additional Defendant or any non-party, Plaintiff's c1,llms against this Defendant are reduced by the greater of (al the amount of consideration or payment received or 10 be received by Plaintiff, or (bl the proportionate or pro-rata share of liability of the sellkod or released party or non- party as determined pursuant to the applicable comparative negligence statute, 171. All actions taken by the Defendant with respect to the Plaintiff were proper, lawful, correct and In full accord with all applicable statutes ,'egulatlons, customs, laws and usages. 8 WHEREFORE, the Defendant demands judgment In Its favor. Respectfully Submitted, BIALKOWSKI &I SAVITSKY, P.C. ~ ~~~ Y UNT R. BIALKOW I, JR., ESQUIRE fii. orneys for Defendant First Floor, PNU Buildln 1006.1016 Pittston Ave e Scranton, Pennsylvania 18505 (717) 343.9988 Attorney 1.0. No. 19431 9 - 15g. Denied. The averments contained therein are conclusions of law to which no response is necessary. 15h. Denied. The averments contained therein lire oonclusions of law to which no response is necessary. 151. Denied. The averments contained therein are conclusions of law to which no response is necessary. COUNT II 17a. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17b. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17c. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17d. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17e. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17f. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17g. Denied. The averments contained therein are conclusions of law to which no response is necessary. 17h. Denied. The averments contained therein are SAIDIS, GUIDO, SHUFF '" conclusions of law to which no response is necessary. MASLAND 26 W. Hilh S''''<I 171. Denied. The averments contained therein are Carlille. PA conclusions of law to which no response is necessary. 2 WHEREFORE/ Plaintiffs pray this Honorable Court to dismiss the New Matter of Defendant and enter judgment in their favor together with costs of this action. Datel fJIJ,)f',J Respectfully submitted, SAIDIS/ GUlOO,j>HUr & MASLAND k_.c;,/I BYI ---:::? y/~J Edward E. Guido, Esquire Supreme Ct. 1.0. * 21~06 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs 3 CIRTIrICATI or IIRVICI On this Ju+-fl day of?)~ , 199"'1', I, Edward E. Guido, Esquire, hereby certify that I served a true and correct copy of the foregoing Reply to New Matter upon counsel for all parties of record via United States Mail, postage prepaid, addressed as followst Zygmunt R. Bialkowski, Jr, Esquire BIALKOWSKI & SAVITSKY First Floor, PNU Building 1006-1016 Pittston Avenue Scranton, PA 18505 DATED: (",f Jc('i 4- SAlOIS, GUIDO, SHUFF & MAS LAND ~~ By: Edward E. Guido, Esquire 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiffs 5 JOII'B J. KALDIT and BARBARA I A. KALDIT, bu.band and wife I 'laintiff. I I v.. I I 'INN BARRIl COK'ANY, a I 'ann.ylvania corporation, I t/d/b/a RADIIION 'INN HARRII I BOTIL . CONVINTION CINTIR, I Dafandant I IN THI COURT 0' COKKON nUl 0' CUKBIRLANDCOUNTY, 'INNIYLVANIA NO. '4-4'44 CIVIL TIRN CIVIL ACTION - LAW JURY TRIAL DIMANDID NOTICI 0' TAKING DI'OSITIONS ON ORAL IXAMINATION 'URSUANT TO 'INNSYLVANIA RULBS 0' CIVIL 'ROCIDURI RULI 4007.1 TOI IAJUlARA A. KALDIT 0/0 Idward I. GuidO, I.q. 3. .a.t Hiqb Straat carli.la, PA 17013 KOTICI II BIRlBY GIVIN that, pursuant to Pennsylvania Rules of civil procedure, Rule 4007.1, the oral deposition of Barbara A. Maldet will be taken before a standing commissioner or other person authorized by law to administer oaths, on Monday, August 21, 1995 at 2:30 P.M. at the law office of saidis, Guido, Shuff & Masland, 26 West High street, carlisle, Pennsylvania 17013 and at any and all adjournments thereof. The subject matter of the deposition will be to inquire into the facts and circumstances surrounding the incident made the basis of the above-caption.d matter. The information to be inquired into ~ )- ); .. ~11 . "',= , " (L. " In t~ ' .... <""> ~., '5 ''l'r' -, JOSEPH J. MAl.Dl!1' and DAIU4AItA A. MALO!!1', husband and wife Illalntlffs IN TIll! COllin Oi' COMMON l'IJ!A.1i 01' CllMUI!lUAND COUNTY, 1'llNNSYLVANIA vs. NO. 1}4-4l)44 CIVil. TmtM CIVil. ACTION - I.AW PI!NN HARRIS COMIlANY, a Pennsylvania Corporallon, tldlbla RADISSON IlENN IIAIUUS 1I01'l!L & CONVl!NTION Cl!NTI!lt, Defendant .JIJltY TIUAL DEMANDl!D NOTICE OF TAKING DEPOSTlON 1I0R LJSJLAJ: TIUAL TO: JOSI!1l11 & BAIUlMA MALnl!T clo Edward I!. Guido, Esq. 26 Wesl IIIgh Slreel Carlisle, I'A 1701:i NOTICl! IS III!IU!BY GIVEN lhal, pursuanl 10 Pennsylvania Itules of Civil Procedure, Rule 4<XI7.1, the oral deposlllonot' Dr, David Baker will he taken for use at trial before a Standing Commissioner or olher person aUlhorll.ed hy law to administer oaths, on Wednesday, .June S, 11}l)b at 2:00 P.M. al KSO Walnut Bottom Road, Carlisle, Pennsylvania 17ll I.i and al uny ,1Ild all adjournmenls thereof, Itespel:lt'ully suhmllled, BIALKOWSKI ,~SAVITSKY P.c. / .. I '\ 'i '.1 I ," \ / ,,\ ~ , 'I.Y; liNT It B1AI.KOW KI, JR., l!SQ, At t rney for Dcfendan l'lrsl Floor, PNII Bulldln 100b-llll n Plttslon Avenue Snanlon, PA I/lSOS (717) :i4:i-l)l)/l/l Attorney J.D. Numher 1 L)4:i 1 " . "l . i .. I .. 'rIY' "...~ : ~ Ii " . If: . , ~~: u... ! r';" , t , If; ( , /. I .-1,. ;.1 . ,1.1... II. , -, .. . PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PIUl'HOl'Ul'AR'i Of' CUMBERLAMl CXlUNJ'Y Please list the following casec (Check one) x for JURY trial at the next term of civil court. for trial without a jury. ----------------------------------------- CAPI'ION Of' CASE (entire caption I1l.Ist be stated in full) Joseph J. Maldet and Barbara A. Maldet, husband and wife, (check one) (x) Civil Action - Law Appeal from Arbitration (other) ( Plaintiff) vs. Penn Harris Oampany, a Pennsylvania corporation, t/d/b/a Radi.sson Penn Harris Hotel and Convention Center, The trial list will be called on 6/11/96 and , .,.' (Defendant) Trials commence on 7/8/96 Pretrials will be held on 6/19/96 (Briefs are due 5 days before pretrials. ) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) vs. No. 4944 Civil 1994 Indicate the attorney who will try case for the party who files this praecipel Edward E. Guido. Esauire. 26 West Hiqh street. Carlisle. PA 17013 Indicate trial counsel for other part ies if known c ZVQl1lunt R. Bialkowski. Jr.. ERQJ,lre. 1006-1016 Pittstor. Avenue. P.O. Box 1216. Scranton. PA 18501 1216 This case is ready for trial. .~ Signedc Datel 1/;;,,1, <,. Print Name I ~ard E. Guido. Esauire Attorney forI Plaintiff " "--. i t. f I U ~ '. ( ,. , , I':' ::~j I. t..) f} r. " , I! J'.; " .'!j , .J tL , , ~ I I. I , I 'I ; .....1 U