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Home My WebLink About94-06095 j,. "I II, I , '\1 ,,' t' " , " " , "', , , ' ,'I,: , , , " , " I,' , \1;,' 'I " 'I 'I I' ',.'1 , " , , I , 1 , , ",,' , " ',' ,.Ii , ',I'i; II ~ I 'i"j::, "1 i' 1 , " , t jl,l " , , 1\'1, , , , , " I;, , I"., . \' '.j ',' j' " " I': "~I il " " ,II "'j [, , , I',' , ,I'" 'I ''; , , " '., , , ) , I , , ~'~ :'"1 .' " {'\ , ,)t , \,',\1 ,'~r~ '.~JI: ,Itl'} "f' ';i: :,:Ji ,VI 1.." .f~-j~ !~ 'I~\ jl~I':i ; ,"':ij,iJ '1,1\:,,; 1,;,1,); ;" ., ,II '~l ;)~ HI' \,'11 II q ,I i' ~ i ,. 'il I :~ H ;q ';1 t;j ".j 'r1 " ,;- " ',;;'; 111 , :,~ 1,/ '/,'tf ,::j ,:!~ , 'iII , ,/ ::~ "I " " , , ',' , , " , , '" 'I , ,I" '" ',I. ',' " " " , "I I.' ;'i " I''! '," , , "', ".. '," ," "; II' ,,': " I' " 'iI ,) .. " , , ,I t, po ] I,' ,,' " " ", n r ~ " I, i' ',1, "~I -J " "I ~,9 \ ',:' \!' \:t~ ~.- ""--- j I .,i.I" cr IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DiSTIller CUMBERLAND COUNTY, PENNmVANIA DENNIS E. HOCKENBERRY, CIVIL ACTION . LAW Plaintiff Q4. l.ROCfs C' '''.,. ~.. \-.R.,\',T'\ NO. Civil 1884 v. ARTHUR LINDSAY, JR., Defendant ell.QDCle You have bean sued in Court. If you wish to defend egainst the claims set forth in the following plges, you must take Iction within twenty (201 deys efter 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 ere werned thet it you fail to do so, the clse mlY proceed without you Ind a judgment may be entered against you by the Court without filrther notice for any money claimad in the complaint or for any other cleim or relief requested by the Petitioner. You mlY lose money or property or othar 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 . Court Administrator CUMBERLAND COUNTY COURTHOUSE High Ind Hlnovar Streets , Clrlisll, Pennsylvania 17013 Telephone (7171 240.8200 i " , , . VERIFICATION "', d' I vlrify thlt thl stltlments mlde in this Complaint ere true Ind corrlct. I undlr.tl"d thlt fll.1 stetements herein ere mede subject to the penelties of 18, PI. Cons. Stlta,' S 48,04, relltlng to unsworn felsification to euthorities. " Oeted: '?/ r 9 y Q-..:. ~ 4~ DENNIS E. HOCKENBERR . " , , , , ',' , , ,J.' 1"-~ ') f"~" vJ1 " , , _fU,J ,', f';; 11') ,- C . r~ .. ,J..; ~':l~') N '.. >c \.,,. .,1,:'. , . , It-,I W'O ~;~ ~}L ' (,c. v) (' . .... r. N ~jO -.-.fl ;>0. r.,} U. .'1. ~ ~:- , :1; " r- .l ~', u" :,l I - i , r . ~ ~ I;Il - i ~ ~ if <Il[oj _ I e III ~ !:/:; I ;:; Eel i7i ..... ~~SS:l;:!E '...z"'=_... is IIlCIJ ...._ j~: ~ E.. ...- < ~ ~... ~ !~ . . . . - ., . '... . 94-070 DBNNIS HOCKENBERRY, Plaintiff IN TUB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANIA DOCKET NO. 94-6095 CML ACTION - LAW JURY TRIAL DEMANDBD vs, AR11IUR UNDSA Y, Defendant STIPULATION OF COUNSEL It is hereby stipulated by the parties through their counsel thai the Plaintiff had elected the limited tort option of his automobile insurance coverage at all times relevant to the above captioned action. Richard M. Morris, Jr" 318 But King Street Shippensbura, PA 17257 (717) 53(}'8579 Attorney (or Plaintiff Court I,D. No. 744.54 con A. Freeland, Esquire 214 Senate Avenue, Suite SOl Camp Hill, PA 17011 (717) 731-0988 Attorney for Defendant Court 1.0. No. 55663 n.ted:-51;).&\ 11 Dated: 5~z~ -er7 " ,'. . ~ .. 94-070 DENNIS B. HOCKENBERRY, IN TIlE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. DOCKET NO, 94-6095 1994 AR11IUR UNDSA Y, JR., CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICB SCOTT A, FRBBLAND, ESQUIRE, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and correct copy of Stipulation of Counsel to be served by hand delivel'Y upon: Richard M. Morris, Jr., Esquire 318 Bast King Street Shippensburg, PA 17257 Date:. q.Q8/97 CO<< A. Freeland, Esquire Attorney for Defendant v, : IN nlE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ; No, e..8095 : CIVIL ACTION LAW : JURY TRIAL DEMANDED DENNIS E, HOCKENBERRY, Plaintiff ARTHUR LINDSAY, JR. Defendanl PETITION FOR Ae.e.QINTMENT OF ARBIIBAIQB.& THE HONORABLE JUDGES OF SAID COURT: Richard M, Morris, Jr" counsellor the plainllff In the above action, respectlully represents that: 1, The above captioned action Is at Issue , 2, The claim of the plainU" In the action Is S 10,000,00, There is no counterclaim, The followtng attorneys are Interested in this case as counselor are otherwise dlsqualltled to sit 8S arbllrators: Forrest Myers, Scoll Freeland, Jeffrey 8axter, Donald Dorer, WHEREFORE, your pelllloner prays your Honorable Courtt" appoint three (3) 8rbltr81ors to whom the case shall be submilled, R~\:'rbm." ~ )i~ftll~ ~/ AND NOW, this ti the '?:;P" petl", A." U. prayed for, By the Court, ikJ; ~f~ ! f ' J .-' ALEI)'OFFICE 0'= T1'r: I:II""''\.!(''.'OT/,.,y I ,,' . '.. j \1"\ 97APH ! II ^i'lll: "2 Cli" 'I . \' 1'01 ~#'"' \. . , ,. .}, .. ~. \.., ~ I ( PENNS~lV/WA , " " .... If") '.. ".. ..::I f.:~ ~~ '''1'' ~C' }.. , ",'" .. - 't., ~~ :..1 --' ::~. \~j ''"'l ' I)) :11 "J , :'~'.~; ~ _I r -, '<iLL] n: : ~,. ...:'; Do.. I . ", r- ...J U CT' !,,> , ", ..,.. en - ~,~ .,'" ,.-.: ",,-:,-. . !::1.., ...,-' ......: ..)fi. h. ':'1 '.:> O~ '.-J 1_';;. .J,.~ :}l~:~':' ; I, ... Ill"" 1..'l.. ..~ " ie <n ::p, !:.:t co :a. ~ j! i _i IDCi.~!~~ ~ 9!li~t:- j ji !EE~ . . . I 94-070 LAW OmCES OF DONALD R. DORER Attorney for Defendant 3,907 8artzdale Drive, Suite 706 Camp 8111, PA 17011 TeleDhone No. 17171 731.0988 DENNIS B. HOCKENBERRY, Plaintiff IN mB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANIA DOCKB"f NO. 94-609S 1994 vs. ARmUR UNDSA Y, JR., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCB TO mB PROTIIONOTARY: Kindly enter my appearance in the above-captioned mailer on behalf of the Defendant, Arthur Lindsay, Jr. Respectfully submilled, LAW OFFICES OF DONALD R. DORER A. FREELAND. ESQUIRE Allomey for Defendant 3907 Hartzdale Drive, Suite 706 Camp Hill, PA 17011 'felephone Number (717) 731-0988 Identification No. SS663 . . , , -::r , <T) :::0:. ,.~ '.r' - ..;- -j;: '.d; ~;> ,. , ." I.,' '.." ......, , " .., ... 'c:;..~ ' ej~ ~.!~ ~~~.....~~ ~ q~S;~~! ~Ji !EE~' 1 . . . f, ,. . . ". <t . "'-070 LUf on1a8 or DOIIAJ.n a. Do..a Jellr.., Baxter, ..quire Attorn.., lor DelendaDt 3t07 Bart.dale Drive, suite 706 C.-p Bill, fA 17011 ~.laR~ftft. We. (717) 1~1.0g88 -- vs. IN THB COURT OF COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLVANIA DOCKET NO. 94-6095 1994 DBNNIS B. HOCKBNBBRRY, plaintiff ARTHUR LINDSAY, JR., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDBD D.rlRDU'f'S MSna TO fLAlftur'S CClIIl'LA1ft WITH )JJIW llIAT'l'Ba 1. Admitted. 2. Admitted. 3. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief a8 to the truth or falsity of the allegations contained in paragraph three (3) of plaintiff's Complaint. Therefore, the same are denied. 4. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph four (4) of plaintiff's Complaint. Therefore, the same are denied. . 5. Paragraph five (5) ot plaintiff's Complaint sets forth a conclusion of law to which no responsive pleading is required. To the extent facts are deemed to be alleged, they are denied. With respect to subparagraphs (a) through (d) of paragraph five (5) of Plaintiff's Complaint, Defendant denies negligence in any of the following regards: (a) Failing to keep his vehicle under proper and adequate control; (b) Failing to stop at a properly signed intersection; (c) Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence; and (d) Such other acts or omissions as may be revealed in the course of discovery, or at trial of this case. WHEREFORE, the Defendant respectfully prays this Honorable Court to dismiss Plaintiff's Complaint, and to enter judgment against the Plaintiff and in favor of the Defendant. nw llAma 6. Paragraphs one (1) through five (5) are incorporated herein by reference, and made a part hereof as if set forth in full. 7. Plaintiff's claims are barred in whole or in part by the provisions of the Pennsylvania Comparative Negligence Act. 2 8. Plaintiff'D claims are barred in whole or in part by the proviRions of the Pennsylvania No-Pault Motor Vehicle Insurance Act and/or the Pennsylvania Motor Vehicle Pinancial Responsibility Law. 9. Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. 10. By her own actions, the Plaintiff did assume the risk of any and all injuries and/or damages allegedly sUffered. 11. If there is a legal responsibilitY'for the damages set forth in Plaintiff's Complaint, the responsibility is that of other individuals and/or entities over whom Defendant has no control. Plaintiff's injuries and damages as alleged were not proximately caused in any manner whatsoever by Defendant. 12. Plaintiff's claims are barred by the applicable Statute Of Limitations. 13. To the extent that the limited tort option was elected by and applied to the Plaintiff's claim or claims, it is asSerted that such claims are precluded. 14. All matters not heretofore directly controver~ed are hereby specifically denied. 3 WHBRBPORB, the Defendant respectfully prays this Honorable Court to dismiss Plaintiff's Complaint, and to enter judgment against the Plaintiff and in favor of the Defendant. Respectfully submitted, LAW OFFICBS OF DONALD R. DORIR ,1 JIFfRB~ T ,ISQ IRB Attor~e for. efendant 3~07 Hartzdale Drive, Suite 706 Camp Hill, PA 17011 Telephone No. (717) 731-0988 Identification No. 58795 I, .. . "-070 vs. IN THB COURT or COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLVANIA DOCKET NO. 94-6095 1994 CIVIL ACTION . LAW JURY TRIAL DEMANDED DBNNIS B. HOCKBNBBRRY, Plaint!!! ARTHUR LINDSAY, JR., Dehndant V.RII'ICATIOR JBFFRBY BAXTBR, ESQUIRE, hereby states that he is attorney for the Defendant in this action, and is authorized to verify that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 54904 rel&ting to unsworn falsification to authorities. ./.,- December 8. 1994 OATH SHERIFF'S RElURN Cll+Kl'MEAl:IlI OF PENNSYLVANIA: CCXJNTY OF ClMBERLAND In The Court of Common Pleas of Cumberland County, Pennsylvania No. 94-6095 Civil Term Notice Civil Action Law Complaint Dennis E. Hockenberry vs Arthur Lindsay, Jr, Robert L. Fink. Sr. , 9tleXXttlClClX'JalUPuty Sheriff of ClJnberland County, Pennsylvania. wno being duly sworn according to law, says, that he served the within Notice Civil Action Law Complaint , Upon Arthur Lindsav. ;/r. , The defendant at 1: 10 o'clOCk P . M. EST / XIleDr. on tne 04 day of Novllmber , 1994 at 824 Greensprinq Road. Newville ,Cunberland county, Pennsylvania, by handing to A'rthur Lindsay. Jr. a true and attested copy of the Notice Civil Action Law Complaint and at the SIl1le time directing attention to the contents thereof and his the "Notice to Plead" endorsed thereon. Sheriff's Costs: Docketing Service Affidavit Surcharge So answers: 14 .00 8.96 _ ,.., -P' ~~ '-""-- ,,'" . ,1:' ,.~~'X...:.......( -- R. Thomas Kline, Sheriff 2.00 24.96 Pd. by Atty. 11-07-94 by d~;;*:- c7-( ~~ ~rn and subscribed to before me this /0 11'.' day of no,., ..~t.<-" Deputy Sheriff 19 1'( A.D. (')'1'~ (;' !lJ"ff1. ~~ I Prothonotary ~ . .~: .... '-I. . =i: , ..:1_ ..,.,. .... ...... - bl ~' +, "'"'c' .' , , , ~'.I , . '" - :I -. I' .. j! ~I!~ a .i...~;:!~ !~!ii~g! j ~ II is .. 4j ai ~ Et: . . . . . . . . . . ".0'70 VS. IN THB COURT 01' COMMON PLEAS CUMBBRLAND COUNTY, PENNSYLVANIA DOCKBT NO. 94-6095 1994 CIVIL ACTION - LAW JURY TRIAL DBMANDED DBNNIS B. HOCKBNBBRRY, . plaintiff ARTHUR LINDSAY, JR., Defendant VIJlI.ICATIOM I, Arthur Lindsay, Jr., verify that the statements made in the foregoing Defendant s Answer to Plaintiff s Complaint with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. 54904, relating to unsworn falsification to authorities. Dated: l-j~9~) -- ~~ Art ur I. nds , Jr., efenda~t ,~ :: m N ~r: ~ '~4~ ,,"-1(. O~'.Jr. ~-;.I~ l"j r~ . ,...;....-~._i -\7;'1 , " ",",r ,j'" I, ....... ....... Jl , '_:. , , j! ! .g ! 1_:"; iSaC !;~g- j~ !E"~ , !~ ~ , . , ~ . , . . . M-O'7O LAW OFFICES OF DONALD R. OORER Attomey lor Defendant 3907 Bartzelale Drlye, Suite 70Ci Camp aw, PA 1'1011 T.-.one No. (717'1 731.0988 vs. IN nIB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANIA DOCKET NO. 94-609S 1994 DBNNIS B. HOCKENBERRY, Plaintiff ARnruR UNDSA Y. JR., Defendant CML ACTION - LAW JURY TRIAL DEMANDED WlTIIDRA W AL OF APPEARANCE TO mE PROTHONOTARY: Kindly withdraw my appearance on behalf of the Defendant, Arthur Lindsay, 1r. in the above-captioned matter. ENTRY OF APPEARANCE TO mE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendant, Arthur Lindsay. 1r, in the above-captioned matter. ,M2- Donald R. Dorer, Esquire Attorney for Defendant Identification No. 39126 9oHt70 DBNNIS B. HOCKENBERRY, IN nm COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. DOCKET NO. 94-609S 1994 AR1HUR LINDSAY, JR" CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE DONALD R. DORER, ESQUIRE, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and correct copy of the attached Withdrawal of Appearance/Entry of Appearance to be served by regular first class mail upon: Forest N. Myers, Esquire 1??oo Molly Pitcher Highway Shlppensburg, PA 172S7 ~..mbet' 21. 1995 Dete J1& /~f!!~_ V ~ -- Donald R. Dorer, lIIquire Attorney for Defendant , I 'I . .............,............... XIf THB COURT or COIOIO ... ..... .... .1... ~. .....1..... HOCKENBeRry ~ ' Vf. , LINDSAY I ...........*,...*..**.........*~*..**. PLBAS or PUMBBllLAIID COUIITY ............ ............-............ ~ IIIOTI B)OP TO: FOREST MYERS, SQ SCOT , ) r: Nol. 94 6095 , ~CORD DBP~SITIO.. A FREELAND (REQUESTOR) j I' t PLEASE TAKE NOTICE'THAT T E FO OWING RlcORD DEPOSITION lILL BE TAKEN AT 4940 DI88'1'01I S'rIllBT, PHIjDBLP A,~ PA, ON 03/,22/96 AT THE TIME INDICATED. D8P0Il8I1'1':, TIMB: ------------ ----- --------- CARLISLE HOSP 10: 10 A.M. HERSHEY MED CTR t 10: 1~ A.M. , VAMEI.)CTR 10:20 A.M. , l fA lD. CTR , I 10 : 25 A. M. ' There will oe no interrogation 0 the depon,nt, and it ia expeoted that no attorneya will be preaent. If there i8 any objection raiaed by oppoainq counael, deponent will be,notffipd. The pr~ce for the recprd ia aa followa: fir8t fiftee* pagea ~ $f9.00 and each additional pege . $.75 'l'bi. depoaition ia for the purpofe of copying only. A copy of the above notice va. .aUe4 on f . I i \ : ATTORNEY FOR THE DEFENDANT \ . I . By: Deborah A. Grahe. ! ~ MEDICAL LEGAL REPRODUCTIONS, INC. , , (215) 335-3590 .ubP~en, ( .) : roT 1"4 I l i t I , , Ene: Copy of , Couneel "213378\ ~ ~ r j t ~ \ , \1 ~\I \ f I t , \ \ I " , " " , "" , '''I "'j. P. ,', ,,,I ''" }, " , n'" , " ", , , , f.; ,.1< , , mEn-OFFICE OF TI''1: f''''mT:r~:OTN1Y SGIlAR II PHI2r 36. ~""" "II' 'I'{ wo!\...Il.I\..J.,; ,../ ,) t. l,~ ..1 ~ . PCNf';:31LW~M. ,;I't,' 'I' I', I, I' I I;' \ i'I' ,i ." 1........H.._,~~...~~1tJA~ ~'J~'llll~'~'.--.';rlUll___r~lnn. '''IIU~J , . ii, * ,. ~ .t . " 1'-"'; " " ',' " fir HI ,',' " ! ".i .,,') ,..I .. t I';'""':,~ I '~i ~ 1;\ , d I:. , I ~ . I Ii]' i"'1 i:~r~. /\ '.1 I ,r; Ilj " "0' ') II' ,I', " "." ",' 1 " r t. " , ,~ . : ! \ I, ,"'I II " ' , ' IlENNJS E. 1I0CU:Nln:KRY, Plaintiff VS, , IN Tift; COU RT OF COMMON PLEAS CUlltllERlMW COllNTY, PI,:NNSYl.V,\NIA 1l0CKliT NO.\)4 611U5 l11!N " ' AR'/'lItllt l.INIlSE\. .)It.. Il.'rendallt : CIVIl. "',""ION l.AW : ,Hilty TRIAl. UEMANUEll PRAECIPE TO THE 1'ROTIIONO'I'AR\: Ph'nst' onter thl> app"'arll,nce of Richard ,'d. Morrill, .)1'., Esq., I'or plaIntiff. :::::::. "".,.hm, ,,,, ,HI",,,, 'b.' ""."..h.... ~'~~~", '" II,,, 318 E. Kin!.\" St. Shlpp.'nshllrg, 1'..\ 1'12:i7 ' 1,717) 5:)0 8579 t...~X: (717) 5:)lJ 8947 III #: 744:)4 " COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DENNIS E. HOCKENBERRY v. NO: 1994.6095 ARTHUR LINDSAY. JR, CIVIL ACTION PRAECIPE TO: LAWRENCE E, WELKER. PROTHONOTARY Please withdraw my appearance on behalf of the Plaintiff, Dennis 1;, Hockenberry. DATED: Juno 10, IlJ96 \ -*"...,j ~ - Forest N. Myers, Esquire Please enter my appearance on behalfoCthe Plaintiff, Dennis E, Hockenberry. DATED: June 10. 1996 i;' 1:V.lr.: !'1i, i\r,: ". :;ll~O j,t, 'i,~i,;" ,~ , ,\,;1, Ju;j" ":1/, ,;',\' " 'I":., 'i' ".'d, I'. I " ii' "-1' 1,' ,j' " , , " " " , , ),~ i" :;,': I. , , '" ",j .' " , , , a: THE~NlY 96 JUN2~ PH,2135 w.1Uv~'jIY I" " " " J,', " , .......7-''';'''I'8f'.~MU'~.......W~~;rf~~W-f.......''......~ , " ""'f q " ,,f ,I' f1l ..""'_'I'"'""-,...~..'...". j' " I " II " . .' . .', " f , ~ :.1! ,t. " , i 1 t'l , II"'~I:,~, !'., ,1,';\ t, I'"":'''"'' " 1" '" .,,' ",,';' .,' .' 'I> :,;7'11,' I",' ','.' " " " . 'I" " .fr' ',' I', " 1 II" '\ " " , iI' ': " 'I , , " ",,'1 , " I I' i CD r- '" ~-., r M i~1 " :C :..J~ """ 92 ~ N S~ , I ~{,~ ~~. 0,: ~ t;j . .~ ~ ~ < III < rIJ .. - i ~.. ;; eiae ~II Eo<~t I;::: o~~~..r;:::': ~...~..:l':!:; < ..~ tI}="" t-- ..l ~ ., '" ;::: ";':' -<_ ~_iII'l! z'" ~ ;;; - III ;l I:lIC .. - . .... ,.. '. . . ot:':,.. 94-070 . (M... be Iypowriu.. u4 IUblll.laH ill dUpUell') TO THE PROmONOTARY OF CUMBERLAND COUNTY: Pleue list the within matter for the next: Pre-trial At)ument Court -X... Argument Court --....-....................-----------....----........----------------_._~-------._---------------.----------------- DBNNIS HOCKENBERRY, P1aJ.ntiff IN nIB COURT OF COMMON PLBAS CUMBERLAND COUNTY, PBNNSYL VANIA DOCKET NO. 94-609.5 CML ACTION - LAW JURY TBIAL DEMANDED vs. AR1lIUR UNDSA Y, Defendant 1. State matter to be argued: Defendant's Motion for Partial Summa~ Jud,ml!lnt 2. Identify counsel who will argue case: (a). Plaintiffs: Richard M. Morris. Jr.. F.<Quire 318 East Kin, Stretlt Shippensbur,. PA 172.57 Ickphone No. (717) .530-8.579 Court lD. 744.54 (b). Defendant: Scott A. Fruland. Require Rublnate. Jacobs IlL Saba ~14 Senate Avenue. Suite .503 Camp Hill. fA 17011 Telc:phone No. (717) 731-0988 Court I.D. .5.5663 3. I will notify all parties in writing within two days that this CaMJ has been listed (or UJUment. 4. Argument Court Date: May 28, 1997 Dated: )j II I'll I I SCOtt A. Free , Esquire Attorney for Defendant, Lisa Lawyer - .. . . 94-0'70 VI. IN nIB COURT OF COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLV ANIA DOCKBT NO. 94-609.5 1994 DBNNIS B. HOCKBNBBRRY, Plaintiff ARTHUR UNDSAY, JR., CIVIL ACTION - LAW Defendant: JURY TRIAL DEMANDED CERTmCATE OF SERVICE SCOTr A. PRBBLAND, ESQUIRE, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and correct copy of Praecipe Lilting CaMJ for Aqument Court to be served by regular lint class mail upon: Richard M. Morris, Jr., Esquire 318 Bast Kin. Street Shippensburg, PA 172.57 DICe: .l/ 11191 , I i'i , i't= 01 . ~~ c:l (: ~n c;.; ;.~ .)-<:,.. , ~-": ..... I,,) -2: Q..: J'., .. " " , '.' ~(' ,.- ~ ~:..J fi t: '.0 . (ll ! ... U--I, ,... r":..-,; -", j -... 'ItO ~. .'!C1.. ... .... 0 F- a en -< III -< ~ - olJ~ ~ i ~!~~~~~ Ii; \.I '" .J - ... O-<~~...~~ jJ"'''5:--- -< .J'~ rIJ f'oo f'oo .- ""~:: 10" ::R..... ~;:; U ~ - III ;l CIl: , t' " t ,iI> . ~ . . f . .. . ~ .. . . 94-070 DBNNIS B. HOCKBNBBRRY, Plaintiff IN THB COURT OP COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLVANIA DOCKET NO. 94-609.5 1994 VI. ARTHUR UNDSA Y, JR., CIVIL ACTION.. LAW Defendant: JURY TRIAL DEMANDED CBRTIFICATE OF SBRVICB SCOTr A. PRBBLAND, ESQUIRB, hereby certiliea that he is the attorney for the Defendant herein, and that he caused a true and correct copy of Praecipe to be served by . regular lint class mail upon: Richard M. Morris, Jr., Esquire 318 East King Street Shippenaburg, PA 172.57 DICe: g/llP! 91 A Scott A. Freeland, Esquire Attorney for Defendant " lWlaR A '1\\1." ,I' ~ 1 2 3 4 5 6 7 8 9 10 11 12 . .' 13 14 15 16 17 18 19 20 21 22 :.l3 :.l4 25 1 DENNIS E. HOCKENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 94-6095 1994 ARTHUR LINDSAY, JR., CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED DEPOSITION OF: DENNIS E. HOCKENBERRY TAKEN BY: Defendant BEFORE: Janet E. Smith, Court Reporter Notary Public DATE: Wednesday, June 28, 1995 10:32 a.m. PLACE: Law Offices of Forest N. Myers 10000 Molly pitcher Highway Shippensburg, pennsylvania APPEARI'-NCES: FOREST N. MYERS, ESQUIRE 10000 Molly pitcher Highway Shippensburg, pennsylvania 17257 For - plaintiff JEFFREY BAXTER, ESQUIRE 3907 Hartzdale Drive Suite 706 Camp Hill, pennsylvania 17011 For - Defendant SMITH REPORTING SERVICE - JANET E. SMITH P.O. Box 742 Mechanicsburg, pennsylvania 17055 SMITH REPORTING SERVICE (717) 691-7338 / 1_800-689-7338 CERTIFIED COpy . 2 1 2 3 4 5 6 INDEX TO WITNESS 'ITNRSS: EXAMINATION Dennis E. Hockenberry, By Mr. Baxtor 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SMITH REPORTING SERVICE (7'j7) 691-7338 I 1-800-689-7338 3 1 ~ TIP U L A T ION 2 It is stipulated by and between counsel for 3 respective parties that the inspection, reading and signing 4 of the deposition is hereby waived. 5 It is further stipulated between the parties that 6 all objections, except as to the form of the question, are 7 reserved until the time of trial. 8 - - - - 9 10 DENNIS E. HOCKENBERRY. called as a witness, having 11 been duly sworn, was examined and testified as follows: 12 DIRE~~ EXAMINATION 13 BY MR. BAXTER: 14 Mr. Hockenberry, my name is Jeff Baxter. I Q. 15 represent Arthur Lindsay in the lawsuit that you brought 16 which is a result of the accident that occurred on October 17 23rd, 1992. Have you ever had your deposition taken 18 before? 19 A. No, sir. 20 Q. Okay. Some of the ground rules of a deposition 21 that I want to go over with you. I'm going to ask you a 22 number of questions. If, at any time, you don't hear me or 23 you don't understand my question, ask me to-say it again or 24 rephrase it. And I'll be happy to do that. Okay? 25 A. Okay. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 4 1 Q. Please answer all of my questions with a verbal 2 response, yes or no, instead of shaking your head. That 3 way, the Court Reporter can write down what you say. Okay? 4 5 A. Okay. Q. If you give an answer to one of my qU8ytions, I'll 6 assume that you understood my question. Okay? 7 8 9 10 A. Okay. Q. Would you state your full name? A. Dennis E. Hockenberry. Q. Okay. What is your current address? 11 A. 227 Walnut Dale Road, Shippensburg. 12 Q. How long have you lived there? 13 A. Approximately, four years? 14 Q. Four? 15 A. Four and a half. 16 Q. DOeS,anybody live with you at that address? 17 A. My wife. 18 Q. What is her name? 19 A. Artha, A-r-t-h-a, E. Hockenberry. 20 Q. How long have you been married? 21 A. Since December of '92. 22 Q. Do you have any children? 23 A. I have a daughter that's married and has two 24 children. And my wife has a son that's married. 25 Q. Do you have a current driver's license? SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7336 . 1 2 3 .. 5 6 7 8 9 10 1 1 12 / 13 14 15 16 17 18 19 20 21 22 23 24 25 6 A. Yes, sir. Q. Did you receive any injuries during your tours of duty? A. I received hearing loss, and we think I might have had agent orange. That's still pending. We haven't received any results on that. Q. For what? A. Agent orange. I had cancer in 1988. Q. What type of vehiole were you driving on the date of the accident? A. 1984 Bronco. Q. Did you own that vehicle? A. I was paying on it. I didn't own it own it. But I was paying a mortgage. Q. It was in your name? A. Yes. Q. As opposed to your wife, sir, or your child's? A. Just mine. Q. To the best of your knowledge, was it in proper worki ng order? A. Yes, sir. Q. Prior to the accident? A. Yes, sir. Q. I want to ask you a few more background q~estions then I'm going to ask you about the accident and then your SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 7 1 injuries. Okay? 2 A. Okay. 3 Q. Where did you go to school? 4 A. Big Spring High School. 5 Q. Did you graduate? 6 A. Yes, sir. 7 Q. Did you go on for any other schooling after Big 8 Spring? 9 I had a year at the York Penn State Branch through A. 10 the Pennsylvania Home Builders Association for mechanical 11 drafting, architecturing and leadership training. I was , 12 working for a contractor and going to work with him and 13 have my own team to help build houses. 14 I also went to Shippensburg University, and I was 15 taking accounting courses. But then in 1988, I had cancer 16 and had to drop out due to surgery and everything else. 17 Q. I understand that you are unemployed, presently; 18 is that correct? 19 A. I am a hundred percent totally disabled tprough 20 the State and Social Security. 21 Q. Prior to your being disabled, how were you 22 employed? 23 A. I was the fiscal assistant with the Pennsylvan~a 24 Liquor Control Board in Harrisburg. And I was working in 25 the accounting division. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 1 Q. 8 How long h~d you had that job? About three and a half years. Are you receiving any type of income, currently? I'm receiving disability from the state of 5 Pennsylvania through the state Employees Retirement Board 6 and through Social Security. Plus, I get service connected 12 A. 2 A. 7 disability from the V.A. 18 19 Q. A. 3 Q. Okay. Mr. Hockenberry, I'd like to turn your 9 attention to October 23rd, 1992, the day of the accident. 20 lab. 21 Q. 4 A. 10 Can you tell me where you were going and where you were 8 Q. 11 coming from? I was going home. I was coming from Newville. I 13 was down to visit my parents. And I was in guarded 14 condition because of the surgery. I had undergone severe 15 head and neck surgery. I had my entire face removed due to 16 the cancer. And I was traveling 533 coming from Newville 17 going to Shippensburg. 22 A. 23 like that. 24 Q. 25 there? Was anybody in the car with you? I had my dog in the car with me. I have a golden How long had you visited with your parents? I'd say, probably 2 1/2, three hours, something Did you do anything with them while you were SMITH REPORTING SERVICE (717) 691-1338 / 1-800-689-7338 10 1 And that was when I hit a farm there. And they 2 had a big locust post for a gate. And I can remember my 3 poor dog looking at me like, what did you do? Don't look 4 at me. Look at him. But then somebody came and told me 5 not to move because my ribs were really bothering me. My 6 neck was stiff. And the ambulance came. other than that, 7 that's basically it. 8 Q. Okay. I'd like to take you through that again. 9 I'm gonna ask you more specific questions about the 10 accident. Route 533, how many lanes is that? 1 1 A. There's two lanes. One, I guess, north and south, 12 east and west, whichever way it is. But there's only two 13 lanes. 14 Q. You said you were approaching an intersection? 15 16 A. Yes. Q. The intersection, was that -- did you have any 17 traffic control devices? 18 A. No. There was only stop signs on 19 Q. On the other way, the other road? 20 A. Yaah. 21 Q. Do you remember what that road was? 22 A. I can't think of the name today, but I 23 have -- should be in the -- I should have it wrote dow~ 24 somewhere. 25 Q. Bulls Head Road? SMITH REPORTING SERVICE (117) 691-7338 I 1-800-689-7338 . 12 1 you saw the pickup truck, if you can estimate? Give an 2 estimate. 3 A. I'd say probably 150, 200 yards because he was . just like that. About 150 yards. ! seen him and thought, 5 well, you know, he'll be stopping anyhow. And I maintained 6 regular speed of about -- speed limit is 45. I was doing, 7 approximately, 40, 42. And like I say, it was a nice day. 8 And all of a sudden, I seen the truck. Again, you know, I 9 thought he'd be stopping. Like I said, it was just like he 10 was froze, looking straight ahead. ~ever looked left. 11 Never looked right. Just straight out. 12 13 14 Q. A. Q. So you were able to see into the cab? That's correct. You were able to see the driver. Okay. Was it a 15 man or a woman driver? 16 17 A. Q. 18 pickup? 19 20 21 22 :l3 H 25 A. There was a man. Did he have any passengers in his car or his No, sir, not that I seen. Q. Were you wearing a seat belt at the time of the accident? A. Yes, sir, I was. Q. What type of seat belt was it; harness or aoross . your lap? Do you remember? A. It was a harness type. I think that's what kept SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 . . 13 1 me from hitting the windshield because I had a pretty rough 2 ride. 3 Q. When you realized that this gentleman was not 4 gonna stop and was proceeding out into Route 533, were you 5 able to slow your vehicle down at all? 6 A. I had slammed on the brakes and started to turn to 7 avoid a head-on collision. I did manage to slow down. But 6 what happened was my left, front bumper hit right behind 9 the cab of the pickup and sp~n him right on the edge of the 10 front which spun me around backwards. And my vehicle was 11 totalled. 12 Q. So you had damage to your front, left bumper. Is 13 that the point of impact on your vehicle? 14 That was the point of impact. And it took out the A. 15 whole front fender, the hood, the grill, the right fender 16 and pushed everything back into the windshield and buckled 17 up. 18 Was thero damage to the rear of your truck from Q. 19 where it hit the fence? 20 Yes, sir. A. 21 What side of your truck? Q. :12 23 Sort of the right rear. A. Q. Okay. - Were you -- you said you were in guarded 24 condition at the time of the accident. But you were okay 25 to drive. Were you on any medication at that time? SMITH REPORTING SERVICE 1717) 691-7338 I 1-800-689-7338 15 1 BY MR. BAXTER:. :I Q. Are you ready? 3 A. Yes. 4 Q. If, at any time you need a break, let me know. 5 We'll stop. Okay? 6 A. okay. 7 Q. You said that you thought it was '90 or '91 that 8 you last had surgery? 9 10 A. Yes; it was just reconstructive surgery. Q. Okay. Were you continuing to treat with a doctor 11 on a regular basis following that surgery? 12 A. I've been going to the V.A. hospital in 13 Martinsburg about two or three times a week or a month, 14 rather, due to I have terrible teeth problems because of 15 not being able to chew and getting food up in, root canals. 16 I un~erwent -- I can't think of it, hyperoxide 17 treatment which was to help induce blood flow to the 18 damaged areas from radiation. And just to make sure there 19 was no problems, basically, just checkups. Make sure 20 everything is working. 21 Q. Okay. And I believe you said earlier, you were. 22 not on any medication at that time? 23 24 25 A. No, sir. Q. None was prescribed? A. NO, sir. SMITH REPORTING SERVICE (717) 691-7338 I 1-600-689-7338 1 Q. 16 Did you have one doctor in particular, a family 2 doctor that you treated with or a doctor at the V.A? 12 13 Q. A. 3 A. Basically, I had EMT doctor, which is a Dr. Do you know how to spell that? K-a-m-a-t-h. And as far as dentists, I've had at 7 least six or seven different ones. what they do at the 8 V.A., they have dental students coming in to get their -- 14 Q. 4 Kamath. !) 6 Q. Their degree? Degree or whatever. And then they move on then to 11 the private field. A. 9 Q. Dr. Kamath, you said was an EMT? Yes. Do you know where he's located? He's located in the Antique Clinic at Martinsburg, 16 West Virginia, V.A. Medical C9nter. 10 A. Do you still see Dr. Kamath? I see him once in a while. But in 1993, he told 19 me he didn't have the expertise or knowledge to work on me 15 . A. 20 anymore due to the severe construction of the facial and 17 Q. So now they start sending me to Pittsburgh. I've 23 had -- ever since the accident, I've had real bad neck 18 A. 24 problems. And just lately, I've had to go to the emergency 25 room for the ear and the left side swelled up. And I'm on 21 the ears. 22 SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 18 1 onl~ thing my body hit was the armrest on the door panel. 2 We had a 45, kind of like shifted me in my seat. And then 3 again, when I hit the fence, it throwed me back and whipped 4 my neck pretty bad. 5 Q. Do you know if your head hit the back of the chair 6 or the driver's seat? 7 A. That I had those headrests, so that helped me from 8 going way, way back. But it was still, you know, pretty 9 rough. Along with a lot of fear, that crossroad scares me 10 even today. When I approach that, I approach it at about 11 20 mile an hour. 12 Q. Do you remember when you were speaking to Mr. 13 Lindsay saying something, like, well, I'm shook up but I'm 14 not hurt? 15 A. I remember him saying, how do you feel? I feel 16 okay, I guess~ I didn't say, yeah, I'm ready to go out and 17 play ball. I'm okay. I guess I'm still in shock from what 18 happened. And I asked him if he was okay. But I do 19 remember him specifically saying I never seen you. 20 Q. Okay. Did you, after the accident, get out of 21 your Bronco and walk around to look at the damage? 22 A. NO, sir. The only time I got out of the Bronco - 23 was when the ambulance got there and they put the neck . 24 brace and everything on and helped me out and put me in the 25 ambulance. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 Q. 19 Did you initially -- initially, did you not want 2 an ambulance? Were you reluctant to go in an ambulance? A. No. I just -- the biggest thing I was concerned about who was going to take care of my dog and call my wife. Q. Okay. Immediately following the accident, I think you've already said you felt neck pain and rib pain? 20 A. 3 4 5 6 7 8 9 10 A. Q. A. Yes. And you felt that right there at the scene? Yes. Can you indicate where you felt the neck pain, 12 where in your neck? 21 Q. 11 Q. It was right in the side, like. Below your ears? Yeah. And extending down? Down to the shoulders. And with regard to the rib pain, was that on the 1~ left side or right side? 13 A. J.eft side. Your left side. Did you take an ambulanco to a Yes, I did. I went from the ambulance to the 24 Carlisle Hospital Emergency Room. 14 Q. 15 A. 16 17 Q. A. 18 Q. 23 hospital? 33 A. 25 Q. Do you recall what they did for you thero? SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 20 1 A. Took x-rays. I had a broken rib. And, in fact, 2 they said you've the got, you know, your muscles look like 3 they've been stretched or whatever. But they didn't know 4 if it was from the surgery or the wreck. And I said, well, 5 it wasn't bothering me until I had this. And it's really 6 bothering me, you know, so. 7 Q. Were you released that day, or did they keep you 8 for observation? 9 I think my wife picked me up late that night. I A. 10 think they left me out that night. But then it was about a 11 week later, I went to Pittsburgh V.A. Medical Center and 12 was treated more for the broken rib and still going 13 through -- they've been trying to give me some kind of 14 treatment for the neck, therapy. I've been putting heat 15 pads on it. They gave me muscle relaxers, stuff like that. 16 Is there a particular doctor that you saw in Q. 17 Pittsburgh at the V.A. Hospital that helped with your rib 18 probl~m or your neck? 19 Sir, today, I couldn't tell you. I've been to the A. 20 V.A. Medical Center so often, I get so many different ones. 21 I coul~n't begin. There would be regular records in my 22 medical file at the V.A. 23 24 Q. In Pittsburgh? A. Well, in Martinsburg that would show who -- as a 25 matter of fact, I even went back to the Carlisle Hospital. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 21 1 And, you know, they gave me, like, the waist rib band and 2 told me no lifting, no nothing for six months due to the 3 injury. 4 Q. How long did it take for your rib to heal up to 5 the point you felt okay? 6 I'd say about 5 1/2, 6 month. I couldn't even A. 7 pull my robe back. As a matter of fact, I couldn't do much 8 that year after the accident. 9 You said shortly after the accident, you went to Q. 10 Pittsburgh to the V.A. Hospital? 1 1 I was scheduled for treatment out there. While I A. 12 was there, I had trouble breathing. And I went to see, you 13 know, a doctor. And he said, you know, your ribs really 14 cracked. It's really bad. And they told me just to take 15 it easy. 16 And they are gonna cancel my hyperbaric treatment. 17 I said, no, is there any way I can get through it? Wrapped 18 me really tight and said okay. 19 Is that why you initially went to Pittsburgh for Q. 20 this particular treatment? 21 The hyperbaric, yes. While I was there, the rib A. 22 really started and I couldn't breathe, you know, take deep 23 breaths. Every time I took a deep breath, I had sharp. 24 pain. 25 Q. Did you seek any other medical treatment for your SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 ~~ 1 rib other than that trip to Pittsburgh and the trip to the ~ hospital in Carlisle for something to wrap around? 3 Carlisle and out there was the only two places. A. 4 Q. Okay. 5 But I was in Pittsburgh for almost a month and a A. 6 half. 7 0.. For these particular hyperbaric treatments? 8 9 That's correct. A. Q. With regard to your neck, has that neck pain 10 gotten any better from the date of the accident? 1 1 It hasn't gotten any better. And like I said, A. 1~ just recently, left side has really been bad. And they're 13 telling me that I might have or should go back out to 14 Pittsburgh to have the surgeons look at it to see what's . 15 going on. 16 I've also got a certificate to the doctors at 17 Martinsburg and Pennsylvania Game Commission where they've 18 granted me a crossbow permit due to the weakness of the arm 19 caused by the neck problems and surgery. 20 Prior to this accident, had you ever had a neck Q. 21 injury of any type? 2~ The only thing I had done was the surgery, which A. 23 there was no accident or nothing. 24 Can you describe for me the pain that you feel in Q. 25 your neck? SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7336 1 A. 23 It's like somebody takes a hot iron and just real 2 sharp and tender to the touch. It I go to look to my left, 3 I can only turn so tar and the right tightens up. It I go 4 to look to the lef.t, the right tightens. Sometimes I'll be 8 9 Q. A. .5 doing -- reading the paper, reading the magazine, and both 6 sides will just tighten up into knots. I don't have to be 7 doing much at all. Is this pain constant, or does it come and go? It comes. Sometimes it lasts five minutes. 10 Sometimes it lasts 5 to 15 seconds. It depends. It I'm in 11 the shower scrubbing my hair and get it, I just relax and 12 let the hot water and it will go. 13 Q. Does it ever last tor more than five minutes? I've had it that it lasted maybe 20 minutes Is t~at something that you feel every day or only 17 when you're doing certain activities? 14 A. I'd say on a daily basis, I'd say at least three 19 times a week. 15 sometimes. 16 Q. Three times a week? Yeah. When you do get a flare-up in your neck, do you 23 take any type of medication for that? 18 A. I have muscle relaxers that the V.A. gives me, 25 pain pills. But, basically, I'll take a pain pill and a 20 Q. 21 A. 22 Q. 24 A. SMITH REPORTING SERVICE (717) 691-7336 / 1-800-689-7338 , , 24 1 hot rag. That's what they recommend, 2 Q. Have you seen anybody locally for treatment of 3 your neck? 4 A. I was down at Carlisle Emergency on Sunday night, 5 and I seen a doctor Monday morning at the Medical Arts 6 Building. And I forget his name. But there again, he's 7 the EMT specialist at the Medical Arts Building. 8 Q. And when you say Sunday or Monday, do you mean 9 this past week? 10 A. Yes. 11 Q. Is that the first time since the emergency room 12 that YOU've sought treatment for your neck pain in the 13 Carlisle area? 14 A. In Carlisle, yes. But at the V.A. Medical Center, 15 eff'and on. As a matter of fact, I was gonna try a new 16 kind of therapy to try to get something going. 17 Q. Can you find out for me and let your attorney know 18 what doctor you saw there in the Medical Arts BUilding? 19 A. Okay. Yeah, I can do that. 20 Q. Okay. When you went to Pittsburgh a week or so 21 fOllowing this accident, you said that you went for these 22 hyperbaric treatments? 23 A. Hyperbaric. 24 Q. I'm going to write that down. 25 A. Hyperbaric oxide treatments. It's something like SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 . , 25 1 they give scuba divers that gets the bends. That get 2 oxygen back into their blood cells and stuff. Well, a 3 cancer patient that has had radiation or the radiation 4 kills all the blood cells and everything they use this to 5 get the blood cells. 6 Oxygenated? Q. 7 A. Yeah. 8 When you went for the hyperbaric treatments, you Q. 9 indicated that you had rib pain and you were treated for 10 that. Did you receive treatment while you were there for 11 your neck also during that month, month and a half? 12 Well, they were hoping that the hyperbaric would A. 13 help some too. They didn't know. It was for the whole 14 area. 15 16 Q. Did that treatment help? A. Not really. It helped some as far as my teeth 17 went. But even still. 18 Q. But with regard to the neck pain, though? 19 A. No, it didn't really. 20 Q. Did you seek medical treatment with any other 21 doctors for your neck pain? 22 A. I maintained g01ng to the V.A. Medical Center 23 because my insurance company, they've been pretty well 24 bled. And the V.A. says, well, we'll treat you. Come to 25 U8. SO that's where I, basically, have been gOing. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 13 . . 14 15 16 17 18 19 20 21 22 23 24 25 26 Q. Have they prescribed for you any physical therapy for your neck? A. They're gonna try a new style of tr&atment coming up. I'm wait for an appointment. They did try putting, like, a tin harness and a strap and trying to stretch the neck. But when they did that, I couldn't breathe. So they had to atop that. Q. you? A. Q. A. Q. Do you remember how long ago they had that for Last year sometime. Sometime in 1994? Yes. And, again, do you recall the name of any of the doctors that would have treated you for your neck injuries? 'A. All I know it's a rehabilitation center at the V.A. Medical Center in Martinsburg, West Virginia. And it was a lady and it was -- as far as names go, no. Q. Okay. When did you first need to undergo surgery? What year was it? A. Pardon? Q. When did you first need to undergo surgery or have a surgical procedure done with regard to your cancer? A. 1988. Q. Do you remember where that was performed? A. Denver, Colorado. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 27 1 2 Q. Following that surgery, did you have any others? A. I've had reconstructive surgery, '89, '90 and '91. 3 Q. So, to the best of your knowledge, is your cancer 4 still in remission? Or were they able to successfully 5 remove any tumors during the surgery? 6 A. As far as the last report, it was a success. 7 There's no cancer showing. 8 Q. Good. Okay. However, I take it, as a result of 9 the surgery that you had in Denver, that has resulted in 10 all of these other surgeries and difficulties with your 11 teeth and with your breathing. Is that fair to say? 12 A. Not with my breathing. If anything, helps me 13 breathe better. The only thing that's really done is the 14 jaw is lopsided because of having to take the jaw bone out. 15 But, other than that, it's been very successful. 16 They went in and the one reconstruction is where I 17 have no filling in the right side of my face. They went 18 back in behind the ear and sewed up my eye so it stayed 19 open better instead of sagging shut. That's what the other 20 reconstruction surgery was in '89, '90 and '91. 21 Q. Have you had any difficulties or pain as a result 22 of any of the surgeries that you've had? 23 24 A. The only difficulties I can rememb~r and it was so funny from the surgery was and it's hard to believe 25 after being in surgery for 24 hours for skull base, facial SMITH REPORTING SERVICE (717) 691-7338 / 1-800-669-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 28 surgery. My little finger was the only thing I complained about. It was nerve damage done to the left arm from laying on it for 24 hours, body damaged the nerves in the little finger. Other than that, no. Q. Have any of ~our doctors told you that as a result of this accident, there's been some effect to, I quess, the postoperative condition that you're in? A. The only thing I get from the doctors is, yeah, you got problems but I don't know what caused it. Or I get, well, yeah, your body is so bent out of shape, I can't give you a new one but I'll try to do what I can with the old one. Q. Were there any other injuries that you feol came dbout because of this accident? A. I had some back pain. But then again, my biggest concern was what was going on with my neck and my ribs. But other than that, no, just basically the neck and the ribs. Q. Do your ribs bother you at all anymore? A. Not like it did. Once in a while, you know, it's like on a real cold and rainy day, I get, like, Oh, wow, man. And then it's gone. The only thing I have now is just the neck. Q. Prior to this accident but after your other surgeries, were there things that you enjoyed doing, SMITH REPORTING SERVICE (717) 691-7336 / 1-600-669-7336 29 1 hobbies that you had? I know you talked about archery or 2 crossbow? 3 4 Yeah. A. Q. What type of hobbies did you enjoy? I enjoyed fishing. I enjoyed hiking and. hunting. 5 A. 6 But now I have to have somebody with me to make sure that I 7 don't sli9 and fall in the water, that I don't slip on a 8 rock and fall. I'm scared to death of that intersection. 9 And my wife does most of the driving now. 10 Okay. Did you drive here today? Q. 11 Yeah, I did. She's working. A. 12 Okay. Q. 13 That was on the spur of the moment thing. I A. 14 wasn't expecting a call. 15 Do you still go fishing, hunting and hiking, but Q. 16 although I think you said you need to have somebody with 17 you? 18 I do, but it's restricted. In other words, A. 19 instead of going to the mountains, now I hunt down in the 20 open farmland, fields at my parent's place. Or I have a 21 few friends that say, yeah, come over. I'll take you 22 hunting. There's a nice field where you can sit and watch. 23 I don' t -- as far as getting out as often as I used to,. I 24 don't. 25 Even back when I worked, it was like, well, SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 30 1 hunting season is coming. I know I'm going to take -- I've 2 got the first day off and then I want to take two or three 3 days. Now, being disabled, I still don't get the 4 opportunity to go the way I normally would if I would have 5 been working. 6 Q. Are there activities or hobbies that you 7 enjoyed doing before this accident that you can't now 8 because of just the pain to your neck? 9 Bowling. I can't take a bowling ball without A. 10 drawing the neck down. Regular bow, shooting, competition 11 and stuff. I can't do that now. I used to go deep sea 12 fishing, but I doubt if I could do that now with the strain 13 and the pressure and the heat. 14 Q. Did you do any of those activities following your 15 surgeries? 16 No. Well, wait. You mean any of those activities A. 17 after I had my ~urgery? Oh, yeah. As a matter of fact, I 18 went deep sea fishing. And there was six of us. And I 19 caught a Macko. Since the accident, I haven't. 20 But I meant after you had the surgeries, have you Q. 21 been bowling and fishing? 22 Oh, yeah. A. 23 Okay. Were you able to go hunting-with a regular Q. 24 bow 25 Yeah. A. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 31 1 Q. __ after your surgeries but before this accident? 2 A. Yeah. 3 Q. Are there any restrictions, any limitations or 4 things the doctors told you not to do because of your neck 5 injury that would be different from things they told you not to do because of the whole A. Are you talking about the doctor who dons the initial surgery? Q. No, no. Any doctors you would have treated with 6 7 8 9 10 after the accident? The only thing I've got is, well, you can't do 1 1 A. 12 this and you can't do that. I don't know what's causing 13 your problems. As far as the doctors that I've seen after 14 the surgery, whereas if I'd have an ear problem, I can't 15 see up in it. And I don't know what's causing it. 16 As far as the neck and stuff, one of their biggest 17 concerns was the head itself, where they took the skull 18 flap, took my jaw bone out. Don't get involved in any 19 accidents. Don't go climbing any trees or don't go 20 swimming because of your ears. That type of thing. But as 21 far as the neck goes, no. 22 And not till '94, where they told me I 23 couldn't -- when I was told that I couldn't-shoot a regular 24 bow due to the weakness of the arms and the neck and stuff, 25 so the stress of trying to draw that bow back. They said I SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 . 13 14 15 16 17 18 19 20 21 22 23 24 25 32 can't do it anymore. Q. SO you were able to get some type of crossbow license? A. Yes, through the Pennsylvania Game Commission. And with that, I can have a guy cock it for me. It's like carryi~g a rifle. It has a little wooden stock and stuff. The couple of guys will drop me off at the corner of a corn field, and I'll just sit there. Q. Prior to this accident, had you ever been involved in an automobile accident? A. No, sir. Q. Have you ever been involved in any type of automobile accidents since this accident? A. No, sir. Q. Prior to this accident, had you ever boen in any type of accidents where you would have injured your neck or your ribs? A. No, sir. Q. Have you been in any accidents since this accident that has caused you to injure your neck or. your ribs? A. No, sir. Q. Do you remember if your medical bills for treatment of your rib and your neck injuries have been covered by any manner of insurance? A. I think the one was. And then one back at SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 33 1 carlisle Hospital says we sent it but the insurance company 3 denied payment. That's why I got up to that because I was 3 told the insurance would cover my medical bills. And when 4 they didn't make the payments and they came down on me, 5 that's when I filed the claim. 6 Q. Who is your insurance company? 7 A. I had Allstate, I believe. Allstate or state 8 Farm. 9 Q. That's a difference. Let's see here. 10 1 1 MR. MYERS: Didn't it change? THE WITNESS: I think it might be Allstate. 13 MR. MYERS: It was Allstate at the time. Now it's 13 some other company. 14 BY MR. BAXTER: 15 Q. And when you said that they wouldn't pay for that 16 medical bill and you became upset, are you referring to 17 Allstate? 18 A. I'm referring to when I was taken to the hospital, 19 they told me that Mr. Ramsey, or whatever, insurance would 30 cover it. I said, no problem. And they didn't ~over it. 31 Q. I see. Okay. 32 A. Then it wasn't my fault, and I didn't think my 23 insurance company had to pay for it. 24 MR. BAXTER: I think we're done. Hold on just a 35 minute. I think that's it. Okay. That's all the SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7336 34 1 questions I have. Thank you. 3 3 4 5 MR. MYERS: No questions. (Whereupon, at 11 :30 a.m., the deposition' was ooncluded.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 30 31 22 H 34 35 SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 35 1 2 CERTIFICATE 3 COMMONWRALTH OF PENNSYLVANIA 4 5 COUNTY OF CUMBERLAND 6 7 I, JANET E. SMITH, a Notary Public duly 8 commissioned and qualified in and for the County of 9 Cumberland, Commonwealth of pennsylvania, with authority 10 throughout the Commonwealth of pennsylvania, do hereby 11 certify that DENNIS E. HOCKENBERRY. who was by me duly 12 sworn to testify to the truth and nothing but the truth of 13 his knowledge touching and concerning the matters in 14 controversy inth!s cause; that he is thereupon carefully 15 examinad upon his oath and that the deposition is a true 16 record of the testimony given by the witness. 17 I further certify that I am neither attorney 18 nor counsel for, nor related to or employed by any of the 19 parties to the action in which this deposition is taken, 20 and further that I am not a relative or employee of any 21 attorney or counsel employed by the parties hereto or 22 financially interested in the action. 23 24 25 SMITH REPORTING SERVICE (717) 691-7338 I 1-600-689-7338 LAWYIR'S NOTIS .... 11.. - . . - - ~ . - - .- . . lClI "'~'I/lI'.lftllll .,..IN.IfI. III" "1I,,,;,nl W I ,I, " , , ", I." " " ',; '. I,.' " .' I' , , " " .. ,11' Iqt ..... . ~l " I ~...". I;, '. ~ 2. Representative: Attorney, consultant, insurance company, employe., agent, adjuster or investigator. i. Statement: Written or oral statement, whether signed, adopted or approved by the person making it. A recording or a transcribed statement is also within this definition. 4. Identify: a. In reference to documents, set forth the title, author, page, editor, and date sufficiently for a Request to Produce; b. In reference to a person, set forth the full name, past and present business and home addresses and phone number; and c. In reference to a corporation or other entity, set forth its full name and principal place of business and a description of the type of entity involved. 5. Documents: Any sort of written or printed matter of every kind or description, whether the original or a copy. 6. Person: Individual, association, partnership, corporation or governmental agency or other entity. 7. Accident: Accident or incident which is alleged caused the injury or damage set forth in Plaintiff pleadings. tOMve s . . . II. t. Have you ever received any traffio oitations? It .0, please state, the nature of any and all suoh oitations, the date of any and all such oitations, the state where eaoh violation occurred and the oourt imposed punishment for each suoh violation. ha _ Wuhington, 1971, speeding, $45. PA, 1980 and 1984 DUI achool and $100 fine. Also, PA - approximately 1980 or involved in accident, rear-ended other vehicle .nd paid that driver $1,000. Any and all restriotions of your driving license, corrective Lenses. g. h. Whether any such license has been suspended or revoked and, it so, by whom, dates and thereason(s), 198Q - penndot - DUI. i. Whether, at the time of the accident, you had corrective lense., Yea, I was wearing my corrective lenses. j. Whether you have any physical or mental detectS. If yes, state the nature and duration: Haaring lOGS, had cancer in 1988, placed in luardad cara, raconatructive surgery 89, 90 and 91, parmanently diaablDd, poat-traumatic stress disorder. . , k. Whether you ever .erved in the armed force.. If yes, state the date, branch, rank at discharge, any infirmities at discharge, any olaims made and benefits reoeived for intirmities, Veteran'. Administration Clai. Number. Yas. United StDteS Army 1965-11 - SUlaant. Haarinl loaa, poat-traumatic streaa (Alent OranlD for .cancer-pandinl: C 38-011-929 :I " . 3. I.JOanS alfD 'l'RBA'1'MJlH'r1 Describe separately each injury each plaintiff alleljJ_dly sustained in the incident and the approximate date on which each plaintiff recovered from each such injury. Ilroken rib - 1993, neck pain continuing, back pain - Sept. '94 rear of people running stop aigns and driving. I had my life paaa in front of me. <&. state the name and address of each hospital at which each plaintiff was examined or treated, the date of treatment or confinement and the bills for same. Carlisle Hospital, Carlisie, PA VA Medical Center - Martinsburg, WV VA Medical Center - Dayton, OH - Jan. '93 to March '93 s. state the name and address of each doctor, nurse, or other person who examined or treated you, whether in a hospital or elsewhere, the da'tes on which you were examined or treated, the treatment given and the charges tor same. I can't remember. Nationwide should have it, Carliale Hoapital. 6: Were any x-rays, MRI's or other diagnostio tests taken by Plaintiff? It so, state when, where, by whom, ot what part. of your body, and the charge ot same. X-raya, Carlisle Hospital - October '84 X-raya, CT Scan and MRI - Dayton, OH - 1993 1. Describe any pain, ailment, complaint, injury or disability that you presently allege to sutfer trom .. a result of the accident here involved. Neck pain. 3 8. sta~e the inol\lSive da~e of any conUne"ent, it any, .. a re.ult of injuries sustained in this acoiden~ ~Ol .. Bed/ b. lIouse. No lifting and wear support around ribs during sex. 9. If the answer to 8(a) or 8(b) is in the affirmative: a. state the reasons for such confinement I VA Center _ Dayton, OU. Could punct~re lungs and cause more severe damage. b. At whose direction was such confinemen~ ordered or recommended. VA Center - Dayton. OU 10. 2JRHINATION O. MEDICAL SERVICES I When and by whom was each plaintiff last examined or given medical attention for the injuries received in this incid.n~? March 1995 - VA Medical Center, Martinsburg." WV 11. COMTINUATION O. MEDICAL SERVICES' If the plaintiff is still being treated for tne injuries received in this incident, identify by whom and .~ate how frequently such treatments are being given now, the nature of the treatment being administered, and the extant to whioh treatment will be required in the future. Neck problems, claim there is nothing that can be done. rsin .edication and muscle relsxer - VA Medical Center, Martinsburg. WV. .. . . , ~2. PRIOR COBD%T%OH. Ixplain -.11 prior health problems or injurie. and identity the health care providers, if any, who tre.t.d each Plaintiff tor tho.e injuries. H..rins 10", c.ncer - Hershey M.dic.l Cent.r, Hartin,burs. WY, St. Luke'. Ho.pital, Denver, CO 13. ~AHILY PHYSICIAN I Ple..e state the name and address of your family physician(.) for the last ten (10) years. Or. Amarillo, VA Medical C..nter, M.rtin.burs, WV 14. PI%OR o. 8UB8.0UZ~ Aceln_NT.. It betore or atter the incident which i. the sUbject ot this lawsuit, any Plaintiff was involved in any other incident involving injurie. to any part ot the body or in any motor vehicle related accidants, involving injuries or not, plea.. state the type ot incident involved and the health care provider. who rend.red treatment for tho.. injuries, the dat.. ot any and all such accidents, whether any law.uit. filed a. a result of any .uch accident, the caption, court tera and nUlllber ot any and all such lawsuits, and the resolutIon of any and all such actions. . . fJ 15. t>:UdJ:LJ:IfYI 00.. any Pl.intiff cont.nd th.t h. or .h. h.. b..n p.nan.ntly injur.d a. . r..ult of this inoid.nt? If .0, pl.... d..orib. the .xact nature of the .U.g.d injury and the id.ntity ot any h.alth car. prov1d.r who ha. infon.d any plaintiff that the injury b p.rmanent. Meek probleml - VA Medical Center, Hartinaburl, WV, nothinl thay can do for it. Some back problaml and fear of drivinl palt that interlection. 16 . L088 OY .~RHJ:HII81 I. any Pla1nt1ff malting a claim for 10S8 of earning. or impairm.nt of .arning capacity becau.. of thi. ino1d.nt? If .0, th.n pl.... provide the following infonat10n of eachl .. MIA Each employer, job title .nd de.cription of duti.. a. w.ll a. monthly or weekly rat.e of pay at the time of thb incident I b. The !ncludve dat.. during which any plaintiff aUeg.. h. or .he wa. unable to work a. a re.ult of this incid.nt and the total amount of earning. the Pl.int1ff lo.t b.cau.. of th1. ab.enc., o. Th. .ource .nd amount of .ny wag.. or lIalaJ.'y r.c.iv.d .inc. this inc1d.nt, and . 6 18. . If you were enrolled in any .chool at the time of thi. accident, ..tate: N I A a. The name and addre.. of your .chool' b. The nUlllber of grade., year. and ..me.ter. pre.entlY completed' c. All date. upon which you were ab.ent from .aid .chool' d. Whether you were forced to repeat or dieenroll from any grad.., cour..., etc. becau.. of th. injuri.s all.ged in thia accid.nt. 19. 0'1... 1.0881181 10.... a. a r..ult of the cov.red by the preceding Did YClU .u.tain accid.nt, other interrogator i..? any financial than tho.. If .0, .tat..: a. In d.tail, the nature, date and amount of .ach .uch additional 10", Loee of vehlcle, had to purchaee a new, relieble one that could ,et me to the VA Medical Centere. Aleo, $14,000.00 in doctore bille thet were eUP90eed to have been paid by Natlonwlde. They threatened to turn the. over to a collection alency. . . . . . 20, ...a......JftI.. H.. any Plaintiff or anyone actin" on any Plaintiff'. behalf, obtai.ed any .tate.ent., reporta, memorandum or teatimony in anI form fro. any person, includin" DefendantCa), relatinq to th a incident or .ade any atatement., recorded interviews, .emoranduma, reports or testimony to any person, police officer, attorney, frienda, inaurance cnder, or inveat1qator re"ardinq any of the eventa of happening~ reterred to in your Complaint or the events aurroundinq this accident, and if ao, atate: ao The name and addresa ot the person to or trom whom such statementa were made or taken; The PA State Police. bo The date such statementa were made; Co The form of the statementa, whether written, oral, by recording device or to a stenographer; , 40 The aUbstance ot each an every such atatement; eo Whether auoh atatementa, if written, were si9ne~, " f. T~. n.... and addr..... of the p.r.on. pr...ntly havinq cu.tody of .uch .tat..ent., q. Attach a copy of such statements. 21. ML:ECB.' W.r. the police pr...nt at the .c.n. of the accident? It .0, who called thelll and how long aft.r the accid.nt did th.y arrive? 22. W:ETlfII8818. stat. the name. and addr..... of all p.rsons who you, or anyone acting on your b.hall, know or b.li.v.: a. Actually witn.ssed the accid.nt, None. b. Were pr..ent at the scene of the accident illllll.diat.ly after it. occurrenc., o. Were within sight or hearing of the accid.nt, d. Witn....d any of .ub..qu.nt to inv..UqaUon. the .vent. leading up to the accid.nt, the accid.nt, or the .ub..qu.nt 10 .. In addition to tho.. nalll.d in the pr.c.din9 Int.rr09atori.., .tat. the nalll.. and addr..... of all p.r.on. wholll you or anyone actin9 on your behalf, Jcnow or b.li.v. to have any knowledge or information pertain to this action and the Plaintiff'. clailll. and a .ummary of th.ir Jcnowl.dqe or information. f. state, a. to all per.on. nallled in a through d, above, th.ir location and activities at the time of the apcident and a .ullllllary of the information which each per. on has concerning this matter. q. If any of the persons list.d in your answer. to the preceding interroqatories, were, or are, your relativ.., acquaintances, agents, .mployers, employ.e. or repr...ntatives, state the nature of your as.ociation a. to each per.on. h. Did you, at the time of the accident or immediately ther.after, have any conversation with, or malc. any statement. to, any of the partie. or witn....., or did any of them malce any statement. to you or in your pre.ence? If so, .tate the sub.tanc. of any .uch conv.r.ation or statement and in who.. pre.ence they took. plac.. . 11 i. Pl.... provide the n.... .nd addr..... of .11 aOB-.-Dert witn..... you plan to call at td.l, a. w.ll a. . .uaary ot -the .nticipated t..ti.ony .nd the nature of your r.l.tion.hip with the witn...... 23. IZ.IRT WITHBBBIBI Id.ntify .11 .xp.rt. who .ny Plaintiff .xp.ct. to c.ll at the tri.l ot this ca.., and pursuant to PA R.C.P. 4003.5(a) (1) (b), .tat. the subj.ct matter and the substanc. of the fact. and opinion. to which any Plaintift'. .xp.rt will t..tity and the .ulDIlIary of the grounds for each opinion. Th. t.ct., opinion. and qround. ot the expert may' be contained in an .xp.rt r.port which may be attached. Such report or answ.:t' to this Interroqatory should be .iqned by any Plaintitt'. .xp.rt. Non.. 24. Por any p.r.on whom you exp.ct to call a. an expert witn... at trial I . .. stat. hi. or h.r full name and bus in... addr.... b. Id.ntity all tact. and material. pre.ent.d to or reli.d upon by the .xpert a. well a. any te.t. or exp.ri..nt. partol'lll.d by yaur .xport in reaching hie opinion(.) . 12 c~ Are tho tact. and opinion. ..t torth in (b) in any writt.n roport, memorandum or other tran.cript? It '0, identify tbo namo and addr... ot tbo pr...nt cu.todian ot faid r.port, m.morandum or tran.oript. d. state tho nature of your expert's pre..nt bu.in.... ... state the name ot your expert'. present employ.r, it any. f. stat. tho title ot your expert'. po.ition or bu.in.... g. stat. tho hourly tee or otber ba.i. on whicb tho .xp.rt will r.oeive compen.ation for .ervice. rendored in this action. b. Detail your .xpert'. acad.mio oredential., .cbool. att.nd.d, d.gre.. achiev.d and graduation. including y.ar of . 13 i. j. k. state the na..., publication dates, and gene~.l .ubjeot utter of any books, texts, artiole. or other publications that your expert has published. state whether your expert i. a member of any p~ofes.ional society or organization and, if so, Bet forth the na.e of such and his position. state whether your expert recoqnize. any particular work., books, publications or treatises a. authoritative in this field and the author and title of each so recoqnized, if any. 1. state whether your expert has been retained as an expert witne.. before, the full caption of the ca.e, including the jurisdiction, and the name. of counsel for the partie.. .. I. the opinion of the expert or expert. listed above ba.ed in whole or in part upon any textbook, doc~ent or other publication of any kind? If .0, identify the textbook, document or other .ource, giving the dat., na.. aneS author. 14 35. ltIrO'l'aClU.... DOCIJDII'I8 AIm HIlla.. If any Plaintiff or anyone acting on any Plaintiff's behalf, ha. or know. of any photoqraphs, d1aqra.., .e.surements, survers or other descriptions reqardinq or relatinq in any way to th s incident, plea.e identify tho.e ite... I have photosraphs. In lieu of answering the toregoing Interrogatory, copies of any such ite.. may be providecl a. attachment to the.e Answer.. 2&. aBLATED LAWSUITS AND CLAIMSI Please identity by caption, clocket number and court any other lawsuits arising from this inciclent or relatinq to the injuri.. claimecl by the Plaintitt in this suit, or in which any Plaintift has been or is currently involved and iclentify any other claims tiled or clemands macle by any Plaintiff aqainst anyone other than Det~ndant. in this action tor any dallages or injuries arising out of or related to this incident. None. 27. 'RIOR CQIIVICTIONS I Have you been convictecl or plecl guilty to any cri.e within the past ten (10) years. It so, plea.e state for each conviction or plea, the offen.o charged, the court caption and docket, and the disposition and sentence. No. 28. r.n... Would any .ettlement or verdiot .ecured by you in thia ma~t.r b. aubj.o~ to any 'ederal Lien, state Lien, FBLA Lien, WorJaun'a compensation Lien, or any aimilar or other lien? If ~o, identity the holder of the lien, the amount ot the lien, the coata ot expense. covered by the lien, and the oircumatance under which you are or miqht be obliqated to aati.ty the lien. rar.ar'. National Bank. 2!J,. YOn V1IHycr.B. a. state the year, make, model and type of the vehicle which you were operating or occupying at the time of the accident. 1984 Ford Bronco LTO b. state the name. and addrasses of all legal and equitable owners ot the vehicle described in No. 1 above. rar.e~'. National Bank - Newville Dennie E. Hockenberry c. state whether the vehicle you were operating or occupying sustained any damage as a result of the accident. If so, state the cost or estimated cost of repairs for aaid damaqe, t,he part of parts of your vehiole which vere damaqed, the name and address of the company "malcing repairs, estimates or payments. Ie wa. totaled. . 16 . . ., ,- 11. state whether this vehicle hall b.en involvel1 in any other aooil1ents? If so, state the l1ate anl1 place of other aco1I1ent(s), the specific parts of the vehicle damagel1, the place of repair anl1 the cost of eame and it not repaired, l1il1 you obtain any estimates for its repair, from whom, anl1 the cost. of the e.timated re~airs. No. e. If you have had this vehicle repaired since this acoident, set forth the following: N/A i. The place it was repaired I ii. The parts of the vehicle that were repaired I iii. The cost of same, iv. Were the repairs paid for and, if so, by whom. t. It you have not had the vehicle repaired, .tate whether: i. You obtained any estimates for repairs, Ye I. ii. The date and place of .ugh e.timate(s), 1992 - tnt'~ltate Ford Nationwide tnluranee totaled it. 17 , . . . iii. The parts of the vehiole the estimate oovers, . iv. The amount of each such estimate. '9. The Court Term and Number of any suit cOllllllenced thereaf, h. Present status and final disposition of said suit. 30. Did you have collision coverage on the vehicle at the time of the acoident? If BO, state: a. The name of the Insurance company, All-St~tu Insurance b. What amount., if any, the company paid, and to whoa, and the date of sama. . . 1. . . 31. .:1"" .un .....:r.'I.. Hav. yo~ .ad. a olai. or r.c.iv.d paym.nt for any b.n.t1t. und.r any .tat. No-Fault Law, Hotor V.hic1. Finan01.1 R..pon.ibil1ty LaW, work.r'. co.p.n.ation Law or any prOCJr.., group oontract or oth.r arrang...nt for paym.nt of b.n.fit. .. d.tin.d in 1171t of the p.nn.ylvania Motor Vehic1. Financ1a1 R..pon.ibility Law, 42 Pa. C.B.A. 1171t? If .0, pl.... atat.1 a. Th. na.. of the Insuranc. carri.r or .imilar .ntity, b. If aaai9ned clai.. plan or similar plan, the na.. of agency or carri.r, , c. The nallle of the policyholder, policy nulllb.r and file nulllber, d. Th. a.ount of lIIedical benefit. you have claimed to date and the alllount you have actually recovered to dat., .. The rea. on. for any non-payment or deduction which were co..unicated to you and by WhOlll1 f. The alllount of work 10.. you have olai.ed to date and the ..ount you have recovered to date, 19 . . . . . ,.' " 33. DO.. the -insurance policy in Question No. 31 provide l::overage und.r the -ltmited tort option- or the -full tort option-? 34. If you have not presented a claim for benefits, state from whom you are entitled to receive such benefits and reasons for not presenting the clatm. Respectfully submitted, LAW OFFICBS OP DONALD R. DORBR Datedl_ '3~ (f~ HR, SQUIRB rney or Defendant 907 Hartzdale Drive, Suite 706 Camp Hill, PA 17011 Telephone Number (717) 731-0988 Identification No. 58795 . . 21 "'-070 VS. IN '!'HI COURT OP COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLVANIA DOCXBT NO. 94-6095 1994 CIVIL ACTION - LAW JURY TRIAL DBMANDBD DBNNIS I. HOCXBNBIRRY, Plaintifl: ARTHUR LINDSAY, JR., Defendant C.RTIrICA~ or S.-VIC. JBPPRBY BAXTER, BSQUIRB, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and correct copy of Defendant's Interrogatories Addressed to the Plaintiff to be served by regular first class mail upon: poreat N. Myers, Esquire 10000 Molly Pitcher Highway Shippenaburg, PA 17257 March 1. 199!l DATI ir- el) 0- 0 I. . .~ ,- '~r M -'.i..'(, ~("' ) '";I' ,. ......,: ",,";.. , . ~;.:.;: ~i' <l. , <r ( . 'r,) "r,'l ~J' .1.... ".~ 5.111' ,.... Itl) " ., 'le.\" .'., ::...; .:~ q. r~ ~j 0 cr. U < . < rIl _ ~~ ~lIi e.l::!:l;;S.J. ~O<i7I"I'" ~ i:! .J'''' roo < .. ~ :l;:! r:: $"'~ :;,:a-;:: <Ie "rIJ~ t:;- ...~.. ~C.. ~ - < 4! z'" i;,i "" ; :;, =c " . .. .. . -. . 4 -. " . '. , 4. Defendant flied an Answer with New Matter, railing the expiration of the Statute of Umltatlonl u an affinnative defenMJ. See Exhibit .C" attached hereto. .5. Plaintiff's cause of action is barred since the applicable two year Statute of Umitations had expired prior to the commencement of the present action. WHBRBPORB, it is relJlCCtfully prayed that thil Honorable Court, issue an Order ,ranting Defendant'l Motion for Summary Judgment. Relpectfully submitted, LAW OFFICES OF RUBINATB, JACOBS 01: SABA Dated: slJ~JCf7 , , SCOTr A. FRBBLAND, ESQUIRE Attorney for Defendant, Arthur Lindsay 214 Senate Avenue, Suite .503 Camp Hill, PA 17011 Telephone Number (717) 731-0988 ldentilicatlon No. .5.5663 2, . -' " " " '.. 94-070 VI. IN THB COURT OP COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLVANIA DOCKBT NO. 94-609.5 1994 DBNNIS B. HOCKBNBBRRV, Plaintiff ARTHUR LINDSAY, JR., CIVIL ACTION. LAW Defendant: JURY TRIAL DEMANDED CERTIFICATE OF SERVICE scan A. FRBBLAND, ESQUIRE, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and correct copy of Defendant's SUPfllemental Motion for Summary Judgment to be served by regular lirst clasl mail upon: Ri.chard M. Morris, Jr., Esquire 318 Bast King Street Shippensburg, PA 172.57 Date: 5// t./ 97 ~~ . Sc 1\. Freeland, Esquire Attorney for Defendant . , , .. - ..... .,.".,ifI,. ."'II'''.~.IIl'' ~IOt,ltu @ '" " - , q,' " ,j , " I': " " ", " .. In It * I',,!, 'l < .....'--.. ' ,( . - . ~o Law, Otrk:ea of Rublnate,' ,ba A Saba Scott A. PreoIIDd. Elqulre Aaomey for Defendant, Arthur Unday 214 SeJ>.t.. AVel1ue, Suite 503 Camp HID, PA 17011 TBlllPhnnA Number nl?) 731.0988 ," . - , . ... '. ".:.' '., DBNNIS HOCKBNBBRRY, P1alnt1ff IN nIB COURT OF COMMON Pl.BAS CUMBBRLAND COUNTY, PENNSYLVANIA F ~ ~ ." ". ..., -j ,t,' r.., -, ('-I' :0 n~ ;';[ ~ ~,,~t (,; -.JHJ r;l~. 4 ~h ~.~ ~;i ~ :;;( 't';' ~ 2:; ~ ~ vs. DOCKET NO. 94-6095 ARnroR lINDSAY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW COMBS the Defendant, Arthur Unclsay, by and through his attomey, Scott A. Freeland, Esquire, who respectfully represcnts as follows: 1. The above referenced matter was commenced by the filing of a Complaint OD or about October 24, 1994. (A copy of said Complaint is attached hereto as Exhibit "A"). 2. The Defendant rued his Answer with New Matter to Plaintiff'. Complaint OD or about December 2, 1994. 3. The on! deposition of the Plaintiff, Dennis Hockenberry was taken on June 28, 199.5, with a true and correct copy of lI/IIe being attached hereto as Exhibit "S". 4. The Plaintiflla bound by the limited tort provisions of the Pennsylvania MOCOr Vehicle Pinancial ReIponslblUty Law, 7.5 Pa.C.S.A. 1170.5. .5. Pa.R.C.P. 103.5.2 provides as follows: After the relevant pleadings are closed, but within luch time as not to unreasonably delay trial, any party may move for summary judgment In whole' or in part as a matter of law 'iJ ". " \ I. ~ . . \ . .. . -, '., .. (1) whenever there Is no genuine issue of any material fact as to a aec:el1If)' element of the cause of action or defense which could be eatabUahed by additional discovery or expert report, or (2) if, ~r the completion of discovery relevant to the motion, IncludlDJ the production of expert reports, an advene party who wID bear the burden of proof at trlal has falled to produCCl evldenCCl of facta essential to the cauSe of action or defense which in a jury trW would require the Issues to be aubmltted to a jury. 6. Pa.C.S.A. 1170.5(d) provldea In relevant part as follows: (d) LImited tort alternative. - Bach person who elects a limited tort alternative remains ellgible to receive compcnsatlon for economic loss sustained in a motor vehicle accident as a consequent of the fault of another pcnon punuant to applicable tort law. Unless the lrUury sustained Is a serf.ous iI\lury, each penon who Is bound by the limited tort election Ihall be pReluded from maintaining an action for any non-economic loss. "Serious lJUury" is defined at 7.5 Pa.C.S.A. 11702 as "personal iI\lury resulting In death, serious impainnent of bodily function or permanent lerious disfigurement. " 7. The Plaintlll, Dennis Hockenberry, did not sustain personallnjury resulting In serious impainnent of bodily function as a result of the lubject motor vehicle accident described in the Complaint attached hereto as Exhibit "A". 8. Bllis P. Friedman, M.D., In expert in orthopaedic surgery ~viewed the records pcrtalnlng to Plaintllrs alleged Injuries, as well as records pcrtaining to Plaintiff's extelliive pre-existing physical problems and concluded that Plaintiff suffered no "se_rious lJUury" in the motor vehicle accident at issue as defined by applicable law. A copy of an Affidavit from Dr. Priedman is attached hereto and marked as Exhibit .. c. . . . . '. , . . , . .' .. 9. No pnulM luue of material fact remains for trial. Tberefore, Summary Judp1el1t is wamnteeS In the present ca.!Cl. WHBRBPORB, it Is reapectlully prayed that this Honorablo Court, Issue an Order put!nl Defenda1\t'l Motion f\)r Summary Judarnent, precludinJ Plalntlfl from preaendDI a claim or evidence for non-economlc damllea at time of trial, or in the altemaUve, lIaue a Rule upon Plaintiff to .how what cause, if any, they may have u to why this Hononble Court .hould not preclude pJalntiff from presenting any claim or evidence for non-economlc ......l\lea at time of trial, and to otherwlMJ respond pursuant to PI.R.C.P. 103.5.3. Respectfully submitted, LAW OPPlCES OF RUBINATB, JACOBS a: SABA Dr.teeS: S A. , ESQUIRB Attorney for Defendant, Arthur Undaay 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Telephone Number (717) 731-0988 Identification No. .5.5663 . ".:.- , , ,,- ..... . ., ", . -, f4.070 v.. IN nIB COURT OP COMMON PLBAS cUMBBRLAND COUNTY, PElNNSYLV ANL\ DOCKBT NO. 94-609.5 1994 DBNNlS B. HQCKBN:BBRllY, PlalDdff AIlTHtJR LINDSAY, JR., : CIVIL ACOON - LAW Defendant: JURY TRIAL DEMANDBD CERTIFICATE OF SERVICE SCOTr A. PRBBLAND, ESQUIRB, hereby c:ertlflClS that be is the attorney for tbe Defendant herein, and that be caused a WI! and correct copy of Defendant'. Motion for Summuy Judgment to be ~rved by J'llgular lint class mail upon: Richard M. Morris, Jr., Esquire 318 Ilaat King Street Shlppenaburg, PA 172.57 J>.te: ~Q5197_ Seon A. Preeland, l114ulre Attorney for Defendar,. .' . . . .. , , , , , , , '" 1'1, " 'I . . "'1,i"t ""f ";",,',' ""'~:',~'~.'::.'r~tt;.-:., ,:'~r'_7"". ~,'r..r-' '~,,'''''77-'-~:-- -~:. '.".... ..~.~,nt r',f'!':Wr, "1,', ,""('1'1 t I " . " ;. ':, :..,. ", , ~, : i,'I""', ," ',_ ,'I;, , ....... A ", f j,.,I~"'~" hJ'{,'r;'"'/f!;f,.:';.L",:"'ti'::,'.- :. -:\'j;,~:_~;,. (;'';ht1'~ '1t.~ ,:-"~ ~t' "\;il~:~'" _!'c, I', !'~f' .' ',t ' ~ . . . . .. ',' ~(Q)[j2>~ _ ..01 IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRICT CUMBERLAND COUNTY, PENNSnVANIA DENNIS E. HOCKENBERRY, CIVIL ACTION . LAW Plaintiff .J. (1'1- u09S C~;~ NO. Civil 1994 v. '.! .~. '. ~ - 1'0.) .c:.. ARTHUR LINDSAY, JR., Defendant .: ,:.~' ::> . ~ . -; ~:"I c..o _ -...-: II, ~ -- ~.. --<?;. ~ · IlQDg · 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 8 written eppearance personally or by attorney and filing in writing with tho Court your defenses or objections to the claims set forth against you. You are warned that it you 'fail to do 10, the case may proceed without you and 8 judgment may be entered egainst you by the Court without further notice for eny money claimed in the complaint or for any other claim or relief requested by the Petitioner. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFURo ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO fiND OUT WHERE Court Administrator CUMBERLAND COUNTY COURTHOUSE High and Hanover Streets Carlisle, Pennsylvania 17013 Telephone 17171 2406200 TRUE COpy FROM RECORD In TIIIImony .'801.1 "'" UnIo 1M my hand and till HI! eI said CO!frt at QrI., PI. ThiS-e1:J~~~2~ {ltp.4 , I , PrOC/!Oft..." <. -, ., .: -, IN THE COURT OF COMMON PLEAS FOR THE 9&11 JUDICIAL DISTRICT CUMBERLAND COUNTY, PENNSYLVANIA DENNIS E. HOCKENBERRY, Plllntlff CIVIL ACTION . LAW v. NO. . . I Civil 1994 ARTHUR LINDSAY, JR., Do'lndlnt .~. 1. Plllntlff I. DENNIS E. HOCKENBERRY, an adult individual who resides at 227 Walnut Olle ROld, ShlpPln.burg.. Cumbarllnd County, Pennsylvlnla. 2. Dlfandlnl, ARTHUR LINDSAY. JR., is In Idult individual who resides It 824 Greenspring ROld, Newville. Cumberllnd County. Pannsylvanla. 3. On Oclober 23, 1992, Plllntlff. was travelling South on Route 533 and Bull's Head Road. WIS alruck by In lutomobUe drlvan by Defendant, ARTHUR LINDSAY. JR.. whi~h entared Route 533. filling to atop It I atop aign on Bull's Head Road It its interse~tion with Route 533. 4. As I rllult of thl collision with Defendant to maintlin control of hi~ vehicle Ind operate it II I alt. apeld, Pl,lntiff .uffared bodily Injury to his neck and back. requiring medical treatment Ind contlnulI 10 aufflr Ihl aff,ct. of the Ipjury. 5. At the time 01 Ihe accident. Ihe negligence of Defendant consisted 01 the following: II) Feiling to kllp his vehicle ulider proper and Idequate control; lb) Failing 10 .top el a properly signed intersection; Ic) Failing to comply with the provisions a. Ihe Plnnsylvlnia Molor Vlhicl. Codl rlllling 10 Ihl operation of motor vahicles, ,plcifically 13 they relata 10 the eforl,lld lets a. nlgliganca; Ind. . f.. .. ~ . .. --. . , '" . '.~ (d) Such other ects or omissions es mev be revelled In the course of discovery, or It trial of this Clse. WHEREFORE, Plaintiff pravs vour Honorable Court to enter its judgment In an IIlIOunt In Ixelss . of .10,000.00, plus Intereat from October 23. 1992 together with costs DI luit, said lmounts bllng within the limits for mandatory arbitration. Oatad: SEPTEMBER 8, 1994 -\ F~S;;'~RS Attornev for Plaintiff 1.0. No. 18064 10000 MolIV Pitcher HighwaV Shlppensburg. PA 17257 (717) 532.9046 " , . ,. ; . I \. ---. ~ . '.' .-' .. ......' .'~.l' . . . -', '. . .. "' . VERIFICATION , . I verify thet the atatements mlde in this Compllint Ire true Ind con.ct. I underatlnd thlt fll.. stltements herlln Ire mlde subject to the pen II ties of 18 PI. Cons. Stlte. I 4804. . rllltlng to unsworn fllsifiCltion to luthorities. Dlted: 71 r 9 r O~r/(~ . DENNIS E. HOCKENBERR , . " " . ! I, " ... . ,. , " t'!,l , , ...1 " " . . " '. " 1 2 3 4 5 6 7 8 9 10 1,1 12 13 14 15 16 17 18 19 20 21 22 23 24 " 25 .,' , . , 1 DBNNIS E. HOCKBNBERRY, Phintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COU~TY, PENNSYLVANIA va. NO. 94-6095 1994 ARTHUR LINDSAY, JR., CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED DEPOSITION OF: DENNIS E. HOCKENBERRY TAKEN BY: Defendant BEFORE: Janet E. Smith, Court Reporter Notary Public DATE: Wednesday, June 28, 1995 10:32 a.m. PLACE: Law Offices of Forest N. Myers 10000 Molly Pitcher Highway Shippensburg, Pennsylvania APPEARANCES: FOREST N. MYERS, ESQUIRE 10000 Molly pitcher Highway Shippensburg, pennsylvania 17257 For - Plaintiff JEFFREY BAXTER, ESQUIRE 3907 Hartzdale Drive Suite 706 Camp Hill, Pennsylvania 17011 For - Defendant SMITH REPORTING SERVICE - JANET E. SMITH P.O. Box 742 Mechanicshurg, Pennsylvania 17055 SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 CER'llFIED COpy . . . . , , . '. . -'. - 2 1 2 3 4 5 6 tRDRX ~O WYTHESS ,1'1'11.89: EXAMINATION Dennis E. Hockenberry, By Mr. Ba,:ter 3 7 ': 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SMITH REPORTING SIRVICE (717) 691-7338 I 1-800-689-7338 . . '. 3 1 S TIP U L A T ION 2 It is stipulated by and between counsel for 3 respective parties that the inspection, reading and signing 4 of the deposition is hereby waived. 5 It is further stipulated between the parties that 6 all objections, except as to the form of the question, are 7 reserved until the time of trial. 8 ----- 9 10 DBNNIS B. H~KENBERRY. called as a witness, having 11 been duly sworn, was examined and testified as follows: 12 DIRECT EXAMINATION 13 BY MR. BAXTER: 14 Mr. Hockenberry, my name is Jeff Baxter. I Q. 15 represent Arthur Lindsay in the lawsuit that you brought 16 which is a result of the accident that occurred on October 17 23rd, 1992. Have you ever had your deposition taken 18 before? 19 20 No, sir. A. Q. Okay. Some of the ground rules of a deposition 21 that I want to go over with you. I'm going to ask you a 22 number of questions. If, at any time, you don't hear me or 23 you don't understand my question, ask me to-say it again or 24 rephrase it. And I'll be happy to do t~at. Okay? 25 A. Okay. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 . , '. ., - 4 1 Q. please answer all of my questions with a verbal 2 response, yes or no, instead of shaking your head. That 3 way, the Court Reporter can write down what you say. Okay? 4 5 A. Okay. Q. If you give an answer to one of my questions, I'll 6 assume that you understood my question. Okay? 7 8 9 10 A. Okay. Q. Would you state your full name? A. Dennis E. Hockenberry. Q. Okay. What is your current address? 11 A. 227 Walnut Dale Road, Shippensburg. 12 Q. How long have you lived there? 13 A. Approximately, four years? 14 Q. Four? 15 A. Four and a half. 16 Q. Does anybody live with you at that address? 17 A. My wife. 18 Q. What is her name? 19 A. Artha, A-r-t-h-a, E. Hockenberry. 20 Q. How long have you been married? 21 A. Since December of ' 92. 22 Q. Do you have any children? 23 A. I have a daughter that's married and has two 24 children. And my wife has a son that's married. 25 Q. Do you have a current driver'S license? SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 . . 1 2 3 4 5 " S A. Yes, I do. Q. Pennsylvania? A. Yes, sir. Q. Do you have any restrictions on your licens.? A. The only restrictions I have is I have to w..r 6 vlasses. 7 Q. Okay. Has your license ever be.n suspended or 8 revoked for any reason? 9 A. I had it revoked back in '79 or '80, way back. I 10 had been passing out, and I had had an accident. And'I 11 also had a few beers back then. But I went through thft 12 rehab and all of that back then. But other than that, no. 13 Q. So on the date of this accident, October 23rd, 14 1992, you had a valid license? 15 16 17 18 19 20 21 :n :l3 24 25 A. Yes, sir. Q. Have you served in the military? A. Yes, sir. Q. What branch? A. The United States Army. Q. When did you serve? A. From .July of 1965 till October 1971. I alao had two tours in Vietnam. Q. What was your rank? A. Sergeant. Q. Did you receive an honorable discharge? SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 . , 1 2 A. Q. 3 duty? 4 A. '. 6 Yes, sir. Did you receive any injuries during your tours of I received hearing loss, and we think I might have 5 had &gent.orange. That's still pending. We haven't 6 received any results on that. 7 Q. 8 9 A. Q. For what? Agent orange. I had cancer in 1988. What type of vehicle were you driving on the date 10 of the accident? 11 A. 12 13 Q. A. 1984 Bronco. Did you own that vehicle? I was paying on it. I didn't own it own it. But 14 I was paying a mortgage. 15 Q. 16 A. 17 Q. 18 19 A. Q. It was in your name? Yes. As opposed to your wife, sir, or your child's? Just mine. To the best of your knowledge, was it in proper 20 working order? 21 22 23 A. Q. A. 24 Q. Yes, sir. Prior to the accident? Yes, air. I want to ask you a few more background q~estions 25 then I'm going to ask you about the accident and then .your SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 " 9 1 It's been so long I can't recall. It was in A. 2 October. I had taken the dogs down to go for a walk. 3 Scout around for deer, hunting season was coming. And I 4 just, basically, went down and walked around the farm a 5 little bit. 6 Q. Do you remember what time this accident occurred, 7 approximately? 8 A. It was around noontime, I believe. 9 Q. Okay. Do you remember what the weather conditions 10 were like that day? 1 1 12 A. It was sunny. Q. Can you tell me, in your own words, what you 13 remember happening? 14 A. I can remember approaching the crossroads. And I 15 had seen this pickup coming. I thought, well, he's going 16 to stop. I know I wasn't going all that fast. And this 17 individual just never even looked. He just straight out in 18 front of me. And the biggest fear I had at that time was I 19 can't sustain any trauma. 20 And I remember slamming on the brakes and trying 21 to turn because I wanted to evoid a head-on collision. And 22 the individual never even looked, like he was in 23 outerspace. Never even heard the brakes or ~othing. I 24 don't think he knew anything until we made contact. And I 25 can remember spinning around and then a aharp stop. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 '. - 10 And that was when I hit a farm there. And they 2 had a big locust post for a gate. And I can remember my 3 poor dog looking at me like, what did you do? Don't look 4 at me. Look at him. Lut then somebody came and told me 5 not to move because my ribs were really bothering me. My 6 neck was stiff. And the ambulance came. Other than that, 7 that's basically it. 8 Q. Okay. I'd like to take you through that again. 9 I'm gonna ask you more specific questions about the 10 accident. Route 533, how many lanes is that? 11 A. There's two lanes. One, I guess, north and south, 12 east and west, whichever way it is. But there'S only two 13 lanes. 14 15 16 Q. A. Q. You said you were approaching an intersection? Yes. The intersection, was that -- did you have any 17 traffic control devices? 18 19 20 21 22 A. Q. A. Q. A. No. There was only stop signs on On the other way, the other road? Yeah. Do you remember what that road was? I can't think of the name today, but I 23 have -- should be in the -- I should have i~ wrote down 24 lomewhere. 25 Q. Bulla Head Road? SMITH REPORTING SERVICE (711) 691-7338 I 1-800-689-7338 1 A. , . ". 1 1 Yes, that's it because there's lamas on the right 2 and a dairy farm. And just fields on the -- as you're 3 going towards Shippen.burg, the lamas would be on the right 4 and pastures and farmlands on the left. 5 Q. Does Bulls Head Road start on one side of 533 and 6 continue on the other side of 533? In other worda, can you 7 go straight across? 8 9 10 11 12 13 A. Q. A. Q. A. Q. 14 truck-- 15 16 A. Q. 17 A. 18 Q. 19 20 A. Q. 21 22 Yes. And are there stop signs on eaoh side -- Yes. -- of Bulls Head Road? Right. You indicate that you thought it was a pickup Yes. __ that was driving on Bulls Head Road? Right. Was it on your right or your left? Left. It was on your left? A. Um-hum. Q. Did you, at any point, see the pickup truok atop 23 before it proceeded forward? 24 25 A. No, sir. Q. How far away from this intersection were you when SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 " 12 1 you .aw the pickup truck, it you oan estimate? Give an 2 e.timate. 3 A. I'd say probably 150, 200 yards because he was 4 ju.t like that. About 150 yards. I seen him andtho~oht, 5 well, you know, he'll be stopping anyhow. And I maintained 6 regular speed of about -- speed limit is 45. I was doing, 7 approximately, 40, 42. And like I say, it was a nioe day. 8 And all of a sudden, I seen the truck. Again, you know, I 9 thought he'd be stopping. Like I said, it was just like he 10 was froze, looking straight ahead. Never looked left. 11 Never looked right. Just straight out. 12 Q. So you were able to see into the cab? 13 14 A. That's correct. Q. You were able to see the driver. Okay. Was it a 15 man or a woman driver? 16 A. There was a man. 17 Q. Did he have any passengers in his car or his 18 pickup? 19 20 A. No, sir, not that I seen. Q. Were you wearing a seat belt at the time of the 21 accident? 22 A. Yes, sir, I was. 23 Q. What type of seat belt was it; harness or across 24 your lap? Do you remember? 25 A. It was a harness type. I think that's what kept SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 . . 13 1 me from hitting the windshield because I had a pretty rough 2 ride. 3 Q. When you realized that this gentleman was not 4 gonna stop and was proceeding out into Route 533, were you 5 able to slow your vehicle down at all? 6 A. I had slammed on the brakes and started to turn to 7 avoid a head-on collision. I did manage to slow down. But 8 what happened was my left, front bumper hit right behind 9 the cab of the pickup and spun him right on the edge of the 10 front which spun me around backwards. And my vehicle was 11 totalled. 12 Q. So you had damage to your front, left bumper; Is 13 that the point of impact on your vehicle? .14 A. That was the point of impact. And it took out the 15 whole front fender, the hood, the grill, the right fender 16 and pushed everything back into the windshield and buckled 17 up. 18 Q. Was there damage to the rear of your truck from 19 where it hit the fence? 20 21 22 23 A. Yes, sir. Q. What side of your truck? Sort of the right rear. Okay. Were you -- you said you we~e .in guarded A. Q. 24 condition at the time of the accident. But you were okay 25 to drive. Were you on any medication at that time? SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 , , 1 2 3 4 5 6 7 8 9 10 11 12 i 13 , 14 15 16 17 18 19 20 21 22 23 24 25 " 14 A. No, sir. Q. Okay. Was there any medication that had been prescribed to you that the doctor told you to take? A. Not at this time. Guarded condition was I was supposed to be extra careful not to sustain any head injury, any neck injury, anything like that. In other words, don't go climbing trees. Or if you go walking up the mountains, have somebody with you in case you would fall as far as I had to watch that. I didn't really injure myself. Q. Prior to the date of this accident, October 23rd, 1992, when did you last have any type of surgical treatment? A. I think it was October of '90 or '91. '91, it might have been. What they had done there is went up in the right side of my nose to take part of the nose bone out so I could breathe better. I have trouble -- I have no saliva glands. And I'm awful dry. MR. MYERS: Do you need some water? THE WITNESS: If you got, please. MR. BAXTER: Do you want to take a break? MR. MYERS: Yeah. I'll get him a glass of water. It will only take a second. (Whereupon, a brief recess was taken.) SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 .. . . 1 BY MR. BAXTER: 15 2 3 . Q. Are you ready? A. Yes. It, at any time you need a break, let roe know. Q. 5 We'll stop. Okay? 6 7 A. Q. Okay. You Baid that you thought it waB '90 or '91 that 8 you last had Burgery? 12 A. 9 10 A. Q. Yes; it waB just reconstructive surgery. Okay. Were you continuing to tr6at with a doctor 11 on a regular basis following that surgery? I've been going to tho V.A. hospital in 13 Martinsburg about two or three times a week or a month, 14 rather, due to I have terrible teeth problems because of 15 not being able to chew and getting food up in, root canalB. 16 I underwent -- I can't think of it, hyperoxide 17 treatment which was to help induce blood tlow to the 18 damaged areas trom radiation. And just to make sure there 19 was no problems, basically, just checkups. Make sure 20 everything is working. 21 Q. 22 not on any medication at that time? Okay. And I believe you said earlier, you were 23 24 A. Q. 25 A. No, sir. None was prescribed? NO, sir. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 . 18 1 only thing my body hit was the armrest on the door panel. 2 We had a 45, kind of like shifted me in my seat. And then 3 again, when I hit the fence, it throwed me back and whipped 4 my neck pretty bad. 5 Do you know if your head hit the back of the chair Q. 6 or the driver's aeat? 7 That I had those headrests, so that helped me from A. 8 going way, way back. But it was still, you know, pretty 9 rough. Along with a lot of fear, that crossroad .care. me 10 even today. When I approach that, I approach it at about 11 20 mile an hour. 12 Do you remember when you were speaking to Mr. Q. 13 Lindsay saying something, like, well, I'm shook up but I'm 14 not hurt? 15 I remember him saying, how do you feel? I feel A. 16 okay, I guess. I didn't say, yeah, I'm ready to go out and 17 play ball. I'm okay. I guess I'm still in shock from what 18 happened. And I asked him if he was okay. But I do 19 remember him specifically saying I never seen you. 20 Q. Okay. Did you, after the accident, get out of 21 your Bronco and walk around to look at the damage? 22 A. NO, sir. The only time 1 got out of the Bronco 23 was when the ambulance got there and they put the neck 24 brace and everything on and helped me out and put me in the 25 ambulance. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 1 ", 19 Q. Did you initially -- initially, did you not want 2 an ambulance? Were you reluctant to go in an ambulance? 13 A. 3 A. No. I just -- the biggest thing I was concerned 4 about who was going to take care of my dog and call my 14 Q. 5 wife. 6 Q. Okay. Immediately following the accident, I think 7 you've already said you felt neck pain and rib pain? 15 16 A. Q. 8 9 10 A. Q. A. Yes. And you felt that right there at the scene? Yes. 12 where in your neck? Can you indicate where you felt the neck pain, 11 Q. It was right in the side, like. Below your ears? Yeah. And extending down? Down to the shoulders. 19 left side or right side? And with regard to the rib pain, was that on the 17 A. Left side. Your left side. Did you take an ambulance to a 24 Carlisle Hospital Emergency Room. Yes, I did, I went from the ambulance to the 18 Q. 20 A. 21 Q. 22 hospital? 23 A. 25 Q. Do you recall what they did for you there? SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 20 1 A. Took x-rays. I had a broken rib. And, in fact, 2 they said you've the got, you know, your muscles look like 3 they've been stretched or whatever. But they didn't know 4 if it was from the surgery or the wreck. And I said, well, 5 it wasn't bothering me until I had this. And it's really 6 bothering me, you know, so. 7 Q. Were you released that day, or did they keep you 8 for observation? 9 A. I think my wife picked me up late that night. I 10 think they left me out that night. But then it was about a 11 week later, I went to Pittsburgh V.A. Medical Center and 12 was treated more for the broken rib and still going 13 through -- they've been tryin9 to give me some kind of 14 treatment for the neck, therapy. I've been putting heat 15 pads on it. They gave me muscle relaxers, stuff like that. 16 Q. Is there a particular dootor that you saw in 17 Pittsburgh at the V.A, Hospital that helped with your rib 18 problem or your neck? 19 A. Sir, today, I couldn't tell you. I've been to the 20 V.A. Medical Center 80 often, I get so many different ones. ~1 I couldn't begin. There would be regular records in my 22 medical file at the V.A. 23 24 In Pittsburgh? Q. A. Well, in Martinsburg that would show who ~- aa a 25 matter of fact, I even went back to the Carlisle Hospital. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 11 12 1 13 14 15 16 17 18 19 20 21 22 23 24 25 . , \, . .' 21 And, you know, they gave me, like, th. waist rib band and told me no lifting, no nothing for six months due to the injury. Q. How long did it take for your rib to heal up to the point you felt okay? A. I'd say about 5 1/2, 6 month. I couldn't even pull my robe back. As a matter of fact, I couldn't do much that year after the accident. Q. You said shortly after the accident, you went to Pittsburgh to the V.A. Hospital? A. I was scheduled for treatment out there. While I was there, I had trouble breathing. And I went to see, you know, a doctor. And he said, you know, your ribs really cracked. It's really bad. And they told me just to take it easy. And they are gonna cancel my hyperbaric treatment. I said, no, is there any way I can get through it? Wrapped me really tight and said okay. Q. Is that why you initially went to Pittsburgh for this particular treatment? A. The hyperbaric, yes. While I was there, the rib really started and I couldn't breathe, you know, take deep breaths. Every time I took a deep breath, I-had sharp pain. Q. Did you seek any other medical treatment for your SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 A. '. ., 23 It'a like somebody takes a hot iron and just real 2 aharp and tender to the touch. If I go to look to my left, 3 I can only turn so far and the right tightens up. If I go 4 to look to the left, the right tightens. Sometimes I'll be 5 doing -- reading the paper, reading the magazine, and both 6 aides will just tighten up into knots. I don't have to be 7 doing much at all. 13 14 Q. 8 9 Q. Is this pain constant, or does it come and go? It comes. Sometimes it lasts five minutes. 10 Sometimes it lasts 5 to 15 seconds. It depends. If I'm in 11 the shower scrubbing my hair and get it, I just relax and A. 12 let the hot water and it will go. A. 15 sometimes. 16 Q. Does it ever last for more than five minutes? I've had it that it lasted maybe 20 minutes Is that something that you feel every day or only 17 when you're doing certain activities? 18 A. I'd say on a daily basis, I'd say at least three 19 times a week. 20 Q. 21 A. 22 Q. Three times a week? Yeah, When you do get a flare-up in your neck, do you 23 take any type of medication for that? 24 A. I have muscle relaxers that the V.A. gives me, 25 pain pills. But, basically, I'll take a pain pill and a SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 . 13 . , 14 15 16 17 18 19 20 21 22 23 24 25 24 hot rag. That's what they recommend. Q. Have you seen anybody locally for treatment of your neck? A. I was down at Carlisle Emergency on Sunday night, and I seen a doctor Monday morning at the Medical Arts Building. And I forget his name. But there again, he's the EMT specialist at the Medical Arts Building. Q. And when you say Sunday or Monday, do yov mean this past week? A. Yes. Q. Is that the first time since the emergency room that you've sought treatment for your neck pain in the. Carlisle area? A. In Carlisle, yes. But at the V.A. Medical Center, off and on. As a matter of fact, I was gonna try a new kind of therapy to try to get something going. Q. Can you find out for me and let your attorney know what doctor you saw there in the Medical Arts Building? A. Okay. Yeah, I can do that. Q. Okay. When you went to Pittsburgh a week or so following this accident, you said that you went for these hyperbaric treatments? A, Hyperbaric. Q. I'm going to write that down. A. Hyperbaric oxide treatments. It's something like SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 ", .. 25 1 2 3 . 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they give scuba divers that gets the bends. That vet oxYVen back into their blood cells and stuff. Well, a cancer patient that has had radiation or the radiation kills all the blood cells and everything they use this to get the blood cells. Q. oxygenated? A. Yeah. Q. When you went for the hyperbaric treatments, you indicated that you had rib pain and you were treated for that. Did you receive treatment while you were there for your neck also during that month, month and a half? A. Well, they were hoping that the hyperbaric would help some too, They didn't know. It was for the whole area. Q. Did that treatment help? A. Not really. It helped some as far as my teeth went. But even still. Q. But with regard to the neck pain, though? A. No, it didn't really. Q. Did you seek medical treatment with any other dootors for your neck pain? A. I maintained gOing to the V.A. Medical Center because my insurance company, they've been pretty well bled. And the V.A. says, well, we'll treat you. Come to us. So that's where I, basically, have been going. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 . '. 26 1 Q. Have they prescribed for you any physical therapy 2 for your neck? 3 A. They're gonna try a new style of treatment coming 4 up. I'm wait for an appointment. They did try putting, 5 like, a tin harness and a strap and trying to stretch the 6 neck. But when they did that, I couldn't breathe. So they 7 had to stop that. 9 Q. you? A. Q. A. Q. 14 doctors that would havo treated you for your neck injuries? 15 A. All I know it's a rehabilitation center at the 16 V.A. Medical Center in Martinsburg, West Virginia. And it 17 was a lady and it was -- as far as names go, no. 18 Q. Okay. When did you first need to undergo surgery? 19 What year was it? 20 A. Pardon? 21 Q. When did you first need to undergo surgery or have 22 a surgical procedure done with regard to your cancer? 23 24 25 A. 1988. Q. Do you remember where that was performed? A. Denver, Colorado. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 :2 3 " 5 6 7 8 9 10 11 12 , 13 14 15 16 17 18 19 20 21 :l2 23 24 25 " :27 Q. Following that surgery, did you have any others? A. I've had reconstructive surgery, '89, '90 and '91. Q. So, to the best of your knowledge, is your cancer still in remission? Or were they able to successfully remove any tumors during the surgery? A. As far as the last report, it was a success. There'S no cancer showing. Q. Good. Okay. However, I take it, as a result of the surgery that you had in Denver, that has resulted in all of these other surgeries and difficulties with your teeth Dnd with your breathing. Is that fair to say? A. Not with my breathing. If anything, helps me breathe better. The only thing that's really done is the jaw is lopsided because of having to take the jaw bone out. But, other than that, it's been very successful. They went in and the one reconstruction is where I have no filling in the right side of my face, They went baok in behind the ear and sewed up my eye so it stayed open better instead of sagging shut. That's what the other reconstruction surgery was in '89, '90 and '91, Q. Have you had any difficulties or pain as a result of any of the surgeries that you've had? A. The only difficulties I can remember and it was so funny from the surgery was and it's hard to believe after baing in s~rgery for 24 hours for skull base, facial SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-73]8 28 1 surgery. My little finger was the only thing I complained 2 about. It was nerve damage done to the left arm from 3 laying on it for 24 hours, body damaged the nerves in the 4 little finger. Other than that, no. 5' Q. Have any of your doctors told you that as a relult 6 of this accident, there's been some effect to, I guess, the 7 postoperative condition that you're in? 8 The only thing I get from the doctors is, yeah, A. 9 you got problems but I don't know what caused it. Or I 10 get, well, yeah, your body is so bent out of shape, I can't 11 give you a new one but I'll try to do what I can with the 12 old one. 13 Were there any other injuries that you feel came Q. 14 about because of this accident? 15 I had some back pain. But then again, my bigoest A. 16 concern was what was going on with my neck ~nd my ribs. 17 But other than that, no, just basically the neck and the 18 ribs. 19 20 Do your ribs bother you at all anymore? Q. A. Not like it did. Once in a while, you know, it's 21 like on a real cold and rainy day, I get, like, Oh, wow, 22 man. And then it's gone. The only thing I have now is 23 just the neck. 24 Prior to this accident but after your other Q. 25 surgeries, were there things that you enjoyed doing, SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 29 1 hobbies that you had? I know you talk.~ about archery or 2 crossbow? 3 4 5 A. Yeah. What type of hobbies did you enjoy? I enjoyed fishing. I enjoyed hiking and hunting. 6 But now I have to have somebody with me to make nure that I 7 don't slip and fall in the water, that I don't slip on a 8 rock and fall. I'm scared to death of that intersection. 15 Q. Q. A. 9 And my wife does most of the driving now. , 10 11 Q. A. Okay. Did you drive here today? Yeah, I did. She's working. Okay. That was on the spur of the moment thing. I 14 wasn't expecting a call. 12 Q. Do you still go ~ishin9, hunting and hiking, but 16 although I think you said you need to have somebody with 13 A. I do, but it's restricted. In other words, 19 instead of going to the mountains, now I hunt down in the 17 you? 18 A. 20 open farmland, fields at my parent's place. Or I have a 21 few friends that say, yeah, come over. I'll take you 22 hunting. There's a nice field where you can sit and watch. 23 I don't -- as far a~ getting out as often as' I used to, I 24 don't. 25 Even back when I worked, it was like, well, SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 30 1 hunting season is coming. I know I'm going to take -- I've 2 got the first day off and then I want to take two or three 3 days. Now, being disabled, I still don't get the 4 opportunity to go the way I normally would if I would have 5 been working. 6 Are there activities or hobbies that you Q. 7 enjoyed doing before this accident that you can't now 8 because of just the pain to your neck? 9 A. Bowling. I can't take a bowling ball without 10 drawing the neck down. Regular bow, shooting, competition 1 1 and stuff. I can't do that now. I used to go deep sea 12 fishing, but I doubt if I could do that now with the strain 13 and the pressure and the heat. 14 Q. Did you do any of those activities following your 15 surgeries? 16 A. No. Well, wait. You mean any of those activities 17 after I had my surgery? Oh, yeah. As a matter of fact, I 18 went deep sea fishing. And there was six of us. And I 19 oaught a Macko. Since the accident, I haven't. 20 Q. But I meant after you had the surgeries, have you 21 been bowling and fishing? ~2 A. Oh, yeah. 23 Q. Okay. Were you able to go hunting-with a regular 24 bow 25 A. Yeah. SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 31 1 2 3 Q. __ after your surgeries but before this aocident? A. Yeah. Are there any restrictions, any limitations or Q. 4 things the doctors told you not to do because of your neck 5 injury that would be different from things they told you 6 not to do because of the whole 7 A. Are you talking about the doctor who done the 8 initial surgery? 9 Q. No, no. Any doctors you would have treated with 10 after the accident? 11 A. The only thing I've got is, well, you can't do 12 this and you can't do that. I don't know what's causing 13 your problems. As far as the doctors that I've seen after 14 the 8urgery, whereas if I'd have an ear problem, I can't 15 8ee up in it. And I don't know what's causing it. 16 As far as the neck and stuff, one of their biggest 17 concerns was the head itself, where they took the skull 18 flap, took my jaw bone out. Don't get involved in any 19 accidents. Don't go climbing any trees or don't go 20 8wimming because of your ears, That type of thing. But as 21 far as the neck goes, no, ~2 And not till '94, where they told me I 23 couldn't -- when I was told that I couldn't~hoot a regular 24 bow due to the weakness of the arms and the neck and 8tuff, 25 80 the stress of trying to draw that bow back. They 8aid I SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 32 1 can't do it anymore. 2 Q. So you were able to get some type of crossbow Yes, through the Pennsylvania Game commission. 5 And with that, I can have a guy cock it fo= me. It's like 6 carrying a rifle. It has a little wooden stock and stuff. 7 The couple of guys will drop me off at the corner of a corn 8 field, and I'll just sit there. 1 1 A. 3 license? 4 A. Prior to this accident, had you ever been involved 10 in an automobile accident? 9 Q. No, sir. Have you ever been involved in any type of 13 automobile accidents since this accident? 12 Q. No, sir. Prior to this accident, had you ever been in any 16 type of accidents where you would have injured your neck or 17 your ribs? 14 A. No, sir. Have you been in any accidents since this accident 20 that has caused you to injure your neck or your ribs? 15 Q. NO, sir, Do you remember if your medical bills for 23 treatment of your rib and your neck injurie~ have been 24 covered by any manner of insurance? 18 19 A. Q. 21 22 A. Q. 25 A. I think the one was. And then one back at SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 .' 33 1 Carliale Hospital says we sent it but the insurance company 2 denied payment. That's why I got up to that because I was 3 told the insurance would cover my medical bills. And when 4 they didn't make the payments and they came down on me, 5 that's when I filed the claim. 6 Q. Who is your insurance company? 7 A. I had Allstate, I believe. Allstate or state 8 Farm. 9 Q. That's a difference. Let's see here. 10 11 MR. MYERS: Didn't it change? TH2 WITN2SS: I think it might be Allstate. 12 MR. MYERS: It was Allstate at the time. Now it's 13 some other company. 14 BY MR. BAXTER: 15 Q. And when you said that they wouldn't pay for that 16 medical bill and you became upset, are you referring to 17 Allstate? 18 A. I'm referring to when I was taken to the hospital, 19 they told me that Mr, Ramsey, or whatever, insurance would 20 cover it. I said, no problem. And they didn't cover it. 21 Q. I see. Okay. 22 A. Then it wasn't my fault, and I didn't think my 23 insurance company had to pay for it. 24 MR. BAXTER: I think we're done. Hold on just a 25 minute. I think that's it. Okay. That's all the SMITH REPORTING SERVIC2 (717) 691-7338 / 1-800-689-7338 .. . 34 1 questions I have. Thank you. 2 3 4 5 MR. MYERS: No questions. (Whereupon, at 11:30 a.m., the dep081tion'waa concluded. ) 6 7 8 9 10 11 12 13 14 15 16 . ' 17 18 19 20 21 22 23 24 2S SMITH REPORTING SERVICE (117) 691-1338 1 1-800-689-7338 35 1 2 C E R T I F I CAT E 3 COMMONWEALTH OF PENNSYLVANIA 4 5 COUNTY OF CUMBERLAND 6 7 I, JAN~T E. SMITH, a Notary Public duly' 8 commissioned and qualified in and for the County of 9 Cumberland, Commonwealth of pennsylvania, with authority 10 throughout the Commonwealth of pennsylvania, do hereby 11 certify that DENNIS E, HOCKENBERRY. who was by me duly 12 sworn to testify to the truth and nothing but the truth of 13 his knowledge touching and concerning the matters in 14 controversy in'this cause; that ne is thereupon carefully 15 examined upon his oath and that the deposition is a true 16 record of the testimony given by the witness. 17 1 further certify that I am neither attqrney 18 nor counsel for, nor related to or employed by any of the 19 parties to the action in which this deposition is taken, 20 and further that I am not a relative or employee of any 21 attorney or counsel employed by the parties hereto or 22 financially interested in the action. 23 24 25 SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 ~(Q)[}2>'t1A IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRlCf CUMBERLAND COUNTY, PENNSYLVANIA DENNIS E. HOCKENBERRY, CIVIL ACTION . LAW Plaintiff .j. c/II_ 0.09,5 C~;~"'" NO. Civil 1994 v. ARTHUR LINDSAY, JR., l='? ... ~ Defendant N ::., .'1 .t . ~ '" . ", " ..., = . HQDa . .' :.r~. - u:> ~ You have been sued in Court. If you wish to defend against the cleims set forth in the following pages, you must take action within twenty (201 days alter this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with tho Court your defenses or objections to the claims set lorth against you. You are warned that it you fail to do so, the cese may proceed without you and a judgment may be entered egainst you by the Court without further notice for any money claimed in the complaint or lor 8ny other claim or relief requested by the Petitioner. You may lose money or property or other rights impNtant 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 DR TElEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE Court Administrator CUMBERLAND COUNTY COURTHOUSE High and Hanover Streets Carlisle, Pennsylvania 17013 Telephone 17171 240.6200 TRUE COpy FROM RECORD In T"'~wlle'eoI, I""........ my IWld a~tll'" HIt crt said CI)t!r1 ai carl.. PI. This e1-#'-. ~a~llf...1..2cl.:..... telL oJ. \~fl\&V\ ~b J I -~ ProCfllnlllJy IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRICf CUMBERLAND COUNTY, PENNSYLVANIA DENNIS E. HOCKENBERRY, CIVIL ACTION . LAW Plaintiff v. NO. Civil 1994 ARTHUR LINDSAY, JR., Defendant .~. 1. Plaintiff is DENNIS E. HOCKENBERRY, an adult individual who resides at 227 Walnut Dale Road, Shippensburg, Cumberland County, Pennsylvania, 2, Defendant, ARTHUR LINDSAY, JR" i~ an adult individual who resides at 824 Graenspring Road, Newville, Cumberland County, Pennsylvania, 3, On October 23, 1992, Plaintiff, was travelling South on Route 533 and Bull's Head Road, was struck by an automobile driven by Defendant, ARTHUR LINDSAY, JR., which entered Route 533, failing to stop et a stop sign on Bull's Head Road at its intersection witli Route 533, 4. As a result of the collision with Defendant to maintain control 01 his vehicle and operate it at a safe speed, Plaintiff sufferad bodily injury to his neck and back, requiring medical treatment and continues to suffer the effects of the injury, 5. At the time of the accident, the negligence of Defendant consisted of the following: la) Failing to keep his vehicle undar proper and adequate control; lb) failing to stop at a properly signed intersection; Ic) Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code relating to the operation of mo:er vehicles, .pecifically a. they relate to the aforesaid act. of negligence; and, (dl Such oth.r IctS or omissions IS m3V b. revealed In the cours. of discovery, or.t trill of this me, WHEREFORE, Pllintiff prlVs your Honorable Court to .nter Its judgment in an .mount in excess of t1 0,000.00, plus Inter.st from October 23. 1992 together with costs of suit, said Imounts baing within the limits for mandatorv arbitration, Oat.d: SEPTEMBER 8. 1994 -\ j.-.'-I ..\-. FOREST N:lnERS Attornav for Plaintiff 1.0. No, 18064 10000 MolIV Pitcher HighwaV Shippensburg. PA 17257 17171 532.9046 " VERIFICATION I verify thet the stetements made in this Complaint are true and correct. I understand that false statements herein ere made subject to the penalties of 18 Pa. Cons. State. t 4604, relating to unsworn falsification to authorities. Dated: 9/ ~ / <) cj -r-r--' CL.:. ~ 4~ DENNIS E, HOCKENBERR , . . , . , ' 14-070 LAW OrrICJl8 O. IlOMALD a. DOUR Jeff~ey .axte~, .squi~e AttoZDey fo~ llefeDAaftt 3t07 ..~t.dale Il~ive, Suite 706 C.-p Bill, PA 17011 ~.l.e~B. .0. (71') 731-0g88 DBNNIS B. HOCKBNBERRY, Plaintiff ,...'1 ~ IN THE COURT OP COMMON IlLEAS M CUMBBRLAND COUNTY, PBNNSYLVAI{U vs. . . DOCKBT NO. 94-6095 199,4.. r-..l ARTHUR LINDSAY, JR., Defendant CIVIL ACTION . LAW JURY TRIAL DBMANDBD .." ... Cl '" -0 = - c..c ..c. ...~~~ ... ,. .... 1l..DDART' S AR8n. TO .LAIIr1'U.' S COIIPLAIIr1' WITH .. 1CA'l"n. 1. Admitted. 2. Admitted. 3. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to ~he truth or falsity of the allegations contained in paragraph three (3) of Plaintiff'. Complaint. Therefore, the same are denied. 4. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief a. to the truth or falsity of the allegations contained in paragraph four (4) of Plaintiff'. Complaint. Therefore, the same .re denied. ilia'" 5. Paragraph five (5) of Plaintiff's Complaint sets forth a conclusion of law to which no responsive pleading is required. To the extent facts are deemed to be alleged, they are denied. With respect to subparagraphs (a) through (d) of paragraph five (5) of Plaintiff's Complaint, Defendant denies negligence in any of the following regards: (a) Failing to keep his vehicle under proper and adequate control; (b) Pailing to stop at a properly signed intersection; (c) Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code relating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence; and (d) Such other acts or omissions as may be revealed iu the course of di8covery, or at trial of this case. WHBRBPORB, the Defendant respectfully prays this Honorable Court to dismiss Plaintiff's Complaint, and to enter judgment against the Plaintiff and in favor of the Defendant. ... IIA~R 6. Paragraphs one (1) through five (5) are incorporated herein by reference, and made a part hereof as if set forth in full. 7. Plaintiff's claima are barred in whole or in part by the provisions of the Pennsylvania Comparative Negligence Act. 2 . 8. Plaintiff's claims are barred in whole or in part by the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act and/or the Pennsylvania Motor Vehicle Financial Responsibility Law. 9. plaintiff's complaint fails to state a causa of action upon which relief may be granted. 10. By her own actions, the Plaintiff did assume the risk of any and all injuries and/or damages allegedly suffered. 11. If there is a legal responsibility for the damages set forth in plaintiff's Complaint, the responsibility is that of other individuals and/or entities over whom Defendant has no control. Plaintiff's injuries and damages as alleged were not proximately caused in any manner whatsoever by Defendant. 12. Plaintiff's claims are barred by the applicable Statute of Limitations. 13. To the extent that the limited tort option was elected by and applied to the Plaintiff's claim or claims, it is asserted that ouch claims are precluded. 14. All matters not heretofore directly controverted are hereby specifically denied. 3 . . . WHBRBFORB, the Defendant respectfully prays this Honorable Court to dlsmi.a Plaintiff's Complaint, and to enter judgment againat the Plaintiff and in favor of the Defendant. Reapectfully aubmitted, LAW OPPICBS OP DONALD R. DORBR -- JBPfR ,Y , '1ISQ IRB Attorpe for. 'Defendant 3p07 Hartzdale Drive, Suite 706 Camp Hill, PA 17011 Telephone No. (717) 731-0988 Identification No. 58795 , " . ' ,- ;." . . U-070 DBNNIS B. HOCICBNBrrR.RY, Plaintiff IN THB COURT or COMMON PLBAS CUMBBRLAND COUNTY, JilBNNSYLVANIA DOCICBT NO. 94-6095 1994 CIVIL ACTION - LAW JURY TRIAL DBMANDBD VB. . . ARTHUR LINDSAY, JR., Defendant V.RIlPICA'1'IOH JBPPRBY BAXTER, ESQUIRB, hereby states that he is attorney for the Defendant in this action, and is authorized to verify that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. 54904 relating to unsworn falsification to authorities. D.c:!elllher 8. 199" DATB .' . " ~ C') . .. -'I . ~'(5 9 '.<: )-: ., . . , :~,: , :..: _.. ; ~ j ~' .- J.,\' ,.... ',,) t. / '" .. 2" c:: ' 'Ii)] w..1 ,ILl. I ..... t.L .... ') C 0' .;; < II < (I) - i Oil!!! - 8r6e ~I~ ~o<~tl'" 1.1 '" :f - ... <'"j ...- ., ...... iI"'Z "'-- ~ "'~ iiIiii f"" t ...l i:!... ~..;:::.. -.e- _jilt ;l:'" r: - II ;;;0 =c ~ " , .. ,I, . ,. . . ., . i._ ~ i', ~-I ,.jl""I, '. . A . , , 94.Q7O Law otfIcea of Rublnate, Jacoba . Saba Scott A, Freeland, &quire Anomey for Defendant. Arthur Undaay 214 Scaate Avenue, Suite S03 Camp Hill, PA 17011 TllI~ Number l71'T1731..0988 DBNNIS HOCKENBERRY. Plaintiff IN nIB COURT OF COMMON PI..BAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKBT NO, 94.6095 CIVIL ACTION . LAW JURY TRIAL DEMANDED vs, ARnruR UNDSAY. Defendant DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW COMBS the Defendant, Arthur Lindsay, by and throuah his attomoy, Scott A, Freeland, Esquire, who respectfully represents as follows: 1, 1be above referenced matter was commenced by the fIllna of a Complaint on or about October 24. 1994, (A copy of said Complaint is attached hereto as Exhibit "A"), 2, 1be Defendant flied his Answer with New Matter to Plaintiff's Complaint on or about December 2, 1994. 3, 1be oral deposition of the Plaintiff, Dennis Hockenberry was taken on June 28, 1995, with a true and correct copy of same belna attached hereto as Bxhibit "B". 4, 1be Plaintiff is bound by the limited tort provisions of the PeMsylvanJa Mocor Vehicle Financial Responsibility Law, 7.5 Pa,C.S.A. 11705. S. Pa.R,C,P, 1035,2 provides as follows: After the relevant pleadinas are closed, but within such time as not to unreasonably delay trial, any party may move for summary jud.ment in whole or in part as a matter of law . (1) whenever there Is no aenulne Issue of any material fact u 10 a /JeCCIlSary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, Includln, the production of expen reports, an adverse pany who will bear the burden of proof at trial has failed to produce evidence of facts essential 10 the cause of action or defense which In a jury trial would require the issues 10 be submitted 10 a jury, 6, Pa,C,S,A, '1705(d) provides In relevant part as follows: (d) LImIted tort altematlve. - Each person WhD elects a limited Ion alternative remains eligible to receive compensatiDn for economic loss sustained In a motor vehicle accident as a consequent of the fault 'Of another penon punuant 10 applicable Ion law, Unless the uuury sustained Is . lerlcus uuury, each penon who Is bound by the limited ton election shall be precluded from maintaining an action for any non-economic loss, "Serious uuury" is defined at 75 Pa,C,S.A. '1702 as "penona! Injury resulting In death, lerious lmpalnnent 'Of bodily function or pennanent serious disfigurement. . 7, The Plaintiff, Dennis Hockenberry, did not sustain penonallnjury resulting in lerious lmpalnnent of bodily function as a result of the subject mOlor vehicle accident described In the Complaint attached hereto as Exhibit "A", 8, Bllis F, Friedman, M,D., an expert in orthopaedic surgery reviewed the records pertalnin, to Plalntifrs alle,ed uuurilL'lS, as well as records pertaining to Plaintiff's extensive pre-existin, physiCAl problems and concluded that Plaintiff suffered no "serious uuury" in the motor vehicle accident at Issue u defined by applicable law. A copy of an Affidavit from Dr, Friedman Is attached hereto and marked as Exhibit .C., . . , 9. No pnulDo lHue of material fact remains for trial, Therefore, SUIIUIIIIY ludiment is wamnte.1 in the prosont case. WHBIlBFORB, it is respectfully prayed that this Honorable Court, issue an Older pntinl Defendant's Motion for Summary Judament, preclud1n8 PlaintUf from prescntln, a claim or evidence for non-economic damlles at time of trial, or in the alternative, issue a Rule upon Plaintiff to show what cause, if any, they may have u to why this Honorable Court should not preclude Plaintiff from presenting any claim or evidence for non-economk: cIama,pI at time of trial, and to otherwise respond punuant to Pa,R,C,P, 103',3, Respectfully submitted, LAW OFFICES OF RUBINATB, JACOBS & SABA Dated: CiJdD/cf7_ ...;...--:"").... --~ /~_.. sed(; I. , BSQUIRB Attorney for Defendant, Arthur Lindsay 214 Senate AvenllCl, Suite '03 Camp HUl, PA 17011 Telephone Number (717) 731-0988 Identification No, 55663 . 5k\.0'70 DBNNIS B. HOCKBNBBRRY, IN THB COURT OF COMMON PLBAS Plaintiff CUMBBRLAND COUNTY, PENNSYLVANIA VI, DOCKBI' NO, 94-6095 1994 AR1HUR UNDSAY, JR., CIVn. AC'nON - LAW Defendant JURY TRIAL DBMANDBD CERTIFICATE OF SERVICE SCOTr A, PRBBLAND, ESQUIRB, hereby certifies that he is the attorney for the Defendant herein, and that he caused a true and correct copy of Defendant's Motion for Summary Iudamenl to be served by regular first class mail upon: Richard M, Morris, Ir,. Bsqulre 318 Bast Kina Street Sbippensbur., PA 17257 n.te: L~/~5/9'7- /' ~"--~'-- . // / .... / i./ S~ A, Freeland, lIIqulre Attorney (or Defendant .u~'.r.'",,,,, ....,1"1... '1111. 1..I:,,~.c ~v . . , , " " " , , 'II' ': " '\ ," " IlILaM A ~ :-..- I ~(Q)~~A IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRICf CUMBERLAND COUNTY, PENNSYLVANIA DENNIS E. HOCKENBERRY, CIVIL ACTION . LAW Plaintiff .j. qq- (,095 C~~""""'" NO. Civil 1994 ff v. ARTHUR LINDSAY, JR., ~ Defendant , . " N "'I # ... ;;j! ~ .HQI.ltI. ,- ~.,. ., You have been sued in Court. If you wish to defend against the claims set forth in the following pages. you must take eclion within twenty (20) days aller this complaint and notice are served, by entering a written eppearance personally or by allorney and filing in writing with tho Court your defenses or objections to the claims set forth against you. You are warned that it you fail to do so, the case may proceed without you and a judgment may be enterad against you by the Court without further notice for eny money claimed in the complaint or for any other claim or relief requested by the Petitioner, You may lose money or properly 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 Court Administrator CUMBERLAND COUNTY COURTHOUSE High and Hanovel Streets Cerlisle. Pennsylvania 17013 Telephone 17171 240-6200 TRUE COpy FROM RECORD In TIIIImonV wtlMICII, I IIIf. _.. '" IWId a'lil till ... ctI said Co\!rt at QIl.., PI. Trtia f:!.-I~ S"\ Jlf-1&iL. 1CiL ~ :I tM.~ PNl.. I IN THE COURT OF COMMON PLEAS FOR THE 9th JUDICIAL DISTRICf CUMBERLAND COUNTY, PENNSYLVANIA DENNIS E. HOCKENBERRY, CIVIL ACTION . LAW Plaintiff v. NO. Civil 1994 ARTHUR LINDSAY, JR., Defendant .~. 1. Plaintiff is DENNIS E. HOCKENBERRY. an adult individual who resides at 227 Walnut Dale Road, Shippensburg, Cumberland County. Pennsylvania. 2, Defendant, ARTHUR LINDSAY. JR., is an adult individual who resides at 824 Greenspring Road, Newville, Cumberland County, Pennsylvania. 3, On October 23, 1992, Plaintiff, was travailing South on Route 533 and Bull's Head Road, was struck by an automobile drivon by Defendant, ARTHUR LINDSAY, JR., which ontered Route 533, failing to stop at a stop sign on Bull's lie ad Road at its intersection with Route 533, 4, As a result of the collision with Defendant to maintain control of his vehicle and operete it at a safe speed, Plaintiff suffered bodily injury to his neck and back. requiring medical treatrnent and continues to suffer the effects of the injury, 5, At the time of the accident, the negligence of Defendant consisted of the following: (a) Failing to keep his vehicle under proper and adequate control; (b) Failing to stop at a properly signed intersection; (c) Failing to comply with the provisions of the Pennsylvania Motor Vehicle Code ralating to the operation of motor vehicles, specifically as they relate to the aforesaid acts of negligence; and, . ldl Such other act. or oml..lon. a. may ba reva.l.d In the cours.. of di.cov.ry. or .t . trl.1 of this c.... . WHEREFORE, Plelntlff pr.ys your Honoreble Court to enter its judgment in en .mount In .xc... of .10,000.00. plus Intere.t from October 23, 1992 together with costs of .uit, said .mount. baing within the limits for mendetory .rbitretion, Oeted: SEPTEMBER B. 1994 -\ .r "-l ~ FOREST N~ERS Attorney for Plaintiff I,D. No, 1 B064 10000 Molly Pitcher Highway Shippensburg. PA 17267 17171 632,9046 < ., , , , , , " , .:1 VERIFICATION I verify thlt thl stltlments midi in this Camplllnt Irl true Ind corrlct. I und.ratend thet fllsl stetements heraln are mlde subject to the pinal ties of t 8 PI. Cons, Stltl. S 4804, rlleting to unsworn fllsificltion to luthoritils, Olted: 7/ r 9 y O~F:I~ DENNIS E. HOCKENBERR , . "t ,r' IJlIlIIIlt . ":'1, "r"'~"~'I.lI ....'''..0 ."" Mr'U~11 @ . , , , 'i I , , , If " , " " " iJ: ..,j' 1.,.._ '-j, !jl"'F',."".,..,-"I"."ri-ot,~.."'d,.f""-"""" ' ,."!'T"""1""I'T'l'",., I,' , ,'." 'r'" .~. .~I" 1 2 3 4 5 6 7 8 9 10 1 1 12 . ... 13 14 15 16 17 18 19 20 21 22 23 24 . , 25 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ARTHUR LINDSAY, JR., CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED DEPOSITION OF: DENNIS E. HOCKENBERRY TAKEN BY: Defendant BEFORE: Janet E. Smith, Court Reporter Notary Public DATE: Wednesday, June 28, 1995 10:32 a.m. PLACE: Law Offices of Fcrest N. Myers 10000 Molly Pitcher Highway Shippensburg, Pennsylvania APPEARANCES: FOREST H. MYERS, ESQUIRE 10000 Molly Pitcher Highway Shippensburg, Pennsylvania 17257 For - Plaintiff JEFFREY BAXTER, ESQUIRE 3907 Hartzdale Drive Suite 706 Camp Hill, Pennsylvania 17011 For - Defendant SMITH REPORTING SERVICE JANET E. SMITH P.O. Box 742 Mechanicsburg, nennsylvania 17055 SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 CER'lIFIED COpy 2 1 INDEX TO WITNESS 2 WITHBaS: JlXAMINATION 3 Dennia E. Hockenberry, By Mr. B&)C;ter 3 4 5 6 , , 7 8 9 10 " 12 13 14 15 16 17 18 19 20 21 22 23 2t 25 SMITH REPORTING SERVICE (117) 691-1338 1 1-800-689-7338 . 3 1 liTIPULATION 2 It is stipulated by and between counsel for 3 re.pective parties that the inspection, reading and signing .4 of the deposition is hereby waived. 5 It is further stipulated between the parties that 6 all objections, except as to the form of the question, are 7 reserved until the time of trial. 8 ----- 9 10 DENNIS E. HOCKENBERRY. called as a witness, having 11 been duly sworn, was examined and testified as follows: 12 DIRECT EXAMINATION '3 BY MR. BAXTER: 14 Mr. Hockenberry, my name is Jeff Baxter. I Q. 15 represent Arthur Lindsay in the lawsuit that you brought 16 which is a result of the accident that occurred on October 17 23rd, 1992. Have you ever had your deposition taken 18 before? 19 20 No, sir. A. Q. Okay. Some of the ground rules of a deposition 21 that I want to go over with you. I'm going to ask you a 22 number of questions. If, at any time, you don't hear me or 23 you don't understand my question, ask me to say it again or 24 rephrase it. And I'll be happy to do that. Okay? 25 Okay. A. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-1338 4 1 Q. Please answer all of my questions with a verbal 2 re.pon.e, yes or no, instead of shaking your head. That 3 way, the Court Reporter can w~ite down what you *ay. Okay? 4 5 A. Okay. If you give an answer to one of my questions, I'll . Q. 6 as.ume that you understood my question. Okay? 7 8 9 10 A. Okay. A. Would you state your full name? Dennis E. Hockenberry. Okay. What is your current address? Q. Q. 11 A. 227 Walnut Dale Road, Shippensburg. 12 Q. How long have you lived there? 13 A. Approximately, four years? 14 Q. Four? 15 A. Four and a half. 16 Q. Does anybody live with you at that address? 17 A. My wife. 18 Q. What is her name? 19 A. Artha, A-r-t-h-a, E. Hockenberry. 20 Q. How long have you been married? 21 A. Since December of '92. 22 Q. Do you have any children? 23 A. I have a daughter that's married and has two 24 children. And my wife has a son that's married. 25 Q. Do you have a current d~iver'8 license? SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 1 2 3 4 5 A. Q. A. Q. A. 6 glasses. 7 Q. 5 Ye., I do. pennsylvania? Yes, sir. Do you have any restrictions on your license? The only restrictions I have is I have to wear okay. Has your license ever been suspended or 8 revoked for any reason? 9 A. I had it revoked back in '79 or '80, way back. I 10 had been passing out, and I had had an accident. And.I 11 also had a few beers back then. But I went through the 12 rehab and all of that back then. But other than that, no. 13 Q. So on the date of this accident, October 23rd, 14 1992, you had a valid license? 15 16 17 18 19 20 21 22 23 24 25 A. Yes, sir. Q. Have you served in the military? A. Yes, sir. Q. What branch? A. The United states Army. Q. When did you serve? A. From .:July of 1965 till October 1971. I also had two tours in Vietnam. Q. A. Q. What was your rank? Serge~nt. Did you receive an honorable discharge? SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 11 12 I 13 ~ 14 15 16 17 18 19 20 21 22 23 24 25 . 6 A. Yes, sir. Q. Did you receive any injuries during your tour. of duty? A. I received hearing loss, and we think I mlght have had agent orange. That's still pending. We haven't received any results on that. Q. For what? A. Agent orange. I had cancer in 1988. Q. What type of vehicle were you driving on the date of the accident? A. 1984 Bronco. Q. Did you own that vtihicle? A. I was paying on it, I didn't own it own it. But I was paying a mortgage. Q. It was in your name? A. Yes. Q. As opposed to your wife, sir, or your child's? A. Just mine. Q. To the best of your knowledge, was it in proper working order? A. Yes, sir. Q. Prior to the accident? A. Yes, air. Q. I want to ask you a few more background q~e.t10ns then I'm going to ask you about the accident and then ,your SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 1 1 injuries. Okay? 2 A. Okay. 3 Q. Where did you go to school? 4 A. Big Spring High School. 5 Q. Did you graduate? 6 A. Yes, sir. 7 Q. Did you go on for any other schooling after Big 8 spring? 9 A. I had a year at the York Penn state Branch thro~gh 10 the pennsylvania Home Builders Association for mechanical 11 drafting, architecturing and leadership training. I was , 12 working for a contractor and going to work with him and 13 have my own team to help build houses. 14 I also went to Shippensburg University, and I was 15 taking accounting courses. But then in 1986, I had cancer 16 and had to drop out due to surgery and everything else. 17 Q. I understand that you are unemployed, presently; 18 is that correct? 19 A. I am a hundred percent totally disabled t~rough ~o the state and Social Security. 21 Q. Prior to your being disabled, how were you 22 employed? 23 A. t was the fiscal assistant with the pennsylvania 24 Liquor Control Board in Harrisburg. And I was working in 25 the accounting division. SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 1 2 Q. 8 How long had you had that job? About three and a half years. Are you receiving any type of income, currently? I'm reoeiving disability from the state of 5 Pennsylvania through the state Employees Retirement Board 6 and through Social Security. Plus, I get service connected 12 A. A. 3 4 Q. 7 disability from the V.A. 18 Q. A. 8 Q. Okay. Mr. Hockenberry, I'd like to turn your 9 attention to October 23rd, 1992, the day of the accident. 19 A. 10 Can you tell me where you were going and where you were 11 coming from? I was going home. I was coming from Newville. I 13 was down to visit my parents. And I was in guarded 14 condition because of the surgery. I had undergone sev.re 15 head and neck surgery. I had my entire face removed due to 16 the c~ncer. And I was traveling 533 coming from Newville 17 going to Shippensburg. 20 lab, 21 Q. 22 A. 23 like that, 24 Q. 25 there? Was anybody in the car with you? I had my dog in the car with me. I have a golden How long had you visited with your parents? I'd say, probably 2 1/2, three hours, something Did you do anything with them while you were SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 9 1 A. It's been so long I oan't recall. It was in 2 October. I had taken the dogs down to go for a walk. 3 Scout around for deer, hunting Beason was ooming. And I 4 just, basioally, went down and walked around the farm a 5 little bit. 6 Q. Do you remember what time this accident occurred, 7 approximately? 8 9 A. It was around noontime, I believe. Q. Okay, Do you remember what the weather conditions 10 were like that day? 1 1 A. It was sunny. 12 Q. Can you tell me, in your own words, what you 13 remember happening? 14 A. I can remember approaching the crossroads. And I 15 had seen this pickup coming. I thought, well, he's going II 16 to stop. I know I wasn't going all that fast. And this 17 individual just never even looked. He just straight out in 18 front of me. And the biggest fear I had at that time was I 19 can't sustain any trauma. 20 And I remember slamming on the brakes and trying 21 to turn because I wanted to avoid a head-on collision. And 2~ the individual never even looked, like he was in 23 outerspace. Never even heard the brakes or nothing. I ~4 don't think he knew anything until we made contact. And I 25 can remember spinning around and then a sharp stop. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 10 And that was when I hit a farm there. And they 2 had a big looust post for a gate. And I can remember my 3 poor dog looking at me like, what did you do? Don't look 4 at me. Look at him. But then somebody came and told me 5 not to move because my ribs were really bothering me. My 6 neok was stiff. And the ambulance oame. Other than that, 7 that's basically it. 8 Q. Okay. I'd like to take you through that again. 9 I'm gonna ask you more specific questions about the 10 accident. Route 533, how many lanes is that? 1 1 A. There'S two lanes, One, I guess, north and south, 12 east and west, whichever way it is. But there's only two 13 lanes. 14 15 16 Q. You said you were approaching an intersection? Yes. The intersection, was that -- did you have any 17 traffic control devices? A. Q. 18 19 20 21 22 A. Q. A. Q. A. No. There was only stop signs on On the other way, the other road? Yeah. Do you remember what that road was? I can't think of the name today, but I 23 have -- should be in the -- I should have it wrote down 24 somewhere. 25 Q. Bulls Head Road? SMlfH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 ,. 11 1 Yes, that's it because there's lamas on the right A. 2 and a dairy farm. And just fields on the -- as you're 3 going towards Shippensburg, the lamas would be on the right 4 and pastures and farmlands on the left. 5 Does Bulls Head Road start on one aide of 533 and Q. 6 continue on the other side of 533? In other words, can you 7 go straight across? 8 9 10 11 A. Yes. Q. And are there stop signs on each side -- A. Yes. Q. -- of Bulls Head Road? 12 Right. A. 13 You indicate that you thought it was a pickup Q. 14 truck-- 15 A. Yes. 16 17 -- that was driving on Bulls Head Road? Q. A. Right. 18 Q. Was it on your right or your left? a A. Left. 20 21 22 Q. It was on your left? A. Urn-hum. Q. Did you, at any point, see the pickup truck stop 23 before it proceeded forward? 24 25 A. No, sir. Q. How far away from this intersection were you when SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 ;, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you saw the pickup truck, if you can estimato? Give an estimate. A. I'd say probably 150, 200 yards because he was just like that. About 150 yards. I seen him and thought, well, you know, he'll be stopping anyhow. And I maintained regular speed of about -- speed limit is 45. I was doing, approximately, 40, 42. And like I say, it was a nice day. And all of a sudden, I seen the truck. Again, you know, I thought he'd be stopping. Like I said, it was just like he was froze, looking straight ahead. Never looked left. Never looked right. Just straight out. Q. So you were able to see into the cab? A. That's correct. Q. You were able to see the driver. Okay. Was it a man or a woman driver? A. There was a man. Q. Did he have any passengers in his car or his pickup? A. No, sir, not that I seen. Q. Were you wearing a seat belt at the time of the accident? A. Yes, ,sir, I was. Q. What type of seat belt was it; harness or across your lap? Do you remember? A. It was a harness type. I think that's what kept SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 11 12 " 13 14 15 16 17 18 19 20 21 22 23 24 25 . , . 13 me from hitting the windshield because I had a pretty rough ride. Q. When you realized that this gentleman was not gonna stop and was proceeding out into Route 533, were you able to slow your vehicle down at all? A. I had slammed on the brakes and started to turn to avoid a head-on collision. I did manage to slow down. But what happened was my left, front bumper hit right behind the cab of the pickup and spun him right on the edge of the front which spun me around backwards. And my vehicle was totalled. Q. So you had damage to your front, left bumper; Is that the point of impact on your vehicle? A. That was the point of impact. And it took out the whole front fender, the hood, the grill, the right fender and pushed everything back into the windshield and buckled up. Q. Was there damage to the rear of your truck from where it hit the fence? A. Yes, sir, Q. What side of your truck? A. Sort of the right rear. Q. Oka y. Were you --. you said you were in ouarded condition at the time of the accident. But you were okay to drive. Were you on any medication at that time? SMITH REPORTING SERVICE (711) 691-7338 / 1-800-689-7338 , . . 14 1 A. No, sir. 2 Q. Okay. Was there any medication that had been 3 prescribed to you that the doctor told you to take? 4 A. Not at this time. Guarded condition was I was 5 supposed to be extra careful not to sustain any head 6 inj~ry, any neck injury, anything like that. In other 1 words, don't go climbing trees. Or if you go walking up 8 the mountains, have somebody with you in case you would 9 fall as far as I had to watch that. I didn't really injure 10 myself. Q. Prior to the date of this accident, October 23rd, 11 12 1992, when did you last have any type of surgical 13 treatment? 14 A. I think it was October of '90 or '91. '91, it 15 might have been. What they had done there is went up in 16 the right side of my nose to take part of the nose bone out 17 so I could breathe better. I have trouble -- I have no saliva glands. And I'm awful dry. MR. MYERS: Do you need some water? THE WITNESS: If you got, please. MR. BAXTER: Do you want to take a break? MR. MYERS: Yeah. I'll get him a glass of water. It will only take a second. (Whereupon, a brief recess was taken. ) SMITH REPORTING SERVICE (117) 691-7338 / 1-800-689-7338 18 19 20 21 22 23 24 25 , . . . 15 1 BY MR. BAXTER: 2 3 4 Q. Afe yO\! ready? A. Yes. Q. It, at any time you need a break, let me know. 5 We'll stop. Okay? 6 7 A. Okay. You said that you thought it was '90 or '91 that Q. 8 you last had surgery? 9 A. Yes; it was just reconstructive surgery. 10 Q. Okay. Were you continuing to treat with a doctor 11 on a regular basis following that surgery? 12 I've been going to the V.A. hospital in A. 13 Martinsburg about two or three times a week or a month, 14 rather, due to I have terrible teeth problems because of 15 not being able to chew and getting food up in, root canals. 16 I underwent -- I cdn't think of it, hyperoxide 17 treatment which was to help induce blood flow to the 18 damaged areas from radiation. And just to make sure there 19 was no problems, basically, just checkups. Make sure 20 everything is working. 21 Q. Okay. And I believe you said earlier, you were not on any medication at that time? A. No, sir. Q. None was prescribed? A. No, sir. 22 23 24 25 SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 Q. 16 Did you have one dootor in particular, a family 2 doctor that you treated with or a doctor at the V.A? 12 13 14 1S Q. A. Q. A. 3 A. Basically, I had EMT dootor, which is a Dr. Do you know how to spell that? K-a-m-a-t-h. And as far as dentists, I've had at 7 least six or seven different ones. What they do at the 8 V.A., they have dental students coming in to got their -- 17 Q. 4 Kamath. S Q. Their degree? Degree or whatever. And then they move on then to 11 the private field. 6 A. Dr. Kamath, you said was an EMT? Yes. Do you know where he's located? He's located in the Antique Clinic at Martinsburg, 16 West Virginia, V.A. Medical Center, 9 10 Q. A. Do you still see Dr. Kamath? I seo him once in a while. But in 1993, he told 19 me he didn't have the expertise or knowledge to work on me 18 A. 20 anymore due to the sevore construction of the facial and 21 the ears. 22 So now they start sending me to Pittsburgh. I've 23 had -- ever since the accident, I've had real bad neok 24 problems. And just lately, I've had to go to the emergency 2S room for the ear and the left side swelled up. And I'm on SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 17 1 medication now trying to get that down. And they 2 recommended that I might have to go back out to Pittsburgh 3 and let them check it. 4 Q. I want to get more into your past and current 5 medical problems in a few minutes. But I want to ask you. 6 I want to take you back to the accident. 7 A. Okay. 8 Q. After the impact occurred, what happened to you 9 inside of the Bronco? 10 A. When th6 impact happened I just, like, seen stars 11 and thought Oh, no and was. really holding on to the 12 uteering wheel. And when everything stopped and I can 13 remember taking off my seat belt and looking around to make 14 sure my dog was okay. 15 And at that time, I had -- my ribs were hurting 16 and my neck was stiff. And I didn't get out of the 17 vehicle. I can remember Mr. Lindsay coming over and asking 18 if I was all right. Yeah. I think so. 19 He said, you know, I never seen you till we hit. 20 And I said, I know. You never looked. You just kept. ~1 Other than that -- 22 Did your body, did your head or did your body Q. 23 strike anything in the vehicle; the steering wheel, the 24 dash? 25 Thanks to the seat belt, my head and body, the A. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 18 1 only thing my body hit was the armrest on the door panel. 2 We had e 45, kind of like shifted me in my seat. And then 3 again, when I hit the fence, it throwed me back and whipped 4 my neck pretty bad. 5 Q. Do you know if YOur head hit the back of the chair 6 or the driver's Beat? 7 A. That I had those headrestB, so that helped me from 8 going way, way back. But it was still,. you know, pretty 9 rough. Along with a lot of fear, that crossroad 80ares me 10 even tOday. When I approach that, I approach it at about 11 20 mile an hour. 12 Q. Do you remember when you were speaking to Mr. 13 LindBay saying Bomething, like, well, I'm shook up but I'm 14 not hurt? 15 A. I remember him saying, how do you feel? I feel 16 okay, I guess. I didn't say, yeah, I'm ready to go out and 17 play ball. I'm okay. I guess I'm still in shock from what 18 happened. And I asked him if he was okay. But I do 19 remember him speCifically saying I never seen you. 21 your Bronco and walk around to look at the damage? 20 22 Q. Okay. Did you, after the accident, get out of A. No, sir. The only time I got out of the Bronco 23 was when the ambulance got there and they put the neck 24 brace and everything on and helped me out and put me in the 25 ambulance. SMITH REPORTING SEPVICE (717) 691-7338 I 1-800-689-7338 1 Q. 19 Did you initially -- initially, did you not want 2 an ambulanoe? Were you reluctant to go in an ambulance? 13 A. 3 A. No. I just -- the biggest thing I was conoerned 4 about who was going to take care of my dog and call my 14 Q. 5 wife. 6 Q. Okay. Immediately following the accident, I think 7 you've already said you felt neck pain and rib pain? 15 16 A. Q. 8 9 A. Yes. And you felt that right there at the scene? Yes. Can you indicate where you felt the neck pain, 12 where in your neck? Q. 10 11 A. It was right in the side, like. Below your ears? Yeah. And extending down? Down to the shoulders. And with regard to the rib pain, was that on the 19 left side or right side? Q. 17 A. Left side, Your left side. Old you take an ambulance to a Yes, I did. I went from the ambulance to the 24 Carliftle Hospital Emergency Room. 18 Q. 20 21 A. Q. 22 hospital? 23 A. 25 Q. Do you recall what they did for you there? SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 20 1 A. Took x-rays. I had a broken rib. And, in fact, 2 they said you've the got, you know, your muscles look like 3 they've been stretched or whatever. But they didn't know 4 if it was from the surgery or the wreck. And I said, well, 5 it wasn't bothering me until I had this. And it's really 6 bothering me, you know, so. 7 Q. Were you released that day, or did they keep you 8 for observation? 9 A. I think my wife picked me up late that night. I 10 think they left me out that night. But then it was about a 11 week later, I went to Pittsburgh V.A. Medical Center and 12 was treated more for the broken rib and still going 13 through -- they've been trying to give me some kind of 14 treatment for the neck, therapy. I've been putting heat 15 pads on it. They gave me muscle relaxers, stuff like that. 16 Q. Is there a particular doctor that you saw in 17 Pittsburgh at the V.A. Hospital that helped with your rib 18 prOblem or your neck? 19 A. Sir, today, I couldn't tell you, I've been to the 20 V.A. Medical Center so often, I get so many different ones. 21 I CQuldn't begin. There would be regular records in my 22 medical file at the V.A, 23 24 Q. In Pittsburgh? A. Well, in Martinsburg that would show who ~- as a 25 matter of fact, I even went back to the Carlisle Hospital. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 J 13 14 15 16 17 18 19 20 21 22 23 24 25 21 And, you know, they gave me, like, the waist rib band and told me no lifting, no nothing for six months due to the injury. Q. How long did it take for your rib to heal up to the point you felt okay? A. I'd say about 5 1/2, 6 month. I couldn't even pull my robe baok. As a matter of fact, I couldn't do much that year after the accident. Q. You said shortly after the accident, you went to Pittsburgh to the V.A. Hospital? A. I was scheduled for treatment out there. While I was there, I had trouble breathing. And I went to see, you know, a doctor. And he said, you know, your ribs really cracked. It's really bad. And they told me just to take it easy. And they are gonna cancel my hyperbaric treatment. I said, no, is there any way I can get through it? Wrapped me really tight and said okay. Q. Is that why you initially went to Pittsburgh for this particular treatment? A. The hyperbaric, yes. While I was there, the rib really started and I couldn't breathe, you know, take deep breaths. Every time I took a deep breath, I had sharp pain. Q. Did you seek any other medical treatment for your SMITH PEPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 11 12 j 13 14 15 16 17 18 19 20 21 22 23 24 25 ,. 22 rib other than that trip to Pittlbur9h and the trip to the hospital in Carlisle for lomething to wrap around? A. Carlisle and out there was the only two place.. Q. Okay. A. But I was in Pittsburgh for almo.t a month end a half. Q. For these particular hyperbaric treatmentl? A. That's correct. Q. With regard to your neck, has that neck pain gotten any better from the date of the accident? A. It hun' t gotten any better. And Uke I .aid, just recently, left side has ~eally been bad. And they're telling m. that I might have or should go back out to Pittsburgh to have the surgeons look at it to lee what'. 90ing on. I've also got a certificato to the doct~rl et Martinsburg and pennsylvania Game commilsion where the~'ve 9ranted me a crossbow permit due to the weakne~1 of the arm caused by the neck problems and lurgery. Q. Prior to this accident, had you ever had I neck injury of any type? A. The only thing 1 had done wa. the lurgery, which there was no accident or nothing. Q. Can you describe for me the pain that you feel in your neck? SMITH REPORTING 81RVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 23 A. It~8 like somebody takes a hot iron and just real sharp and tender to the touch. If I go to look to my left, I can only turn so far and the right tightens up. If I go to look to the left, the right tightens. Sometimes I'll b~ doing -- reading the paper, reading the magazine, and both sides will just tighten up into knots. I don't have to be doing much at all. Q. Is this pain constant, or does it come and go? A. It comes. Sometimes it lasts five minutes. Sometimes it lasts 5 to 15 seconds. It depends. If I'm in the shower scrubbing my hair and get it, I just relax and let the hot water and it will go. Q. Does it ever last for more than five minutes? A. I've had it that it lasted maybe 20 minutes sometimes. Q. Is that something that you feel every day or only when you're doing certain activities? A. I'd say on a daily basis, I'd say at least three times a week. Q. Three times a week? A. Yeah. Q. When you do get a flare-up in your neck, do you take any type of medication for that? A. I have muscle relaxers that the V.A. give~ me, pain pills. But, basically, I'll take a pain pill and a SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 \ 13 / 14 15 16 17 , 18 19 20 21 22 23 24 25 24 hot rag. That's what they recommend. Q. Have you seen anybody locally for treatment of your neck? A. I was down at Carlisle Emergency on Sunday night, and I seen a doctor Monday morning at th~ Medical Art. Building. And I forget his name. But there again, he'S the EMT specialist at the Medical Arts Building. Q. And when you say Sunday or Monday, do you me.n this past week? A. Yes. Q. Is that the first time since the emergency room that you've sought treatment for your neck pein in the Carlisle area? A. In Carlisle, yes. But at the V.A. Medical Center, off and on. As a matter of fact, I was gonna try a new kind of therapy to try to get something going. Q. Can you find out for me and let your attorney know what doctor you saw there in the Medical Arts Building? A. Okay. Yeah, I can do that. Q. Okay. When you went to Pittsburgh a week or so following this accident, you said that you went tor these hyperbaric treatments? A. Hyperbaric. Q. I'm going to write that down. A. Hyperbaric oxide treatments. It's &omething like SMITH REPORTING SIRVICE (717) 691-7338 I 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 / 14 15 16 17 18 19 20 21 22 23 24 25 25 they give scuba divers that gets the bends. That get oxygen back into their blood cells and stuff. Well, a canoer patient that has had radiation or the radiation kills all the blood cells and everything they use this to get the blood cells. Q. Oxygenated? A. Yeah. Q. When you went for the hyperbaric treatments, you indicated that you had rib pain and you were treated for that. Did you receive treatment while you were there for your neck also during that month, month and a half? A. Well, they were hoping that the hyperbaric would help some too. They didn't know. It was for the whole area. Q. Did that treatment help? A. Not really. It helped some as far as my teeth went. But even still. Q. But with regard to the neck pain, though? A. No, it didn't really. Q. Did you seek medical treatment with any other doctors for your neck pain? A. I maintained going to the V.A, Medical Center because my insurance company, they've been pretty well bled. And the V.A. says, well, we'll txeat you. Come to us. So that's where I, basically, have been going. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 26 1 Q. Have they pre.cribed for you any physical therapy 2 for your neck? 3 A. They're gonna try a new style of treatment coming 4 up. I'm wait for an appointment. They did try putting, 5 like, a tin harness and a strap and trying to stretch the 6 neck. But when they did that, I couldn't breathe. So they 7 had to stop that. 9 Q. you? A. Q. A. Q. 15 A. All I know it's a rehabilitation center at the 16 V.A. Medical Center in Martinsburg, West Virginia. And it 17 was a lady and it was -- as far as names go, no. 18 Q. Okay. When did you first need to undergo 8urgery? 19 Whet year was it? 20 A. Pardon? 21 Q. When did you fir9t need to undergo 8urgery or have 22 a 8urgical procedure done with regard to your cancer?' 23 24 25 1988. A. Q. Do you remember where that was performed? A. Denver, Colorado. SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 27 1 2 3 Q. Following that surgery, did you have any oth.ra? A. I've had reconstructive surgery, '89, '90 and '91. Q. So, to the best of your knowledge, is your cancer 4 still in remission? Or were they able to successfully 5 remove any tumors during the surgery? 6 A. As far as the last report, it was a success. 7 There's no cancer showing. 8 Q. Good. Okay. However, I take it, as a result of 9 the surgery that you had in Denver, that has resulted in 10 all of these other surgeries and difficulties with your 11 teeth and with your breathing. Is that fair to say? 12 A. Not with my breathing. If anything, helps me 13 breathe better. The only thing that's really done is the 14 jaw is lopsided because of having to take the jaw bone out. 15 But, other than that, it's been very ~uccessful. 16 They went in and the one reconstruction is where I 17 have no filling in the right side of my face. They went 18 baok in behind the ear and sewed up my eye 80 it stayed 19 open better instead of sagging shut. That's what the other 20 reconstruction surgery was in '89, '90 and '91. 21 Q. Have you had any difficulties or pain as a result 22 of any of the surgeries that you've had? 23 A, The only difficulties I can remember and it was 80 24 funny from the suryery was and it's hard to believe 2! after baing in surgery for 24 hours for skull base, faoial SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 28 1 surgery. My little finger was the only thing I complained 2 about. It was nerve damage done to the left arm from 3 laying on it for 24 hours, body dameged the nerves in the 4 little finger. Other than that, no. 5 Q. Have any of your doctors told you that as a result 6 of this accident, there's been some effect to, I guess, the 7 postoperative condition that you're in? 8 The only thing I get from the doctors is, yeah, A. 9 you got problems but I don't know what caused it. Or I 10 get, well, yeah, your body is so bent out of shape, I can't 11 give you a new one but I'll try to do what I can with the 12 old one. 13 Were there any other injuries that you feel came Q. 14 about because of this accident? 15 I had some back pain. But then again, my biggest A. 16 concern wa$ what was going on with my neck and my ribs. 17 But other than that, no, just basically the neck and the 18 ribs. 19 20 Do your ribs bother you at all anymore? Not like it did. Once in a while, you know, it's Q. A. 21 like on a real cold and rainy day, I get, like, Oh, wow, 22 man. And then it'. gone. The only thing 1 have now is 23 just the neck. 24 Prior to this accident but after your other Q. 25 Burgeries, were there things that you enjoyed doing, SMITH REPORTING SERVICE (717) 691-7338 I 1-800-689-7338 29 1 hobbies that you had? I know you talked about archery or 2 crossbow? 3 4 5 A. Q. A. Yeah. What type of hobbies did you ~njoy? I enjoyed fishing. I enjoyed hiking and hunting. 9 And my wife does most of the driving now. 6 But now I have to have somebody with me to make sure that I 7 don't slip and fall in the water, that I don't slip on a 8 rock and fall. I'm scared to death of that intersection. 15 Q. 10 Q. Okay. Did you drive here tOday? Yeah, I did. She's working. Okay. 14 wasn't expecting a call. That was on the spur of the moment thing. I 11 A, 22 hunting. There's a nice field where you can sit and watch. 23 I don't -- as far as getting out as often as I used to, I 24 don' t. 12 Q. 13 A. Do you still go fishing, hunting and hiking, but 16 although I think you said you need t.o have somebody with 17 you? 18 A. I do, but it's restricted. In other words, 19 instead of going to the mountains, now I hunt down in the 20 open farmland, fields at my parent's place. Or I have a 21 few friends that say, yeah, come over. I'll take you 25 Even back when I worked, it was like, well, SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 . 30 huntinv season is coming. I know I'm goinV to take -- I've got the first day off and then I want to take two or three days. Now, being disabled, I still don't get the opportunity to go the way I normally would if I would have been working. Q. Are there activities or hobbies that you enjoyed doing before this accident that you can't now because of just the pain to your neck? A. Bowling. I can't take a bowling ball without drawing the neck down. Regular bow, shooting, competition and stuff. I can't do that now. I used to go deep sea fishing, but I doubt if I could do that now with the strain and the pressure and the heat. Q. Did you do any of those activities following your surgeries? A. No. well, wait. You mean any of those act~vities after I had my surgery? Oh, yeah. As a matter of fact, I went deep sea fishing. And there was six of us. And.I caught a Macko. Since the accident, I haven't. Q. But I meant after you had the surgeries, have you been bowling and fishing? A. Oh, yeah. Q. Okay. Were you able to go hunting with a regular bow A. Yeah. SMITH REPORTING SERVICE (717) 691-7338 1 1-800-689-7338 32 1 can't do it anymore. 2 Q. So you were able to get some type of crossbow Yes, throuQh the pennsylvania Game commission. 5 And with that, I can have a guy cock it for me. It'S like 6 carrying a rifle. It has a little wooden stock and stuff. 7 The couple of guys will drop me off at the corner of a corn 8 field, and I'll just sit there. 1 1 A. 3 license? 4 A. Prior to this accident, had you ever been involved 10 in an automobile accident? 9 Q. NO, sir. Have you ever been involved in any type of 13 automobile accidents since this accident? 12 Q. No, sir. Prior to this accident, had you ever been in any 16 type of accidents where you would have injured your neok or 17 your ribs? 14 A. 15 Q. 18 A. 19 Q. No, sir. Have you been in any accidents since this aocident 20 that has caused you to injure your neck or your ribs? 21 22 A. No, sir. Q. Do you remember if your medical bills for 23 treatment of your rib and your neck injuries have been 24 covered by any manner of insurance? 25 A. I think the one was. And then one back at SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 1 2 3 4 5 6 7 8 9 10 1 1 12 , 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Carlisle Hospltal says we sent it but the insurance company denied payment. That's why I got up to that because I was told the insurance would cover my medical bills. And when they didn't make the payments and they came down on me, that'S when I filed the claim. Q. Who is your insuranoe company? A. I had Allstate, I believe. Allstate or state Farm. Q. That's a difference. Let's see here. MR. MYERS: Didn't it change? THE WITNESS: I think it might be Allstate. MR. MYERS: It was Allstate at the time. Now it's some other company. BY MR. BAXTER: Q. And when you said that they wouldn't pay for that medical bill and you became upset, are you referring to Allstate? A. I'm referring to when I was taken to the hospital, they told me that ~r. Ramsey, or whatever, insurance would cover it. I said, no problem. And they didn't cover it. Q. I see. Okay. A. Then it wasn't my fault, and I didn't think my insurance company had t~ pay for it. MR. BAXTER: I think we're done. Hold on just a minute. I think that's it. Okay. That's all the SMITH REPORTING SERVICE (717) 691-7338 / 1-800-689-7338 . . 35 1 2 3 4 S 6 C E R T I F I CAT E COMMONWEALTH OF PENNSYLVANIA . . . . COUNTY OF CUMBERLAND 7 I, JANET E. SMITH, a Notary public duly 8 commissioned and qualified in and for the county of 9 cumberland, commonwealth of pennsylvania, with authority 10 throughout the commonwealth of pennsylvania, do hereby 11 certify that DENNIS E. HOCKENBERRY. who was by me duly 12 swor~ to testify to the truth and nothing but the truth of 13 his knowledge touching and concerning the matters in 14 controversy in'this cause; that he is thereupon carefully 15 examined upon his oath and that the deposition is a true 16 record of the testimony given by the witness. 17 I further certify that I am neither attorney 18 nor counsel for, nor related to or employed by any of the 19 parties to the action in which this deposition is taken, 20 and further that I am not a relative or employee of any 21 attorney or counsel employed by the parties hereto or 22 financially interested in the action. 23 24 2S SMITH REPORTING SERVICE (711) 691-7338 / 1_800-6e9-7338 . . . ,IU. "_'.~U'U. _.'''''11 III" _CWO,.11 (i) , , '" "'I, " ".1 , , " " t, ! " " .' ~ , ~lIInc -- , " ;' ," , . 94-070 DBNNIS HOCKIlNBBRRY, PlaintifT IN nIB COURT OF COMMON PLBAS CUMBBRLAND COUNTY, PBNNSYLV ANJA DOCKBT NO, 94.609~ CML ACTION. LAW WRY TRIAL DBMANDBD vs, AR11IUR UNDSAY. Defendant AFFIDAVIT I, Bllis F, Friedman, M,D" verify and affInn that I am the author of the attacbed Record, Review Report dated December 9, 1996, and the statements made therein are true and lICCurate and rendered within a reasonable degree of medical certainty, The undenigned undentands that the statements therein are made subject to the penalties of 18 Pa,C,S,A, '4904 relating to unsworn falsification to authorities, Date: ..213/~1 ~~~, ;t,/J EIUs F. n, M.D. ' Sworn and lUbM:rlbed Won me tbll .a.o day 01 PEf3. . 1'~, .J~ JJ ex,d4- , ~ Nocary Public NOlARlAL SEAL SI'WUJN G. (1Al)'(, ~I;',W~ PI,IlIIC Wyrml'\~1119. e"I~'i Cr,t,lIf\l. ~A M~ COlnmlS11lHl F.~ll:'~~; IO.16-'l'J . . . . EL.L.IS F. FRIEDMAN, M. D. OftTHOPAEDIC 8UftGEftY 320 ABINGTON DftlVE WYOMISSING. f'ENNSYLVANIA 11)1510 T.L..~HON. C15101 078..11I211I December 9, 1996 Scott A. Freeland, Esquire 21. Senate Avenue Suite 503 Camp Hill, Pa. 17011 Re: Dennis B. Hockenberry OaA~ M~. Traeland: At your request I have reviewed a large volume of medical records relating to the care and treatment of Dennis Hockenberry. In order to understand the nature of his problem it is helpful first to understand the nature of his pre-existing medical problems. Beginning around 1979 he had started having ear problems which had resulted in fluid collections in the right ear. He had had a right mastoidectomy for chronic mastoiditis in September 1984 at the Carlisl., Hospi tal. He oontinued having problems post-operatively. He had developed hearing loss, progressive numbness of the right side of his face, recurrent fluid collections, a change in the ability to taste food on the right side of his tongue and progressive di~ficulty in opening his mouth leading to trismus. He had an extensive work-up at the Hershey Medical Center during 1988, An examination under anesthesia within endoscopic biopsy of his right nasopharanyx by the ear, nose and throat department revealed that he had an adenocarcinoma involving the infratemporal region of the right side, An evaluation at the Hershey Department of l~eurosurgery revealed that the tumor involved the fifth and seventh cranial nerves especially the sensory and parasympathetic bran::~.e:l of the nerV1.l:l intarm"d:.<.:,3 ;1nd ji:lrocab.!.y tne tenth ana twelfth cranial nerves as well, The main t~unk of the seventh cranial nerve was spared, Additional studies including digital subtraction angiography showed that the tumor measured six centimeters and was located in the posterj,or hypopharanyx extending to the base of the skull i in addi tion the tumor encased and secondarily narrowed the right internal carotid artery. The patient was referred to Dr. Victor Schranlm in Denver, Colorado who performed a twenty-hour procedure on December 6, 1988 involving a bilateral approach to the base of the skull, The base of the skull was reconstructed using a free flap on the right side and the tumor was completely grossly removed. The patient had had a post- operative Pseudomonas and Proteus bacterial infection with abscess between the dural graft and the free flap as well as pneumonia. These had been treated with antibiotics and he had improved, .te"", . . . . ~age 2 - Dennis E. Hockenberry December 9, 1996 The patient then had had continuing care at Hershey Medical Center at the ENT Department. He had a course of radiation therapy and chemotherapy. As a result of the radiatioll therapy he apparently developed dest1'uction of the blood supply to the teeth. In addition as a result of the initial surgery he developed increasing Trismus with inability to open his mouth. As a result he had several more procedures performed by Dr. Schramm during the next two years. By April 17, 1990 a CAT scan of the brain and base of the skull had shown no evidence of focal mass lesion, With this as a background the patient was involved in a motor vehicle accident on October 23, 1992 when he was the restrained driver of a piok-up truck that collided with another vehicle at an intersection. The typewritten emergency room physician's record, dictated on the date of the visit, indicated that after the motor vehicle accident "He walked after the accident; however, when the ambulance arrived, they collared him because of his history of having many problems wi th his face," That contemporaneously- prepared record contradicts the statement of the patient contained in the Transcript of the Notes of Testimony of the Deposition of the patient of June 28, 1995 when he stated (N,T. page 18 lines 20 through 25), in x'esponse to the question "Did you, after the accident, get out of your Bronco and walk around to look at the damage?" the following: "No, sir, The only time r. got out of the Bronr.o was when the ambulance got there and they put the neck brace and everything on and helped me out and put me in the ambulance." The typewritten emergency room physician's record further indicated the following: "The patient has no complaints of his head at this time. He has no complaints of his neck, His only complaints are with his left shoulder and also his left rib cage, The patient states that it hurts to breathe, He is also complaining of back l'aiml cincc l.}.i.r.g ,)n thE: bOl\l'(l, He stilt'!,,! that, hi fI har:k p/lin he feels i!l only coming from the backboard he is on," The emergency room physician's physical examination showed that the patient was "." in no acute distress," The left shoulder had ".. .marked generalized tenderness; however, he has full abduction." He was tender over the left rib cage on palpation but had normal breath sounds without ~ny rales or wheezing, The patient had x-rays taken of the left shoulder and left rib cage. The report of these films which I have reviewed is that they were normal, The patient returned to the Carlisle Hospital Emergency Room on October 27, 1992 complaining that he was still having pain in the left rib cage area and at the base of the neck, Once more the . 'I " ;" , ',I page 3 - Dennis E. Hockenberry December 9, 1996 typewritten emergency room physician's note (dictated on the very date that the patient was seel'l, October 27, 1992) showed the following: "His neck is completely supple. There is no tenderness along the cervical spinal column. He is able to move his neck in all directions without significant discomfort. Neurologic exam i. normal. Fine motor coordination is intact. Examination of the chest reveals the breath sounds to be equal bilaterally. There is slight tenderness to palpation over the left lateral rib cage area but there is no crepitus or unstable segment felt." The emergency room physician reassured the patient that there was no evidence of fracture or other significant abnormality and diagnosed "multiple contusions secondary to motor vehicle accident." As indicated above, because of the extensive nature of the radiation therapy that the patient had received post-operatively he had developed extensive demineralization of the maxilla and mandible. This had resulted in radiation caries which had required dental extractions, In January 1993 more dental extractions were being contemplated, It was decided to have the patient get a course of hyperbaric oxygen therapy in order to try to reduce the risks associated with osteoradionecrosis. Because of the distance from his home, he was admitted as an in-patient to the Veterans' Administration Medical Center in Dayton, Ohio around January 20, 1993. On January 21 he had a chest x-ray. There is nothing in that x-ray report to indicate that he had any rib fractures or any sequelae from rib fractures. He also had a CAT scan of the chest/thorax because of a pOSSible 0.5 centimeter lesion in the right middle lobe of the right lung. Again the CAT scan of the thorax showed no signs of rib fractures, He wall seen in consultation by a variety of physicians and 5urgeon~ during his hOSp.i.tlllh'lltiC'lll p.:\d und'UNent the course of hyperbaric oxygen treatments on'multiple occasions. There is nothing in any handwritten progress note from this entire hospitalization to indicate that this patient ever had any complaints relating to his cervical spine or to his left ribs and/or left shoulder, There was never any indication that this patient required any physical therapy for any of these areas or any medication for any of these areas, He did develop some backache as a r~8ult of the hyperbaric oxygenation for which he received moist heat and ibuprofen which gave him good relief, As notod above, there were never any complaints noted of pain relating to the cervical spine or' left Shoulder/rib area, On February 3, 1993 the social worker at the Veterans' Administration Hospital noted that the patient ".,.related that he . , . . " . . 'i . pa9- 4 - Dennis E. Hockenberry December 9, 1996 is recently married and plans to drive home to Pennsylvania each weekend, weather permitting." On February 4 a note by a member of the recreation service at the Veterans' Administration Hospital indicated "patient participates in social activities - like (sic) to fish and hunt also like pool playing," An extensive handwritten admission note for the dental service on February 3, 1993 contained no mention of any complaints by the patient relating to his cervical spine, left shoulder or left ribs. On February 23 a note from the "Domiciliary Care" Department indicated that the patient was "Requesting pass to travel home before inclement weather, 2/24/93. ., ," On February 24 a handwritten note indicated that the patient was requesting an suthorized absence beginning that day at 2 p.m. until February 28. The note indicated "He is concerned that a snow storm will begin this evening, his wife is also having problems with the pipes at home in Pem,sylvania. He is aware that hyperbaric oxygen is scheduled for 2/25," On February 28, 1993 the patient was seen at the Carlisle Hospital Emerqency Room. The handwritten nursing assessment at 16: 55 hours C4: 55 p.m.) indicated that the patient was seen because: '" I think I have a broken rib. I sneezed and felt like a knife into left ribs around 3:45. '" The typewritten emergency room physician's record, dictated on February 28, indicated the same thing. The physical examination showed that the patient had pain in the left lower rib cage anterolaterally. X-rays of the chest and left ribs were taken at the hospital on Februax'y 28, The chest x-ray was read as negative. The rib x- rays were said to be as follows: "On careful examination there is ~liqht diotortlon Df the ftoterol8teral aspects of the left eighth, ninth, tenth and eleventh ribs, There is evidence for some callus formation on some of these views. The previous study from 23 October 1992 was reviewed, Minimal distortion of some of the distal ribs is noted, Although this is consistent with normal variation, the change on the current exam would indicate that the minor distortion was due to acute fractures (it is not unusual to not detect non-displaced rib fractures). No definite acute fracture is identified," The patient then returned to the Veterans' Administration Medical Center 1n Dayton, Ohio, He had been fitted with a rib belt at the Carlisle Hospital. On March 2 the handwritten progress note at the Veterans' Administration Hospital indicated the following: '''on Sunday 2/28 I got the truck loaded, sneezed then I felt a sharp pain left aide, On 10/92 - I was in an auto accident - suffered . . - . It. page 5 - Dennis E. Hockenberry December 9, 1996 bruiaes to my left side.' denies any othor for motor vehicle accident in 93 (sic). diacomfort at this time," injur1 to back except Denies any pain or In aummary, this patient was in a motor vehicle accident aa a reault of which he may have possibly sustained an exceptionally minimal grade I cervical sprain. He may also have had a contuaion of the left ribs. He may possibly have had an undiaplaced, hairline, incomplet~ rib fracture as well. When he was seen in the emergency room four days after the accident the contemporaneously-prepared emergency room physician's phyaical examination was of special significance: it showed that he had a full range of motion of the cervical spine, that the neck was aupple, and that the patient did not have any other abnormalities associated with the cervical spine. Since that examination was performed 96 hours after the motor vehicle accident this is the reason that, at most, the patient would have sustained a truly minimal grade I sprain. Anything more serious than that would have resulted in some type of abnormal physical finding on the particularly thorough examination whioh the emergency room phYSician had performed, In addition the patient's chest showed no signs of any of the sequelae aasociated with displaced rib fraotuX'fls, etc. The negative CAT scan of the thorax in January 1993 is additional proof that, even if undisplaced rib fraotures had been present, they had caused no abnormality, The fact that there were no complaints by the patient relating to his cervical spine and/or left ribs throughout the entire six-week hospitalization at the Dayton Veterans' Administration Hospital in fjnal proof that the minimal injuries to those areas had already resolved by the time ~hat hcs~italization ~Gqan, The injuries which this patient sustained wer.e truly minimal and resulted in no impairment, restrictions or limitations. I was, quite frankly, amused that the patient had been fitted with a rib belt on February 28, 1993. Rib belts have been shown to be of no real value in the management of an undisplaced rib fracture - especially one on which x-ray shows callus formation, That is why professional football players are allowed to play football three weeks after a rib fracture has occurred as long as they were a protective vest. I believe that the minimal cervical sprain which this patient austained resolved within a period of one to three weeks from the time of the motor vehicle acoident. I believe that the contusions of the left ribs and the left shoulder resolved within the same . . . . 4 ~ ~ page 6 '. Dennie B. Hockenberry December 9, 1996 period of time. If the patient actually eustained a rib fracture that would have healed within six weeks. The pain which the patient developed on February 28, 1993 was due exclusively to the eneezing and loading of his truck at that time and bore no relationship to the prior motor vehicle injury in October 1992. It goes without saying that tho injuries which thiB patient sustained were neither severe nor permanent and did not impair any . body function. The patient never developed any signs of pneumonia or atelectasis as a result o~ his rib injury. He also never had any neurOlogic abnormalities as a result of his minimal neck injury. I hope this information is helpful for you. If you have any questions, please do not hesitate to contact me. Bn/b::) encl. Sincerely, ~ -:;'9~ /1.1~' Ellis F. Fr edman, M.D. Board Certified by the American Board of Orthopaedic Surgery i. , . '1 DINIUS I. BOCKINBIRRY I IN THI COURT OP CONNON PLlAS 0' I CUHBIRLAlfD COUNTY, PIlflfSYLVAlfIA I I I I NO. 94-6095 CIVIL TIRM ~ I I I V. ARTBUR LINDSAY, JR. OIlD.. OJ' couaor AND NOW, MAY 19, 1997, the Court having been inform.d there i. a pending Motion for Summary Judgment and the partiel have agre.d to proceed with argument, the Board of Arbitrator. previoully appointed i. hereby vacated. The Chairman .hall be paid the .um of $50.00. i_tZ:~r;~_ JL jj~~ B. fSheely, P.J. Hubert X. Gilroy, Ilquire - ('~ ....-...c4.(" sj.:lI/" , Chair.an ~,~ Court Admini.trator Idd , ' \I'f"'*'''t...,'',;~, ,i~ d" ,,".,~.,;,l,. , " ;.;j"",,,",~j.....I_",~;._,, " _"I, '. ,',I .,;.."..,~~~'"A-I 1,IL'11 ",J_, .,;..11I~M"'- .',': _./MMi.....i.,M , " , ,; 11\ , 'I_;j, I I~i' "'''II' :',~,_ \1, /,;,-;,',Hi,-.;!/,' i,;\.).,'},-' ",1i)-\:1I1 ; .C' ~-, 1),-: ~;IL "oj .,i I ',I ';jl':iJ'tI1'..:I! 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"1.1\1, ,,' ,I "('. \I:',:;\!"f:~ '_I/,i,:Jt ,'~;'~-~,":l\'i~ I 'I 'J;iI~ , ,'jlF!'l "p I' I~ 11- , Oi'i',JI,l ,,!Ll\! ),/i ,:(,1 !~-llf,tLi ',;rM~ \'1> !'~;;;; r~ h~~\ t,' FlLEO-OFFlCE OF n"~ f:I'1f1TI1:NrJTNW l}H\~Y 2\ M\ \II ~1 'I CIJM~ ,.Il. I. II,i.JNW PENN~'i~!M :1;\ , ,. ii' t,', '( " , , .. 'I , " , ';, , I, I,'i' I 1 ~ ::t i t " 'I' , ,'" I" 11'1' i ',' " " '" ",', " , 1 L ','/1,,::1' "I. ''''II' ",l: I !f,~l ',;/-~\ I;: jr) l}eI ~;:'{;i~ , ":~~" dl' ., ~ " "'~r" " ." I , ",'i,"j"- ,,;;. ',i, I" .ot , ' " :'1 1 ,',J '." ,I. ':1 !H' ,I ,- k i' .~. ,) 'r, " " *' '" "',' ,I ~. f ~ ' ':,'J' " " ,\' " , ., ,. ~ #' .' )llif;!ltl ,,;,",';h ;I , 1 ',' ,I' ! ..~.'i. ~, "'~>r-:"" " , . JOliN tt IIIOUJOI HUlDT X. CItIDY BaouJol . GILROY, r,c, ATfOIfMI AT LAw . NOITN HANOVIIllTIm CAlli"' ~ PlHNl'/LVAHIA 17111" 7I7-UWS1. 7I1o'7"'IMO FAllI 24M22'1 May 13, 1997 Judge Harold E. Sheely Cumberland County Courthouse Carlisle, PA 17013 RJ:: Hoake,w.rry y.. L.1.ndeay Dear Judge Sheely: Along with Austin Grogan and Davld Freed, I was appointed as an arbitrator in the above case. Scott Freeland has advised me that there is a pending Motion for Summary Judgment and t/lat the parties have agreed to proceed wi th argument. Accordingly, I am returning the file and suggesting that an order be issued vacating the appointment of arbitrators with the direction that a new petition for appointment of arbitrators be made if necessary after the summary judgment issue is .resolved, Sincerely yours, slm cc: Scott A. Freeland, Esquire RJchard M. Morris, Jr., Esquire Austin Grogan, Esquire David Freed, Esquire I' '" '. , ' " ' vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94.6095 CIVIL DENNIS HOCKENBERRY, Plaintiff ARnIUR LINDSAY, Defendant CIVIL ACfION . LAW IN RE: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMIlNT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this I "I. day of July, 1997, the motion of the defendant for summary judgment on the issue of noneconomic loss is GRANTED, BY THE COURT, Richard M. Morris, Jr., Esquire For the Plaintiff ,/1 Scl.ltt A. Freeland, Esquire For the Defendant '~;.~ ~ '1115"1<1'1. .)>,'f. . DENNIS HOCKEN8ERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94.6095 CIVIL vs. ARTHUR LINDSAY, Defendant CIVIL ACTION -lAW IN RE: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, jJ, OPINION AND ORDER A motion for summary judgment by the defendant, Arthur Lindsay, has been filed In this negligence action brought by the plaintiff, Dennis Hockenberry. The plaintiff contends that on October 23, \992, he was travelling South on Route 533 and Bull's Head Road when he was struck by the defendant, who entered Route 533 after failing to stop at a stop sign at an intersection. The plaintiff claims that he has suffered bodily injury to his neck and back as a result of this collision. The defendant's motion for summary judgment asserts that the plaintiff cannot maintain an action for any noneconomic loss ~ince the plaintiff carries limited tort automobile insurance, The Motor Vehicle Financial Responsibility Law, 75 Pa,C.S.A. Section 1705(d) provides that: d) Limited tort alternative, .. Each person who elects a limited tort alternative remains eligible to receive compensation for economic loss sustained in a motor vehicle accident as a consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the Ilmited tort election !hall be precluded from maintaining an action for any noneconomic loss, In turn, Section 1702 defines serious injury as follows: Serious injury, A personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. II is the defendant's position that the plaintiffs injuries are not serious as defined under the 94-609~ CIVIL TERM Motor Vehicle Financial Responsibility Law. In considering a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party and must resolve all doubt against the moving party, F1r.tcher v. Ravmond COI1'.. 424 Pa.Super. 605, 609, 623 A.2d 84~, 847 (1993). Judgment may only be entered in this fashion if the moving party demonstrates that there are no genuine issues of material fact and that they are entilled to judgment as a matter of law. Grossman v. Rosen, 424 Pa,Super. 463, 465, 623 A,2d 1,2 (1993), Summary judgment should only be granted where the right is free from doubt. Johnson v. Harris. 419 Pa,Super. 541, 549, 615 A.2d 771, 775 (1992). The Superior Court of Pennsylvania set forth the appropriate standard for determining the existence of a "serious impairment of body function" in Dodson v, Elvev, 445 Pa.Super. 479, 66~ A.2d 1223 (1995). The Dodson court held that if there is no substantial dispute of material fact concerning whether the plaintiff has suffered a "serious impairment of body function" the court should make the determination as a matter of law. lIl. at 483-84, 665 A.2d at 1225-26, In other words, if the court. after reviewing the undisputed record, finds that the threshold has not been met then it should disallow the plaintiff a recovery of noneconomic damages, On the other hand. if the evidence establishes that the plaintiff's injury meets the threshold. then noneconomic losses are recoverable. In turn. however. if there is a substantial dispute on the threshold issue, that question becomes one for the jury, I.ll at 497, 665 A.2d at 1232. To determine whether the injury is serious, several factors should be considered: the extent of the impairment, the particular body function impaired. the length of time the Impairment lasted, the lreatment required to correctlhe impairment. and any other relevant 2 . 94.6095 CIVIL TERM factors. Furthermore. the court should not consid<z:r the injury alone, but should consider the consequences of the injury. The consequences must involve a serious impact for an extended period of time on a plaintifrs life, and must interfere substantially with plaintiff's normal activities and not impose only a slight or mild limitation. ilL. at 499. 665 A.2d at 1234. In addition, the plaintiff may not create a triable issue of fact with subjective evidence only. To cross over the "serious injury" threshold, the plaintiff must show a material dispute of fact by objective medical evidence. On the other hand, once objectively manifested, subjective complaints of pain may be so severe as to result in a serious impairment of body function. ll1, at 497-98, 665 A,2d at 1232-33. In this case, the plaintiff was taken to the Carlisle Hospital immediately following the accident with complaints regarding his left shoulder and left rib cage. The plaintiff was x.rayed and the readings were normal. On October 27, 1992, the plaintiff returned to the Carlisle Hospital complaining of pain in his left rib cage and at the base of his neck. The emergency room physician noted only a "slighttendernes~ to palpitation over the left lateral rib cage area" and assured the plaintiff that there was no evidence of fracture or other significant abnormality. The plaintiff was diagnosed with "multiple contusions secondary to motor vehicle accident." Concerning the pain in the plaintifrs neck. the physician performed a physical examination and found thatlhe plaintiff had a full range of motion of the cervical spine, that the neck was supple, and that the plaintiff had no other abnormalities associated with the cervic81 spine. The plaintiff returned to the Carlisle Hospital on February 28. 1993. complaining of a possible broken rib, X-rays showed a slight distorlion of the eighth, ninth, tenth and eleventh ribs with some callus formation. The x-rays from October 27, 1992, were reviewed and minimal 3 ~s CIVIL TERM distortion of some of the distal ribs was noted. The change on the more fecent exam tended to indicate that the minor distortion was due to acute ffactures, but no acute fracture was identified. In the emergency room on the day of the accident, the plaintiff had no complaints of his head or neck. He did complain of back pain, but stated that he fell the pain was due to lying on the board on which he was carrieo, The plaintiff indicated in his deposition that he was unable to lift for six months following the accident, had tfouble breathing, has pain when reading for long periods of time, cannot fish, hike or swim without others present, and cannot bowl or use a normal bow. It should be noted that no physician has placed any restrictions on the plaintiffs activities due to the accident. In fact, the plaintiff was in guarded condition at the time of the accident due to a pre-existing condition I and had been advised by a doctor that if he were to go walking in the mountains he should be accompanied in case he fell. Furthermore, in response to Interrogatory Number 23, requesting the plaintiff to identify all experts he intends to call at trial, the plaintiff answered "none," In his brief, the plaintiff can only point to a diagnosis made by the defendant's medical expert, Ellis Friedman, M.D., that, at moat, the plaintiff has suffered an "exceptionally minimal grade one cervical sprain, a contusion of the left ribs and an undisplaced, hairline. incomplete rib fracture." Dr. Friedman further notes in his affidavit that the cervical sprain and the conlusion to the ribs resolved within a period of one to three weeks while a rib fracture would have healed within six weeks. The I The plaintiff underwent a right mastoidectomy in September of 1984, In December of 1988, plaintiff underwent surgery for adenocarcinoma which involved the removal of the tumor and reconstruction of the base of the skull. 4 , 94-6095 CIVIL TERM phlintiff has presented no objective evidence to contradict Dr. Friedman's sworn statements concerning the amount of time thest: injuries wO\lld take to heal. As the court stnted in Dodson, the plaintiff may not create a triable issue of fact with subjective evidence only. lil. at 497-98, 665 A.2d at 1232-33. The plaintiff contends that a jury can conclude from Dr. Frit:dman's affidavit and the plaintiffs own testimony that the injuries impaired a body function. We disagree and reiterate that Dodson requires that the plaintiff present objective medical evidence that shows at least a dispute of material fact in order to create a triable issue of fact. l1t. The plaintiff has pointed to no objective medical evidence to support his claim that his injury is serious, nor has he attempted to rebut, with objective medical evidence, Dr. Friedman's statement that "the injuries which this patient sustained were neither severe nor permanent and did not impair any body function." Whether the observations are objective or subjective, it is clear that the injuries to the plaintiff are not serious. The particular body function impairments sustained by the plaintiff and stated in his brief include the ribs, neck and back~, When the plaintiff sought treatment for the neck pain the physician found nothing more serious than a cervical sprain. The plaintiff attributed the back pain felt at the time of the accident to lying on the board on which he was carried. the plaintiff states that he could not lift for six months and states no amount of time for the other restrictions mentioned, He claims that he sometimes has pain when reading. He also states that he cannot fish. hike, or swim without others present, although no physician has placed any such restriction un these activities. Thl' plaintiff stated in his deposition that at the , Although both parties address injuries to the plaintiff's ribs in their briefs, the complaint only alleges (njuries to the plaintiff's neck and back, ~ 94-61)95 CIVil, TERM time of the accident he had been advised by a physician to not walk in the mountaina by himself be(a~ of the chance that he might fall and be severely injured due to a pre-existing condition. ThIs direction by the physician sounds very similar to the restriction the plaintiff has placed on . himself. There has been no ongoing course of treatment in this case. With the exception of boWling. the plaintiff can still participate in all of the same activit,ies he did before the a<<ident. Although the: plaintiff now uses a croll8bow instead of the regular how that he is accustomed to using. we do not find this to be a substantial interference with the plaintifrs normal activities. The plaintiff dt'es not state exactly how long the rib injury lasted. but it did not appear to have interfered with the plaintiffs normal activities in any significant way. Furthermore. the plaintiff does not point to any specific aspects of his life that were affected by this injury other than to say that it was painful. While the plaintiff may have sustained injuries. we find that he has not prer.ented any evidence that he suffered a "serious" injury. Therefore. he may not proceed on a theory of recovery involving noneconomic losses. AND NOW. this /4/" day of July. 1997. the motion of the defendant for summary QRDER judgment on the ill8ue of noneconomic loss is GRANTED. BY THE COURT. ~ft~.:1 J. / 6 , I U'~ '>- ..:I t;; N '~,;: :11 ( =.. ::r:: U;e "- r}...... 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