HomeMy WebLinkAbout94-06128
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J. S23030/97
LISA L. BROWN,APPELLANT
IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v.
MIRIAM C. CLAPPER
NO. 979 HARRISBURG 1996
Appeal from the
In the Court
Cumberland
JUDGMBN'l' BNTBRBD November 21, 1996
of Common Pleas, Civil Division
County, No. 94-612B CIVIL TERM
JUDOII.NT
ON ~DrOII ......... It IJ now he" orck"d and
a41Ifd,1d I1y thiJ Coun that tM jud,mt'" of tM Coun of
COIMIOII Pk4J 01 CUMBERLAND CoU1lly be. and the JtI1M
U "",,~ AFFIRMED.
. ' IF 7Tm CQrnm
~ July 17, 1997
J. S23030/97
LISA L. BROWN. APPELLANT
IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MIRIAM C. CLAPPER
NO. 979 HARRISBURG 1996
Appeal from the
In the Court
'Cumberland
JUDGMENT ENTERED November 21, 1996
of Common Pleas. Civil Division
County, No. 94-6128 CIVIL TERM
BEFORE:
CAVANAUGH, TAMILIA AND OLSZEWSKI, JJ.
MEMORANDUM:
FIL.DJll17W
This is an appeal from a judgment entered in favor of
appellee-defendant Miriam C. Clapper in thi,s case for persona~
injuries arising out of an automobile accident in which the car
driven by appellee rear-ended the car driven by appellant Lisa L.
Brown. Appellee admitted that her negligence caused the accident
but contested both causation and the extent of appellant's
injuries. In returning a verdict for appellee. the jury found
that her negligence was not a substantial factor in caus~ng
appellant'S injuries. On appeal, one issue has been raised for
our review:
Whether appellant is entitled to a new trial
because there was uncontradicted medical
evidence presented that she suffered soft-
tissue injuries and pain as a direct result of
appellee I s conceded negl igence in rear-ending
her vehicle, which verdict shocks the court' B
conscience?
We affirm.
In reviewing the grant or denial of a new trial we must
determine whether the trial court abused its discretion or
J. 523030/97
.
committed an error of law. Nudelman v. Gilbride, 436 l?a. Super.
44, 49, 647 A.2d 233, 236 (1994). A new trial is only warranted
when the jury's verdict is so contrary to the evidence that it
shocks one's sense of justice. ~~. It is the sole province of the
jury to accept or reject any and all evidence up until the point
at which the verdict is so disproport ionate to the uncontested
evidence as to defy common sense and logic. Neison v. Hines, 539
Pa. 516, 521, 653 A.2d 634, 637 (1995)
Here, appellant's medical expert testified that she suffered
a signif icant strain of the muscles in her neck and back. The
defense's medical expert conceded that appellant likely suffere~ a
strain of her cez'vical and lumbar spine as a result of the
accident and that this type of injury typically heuls in four to
six months. The expert qualified this assessment by stating that
if appellant did suffer a strain, it was at most a mild strain.
He further testified that his examination of appellant did not
reveal any positive neurological findings, and that from a
physical standpoint her neck and back were within normal limits.
In addition to the expert testimony offered by both parties, there
was evidence that appellant suffered neck and back pain prior to
the accident, that she received regular treatment for this
condition and that the last of these treatments occurred less tban
a month before the accident.
In view of the evidence produced by appellee at trial, we
cannot conclude that the evidence of injury to appellant was
uncontested. Appellee's medical expert did not unequivocally
state that appellant suffered injury from the accident. In fact,
2
J. S23030/97
~
.
he stated that if she suffered any injury, it was at most a mild
strain. Moreover, there is evidence that appellant I s back and
;
neck were injured prior to the accident and were a source of pain
to her. It was within the province of the jury to weigh and
assess this evidence. The jury concluded that appellant's
injuries were not caused by appellee. In view of the evidence of
record, we find no abuse of discretion in the trial court's denial
of a new trial.1
Judgment affirmed.
'1. ,
"
1 We note that appellant I s reliance on Rozanc v. Urbanv, 444
Pa. Super. 645, 664 A.2d 619 (1994) and Luckin v. Sternick, 431
Pa. Super. 300,636 A.2d 661 (1994), aff'd., 667 A.2d 13, is
misplaced. In each, a panel of this court concluded that a new
trial was warranted because plaintiff suffered injury as a result
of the defendant's negligence. Unlike the present case, the
defense expert in both Rozanc and Luck in unequivocally stated that
the plaintiff' s inj~lries were caused by the defendant. Here, the
defense expert did not so state and evidence of a pre-exist ing
injury was admitted at trial.
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9lSEP 22 AH'IQ: ~9
CtJMar:ru N:J I"-CUNTY
PENNSYI,V.\NIA
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CERTI FICAT~: AND TRANSMITTAl. 0.' RECORD
UNDER
PENNSYLVANIA RULE_ ot~ APPELLATE ~~E~URE 193~1
' u
To the Prothonotary of the Appellate Court to which the
within matter has been appcaleu:
SUPERIOR COURT OF PENNSYLVANIA
TH! UNDERSIGNED, Prothonotary of the Court of Common Pleas
ot Cumberland County. the said court being a court of record,
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record, including an opinion of the court
as required by PA R.A.P. 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
Case No. '~-6l28 Civil Term: No. 979 HBG 1996
LISA L. BROWN
VS,
MIRIAM C. CLAPPER
The documents comprIsing the record have been numbered
from No. 1 to No. 193 ,and attached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified with
reasonable definiteness. including with respect to each document,
the number of pages comprising the document.
The date on which the record has been transmitted to the
appellate court is January 17. 1997
(Seal of Court)
*w-u,~, f: '}~!L4~
Prothonotary I
An addU ional copy of this cer.t tf icate is enclosed. Please
sign and date copy. thereby acknowledging ("cceipt of this ~'ecord.
RECORD RECEIVED:
Date:
(signature' title)
.
{'ommonw(ahh 01 P(nn~ylvania
Counly 01 Cumbc:rl.nd
} ~"
I. Lawrence E. Welker . Prolhunolary
01 lhe Cuurl 01 Common PI(u in and ror said
CounlY. do her(by certily lhat Ih( lureloinl i, a
lull. lru( and COrr(CI copy 01 lh( whol( r(cord 01 Ihe
c.s( Ih(rein ~Iat(d. wherein
Lisa L. Brown
Plainliff. and
Miriam C. C1Bnner
Ddendanl _. U Ihe same remains 01 record
bdorelhe said Courl al No, 94-6128 01
Civil Term. A,D. 19_.
In TESTIMONY WHEREOF. 1 hav( hereunlu sel my hand and amxed the ~al 01 said Court
Ihis Seventeenth ___,.___ day 01 JanlUlIV A, D,. 1 9...2L. ,
-X~ t: )~k--
PrnlhtH")IUr~
I. Harold E. SheelY Presidenl Judie 01 Ihe Ninth
Judicial District. composed 01 Ihe CounlY 01 Cumberland. do cerlily lhal Lawrence E. Welker.....
..iI.'Q1honotarv . by whom Ihe annexed record. certificate and
alleslalion were made and given. and who. in his own proper handwriling.lhereunto subscribed his nan.e
and allixed the seal 01 the Courl 01 Common Pleas 01 said County. was. all he lime ohodoinl. and now is
Prolhonotary in and lor said Counly 01 Cunberland in
the Commonwealth 01 Pennsylvania. duly commissioned and qualilied to.1I 01 whose aclS.s such lull lailh
and credil are and ought to be given as well in Co urIs 01 judic re as elsewhere. and Ihallhe said record.
cerlilicate and alleslalion are in due form 01 law and m y the prope orn r.
.c~
Pre'lidc:nl.lud"c
Commonwealth 01 Pennsylvania
Counly 01 Cumberland
} ..:
I. l....wrence E. Welker . Prothonolary 01 Ihe Court 01 Common Pleas in
and lor Ihe said County. do certify thallhe \lonorablc Harold E. Sheely
by whom the loreloing all(.l~tion was made. and who ha'lhereunto subscribed his name. was. althelime
01 makinllhereol. and ~lill i. Presidenl Judie 01 Ihe Court 01 Common Pleu. Orphao' Court and Cour! 01
Quart" Se..ion~ 01 th( Peace III and ror ~aid CounlY, duly ('ommiuioned and qualified; 10 all whose acts
a. such lull raith and credit ar( and ought'" he I"en. a' wcll in Courts 01 judicature a' el,ewhere,
IN TfSTIMONY WllfRfOr. I ha,. her.unlt.
,e' my hand and affixcd lhe ..al 01 ,aid ('ourt Ihi,
17th day 01 __,Jan,ya-D'_.. "Il 19 9L..
?( ~"'Uc)L~L- ?'__21(~,J.;#-
"rlllh""",.!.,
Amons the Record~ and "rocecdins, enrolled in thc court of Common Plea~ in and for lhe
county of CUMBERLAND _ in the Commonwcallh of Penn'ylvania
No. 979 HBG 1996
10 No, q._1i 1 7A C'i "i 1 Term. 19 __ i, conlained the followina:
COpy OF . Appearance DOCKET ENTRY
LISA L. BROWN
VS.
MIRIAM C. CLAPPER
PAGE r<<>.
1 - 7 Oct. 26. 1994. Complaint, filed.
8 Nov. 7. 1994. Sheriff's Return of Service, filed.
9 Nov. 16. 1994. Praecipe for Appearance, filed.
Please enter the Appearance of Richard H. Wix, Esquire, of WIX, ~ER
& WEIDNER, on behalf of Defendant. Miriam C. Clapper in the above captioned
action,
By: Richard H. Wix, Esq.
.to - 1.6 Nov. 21. 1994. Defendant's Answer with New MJtter, filed.
17 Oct. 13. 1995. Praecipe for Listing Case for Trial. fJ.led.
By: Leslie M. Fields, Esq.
18 - 39 Nov. 16. 17. 1995, Motion to Canpel. Discovery, for Sanctions and for a
Continuance. and Rule to Show Cause, filed.
AND~. this 17th day of November, 1995, upon consideration of the
Defendant's Motion to Canpe.t Discovery, for Sanctions and for Continuance,
IT IS HEREBY ORDERED that the P.t"intiff, Lisa M. Brown, show cause why said
Motion should not be granted.
RULE RE:I'URNABLE 20 days after service.
By the Court, Edgar B. Bayley, J,
40 - 41 Dec. 12. 1995. Stipulation, filed.
42 Dec. 21. 1995. Order of Court, filed,
AND ~, December 19, J.995 , counsel. having failed to call the above
case for trial, the case is stricken fraTl the January Term 1996 trial list.
Counsel II1/IY relist the case for trial when ready.
By the Court, Harold E. Sheely. P"I.
43 MIIrch il. 1996. Praecipe for Listing Case for Trial, filed.
By: Girard E. Rickards, Esq.
44 - 46 May 2. 1996. Pretrial ConfeI~nce, filed.
By the Court, J. Wesley Oler, Jr.
47 May 2. 1996. Order of Court, filed.
AND~, this 1st day of May, 1996, pursuant to an agreement of counsel
reached at a pretrial conference in this case in which Plaintiff was repre-
sented by Timothy P. Keating, Esquire, and Defendant was represented by
Girard E. Rickards, Esquire, any jlxlgment entered against the deceased
Defendant rray be collected fran the Defendant's insurance canpany, State
Farm Defendant's policy, which limits are $250.000.00.
By the Court, .1. Wesley l)J er, Jr., J.
48 - 50 May 22. 1996. Verdict and .Jury List
The negligence of the defendant, Miriilll1 Clapper, was a substantial
factor in caUliling injury to the plaintiff, Lisa Brown. No,
51 - 56 May 31. 1996. Plaintiff's Motion tor Post-Trial Relief. filed.
(over)
IWJIB fIl.
57 - 61 June 4. 1996. Plaintiff's Motion for Post-Trial Relief, and Order of Court,
filed.
AND f\O'l. this 3rd day of June. 1996, upon consideration of PLAIm'IFF'S
K7l'ICl'l FUR P001'-TRIA!. RELIEF', it is hereby ORDERED that the Official Court
Reporter transcribe the notes of testimony of the trial in this matter.
exclooing the opening and closing statements of counsel and the Charge of
the Court. Plaintiff is granted leave to file any supplemental and/or
lIdditiona1 post-trial motions within tlolenty (20) days of the looging of the
transcript with the Prothonotary. The onus shall be upon the pl.aintiff to
request oral argunent when ready.
By the Court, Kevin A. Hess, J.
62 - 94 June 17. 1996. Transcript, filed. In Re: Jury Trial Proceedings
By the Court, Kevin A. Hess
95 Aug. 15. 1996. Praecipe for Listing Case for Argurent, filed.
By: Girard E. Rickards, Esq.
96 - 99 Nav. 8. 1996. Opinion and Order, filed. In Re: Motion for New Trial
AND f\O'l. this 7th day of November, 1996. the motion of the plaintiff
for a new trial is DENIED.
By the Court. Kevin A. Hess, J.
100 - 101 Nov. 21. 1996. Praecipe for Entry of Judgnent and Judgrent Entered,
Kindly enter joogrent against the Plaintiff, Lisa !.. Brown, and in
favor of the Defendant, Mirian C, Clapper, in the above-captioned matter.
Judge Kevin A. Hess denied the Plaintiff's motion for a trial by order dated
NoverTtler 7. 1996. following a jury verdict in favor of the Defendant.
By: Timothy P. Keating, Esq.
102 - 105 Dec. 4. 1996. Notice of Appeal, filed,
oorICE IS HEREBY given that LISA L. BIo.'N, the Plaintiff above naned,
hereby appeals to the Superior Court of Pennsylvania fran the judgrent
entered against her and in favor of the Defendant, Mirill'll C. Clapper, on
Noventler 21. 1996, in the above-captioned civil matter. This judgrent has
been entered on the docket as evidenced by the attacte:! copy of the docket
entry .
106 - 107
By:
Dec. U. 1996. Superior Court
No. 979 HBG 1996. filed.
Misc.
Timothy p, Keating, Esq.
of Pennsylvania Notice of Docketing to Case
108 - 193
~
Thi. motion for. n.w tri.l by the the pl.intiff, Li..
Brown, ia in r..pon.e to .n unf.vor.~ql" jury verdict in .n
.utomobile .ccident c.... The jury."!bdnd th.t the n.gli~ence of
Miriam Cl.pper, did not cau.e the Plaintiff'. all.g.d injurie..
The plaintiff claim. th.t a new trial i. warrant.d b.Qau.. there
wa. uncontridict.d m.dical .vid.nce. We will not grant a new
trial.
Th. automobile accid.nt occurr.d on F.bruary 6, 1993 on the
Carli.le Pike in Hampden Town.hip, wh'~fth. d.f.ndant'. v.hicle,
re.r-ended the plaintiff'. vehicl.. Th. d.fendant ... admitt.d
that her neglig.nc. cau..d the accident.
At trial on Hay 22, 1996 the jury heard te.timony from Li.a
Brown, Dr. Dougla. Sand.r.on and Dr. Richard Boal. M.. Miller
alleged that .he .u.tain.d neck injurie., low back injurie. and
headache. from the accid.nt. Dr. Sand.rson, who .aw M.. Brown on
a monthly ba.i. aft.r the accident and up until trial, testifi.d
that a
as a dir.ct r..ult of the motor v.hicl. accid.nt, [M..
BrownJhad .u.tain.d .ignificant .train of sev.ral
mu.cles, nam.ly, all the mu.clel encompaa.ing the spine
from the back of the skull to the buttock r.gion,
c.rtain mu.cle. of the upp.r and lower .xtremitiea, and
related to certain of these mUlcles, sh. had peripheral
nerve irritability and dysfunction mo.t pronounced in h.r
upper .xtr.miti...
~Th. doctor for the d.fendant, Dr. Boal, wh~ examin.d Ma. Brown on
April 12, 1996, testified that, according to hil prof..sional
opinion, M.. Brown had healed from h.r alleged injury. He
conclud.d that MI. Brown "moat likely suff.red a .train of her
c.rvical .pine and perhaps her lumbar spin. at the time of the
accident." Furthermore, he stated that hi. conclu.ion waa ba.ed,
at le.at in part, on Me. Brown'a d.piction of h.r medical
hi.tory, and ther6fore hil conclusion could chang. if the
information giv.n was fal.e.
It ia w.ll e.tabli.hed that a trial judge may not grant a
n.w trial ba.ed on the weight of the evid.nce, unl..a the verdi~t
w.. ao again.t the w.ight ot the evidence that inju.tice .tanda
forth like a b.acon or ahocka the con.cience of the court. Bald
v. Shu, 419 Pa.Super. 227, 615 A.2d 109 (1992).
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CEHTI t'ICATl-: ANI> TRANSMITTAl. Ot' Rt:CORO
UNDER
PENNSYLVANIA RULE Ot. APPELLATl-:_-'~R~l-:I>URE 19_~Ji~1
. --~~~-
To the Prothonotary of the Appellate Court to which the
within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
THE UNDERSIGNED. Prothonotary of the Court of Common Pleas
of Cumberland County, the said court being a court of record.
do hereby certify that annexed hereto is a true and correct copy
of the whole and p.ntire record. including an opinion of the court
as required by PA R.A.P. 1925. the original papers and exhibits.
if any on file. the transcript of the proceedings. if any. and the
docket entries in the following matter: ,
Caae No. qAf-6128 Civil Term; No, ?7? HBG 19?t; :,;;
"
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LISA r.. BROWN
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VS.
MIRIAM C, CLAPPER
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The documents comprising the record have been numbp.red
from No. 1 to No. 193 . and attached hereto as Exhibi t A is a
list of the documents correspondingly numbered and identified with
reasonable def ini teness. inc Iud ing wi th respec t to each document.
the number of pages comprising the document.
The date on which the record has been transmitted to the
ap~ellate court is January 17, 1997
(Seal of Court)
~t-U/J'~' ~ ')I~_~~_
. Prothonotary I
An additional copy of this certificate is enclosed, PleaRe
sIgn and date copy. thereby aCknOWledging receipt of this record.
RECORD RECEIVED:
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(glt'~al:.~J;",' title)
IN THE SUPERIOR COURT OF PENNSYLVANIA
HARRISBURG DISTRICT
CERTIFICATE QI-' CONTEN'l'S OF REMANDED RECORD
PA. R.A.P. 2571 AND 2572
THE lJNDERSIGNED, Chief Clerk of the Superior Court of
Pennsylvania, the said Court being a Court of Record, does hereby
certify that annexed to the original hgreof is a true and correct
copy of the whole and entire record as remanded from said Court,
in the following matter:
Parts:
1 Part
Caption & Docket Numbers:
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Lisa L Brown
Miriam C Clapper
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'D
No. 979 Harrisburg, 1996
(Cumberland Co. No. 94-6128 Civil Term)
in compliance with Pennsylvania Rules of Appellate ProceJure
2571.
The date on which the record has been remanded is
SEP 1 2 1997
An additional copy of this certificate is enclosed with
the original.hereof, and the Clerk or Prothonotary of the lower'
court or the'head, chairman, deputy or secretary of the
government unit is hereby directed to acknowledge receipt of the
remanded record by executing such copy at the place indicated and
by fort-hwi th returning the same. /J L . .
~(~. LtJ~~
Chief Clerk - Harrisburg District
Superior Court of Pennsylvania
RECORD, etc. RECEIVED DATE
q.a;:).QI
~_\ il C\... rS \'\ lIlK!)) (( V) ~.
signature and title
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CERTIFICAT~: AND TRANSMITTAl. OF RECORD
UNDER
PENNSYLVANIA RULE_OF APPELLATE PROCEDURE 1931 (cl
To the Prothonotary of the Appellate Court to which the
within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
THE UNDERSIGNED. Prothonotary of the Court of Common Pleas
of Cumberland County, the said court being a court of record.
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record, including an opinion of the court
as required by PA R.A.P. 1925. the original papers and exhibits,
if any on file, the transcript of the proceedings. if any. and the
docket entries in the following matter:
Case No. q4-6128 Civil Term; No. 979 HBG 1996
LISA L. BROWN
VS.
MIRIAM C. CLAPPER
The documents comprlslng the record have been numbered
from No, 1 to No. 193 ,and attached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified with
reasonable definiteness. including with respect to each document,
the number of pages comprising the document.
The date on which the record has been transmitted to the
appellate court is January 17. 1997
(Seal of Court)
~:MJ/"~, f: ')Y~~~<I~_
Prothonotary I
An additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECORD RECEIVED:
Date:
KECORD FII.Fn IN SlJo~RlnR r,nURT I
JAN 2 U 19971 -L~
(s,.ianature' title)
HAKHIStiUH~
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Amona the RCl:ord~ and P'oc:eedina~ enrolled in the court of Common Plea~ in and for the
to No,
CUMBERLAND
No. 979 HBG 1996
cu_" 17A l'ivil
in the Commonwealth of Penn~yl'ania
county of
Term. 19 i~ contained the followina:
COPY OF
Annellrllnce
DOCKET ENTRY
LISA L. BROWN
VS.
MIRIAM C. CLAPPER
IWE fO.
1 - 7 Oct. 26. 1994. Complaint, filed.
8 Nov. 7. 1994. Sheriff's Return of Service. filed.
9 Nov. 16. 1994. Praecipe for Appearance, filed,
Please enter the Appearance of Richard H. Wix, Esquire, of WIX, WEOOER
, WEImER. on behalf of Defendant, Miriam C. Clapper in the above captioned
action.
By: Richard H, Wix, Esq.
10.. 16 Nov. 21. 1994. Defendant's Answer with New Matter, filed.
17 Oct. 13. 1995. Praecipe for Listing Case for Trial, filed.
By: Leslie M. Fields, Esq.
18 - 39 Nov. 16. 17. 1995. Motion to Canpel Discovery, for Sanctions and for a
Continuance, and Rule to Show Cause, filed.
AND NCM, this 17th day of November, 1995, upon consideration of the
Defendant's Motion to Compel Discovery, for Sanctions and for Continuance,
IT IS HEREBY ORDERED that the Plaintiff, Lisa M. Brown, srow cause why said
Motion should not be granted.
RULE REruRNABLE 20 days after service.
By the Court, Edgar B. Bayley, J.
40 - 41 Dec. 12. 1995. Stipulation, filed.
42 Dec. 21. 1995. Order of Court, filed.
AND NCM, December 19, 1995, counsel having failed to call the above
case for trial, the case is stricken fronl the January Term 1996 trial list,
Cou:"\seJ. rray relist the case for trial when ready.
By the Court, Harold E. Sheely, P,J.
43 M!Irch ll. 1996, Praecipe for Listing Case for Trial, filed.
By: Girard E. Rickards, Esq.
44 - 46 Msy 2. 1996. Pretrial Conference, filed.
By the Court, .1. Wesley Oler, Jr.
47 Msy 2. 1996. Order of Court, filed.
AND NCM, this 1st day of May, 1996, pursuant to an agreement of counsel
reached at a pretriill, conference in thi.s case in which Plaintiff was repre-
sented by Timothy P. Keating, Esquire. and Defendant was represented by
Girard E. Rickards, Esquire, any judgTler.t entered against the deceased
Defendant may be collected fran the Defendant's insurance canpany, State
Farm Defend,lnt's policy, which 1 imits are $250,000.00.
By the Court, J. Wesley OIer, Jr., J.
48 - 50 Msy 22. 1996. Verdict IlOd ,Jury List
The negligence of the defendant, Miriam Clapper, was a substantial
factor in causing injury to the plaintiff, Lisa Brown. No.
51 - 56 Msy 31. 1996. Plaintiff's Motion for Post-Trial ReI ief, filed.
(over)
,....,
,....
MIl NO.
57 - 61 June 4, 1996, Plaintiff's Motion for Post-Trial Relief, and Order of Court,
filP.d.
AND NCM, this 3rd day of .June, 1996, u~n consideration of PlAINTIFF'S
MOl'IOO FOR POOT-TRIAL RELIEF, it is hereby ORDERED that the Official Court
RepJrter transcribe the notes of testirrK)ny of the trial in this matter,
excluding the opening and closing statements of counsel and the Charge of
the Court. Plaintiff is granted leave to file any supplemental and/or
additional poBt-trial motions within twenty (20) days of the lodging of the
transcript with the Prothonotary. The onus shall be upon the plaintiff to
request oral argument when ready.
By the COllrt, Kevin A. Hess, J.
62 - 94 June 17, 1996, Transcript, filed. In Re: Jury Trial Proceedings
By the Court, Kevin A. Hess
95 Aug. 15, 1996, Praecipe for Listing Case for Argument, filed.
By: Girard E. Rickards, Esq.
96 ~ 99 Nav. 8, 1996, Opinion and Order, filed, In Re: Motion for New Trial
AND NCM, this 7th day of November. 1996, the motion of the plaintHf
for a new trial is DENIED.
By the Court, Kevin A. Hess, J.
100 "101 Nav. 21, 1996, Praecipe for Entry of Judgnent and Judgnent Entered.
Ki.ndly enter judgnent against the Plaintiff, Lisa [" Brown, and in
favor of the Defendant, Miriam C. Clapper, in the above-captioned matter.
Judge Kevin A. Hess denied the Plaintiff's motion for a trial by order dated
November 7, 1996, following a jury verdict. in favor of t.he Defendant..
By: TLmot.hy P. Keating, Esq.
102 - 105 Dec. 4, 1996. Notice of Appeal, filed.
i'KJI'ICE IS HEREBY given t.hat LISA r.. BRCMN, the Plaintiff above naned,
hereby appeals t.o t.he Superior Court of Pennsylvania fran the judgnent
entered against her and in favor of the Defendant, Miriam C. Clapper, on
November 21, 1996, in t.he above-captioned civil matter. This judgnent has
been entered on the docket as evidenced by the aUacJoed copy of the docket
entry.
108 - 193
By:
Dec. 12, 1996, Superior Court.
No, 979 HBG 1996, filed.
Misc.
Timothy P. Keating, Esq.
of Pennsylvania Notice of Docketing to Case
106 - 107
"
~
.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No,c/Y ~ Of Civil 1994
LISA L. BROWN,
VB.
MIRIAM C. CLAPPER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICI
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
wi thin twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
fi11ng in wri ting with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed wi thout you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other cl.aim or relief
requeBt~d by Plaintiff. You may lose money or property or other
rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR, 4th Floor
CUMBERLAND COUNTY COURTHOUSE
CARLISLE, PENNSYLVANIA 17013
PHONE: (717) 240-6200
""'
r--
LISA L. BROWN,
Plaintiff
XN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
No.
Civil 1994
MIRIAM C. CLAPPER,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COttPLA:NT
AND NOW comes the Plaintiff, Lisa L. Brown, by and through her
attorney, Lesl.ie M. Fields, Esquire, and respectfully represent a8
follows:
1. Plaintiff, Lisa L. Brown, is an adult individual residing
at 617 Good Hope Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055.
2. Defendant, Miriam C. Clapper, is an adult individual
residing at 9 Creekside Lane, Camp Hill, Cumberland County,
Pennsylvania 17011.
3. On February 6, 1993, at or about 4:45 p.m., Plaintiff,
Lisa L, Brown, operating a 1985 Chevrolet Butomobile, was traveling
on the Carlisle Pike (near Hampton Square) toward Camp Hill,
Cumberland County, pennsylvania and became stopped in traffic. As
Plaintiff'8 vehicle was stopped in traffic, a Cadillac automobile
operated by Defendant, Miriam C. Clapper, failed to stop and struck
Plaintiff's vehicle from behind.
4. A~ the aforesaid time and place, Plaintiff, Lisa L. Brown,
was caused to 8ustain 8evere injuries to her per80n, hereinafter
more fully de8cribed.
I')
,......
undergo medical attention, care and expenses for the injuries she
has suffered and may be obligated to continue to incur such
expenses for an indefinite time in the future.
8. As a further direct and proximate result of the negligent,
careless and/or reckless acts of the Defendant, Miriam C. Clapper,
the Plaintiff, Lisa L. Brown, has suffered a loss of earnings
and/or impairment of her earning capaCity and power.
9. As a further direct and proximate result of the negligent,
careless and/or reckless acts of the Defendant, Miriam C. Clapper,
the Plaintiff, Lisa L. Brown, has suffered medically determinable
physical impairments which have prevented her from performing all
of the normal acts and duties which constitute her usual and
customary daily activities.
10. As a further direct and proximate result of the
negligent, careless and/or reckless acts of the Defendant, Miriam
C, Clapper, the Plaintiff, Lisa L. Brown, has experienced pain and
suffering, mental anguish and humiliation, and in the future may
continue to so experience.
11. As a further direct and proximate result of The
negligent, careless and/or reckless acts of the Defendant, Miriam
C. Clapper, the Plaintiff, Lisa L. Brown, has suffered a loss of
life's pleasures and in the future will continue to suffer a 1088
of life's pleasures.
~
f'")
WHBRBFORB, Plaintiff, Lisa L. Brown, demands judgment
against Defendant, Miriam C. Clapper, in an amount in exces. of the
compulsory arbitration limits plus costs and interest as provided
by law.
RESPECTFULLY SUBMITTED:
s i M. Fields, Esquire
COS POULOS, FOSTER & FIELDS
831 Market Street/P.O. Box 222
Lemoyne, PA 17043
Phone: (717) 761-2121
ATTORNEY FOR PLAINTIFF
.~
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VRRIPICATION
I, Lisa L. Brown, do hereby verify that the statements
made in the foregoing document are true and correct to the best of
my information and belief. I understand that false statements maue
herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating
to unsworn falsification to authorities.
~
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DATED:
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SHERIFF'S RETURN
~'rn OF PENNSYLVANIA,
COlJlIII"i OF ClMBERLAND
In The Court of Common Pleas of
Cumberland County, Pennsylvania
No. 94-6128 Civil Term
Complaint in Civil Action Law
and Notice
Lisa L. Brown
VS
Miriam C. Clapper
Phil it> Baughman
, ~~~xaJi: Deputy Sheriff of
CUnberland County, Pennsylvania, who being duly swom ac=rding to law, says,
that he served the within Complaint in Civil Action Law and Notice
upon
Miriam C. Clapper
.
o'clock
, the defendant, at 9:28
A.M. xn I EDST, on the
28
October
1994 at
, -
day of
9 Creekside Lane, Camp Hill
, Cunberland County,
Pennsylvania, by handing to Miriam Clapper
.
a true and attested copy of theComplaint in Civil Action Law and Notice
and at the sarro time directing
her
attention to the contents thereof and
the "Notice to Plead" endorsed thereon.
Sheriff's Costs:
Docketing
Service
Affidavit
SurCharge
14.00
7.28
So answers:
".~/ .#.
~(.{.::. r-"??"<.'-'';'~ ~';"".....t'
I "....,#...~-. ,of ..
R. Thomas Kline, Sheriff
2.00
23.28 Pd. by Atty.
10":11-94
by
l1~e ,~ ~J~L
Depu y Sheriff
Swom and subscribed to before rre
this 79-
day of 2tc,,<,~
19__~ A.D.
C)~,. .cL)IW{~"i ,of-f
Prothonotary
o
n.
v.
IN THE COURT OF COMMON PLEAS OJ'
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
. LISA L. BROWN,
Plaintiff
MIRIAM C. CLAPPER,
Defendant
NO. 94 6128 CIVIL
JURY TRIAL DEMANDED
POIICIP. I'OR app.uuc.
TO: PROTHONOTARY
Please enter the Appearance of Richard H. Wix, Esquire, of
WIX, WENGER , WEIDNER, on behalf of Defendant, Kiri.. c.
Clapper in the above captioned action.
,'!
,.,,,
DATE I ~ BY:
,.;
WEIDNER .
)4 c --'.
t:'
'.1\,;:
R card H. W
ID #07274
200 Prince street
Harrisburg, PA 17109~3099
(717) 652-8455
-
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LISA I.. BROWN,
plaintiff
I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94 6128 CIVIL 1994
JURY TRIAL DEMANDED
v.
MIRIAM C. CLAPPER,
Defendant
.eYrIe. '10 PL..n
TOI Lisa L. Brown
c/o Le.lie M. Fields, Esquire
costopoulos, Foster , Fields
831 Market street
Lemoyne, PA 17043
YOU ARE HEREBY NOTIFIED to pl.ad to the enclo.ed New Matter to
within twenty (20) days from .ervice hereor or a default jud~ent
will be entered against you. .
DATE I
BY:
/ )
r
r"'\
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LISA L. BROWN,
Plaintiff
IN THE COURT OF COMMON PLEAS 0'
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION .. LAW
v.
MIRIAM C. CLAPPER,
Defendant
NO. 94 6128 CIVIL 1994
JURY TRIAL DEMANDED
D..8KDaMT'8 AM.... WITH ... MATT"
1. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 1.
Therefore, each and every averment of
Paragraph 1 is specifically denied and strict proof thereof is
demanded at the time of trial.
2. Admitted.
3. Admitted in part and denied in part. It is specifically
denied that the accident referred to in the Plaintiff's Complaint
occurred at or about 4:45 p.m..
To the contrary, Defendant
believes and therefore avers that the collision occurred at
approximately 4:30 p.m.. The remaining averments of Paragraph 3
are admitted.
4. After reasonable investigation, Defendant is without
sufficient know14dge to form a belief as to the truth of the
averments of Paragraph 4.
Therefore, each and every averment of
Paragraph 4 is specifically denied and strict proof therflof is
demanded at the time of trial.
5. The averments of Paragraph 5 constitute a conclusion of
t'"'I
~
law to which no response b required. To the extent that a
response is deemed required, each and every averment of Paragraph
5 is specifically denied and strict proof thereof is demanded at
the time of trial.
6. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 6. Therefore, each and every averment of
Paragraph 6 is specifically denied and strict proof thereof b
demanded at the time of trial.
7. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 7. Therefore, each and every averment of
Paragraph 7 is specifically denied and strict proof thereof b
demanded at the time of trial.
8. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 8. Therefore, each and every averment of
Parag.:'aph 8 is specifically denied and strict proof thereof b
de.anded at the time of trial.
9. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averm9nts of Paragraph 9. Therefore, each and every averment of
Paragraph 9 is specifically denied and strict proof thereof b
demanded at the time of trial.
10. After reasonable investigation, Defendant is without
suff iclent knowledge to form a belief as to the truth of the
averments of Paragraph 10. Therefore, each and every averment of
. .
""'"
,-...
Paragraph 10 is specifically denied and strict proof thereof is
de.anded at the ti.e of trial.
11. After reaeonable .investigation, Defendant is without
sufficient knowlodge to torm a belief a. to the truth of the
averments of Paragraph 11. Theretore, each and every averment of
Paragraph 11 is specifically denied and strict proof thereot is
de.anded at the time of trial.
WHEREFORE, Oetendant Miriam C. Clapper re.pectfully requests
your Honorable Court to dismiss the Plaintift. s Complaint with
prejudice.
... KATT..
12. Defendant believes and therefore avers that the
plaintiff'. claims tor non-pecuniary damages may be barred pursuant
to the Pennsylvania Motor Vehicle Financial Responsibility Act.
13. The Plaintiff's claims for medical expenses and wage loss
may be barred pursuant to the Pennsylvania Motor Vehicle
Responsibility Act.
WHEREFORE, Detendant Miriam c. Clapper respectfully requests
your Honorable Court to dismiss the Plaintiff's complaint with
prejudice.
Respectfully submitted,
DATE:
W!.J'.. WENGER . WEIDNER
BY: C;~~~H. ~ix,A~ire~
101 07274
200 Prince Street
HarriSburg, PA 17109
(717) 652-8455
"'"
t"'t
""J:.J:~'1'J:0II
I, Miriam C. Clapper, am the Defendant in this action, and I
verify the.t the hcts contained in the foregoing are true and
correct to the best of my knowledge, information and belief. The
undersigned understands that her statements therein are made
subject to the penalties of 18 Pa, c.S.A. 4904 relating to unsworn
falsification to authorities.
4n-v.:.<-_-. (1). ~ ~ .~
Miriam C. Clapper
I/IIS/qtl
Date' ,
, .
o
I"t
e""ulaau O. .""Ie.
AND NOW, thia ce day of 7!o~ , 1994, I,
Richard H. Wix, Esquire hereby certify that I have served a copy of
the foreqoinq on this date, by depositinq a copy of the same in the
United States mail, postaqe pre-paid, in Harrisburq, Pennsylvania,
addressed to:
Lealie M. Fields, Esquire
Costopoulos, Foster , Fields
831 Market Street
Lemoyne, PA 17043
WIX, WENGER' WEIDNER
By: ~. W~, t~qui;fe.dur<"
ID# 07274
200 Prince Street
Harrisburq, PA 17109-3099
(717) 652-8455
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Musl b. tYQ.wrll'"n IInd submltt.d In dupllca'e)
/Ofi3/'1!
TO T~I PROTHONOTARY OF OUMUEALANO COUNTY
Pl,ase IIstlh, lollowlng cas.:
(Ch.ck one)
( x) lor JURY trial at thl n.xt t.rm 01 civil court,
) lor trlel without a Jury.
.............._...._._..............._.__..._......_......_.nn_u....._._.._._...................._._._...._...._..._..._................_......_.~_
CAPTION OF CASE
(.ntlrs caption must bs staled In lull)
(check one)
) Assumpsit
) Trespass
Lisa L. Brown
(X) Trespass (Motor Vehicle)
(Plaintiff)
(olher)
VI.
Miriam C. Clapper
Th. trial list will be called on
~ D"col!lbor 1 9. 1..2..2.5
Trials ccmmenC<lI on January 16. 1996
(Oelendant)
Pretrials will be held on Dec..meber 27. ..12.95
(Brl.ls are due 5 days blllur. pretrial',)
VI,
(Y'hl pirty listing this case lor trial .hall provide
lonnwltn a copy 01 the praeelp. to all couns,'.
pursuant to local Rule 214,1.)
f.,;l.j'
No. ti4-ttl
CIVil Action
199...L.
Indleat.tn. attorney who will try case for the party who Illes this praecipe:
Leslie M. Fields, Esquire
Indicate trial counsellor ottler panles If known:
Richard H. Wix, Esquire for Defendant
This case II rlady lor trial.
Sl~~.'?~
Print Nam.:Lesltoo. M WI..ldl. fe"wire
Olle: October 11. 199<;
A ttorn.y lor:
Plainli.U
"*",,.~.........,.,--...,
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LISA BROWN,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94 6128 CIVIL 1994
Plaintiff
v.
MIRIAM C. CLAPPER,
Detendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
aULa TO ..OW CAU..
AND NOW, this ~ day ot _"'."co...,t,,,
, 1995, upon
cQnsideration ot the Detendant's Motion to Compel Discovery, tor
Sanctions and tor Continuance, IT IS HEREBY ORDERED that the
Plaintiff, Lisa J.l. Brown, show cause why said Motion should not be
qranted.
RULE RETURNABLE
1- 0 days atter service.
BY THE COURT:
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August 1~, 199~ until a letter of October 11, 1995 was received,
which letter enclosed a praecipe listing this case for the January
1996 Trial Term. A true and correct copy of the letter of October
11, 1995 is attached hereto as Exhibit "e" and incorporated herein
by reference.
6. Upon receipt of the letter of october 11, 1995, defense
counsel scheduled an Independent Medical Examination for Plaintiff,
Lisa Brown, with Dr. Eagle for November 9, 1995 at 11:00 a.m. By
letter of October 18, 1995, defense counsel notified plaintiff's
counsel of the scheduled Independent Medical Examination and that
a cancellation fee would be charged in the event that the Plaintiff
failed to cancel the appointment at least one week prior to the
schduled time. A true and correct copy of the letter of october
18, 1995 is attached hereto as Exhibit "0" and incorporated herein
by reference.
7. On October 19, 1995, Leslie M. Fields, Esquire,
Plaintiff'S counmel, called defense counsel to discuss the
Independent Medical Examination. As a result of the telephone
conversation of october 19, 1995, defense counsel sent a letter of
October 20, 1995 requesting a clarification of the Plaintiff's
position regarding an Independent Medical Examination. A true and
2
.
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correct copy of the letter of October 20, 1995 is attached hereto
as Exhibit "E" and incorporated herein by reference.
8. Plaintiff's counsel did not respond in any fashion to the
letter of october 20, 1995 until after November 9, 1995.
9. Plaintiff, Lisa Brown, did not appear for or cancel her
Independent Medical Examination that was scheduled for November 9,
1995 at 11:00 a.m.
10. As a result of the ~'aintiff's fa,lure to attend and/or
cancel within the appropriate time, defense counsel has incurred a
cancellation fee through Dr. Eagle's office in th,e amount of
$145.00. A true and correct copy of Dr. Eagle's bill for services
is attached hereto as Exhibit "F" and incorporated herein by
reference.
11. Defendant, Miriam Clapper, will be prejudiced if this
case is not continued from the January Trial Term inasmuch a~ it
will not be possible to have an Independent Medical Examination
conducted and a report provided to the Plaintiff before the
scheduled date of trial.
WHEREFORE, Defendant, Miriam Clapper, respectfully requests
Your Honorable Court to:
a. Order Plaintiff, I,iRa M. Brown, to pay the amount of
3
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LISA L~ BROWN, I IN THE COURT OF COMMON
PLAINTIfF I PLEAS, CUMBERLAND COUNTY,
I PENNSYLVANIA
V I
I CIVIL ACTION - LAW
MIRIAM C. CLAPPER, I NO. 94-6l28-CIVIL
DEFENDANT . JURY TRIAL DEMANDED
.
DEPOSITION OF: LISA L. BROWN
TAKEN BY: DEFENDANT
BEFORE: DONNA E. RICHARDS, RPR
NOTARY PUBLIC
DATE: JULY 14,1995, 10:22 A.M.
PLACE:
COSTOPOLOUS, FOSTER & FIELDS
831 MARKET STREET
LEMOYNE, PENNSYLVANIA
APPEARANCES:
COSTOPOLOUS, FOSTER & FIELDS
BY: LESLIE C. FIELDS, ESQUIRE
FOR - PLAINTIFF
WIX, WENGER & WEIDNER
BY: GIRARD C. RICKARDS, ESQUIRE
FOR - DEFENDANT
Exhibit '''A''
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115 "NIITAIIT . HAAAISIURO, '11 Ul0l
H.,"....'Il11-232-N44 ,.. 717.2U-H37 llnelll., 717....101
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23
24
25
A X-rays.
a And tell me, why it is -- what was bothering
you that you went to Holy Spirit from this aocident?
A I was having headaches, pain in my neck and my
shoulders.
a Would it be fair to state that the injuries
that you're complaining of are limited to headaches, neck
pain, shoulders?
A And lower back.
a And lower back. But initially when you went to
Holy Spirit the problems W9re the headaches, the neck and
the shoulders.
A Yes.
a When did you first start to experience lower
back problems?
A Probably about a week, maybe two weeks
afterwards.
a I notice that you've been treating with a Dr.
Sanderson.
A Yes.
a How did you get to go to Dr. Sanderson? Were
you referred to Dr. Sanderson?
A I was referred to him.
a Do you remember who sent you there?
A A friend.
~
~
24
1 0 who else lives there?
2 A My stepfather.
3 0 Let me try to open up -- try to open -- ask a
4 real open ended question, and just try and qet a feel for
5 what -- how your injuries are affecting your life on a
6 daily basis.
7 I know that's really broad, but I'm sure you
8 have an idea as far as what's important to you, and how
9 that's affected you. So why don't you just kind of -- if
10 you can give me an idea of how your injuries are affecting
11 your life today on a daily basis, weekly basis or
12 whatever.
13 A Well, I can't -- I can'~ sit for long periods
14 of time. I can't stand for long periods of time.
15 Sometimes I have problems sleeping at night. I really
16 can't remember too much because I've just, you know,
17 incorporated it into my life, It's kind of hard to say.
18 0 In terms of your daily life, are there things
19 that you just don't do any more, or you can't do, or that
20 cause you pain, other than what we've talked about?
21 MS. FIELDSI Exactly what was covered in your
22 earlier questions, in order to properly answer that, 80 I
23 think she's pretty much explained herself.
24 BY MR. RICKARDS I
25 Q Okay. Let me ask you something else. Dr.
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October 18, 1995
via Fac.im!l. Corr.c~.d CODY
Lealie M, Fields, Esquire
coatopouloH, Foster & Fields
831 Market street
P. O. Box 222
Lemoyne, PA 17043-0222
Re: Lisa L. Brown v. Miriam C, Clapper
No. 6148 Civil 1994
Dear Ms. Fields:
1 just received your letter ot October 11, 1995 listing this case
tor the January 16, 1996 Trial Term. Please be advised that 1 have
scheduled your client, Lisa Brown, for an independent medical
examination or. Noveaber 9, 1995 at 11:00 a.m. with Perry A. Eagle,
M.D. in his otfices located at 191 Leader Heights Road, York, PA.
will you please see that Ms. Brown arrives promptly for her
appointment and brings with her any x-rays which she may have had
taken within the past six (6) months.
1 would like to inform you of Dr. Eagle's cancellation policy. It
the appointment is canceled less than one (1) week prior to the
IME, the fee will be $100.00 and it the patient does not show up
for the appointment or it the appointment is canceled the day ot
the IME, the fee will be $145.00. I'le..e be .war. th.t the
.ppoint..nt muat be cancel.4 by the .t~orney an4 not th. p.tient.
al.o pl.... b. .4vise4 th.t if the 1M. i. c.ncele4 by you, the
oanoellation f.. will be your re.ponsibility.
I was somewhat surprised to see that you listed this cas. for trial
without even having made a demand in this case, especially atter my
letter of August 15, 1995 wherein I requested that you do so. In
Exhibit "0"
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Leslie M. Fields, Esquire
october 18, 1995
Page two
any event, now that the case is listed tor trial, please .end me
updated medical records on your client. That is, a.suming that she
continue. to treat.
Thank you tor your anticipated cooperation.
very truly yours,
Girard E. Rickards
GIR/Dle
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PERRY A. EAGLE, "D
· 1'91' LrllOU HEIGHTS ~OAD
It..ll.d St.t...nt
11/181'15" '11/111'15
P'I.I I
(C), E1tOl' .
P,lntHI 1111'1/'15 12136 PIl
YORk, PA 17412
7171741046'11
F.d".1 10 , 23-2236526
pttl.nt
GUlrtntg,
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---------------_._--------------------------~-------------
BROWN, LISA L.
617 GOOO HOPE ~OAO
P.tIOI HI
..163.7-.181 I" I"
GIRARD E. RICKARDS ESQ.
IlcctiDI 1"16317
SSH I
NECHAHICSBURG, PA
7171'175-'1622
17'~5-""
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11/1'/'15
&~OWH, LI SA L.
'Illa5 FAILED TO KEEP I~E APPOINT"EHT
1,18 145." 145." P.A.EAGLE OF
C.TT.nt lilinc'I lotils Frol 11199/~5 Thr. 11/19/'15
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Acco.nt Bilina m,,, ChArgn I 145."
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C..TI.ICAT. O. ...VIC.
AND NOW, this \ ~\ day of November, 1995, I, Girard !.
Rickards, Esquire, of the firm of Wix, Wenqer , Weidner, hereby
cer~ify that I have served a copy of Motion to Compel Discovery,
For Sanctions and for a Continuance on this date, by depositing a
copy of the same in the United States mail, postaqe prepaid, in
HarriSburg, Pennsylvania addressed as follows:
I
Leslie M. Fields, Esquire
Costopoulos, Foster , FieldS
831 Market street
P. O. Box 222
Lemoyne, PA 17043-0222
By:
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PRAECIPE FOR USTING CASE FOR TRJ.-'L
(~IU'1 be lyptwrillen and 5ubmill.d in duplical')
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C.-\JlTlON OF CASE
(.nllr. caption mUSI ~. llalld in full)
(check on.)
(
Assum p.il
Lisa L. Brown
( T ,upass
(x) TrtSpass 1.~IOlO' V.lllcl.)
( )
(olhar)
(Plalnlilf)
..,.
The trial list will be called on
Miri~m C. cl~pper
4/22/96
and
(De(.ndant)
Trials commence on May 20, 1996
Pretrials will be held on 5/1/96 .
(Briefs are due 5 days before pre-
trials. )
(The party listing this case for trial
shall provide forthwith a copy of the
praecipe to all counsel, pursuant to
local Rule 214-1.)
.
VI.
:-la.
6128
C:vtl
19~
Incllc~1I lh. 3ll."n.y who WIll try ,.u. fo, lh. ~.Ity ...ha ,ilc. th.. ?,.."pt:
Girard E. Rickards, Esquire
lnc1lca.. ltItI (aun..1 for aeMe pllll" i( known:
Leslie M. Fields. Esquire. for Plaintiff
Thia ,. is r.scly (0' Ills!.
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Si,"td; ~/c: L <'...(~ _
?' Girard E. Rickards, Esquire
un'. 1m.: _ _
0.1Ie:
3/8/96
Al:o'ncy fa::
Defendant
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IN RE: PRETRIAL CONFERENCE
A pretrial conference was held in the chambers of
Judge Oler in the above-captioned case on Wednesday, May 1,
1996. Present on behalf of the Plaintiff was Timothy P.
Keating, Esquire. Present on behalf of the Defendant was Girard
E. Rickards, Esquire.
This is a negligence action for personal injuries
arising out of a motor vehicle accident on February 6, 1993, on
the Carlisle pike. Plaintiff'R vehicle was stopped at the time
and was rear-ended by a vehicle driven by Defendant. Liability
is admitted by Defendant, but causation of any injuries to
Plaintiff is denied.
This will be a jury trial in which each side will
have four peremptory challenges, for a total of eight. It is
estimated to be of a duration of one day.
Although Defendant's pretrial memorandum
indicates the possibility of an issue with respect to the Dead
Man'. Rule, since the Defendant has died since the institution
of this action, Defendant's counsel has advised that he does not
foresee any evidentiary issues in this respect.
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With regard to any videotaped deposition to be
shown to the jury which contains objections requiring rulings by
the Court, counsel are directed to submit a transcript of the
deposition to the Court at least five days prior to the
commencement of the trial term with the areas of objeotions
being pursusd highlighted and with brief memoranda in support of
their respective positions on the objections.
It is noted that since the Defendant is deceased,
and no estate has been opened or substituted for the Defendant
in this matter, any liability found by the jury as to the
Defendant would technically not attach to any person or entity.
Pursuant to an agreement of counsel, a separate Order of Court
will be entered providing for the collection of any judqment
against the Defendant within policy limits from Defendant's
insurance carrier, state Farm Mutual Automobile Insurance
company.
counsel have stipulated as to the authenticity of
medical records in this case while reserving the right to object
to a given item within such records on relevancy or other
grounds unrelated to authenticity.
with respect to settlement negotiations,
plaintiff has demanded $12,000.00, and Defendant has offered
$2500.00. Notwithstanding that the parties appear to be close
in this regard, counsel have advised that they do not expect the
cas. to be settled.
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Iy the Court,
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TIMOTHY P. KEATING, ESQUIRE
For the Plaintiff
GIRARD E. RICKARDS, ESQUIR~
For th. Defendant
Court Admini.trator
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IN THE COURT OP COMMON PLEAS OP
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
IN TRESPASS (M.V.)
94-6128 CIVIL TERM
LISA L. BROWN,
plaintiff
MIRIAM C. CLAPPER,
Defendant
ORDER or COURT
AND NOW, this 1st day of May, 1996, pursuant to
an agreement of counsel reached at a pretrial conference in this
cas. in which Plaintiff was represented by Timothy P. Keating,
Esquire, and Oefendant was represented by Girard E. RiCkards,
Isquire, any judgment entered against the deceased Defendant may
be collected from the Defendant's insurance company, state Farm
Mutual Automobile Insurance Company within the limits of
Defendant's policy, which limits are $250,000.00.
By the Court,
.
TIMOTHY P. KEATING, ESQUIRE
For the Plaintiff
GIRARD E. RICKARDS, ESQUIRE
For the Defendant
Court Administrator
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LIla allOW,
Plaintiff
1" THI COURT or COIOlO" PLUI
CUMBIIlLAND COUNTY, PDCNSYLVANlA
NO. 94-6128 Civil 1994
v.
NIIUJUI CLAPPIIl,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMAHDID
PLAINTIrr's MOTION rOR POST-TRIAL RILllr
AND NOW, comes the Plaintiff, Lisa Brown, by and through her
Attorney, Timothy P. Keating, Esquire, and respectfully repre8ent8
as follows in support of thi8 Motion for Post-Trial Relief:
MOTION FOR NEW TRIAL
1. The jury's verdict in thi8 action, rendered on May 22,
1996, i8 80 contrary to the evidence pre8ented during the trial as
to shock one's sense of justice and thi8 Honorable Court 8hould
award a new trial 80 that right may be given ~nother opportunity to
prevail.
2. The jury's verdict in favor of the Defendant, Miriam
Clapper, and against the Plaintiff, Lisa Brown, was against the
weight of the evidence and constitutes a miscarriage of justice.
3. Prior to trial, Defendant admitted liability.
.. There was affirmative expert te8timony pre.ented that
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f1"\
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Lisa Brown suffered soft tissue injuries in the automobile accident
and that these injuries were caused by the automobile accident.
5. Speoifically, both Doctor Sanderson, and Doctor Baal,
affirmatively testified that Lisa x'eceived soft tissue injuries and
that these injuriee were caused solely by the automobile accident.
6. There was no evidence presented that Lisa Brown did not
suffer injury from the accident. The only factual question was the
extent of those injuries and whether those injurie8 had hea19d.
7. Given this factual record, the jury's verdict in favor of
the Defendant, and against Plaintiff. Lisa Brown, is clearly
against the weight of the evidence and constitutes a miscarriage of
justice.
WHEREFORE, Plaintiff respectfully requests that Your Honorable
Court grant them a new trial in this action.
MOTION FOR TRANSCRIPTION OF TRIAL TESTIMONY
8. Plaintiff respectfully avers that the ~ranscription of
the trial notes of testimony, exclusive of jury selection, and
opening and closing arguments, i8 essential for the di.po.ition of
the.e post-trial motions.
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CIRTIFICATI or SERVICI
I, Timothy P. Keating, Esquire, attorney for the Plaintiff,
. Lisa Brown, hereby certify that I have, this day, served the
foregoing document, PLAINTIFF'S MOTION FOR POST-TRIAL RBLIBF, by
depositing a copy of the same in the United States mail, postage
prepaid, at Lemoyne, Pennsylvania, addressed to:
Girard E. Rickards, Esquire
WIX, WBNGER, & WEIDNER
4705 Duke Street
Harrisburg, PA 17109-3099
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Timo y . Keat1~.!;E.qUir.
Dated: ~ q(o
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(1)STOPOULOS. /JOSTER 6 FIELDS~
ATTORNlln AND COUN.KLLOR. AT LAW
.:1 I MARK'" .T11IlKT
PO. IIOX aaa
LaMOYNE, PENNSYLVANIA 170.3
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LIBA DROWN, , IN THI COURT or COMMON PLIAS
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plaintiff . CUMBIRLANDCOUNTY, PENNSYLVANIA
.
,
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v. . NO, 94-6128 Civil 1994
.
:
. CIVIL ACTION - LAW
.
MIRIAM CLAPPER, ,
,
Defendant; . JURY TRIAL DEMANDED
.
ORDER or COURT
AND NOW, thi s
J-:1
day of
511-&-
. 1996, upon
consideration of PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF, it is
hereby ORDERED that the Official Court Reporter transcribe the
notes of testimony of the trial in this matter, excluding the
opening and closing statements of counsel and the Charge of the
Court. Plaintiff is granted leave to file any supplemental and/or
addi tional post-trial motions wi thin twenty (20) days of the
lodging of the transcript with the
44~ I,.. "t'''' ,-J.i.,.. rltt,~~; /1
w"-, .-colldy.
I'M
tht......
prothonotary.
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<1-v-J -............
BY THE COURT:
./1i
J.
FII.EO-<lFFICE
OF TEF PflOTHONOTAAY
96 JlIH -I, AN 10: 1.2
CUMb8II.}J I,) I.i'Ju."HY
PENNS'fLVAN/A
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LIlA BROWN, . IN THE COURT or COMMON PLEAI
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Plaintiff . CUMBIRLAND COUNTY, PINN8YLVANIA
.
.
.
v. . NO. 94-61:Z8 Civil 1994
.
. CIVIL ACTION - LAW
.
MIRIAM CLAPPER, .
.
Defendant JURY TRIAL DEMANDED '
PLAINTIFr'S MOTION rOR POST-TRIAL RILIlr
,
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,.,
AND NOW, comes the Plaintiff, Lisa Brown, by and through her
Attorney, Timothy P. Keating, Esquire, and respectfully represents
as follows in support of this Motion for Post-Trial Relief:
MOTION FOR NEW TRIAL
1. The jury's verdict in this action, rendered on May 22,
1996, is so contrary to the evidence presented during the trial as
to shock one's sense of justice and this Honorable Court should
award a new trial so that right may be given another opportunity to
prevail.
2. The jury 's verdict in favor of the Defendant, Miriam
Clapper, and against the Plaintiff, Lisa Brown, was against the
weight of the evidence and constitutes a mi8carriage of justice.
3. Prior to trial. Defendant admitted liability.
4. There was affirmative exptlrt testimony presented that
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1,i.a Brown Buffered 80ft tissue injuries in the automobile accident
and that these injuries were caused by the automobile accident.
5. Specifically. both Doctor Sanderson, and Doctor Boal,
affirmatively te8Ufied that Lisa received 80ft tissue injuries and
that these injuries were caused solely by the automobile accident.
6. There was no evidence presented that Lisa Brown did not
suffer injury from the accident. The only factual question was the
extent of th08e injuries and whether those injuries had healed.
7. Given this factual record, the jury's verdict in favor of
the Defendant, and against Plaintiff, Lisa Brown, is clearly
against the weight of the evidence and constitutes a miscarriage of
justice.
WHEREFORE, Plaintiff respectfully requests that Your Honorable
Court grant them a new trial in this action.
MOTION f~R TRANScRIPTIO~ OF TRIAL TESTIMONY
8. Plaintiff respectfully avers that the transcription of
the trial notes of testimony, exclusive of jury selection, and
opening and closing arguments, is essential for the disposition of
these poet-trial motions.
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LIlA BaOWN,
Plaintiff
V.
I IN TRI COURT 0' COIOlON PLIA8 0'
I CUIIIlaLAND COUNTY, PIIIJfIYLVAlfIA
I
I NO. '4-6128 CIVIL TIRK
I
I CIVIL ACTION - LAW
I JURY TaIAL DIHAHDID
IIIaIAIC CLAPPI.,
Defendant
IN al. JURY TRIAL paOCIIDINGS
Proceeding. held before the Honorable KIVIN A.
HISS, J., Cumberland County Courthou.e, Carli.le,
Penn.ylvania, on Wedne.day, May 22, 1996, in Courtroom
lI\mIber 'our.
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UPlAR.iUfCIS I
TIIIOTHY KIATINO, ..quire
'or the Plaintiff
OIRARD aICKARDS, ..quire
'or the Defendant
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IND.X TO WITMW....
.0. ~ .LAINTI..
DIR.CT
CRO..
R~I.BCT "CROSS
Li.a Brown
3
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INDBX TO .XHIBI~S
'OR COIOlONWIlALTR
.x, No. 1 - "ergenoy Department Reoord
.x. No. 2 - medioal record
.x. No. 3 - medical record
rOR DBrDmANT
.x. No. 1 - photograph
.x. No. 2 photograph
.x. No. 3 - photograph
b. No. . - photograph
.x. No. S - photograph
b. No. li - photograph
b. No. 7 - medioal reoord
.x. No. e - _dioal record
IlAJUtm
ADII%TTIm
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HR. KIATINGI Th. firat witn... i. Li..
IrOWD.
Wh.r.upon,
LISA BROWN
h.ving b..n duly .worn, t..tifi.d a. follow.1
DIRBCT IXAMINATION
BY HR. ltlATINGI
Q Would you .tat. your nama, pl...., for the
record?
A Li.a Le. Brown.
Q Ar. you nervou.?
A t7m-hum.
Q Did you .v.r t..tify before in front of .
jury?
A No.
Q Ok.y. Ju.t taka it ...y. Li.ten to the
quG.tion., and t.ll th~.. people wh.t'. going on and what
happen.d. I want to taka you b.ck to P.bruary 6th of '93,
.nd would you t.ll u. what happen.d on that day?
A I wa. going to get my h.ircut, .nd I w..
.topped at the r.d light on th. Carli.la Pike .t the H.-pden
C.nter.
Q Okay. And what h.pp.n.d?
A And I w.. .truck from b.hind by anothar car.
~ Mh.t w.r. you driving, Li.a?
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~ A 1985 Chevy Cavalier.
o Were your .eat belt. on?
AYe..
o What happened after you got .truok by that
oar?
A We moved over to the .ide of the road to
check out what had happened, and we exchanged information
and we left the .cene.
o Did you have any problem. at that time?
A I wa. mainly in .h~ck. I wa.n't .ure what I
wa. .uppo.ed to be doing, and I wa. .0 up.et that I ju.t
didn't go to get my haircut and went home.
o But you could .till drive, right?
A Um-hum. At lea.t I thought, yeah.
Q Let'. .tep back a little bit from that and
talk about your background prior to the accident. Li.a, how
old are you?
A Twenty-two.
Q And where do you live?
A 9' Saint John'. Road, Camp Hill.
Q How long have you been living there?
A Nine month..
o What about an educational background?
A I have a degree in teaching .eoondary
education in .ooial .tudie..
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Q And frOlll wbere b that?
A Il'enn State.
g You graduated .then?
A I graduated frOlll 'enn State.
a When did you graduate?
A 1985.
a At the time of the aooident were you
employed?
A No.
a Are you employed now?
AYe..
Q What do you do?
A I work at a day oare oenter.
o And what doe. that oon.i.tent of? What do
you have to do?
A I mainly ju.t watoh the ohildren. I don't
pi ok them up beoau.e I oan't, and tie .hoe..
o After the aooident -- that happened what day
of the week? Do you remember?
A It wa. a Saturday.
Q And d~d you ..ek treatment thereafter?
A No. I .eeked treatm.nt on Sunday. Not that
day.
o
the pl'obl_?
And on Sunday where did you go, and what wa.
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cervical ar.a.
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anything?
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1 but I would not take them.
12 ohiropractor.
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How, let'. go back -- I know we're jumping
3 back and forth a little bit, but let'. go baok prior to the
. acoident, and let'. go into your prior .edical hi.tory.
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Q
Prior to the aocident what .ort of .edioal
7 hi.t~,ry did you have? You had headache. b.fore?
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Sinu. headache..
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And who did you .eek treatment for that?
A
Well, I've .een .y family doctor beoau.e I
11 have allergie. and .inue probl..., and I went to ..e a
Q
Okay. Hold on. Slow down. I know you're
14 nervou.. You .ay you went to your family doctor?
A
Y...
Q
Por headache.. Who'. your family dootor?
A
Doctor Delafuente.
19 problem. with headache.?
Q
And how long in the pa.t have you had
A
Sver .ince I wa. a child.
Q
And what other .edical problam. have you had
A
What do you .ean?
.e.ide. headache.?
Q
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I had .colio.i. in my lower baok, whioh i. a
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.light curvature of the .pine.
Q And did you ever get any treatment for that?
A Ye..
Q And what kind of treatment did you gat for
tha t?
A I had to 11'0 .aa a chiropractor, and ha
corrected the probl_.
Q Who wa. that?
A Dr. Acri.
Q And how of tan have you .een him? avery day?
avery week?
A U.ually it wa. every month.
Q What about any other medical -- previou.
medical probl_.?
A I had knae eurgery in 1990.
Q After you went to tha _argency room and got
tre.tment, did you get further treatment for the probl_.
that you ware having? Not at the ho.pital.
A Oh, okay. I went to .ee Dr. Sander.on. I.
that what you're talking about?
Q Dr. Sander.on. You went and got treatment
from him. Okay. And when did you 11'0 to .ee him
approximataly? How long after the accident?
A I think it wa. either a week or two after the
accident that I went to ..e him.
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Sander.on?
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o ADd why i. it or how i. it that you aho.e Dr.
A I wa. reaommended by a friend that he wa. a
good doator and could help me.
o ADd what kind of treatment did you receive
from Dr. Sander.on?
A He gave me mu.cle exerci.e. to do and limited
~ daily activiti.., changed my behavior modification. like
reaching and different thing. that I do.
o Changed your behavior modification?
AYe..
a What doe. that mean?
A He .ay. that if I well, bending, reaching,
daily walking can interfere with my neck and ~ back. It
could aggravate it.
a How often have you .een Dr. Sander.on .ince
the time that you did after the accident, approximately?
Approximately every month.
Ar. you .till .eeing him?
Ye..
Do you remember .eeing or being examined by
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Dr. Boal?
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Ye..
ADd how long ago wa. that?
It wa. like . month ago.
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bim.
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treatment?
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cSoCltor.?
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f.lt my r.fl.x.., my .lbow., and my kn....
X. want.d to ... if I could b.nd down and
touch the floor, if I could b.nd backward. and sideway.. H.
pr....d on my h.ad. H. touch.d my .hould.r.. H. had m. .it
on a tabla and b.nd my kn... back and forth. That'. about
it.
Q Did you have any problem. doing any of tho..
thing.?
A Not that I rememb.r.
Q Okay. You indicat.d h. a.k.d for a m.dioal
hi.tory of you, i. that corr.ct?
A UIIl-h\llll.
Q And did you t.ll him about your .ntir.
m.dical hi.tory with Dr. Acri and all of tho.. oth.r
individuah?
A Y...
Q L.t'. talk a littl. bit about what
limitation., if any, that you curr.ntly have that you did
not have prior to the accid.nt. What i. it that you oannot
do now that you w.r. able to do prior to the accid.nt?
A I u..d to b. v.ry aotiv. in Iwimming. I
can't do that anymor.. In the .umm.r tim. I u..d to gard.n.
I can't do that anymor.. I have to watch the way I walk,
the way I b.nd. I have to move thing. around my hou.. .0 I
can r.ach them at a di.tanc. wh.r. I'm not .tr.tching ~
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1 body. Ju.t daily .ctiviti.. th.t .r. normal, I can't do
2 an~~..
3 Q A~. you .till und.r tr..tm.nt? Do you .till
. do any .x.rci... to try to h.lp you~ condition?
5 A Y... I do the t~..tm.nt. I do my mu.al.
, .x.~ci... .v.ry d.y. I lift w.ight., hand w.ight. and l.g
7 w.ight.. I have . tim.~ that t.ll. m. wh.n I'm .uppo..d to
8 .t.nd up .nd wh.n I'm .uppo..d to .it down or chang.
, po.ition.. I h.v. b..n w.lking mora oft.n. U.ing .ki
10 machin... Ju.t .bout .nything.
11 Q Do you h.v. any und.r.t.nding .. to how long
12 it'. going to b. until you g.t b.tt.r?
13 A H. h.. not .aid.
1. MR. XaATINGI Ok.y. Now, Mr. Rickard., I
15 beli.v. cro.. .xamin.tion.
l' CROSS ZXAMINATION
17 BY MR. RICKARDS I
18 Q Mi.. Brown, do you r.c.ll wh.n your
l' depoaition wa. taken in thi. c... b.ck in July of 1"5?
20 A om-hum.
21 Q Por the record pl.... ..y y.. or no.
22 A Y...
23 Q Do you r..amb.~ telling m. .t th.t ti.. that
2. you didn't rememb.r f..ling any p.in .t the time of the
25 i~.ct?
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A No. I didn't f..l I don't remember what
happ.n.d after the impaot. I wa. in .hook.
o W.ll you agre., don't you, that no polioe wa.
call.d to the .oen. of thi. accid.nt?
A No.
o And you wer. able to driv. your oar frea the
.c.n.?
A Ye..
0 And .. of .t lea.t July of 1995 you were
.till driving the .1UIIe vehiol.?
A UIIl-h\llll.
0 I. that . ye.?
A Ye.. 1'11I .orry.
(Whereupon, Def.ndant'. Ixbibit. 1 - 6
were marked tor identification.)
BY MJt. RICJtAJtD8 I
o Mi.. Brown, 1'11I going to .how you .ever.l
photograph. marked Det.ndant'. Ixbibit. 1 through 6, and I
gue.. wh.t I'd like you to do i. take. look at tho..
photograph. .nd t.ll Ill. if you reoogni.e wh.t'. d.picted in
tho.. photogr.ph.?
A Ye.. I reoogni.. them.
o Now, D.fend.nt'. Ixbibit. 1 .nd 2 -- 2 I
gue.. i. the on. marked on the tront. Would you t.ke . look
at tho.. two photograph., pl....? Ixhibit 1 being a five by
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1 .even color photograph, and Exhibit 2 being a polaroid. I.
2 that accurate?
3 A Um-hum, ye..
4 Q Doe. it appear to you, ma'am, that the
5 picture in both of tho.e photograph. -- and 1,'11 repre.ent
6 to you one i. .imply a blowup of the other, i. that right?
7 AYe..
8 Q And can you tell the jury, doe. that pioture
9 in Defendant'. Bxhibit. 1 and 2 -- doe. that fairly and
10 accurately dapiot tha damage that wa. done to tha baok of
11 your vahiola a. a ra.ult of thi. aooident?
12 A I thought thare wa. a lot mora damage to it.
13 Q All right. Well, oan you tell the jury if
14 tho.a piotura. are of your vahiola?
lS A They are of my vehicle.
16 Q All right. Are you able to .ay that there
17 wa. more you .aid you thought thare wa. more damage.
18 A I'm .ure that there w.. more damage.
19 Q Where wa. the damage?
20 A I don't know. I don't ..a it hare.
21 Q All right. Wall, would you taka a look at
22 Exhibit. 3 and 4? Do you .ee any damage dapiotad on aither
23 of tho.e .xhibit.?
24 A Well, from tha angla, no, I oan't .ee it.
25 Q Do you balieve that that'. your vehiole
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d.pict.d in D.f.ndant'. axhibit. 3 and 4?
A Y.., becau.. I can ... my licen.. plate.
o And how about in Defendant'. Ixhibit. 5 and
I? I. that al.o your vehicle d.picted in there in tho..
.xhibit.?
A Um-hum.
o I. that aye.?
AYe..
o Doe. Ixhibit. 5 and 1 .how the damag. that
wa. done to your vehicle a. a re.ult of thi. accident?
A The picture i. very blurry, and I cannot make
out if that'.
. . .
o You can't .ay one way or the oth.r whether
any of the.e picture. were taken of your vehicle after the
accident?
A No.
o You're unable to .ay one way or the other,
ma'_?
A It doe.n't look like that i. an accurate
depiction of the damage. no.
o All right. Well. why don't you t.ll .. and
t.ll the jury what damage wa. done to your vehicle?
A I'm not exactly .ure. I don't have the
record. in front of me. the e.timate from the garag..
o Now. Mi.. Brown, i. it true that you'~e here
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1 today becau.e you alle~e that a. a re.ult of thi. automobile
2 accident you .uffered .evere painful and .eriou. and
3 permanent injurie.?
" AYe..
5 Q And I believe your direct te.timony wa. to
6 the effect that you've had headache. from thi. accident, i.
7 that right?
8 AYe. .
9 Q And are you al.o allaging that you have neck
10 probl_. becau.e of thi. accident?
11 AYe..
12 Q Are you al.o alleging that you have low back
13 probl_. becau.e of thi. accident?
106 AYe. .
15 Q Now, do you under.tand that cervical .train
16 and .prain, that'. the neck area? I. that how you
17 under.tand that?
18 A That'. my under.tanding.
19 Q Do you know what the technical te~ for the
20 low back area i.?
21 A The lumbar.
22 Q That'. right. Now, Mi.. Brown, in connection
23 with thi. law.uit you filed a complaint, which I'll .how
2" you. Now, I'd a.k you to turn to the back page of that
25 complaint. There'. a document titled verification. Do you
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1 .ee tbat?
2 AYe. .
3 0 And that verification indicate. that you
4 under.tand that the .tatement. in the document are true to
5 the be.t of your information and belief. x. that accurate?
6 AYe..
7 0 And your .ignature i. on the line for the
e verification?
9 A t1III-hum, ye..
10 0 Now, X'd a.k you to turn to paragraph 6 of
11 your complaint. And, by the way, I'm .orry to flip you back
12 to the verification. That wa. .igned on October 18th of
13 1994? x. that accurate?
14 AYe..
15 0 All right. Now, back to paragraph 6. X.n't
16 it true that paragraph 6 i. where you .et forth the injurie.
17 that you believe were cau.ed by the accident in your
18 complaint?
19 AYe..
20 0 And the only injurie. that you mentioned in
21 your complaint are cervical .train and .prain and headache..
22 X.n't that true?
23 A Y...
24 0 So, Mi.. Brown, i. thi. back problem
25 .c.ething you thought up after October of 1994?
17
~
f"",
1 A No.
2 Q Now, when h it that you .ay you fir.t
3 .tarted having low back probl... after thi. accident?
4 A I'd .ay maybe a week at.ter the accident. A
5 week or two.
6 Q A ",..k to two we.k. after the accident?
7 AYe..
8 Q And had you received treatment for low back
9 probl... before the accident?
10 A Y...
11 Q And wa. that with Dr. Acri, the c:hiropractor?
12 AYe..
13 Q In faot, Mi.. Brown, i.n't it true that you
14 had gone to .ee Dr. Acri a. recently a. January 8th of 1993?
15 A If that'. what your record. .ay then ...
16 Q If I .howed you the record. would that help
17 refre.h your recollection?
18 A Sure.
19 (Whereupon, Defendant'. Bxhibit No.7
20 wa. marked for identification.)
21 BY MR. RICJtAJtDSI
22 Q I'll .how you what'. been marked a.
23 Defendant'. Bxhibit 7. Tho.e are Dr. Acri'. record..
24 Now, can you turn through the note. and find when the la.t
25 vi.it i. aarked according to Dr. Aori'.
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record..,
A 1/8/93.
a All right.
believe in early February.
1993 ?
And th1. accident occurred, I
February 5th, to be exact, of
A UlII-hUlll.
a So you had gone to .ee Dr. Acr1 for problema
le.. than a month b.fore th1. accident?
AYe..
a All right.
A But they were for problem. that I had with my
.colio.i..
Q And what exact problem wa. it that you had
with your .co110.i.? What part of your back gave you
probl_e?
A He would ju.t make .ure that it wouldn't
curve back. I'. not a doctor .0 I don't know what he did to
.e. He would ju.t reevaluate the problem.
a Well, tell .e what part of your back gave you
prob1_. with the .colio.i..
A It wa. .y low.r back.
a Now, i.n't it true that you al.o treated with
Dr. Acri for h.adach..?
A Y... 8inu. h.adaah...
a And they wer.n't migrain. headache.?
19
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A No.
o Wa'll gat to that in a minuta. Mi.. Brown,
in ta~ of your traatmant witb Dr. Acri, would it ba fair
to .ay that you traatad with bim about onca a montb bafora
tba acoident?
A Ya..
o And you traatad with bim for baadacba.. That
wa. ona thing. You al.o traatad with bim bacau.a of low
back pain that you had bad?
A Ya.. And al.o for my knaa. Ha would giva ma
alactrical impul.a. in my knaa.
o Now, Mi.. Brown, wa. thara avar a tima that
Dr. Acri traatad you for nack problam.?
A I think thay wara in connaction with my
haadacba. .
Q All right. Now, lat ma ..k you thi., Mi..
Brown. A. a ra.ult of your -- tha probl... that you traatad
with with nr. Acri, did you avar hava troubla .itting bafora
thi. aocident?
A
Q
15tb of 1991.
nota..
No.
I'd lika you to look at tha nota datad April
Can ycu find that? It'. in tha handwrittan
A What wa. tha data?
o April -- ./15/1991.
20
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A Y...
Q Do you ... tbat .ntry?
A Y.., I... tb. .ntry.
Q All rigbt. And you t.ll .. if I'. r.ading
tbi. accurat.ly. It bagin. to .ay .barp pain, i. tbat
rigbt?
A Y...
Q BSP, wbich I taka to b. an abbr.viation, and
.itting. Sbarp pain BSP .itting.
A Y.., I don't know what BSP ..an., but ...
Q W. don't know wbat it .ean., but that'.
obviou.ly doctor'. languag.?
A I gu....
Q And the n.xt tbing indicat.d in tbat not.
.ay. difficulty coming back up from b.nding. I.n't that
accurat.?
A Um-bum.
Q I. tbat a y..?
A Y...
Q So you did have problem. b.nding ov.r or
coming back up from b.nding over before the accident?
A Tbat on. day that I wa. in there.
Q Okay. And ju.t on that particul.r page,
let'. taka a look. You have you were in there on April 1.t
of 1991. Do you .e. that .ntry right above April 15th?
21
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AYe..
o And it .ay. you ache aU over?
AYe..
o Do you recall that vi.it?
A I think I wa. getting over a cold or getting
a cold.
o Okay. Well, right after it .ay. ache all
over it .ay. .o.e word I can't read and then from running.
I. that accurate a. I read it?
A It could be.
o All right. Did you have trouble running
before the accident?
A With my knee I had trouble running.
Q That didn't cau.e you to ache allover, the
running?
A I don't think .0.
Q Now, after the -- after that April l.t entry
there'. only -- let .e ju.t try to .ummari.e here .0 we can
go through the.e individually, but April "th, April 8th,
April 15th, April 23rd, April 2gth. That'. all in the montb
of April of 1991. Do you .ee tho.e entrie.?
AYe..
Q And would it be fair to .ay that all of tho..
entrie. except for the April 1.t entry, the fir.t thing
written on there i. low back pain or low back ache?
22
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t
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12
13
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A Ya..
Q Than again into Kay of 1991 thara i. two
antria. again whara it indioata. low baak pain, i. that
trua?
A In what? axou.a .e?
Q In May of 1991. Thera'. a vi.it Kay 7th,
1991. It .ay. low baok pain.
A Ya..
Q And, agein, a vi.it on Kay ltth of 1991,
again, low baok pain?
A Ya..
Q All right. Than thera'. two othar vi.it. in
May of 1991 that indioeta theY'ra for h.adaohe., i. that
tru.?
AYe..
Q All right. Now, the page following tha ona
we've ju.t been talking about, would it be fair to .ay, Mi..
Brown, that -- and I gue.. the fir.t data on thara i.
Saptembar 13th of 1991?
A Om-hum. ~e..
Q All right. And from then all the way down it
look. lika the entire page through October 26th of 1992, in
at lea.t eaoh one of tho.e antrie. there i. a referenoa to
haadaahe.?
A Ye.. 'rom my .inu. haadacha..
23
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o So what .xactly did Dr. Acri do to tr..t you~
.inu. h..d.ch..?
A Th.r. .~. c.rt.in pr...ur. point. in your
body, your hand. and your f..t, th.t h.lp r.l.... your
.inu..., and h. would work on my h.nd. and my f..t, .nd h.
had like a pr...ur. gun that h. would hit on ..ch p.rt of my
.inu....
o And at the bottom of the p.g., Mi.. Brown,
you m.ntion.d .om.thing about your right hand or your right
arm wh.n you w.r. talking about problem. you h.d wh.n you
w.nt to the em.rg.ncy room. Do you rememb.r th.t t..timony?
A Y...
o Now, i.n't it true the la.t part of the .ntry
of Octob.r 25th, 1992, indicat.. right hand -- right h.nd
numbn...? Do you ... that at the bottom of the pag.?
A W.ll, if you can r..d that you're b.tt.r th.n
m..
Q All right. Do you r.call .v.r h.ving
problem. with numbne.. in your right arm b.for. the
accid.nt?
A I don't rememb.r having problem. with my
hand..
Q Now, in t.rm. of tr..tm.nt that you've
r.c.iv.d from Or. Sand.r.on .inc. thi. accid.nt, at l.a.t up
until July of 1995, wh.n I took your d.po.ition I b.li.v.
24
1""'1
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1 that you bad told .e tbe .tronge.t ..dication you had taken
2 wa. a.pirin?
3 A Y...
4 Q And ju.t .0 tba jury'. claar, tbere wa. no
5 point wben you ware aotually admittad to tbe ho.pital for
6 treat.ant from tbi. aooident, i~ tbat aoourata?
7 A Can you Z'epaat tbat?
8 Q Wa. tbaZ'e any ti.e fro. tbi. aooident forward
, tbat you were admittad to a ho.pital baoau.e of
10 aooidant-Z'elatad injurie.?
11 A~.
12 Q Now, Mi.. BZ'own, you do Z'aoa11 your
13 depo.ition, don't you?
14 A Ya..
15 Q Do you Z'_ambaZ' whan we .at in your
16 attoZ'nay'. offioa, and I a.ked you qua.tion.? I'. going to
17 .how you a copy of that depo.ition. On page 21 of your
18 depo.ition I a.kad you the qua.tion, have you ever been
19 treatad for any nack pZ'obl... bafoZ'e tha aooidant?
20 A Ua-h\IDI.
21 Q Do you .ae that in the tZ'an.oZ'ipt, Mi..
22 Brown?
23 A Y...
24 Q And what exaotl.y wa. youI' an.wer to that
25 que.tion on July 15th of 1995?
25
~
~
1 A I wa. treated for migraine. before the
2 accident. It wa.n't really a neck injury.
3 Q All right. So let me a.k you thi., ma'..,
~ did you under.tand at your depo.ition that you were under
5 oath and you were .worn to tell the truth?
6 AYe..
7 Q All right. And today I believe you .aid that
8 you had never been treat.~ for migraine. before the
9 accident, that it wa. .inu. headache.?
10 A They never con.idered it migraine.. They
11 never actually termed it a. migraine., but it felt like
12 that.
13 Q All right. But you termed it a migraine?
1~ A I termed it a migraine.
15 Q All right. Now, I'm going to .how you
16 another part of your depo.ition on page 22 where I a.ked
17 you, other than being treated for migraine. do you recall
18 ever having other treatment. before the accident for either
19 neck or back probl...?
20 MR. KaATINGI Mr. Rickard., prior to .howing
21 the depo.ition would you a.k her if .he recall. what her
22 an.wer wa. at all, and then maybe that would halp. Maybe
23 .he know. what har an.war i..
2~ MR. RICKARDS. All right. I'll a.t har that.
25
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BY 1CJt. RICItAJU)8.
Q Do you r_UIber what your an.wer to that
que.tion wa. at your depo.ition?
A To what que.tion?
Q I'll read the que.tion again. Other than
being treated for migraine., do you racall ever having other
treatment before the accident for either neck or back
probl_.?
A I think I told you that I w.. treated at Dr.
Acri'..
Q Well, let me .how you your depo.ition
tran.cript. Would that help refre.h your recollection?
A Yeah.
Q And the que.tion I ju.t read i. on page 21
beginning at line 10. Would you tell the jury what your
an.wer wa. a. it i. in the depo.ition tran.cript?
A No.
Q Do you recall telling me though that you did
treat with Dr. Acri for your migraine.? Do you r_UIber
.aying that at your depo.ition?
AYe..
MR. RICKARDS. Redirect.
RIDIRICT lXAMINATION
BY MR. !tUTING I
Q Li.a, let.e a.k you ju.t one or two quiok
27
.......,
I""
1 que.tion. about Dr. Acri and the chiropractic clinic that
2 you wlnt to. Mr. Rickard. had pointed out to you that an
3 April 15th there'. an indication that you had probl...
. .itting at that time.
5 Do you rlcall by lookin~ oVlr tho.1 rlcord.
, today if there'. any other indioation. in thlre that you had
7 probl... .itting bl.ide. that one date?
8 A I don't .ee any. I don't even r..ember going
g that day, going to .Ie him that day.
10 Q Okay.
11 A I mean I'm .ure everybody ha. probl...
12 .itting onoe in a while.
13 Q And Mr. Riokard. a.ked about the oomplaint
1. that wa. filed, and in that complaint it .ay. .evere,
15 permanent, and .eriou. injurie.. Do you know whither your
l' injurie. are plrmanent or not?
17 A ThlY fill likl it now.
18 Q Will, I .Ian do you know if they arl or not?
19 A I don't know if they'rl permanlnt.
20 MR. KIATINGI No furthlr que.tion.. Rloro...
21 MR. RICKARDS. No rlcro.., Your Honor.
22 THI COURT I Thank you, _'am.
23 THI WITNlSS I Am I done?
2. MR. KIATINGI You're doni. Judgl, thl othlr
25 witnl.. WI havI 1. Dr. Sandlrlon. I wa. wondlring if WI oan
:a
..-..,
,""".
1 take a break now for lunah and have hi. ta.timony ready
2 right afterward..
3 THI COURTI Okay. That'. fine. And then we
4 aan move into your depo.ition. You need to be forawarned a
5 little bit about that too. It look. like it'. going to be a
S little earlier than we had di.au..ed.
7 MR. RICKARDS I That'. aorreat. There may be
8 a po..ibility that we have a video reaorder here through the
9 Court Admini.trator'. offiae, whiah would make it a lot
10 ea.ier for u. to get it done.
11 THI COURTI All right. Pine. We'll give you
12 enough time to .et up. Ladie. and gentlemen, we'll be in
13 reae.., and I'll a.k you to return at 1100 &0 we aan .tart
14 .hortly thereafter.
15 (Whereupon, a lunah rece.. wa. taken at
1S 11,45 a.m. and reaonvened at 1105 p.m.)
17 THI COURT. Anything before we bring in the
18 jury?
19 MR. RICKARDS. I don't believe .0, Your
20 Honor.
21 MR. ItUTlNOI No, Your Honor.
22 THI COtnlTI Bring them in.
23 (Whereupon, the jury returned at liDS p...)
24 THI COURTI Mr. Iteating.
25 MR. ItUTINOI Oood afternoon. A. 1 indiaated
29
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r-
1 before, what we'r. going to do now i. we're going to have
2 Dr. Sand.r.on te.tify, but h.'. not h.r., and w. have Mr.
3 Scott All.n. H.'. going to .it in and pret.nd he'. a
4 doctor, and he'. going to read the depo.ition that we took.
5 I'm going to ..k the qu..tion. in the
6 d.po.ition, .nd h.'. going to an.wer them a. if he were Dr.
7 Sander.on. You have been dully .worn to tell the trutb, the
8 whole truth, and nothing but the truth.
9 TH. COURT I Could you by w.y of furtber
10 introduction perhap. t.ll the jury where and wh.n thi.
11 d.po.ition wa. tak.n?
12 MR. K~TINGI Y.., Your Honor. Thi.
13 d.po.ition wa. taken April 16th. w. w.r. at the office. of
14 Dr. Dougla. S.nd.r.on, who i. at 205 Grandvi.w Avenue in
15 Camp Hill, penn.ylvania, and it'. conc.rning the ca.. of
16 Brown v.r.u. Clapp.r.
17 TH. COURT I And I .hould add, ladie. and
18 g.ntlemen, that the taking of d.po.ition. of witn.....,
19 p.rticula~ly of m.dical witn....., i. . r.th.r routine
20 procedure. Our rul.. of civil procedure provide for thi.
21 type of t..timony that you're about to h..r, and you .hould
22 not think diff.r.ntly of the doctor'. t..timony merely
23 b.cau.e it com.. to you by w.y of . d.po.ition. 80 go
24 ab.ac:l.
25
30
(/I
o
/""'.
1 (Whereupon, the depo.ition of Dr. Doug1a.
2 Sander.on wa. read to the jury.)
3 MR. KaATINGI Juc:lge, the plaintiff re.t.. I
4 dic:l have .ome exhibit. markec:l, .ome record.. I don't know
5 if they .hould be .ubmittec:l into evic:lence now or if you want
6 that when the trial i. over.
7 TH. COURTI Are they marked a. plaintiff.
8 exhibiU?
9 MR. KIlATINGI Ye..
10 TH. COURTI Now would be .. good a time a.
11 any.
12 MR. KIlATINGI Thank you, Judge.
13 TH. COURT I And tho.e are, for the reuord,
14 .xhibit. 1, 2, and 31
15 MR. KIlATINGI 1, 2, 3. .xhibit. 1 i. a
16 recorc:l of the Holy Spirit Emergency Ho.pital. .xhibit 2 are
17 note. anc:l recorc:l. of Dr. Sander.on, ber treating phy.ician,
18 anc:l .xhibit 3 i. a report by Dr. Sander.on.
19 THB COURTI Gooc:l enough.
~o (Whereupon, Plaintiff'. .xhibit. 1 - 3 were
21 markec:l for identification and admittec:l into evidence.)
22 MR. RICKARDS I Your Honor, at thi. time we
23 would .how the videotape c:lapo.ition of Dr. Richard 80al.
24 (Whereupon, the jury viewed the video of Dr.
25 Rioha~d 80al.)
31
1""1
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1 MR. RICKARDS 1 Your Honor, the only
2 additional .vic:l.nc. tb. d.f.n.. ha. i. D.fendant'. Bxhibit
3 7, wbicb i. Dr. Dalafuent.'. -- I'm .orry. It'. Ixhibit 8,
4 Dr. D.lafu.nt.'. record.. W.'d move D.f.n.. Ixhibit. 1
5 througb 8 into evidence at thi. time.
S THI COURTI Any objeotion?
7 MR. KaATINGI No obj.ction, Your Honor.
8 THI COURTI They'r. admitt.d.
9 (Wher.upon, D.f.ndant'. Ixhibi~. 1 - 8
10 w.r. admitt.c:l into evideno..)
11 MR. RICKARDS 1 The Defendant r..t., Your
12 Honor.
13 THI COURT I Any r.buttal?
14 MR. KEATING 1 No r.buttal, Your Honor.
15 THI COURTI All right. Ladie. and g.ntl...n,
16 that conclud.. the .videntiary portion of the trial, anc:l
17 we'll now take a brief break and then com. back with the
18 clo.ing .tat..ent. of coun..l and my in.tructiona concerning
19 the law. W.'ll remain in ....ion.
20 (Wher.upon, the jury l.ft .t 2112 p.m.)
21
22
23
24
25
32
"""
r-
CIRTIPICATION
I hereby certify that the proceeding. are
contained fully and accurately in the note. taken by me on tbe
above cau.e and that thia i. a correct tran.cript of a..e.
"
,
/lf2fdruh 1/ ~
M chele A. Lippy
Official Court Reporter
..----..-------------------
f~ ".
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The foregoing record of the proceeding. on the
bearing of the within matter i. hereby approvec:l and direoted to
be filed.
f~ fa, 1'19'
nate
Ai
He.., J.
33
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewrlll.:n and submitted In duplicate)
TO THE PROTHONOTARY {OF CUMBERLAND COUNTY:
Pie... 1111 the within mmller for the n.xt:
o Pre.Trlal Aleument Court
[X] ArgLlment Court
..-.-----.....--..-------------------- -.--.---- - --.--- --------------....--------------
CAPTION OF CASE
(Inllre clpllon mUlt bl atltld In full)
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LISA L. BROWN, " 'p
') " (J1
-c:: ' , )
(Plmlnllfl') t::. t,' .~ --j
I.
VI. ~c :;J
1I~> ~ ~j
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C. CLAPPER, =~ Q)
MIRIAM ::
(Uel'endant)
VI,
No, JilL Civil
19.1L
I. Stmtemaller to be a,.ucd (I. e., phlntlffs motion for new trial,
defendant's demurrer to complaint, etc.):
Plaintiff's Post-Trial Motions
2. Identify counsel who will argue case:
(a) for plallltiff: Timothy P. Keating, Esquire
(b) I'or defendant: Girard E. Rickards, Esquire
J. I will notify all parties In writing within two days r.hatthls case has been
listed for argumen l. _
~ ' . (,) ,--'- .
df/L~.c. ~.~
(AllornlY 1'01 Defendant )
"'"
Dated: August 14, 1996
1/5'
I.
.
"
~
,....
USA L BROWN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERlAND COUNTY, PENNSYLVANIA
CIVIL ACfION ' lAW
IN TRESPASS (M.V.)
94-6128 CIVIL TERM
VI,
MIRIAM C. CLAPPER,
Defendant
IN RE: MOTION FOR NEW TRIAL
BEFORE HESS, 1..
ORDER
AND NOW, thil
o;J....
day of November. 1996, the motion of the plaintiff for a
new trial il DENIED.
BY THE COURT,
.Ad
Timothy Keatins, Esquire
For the Plaintiff
Girard Rickards. Esquire
For the Defendant
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IN THE COURT OF COMMON PLEAS Of
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACfION - LAW
IN TRESPASS (M.V.)
94-6128 CIVIL TERM
IN R~: MOTION FOR NEW TRIAL
BEFORE HESS. J.
OPINION AND ORDER
LISA L. BROWN.
Plaintiff
MIRIAM C. CLAPPER.
Defendant
This motion for a new trial by the the plaintiff, Lisa Brown, is in response to an
unfavorable jury verdict in an automobile accident case. The automobile accident occurred on
February 6, 1993 on the Carlisle Pike in Hampden Township where the plaintiff was rear-ended
by the defendant, Miriam Clapper. The defendant admitted that her negligence caused the
accident. The jury, however, found that the defendant's negligence did not cause the plaintifrs
injuries. The plaintiff claims that a new trial is warranted because medical evidence that the
accident caused her injury was uncontradicted.
At trial on May 22,1996 the jury heard testimony from Lisa Brown, Dr. Douglas
Sanderson and Dr. Richard Boal. Ms. Miller alleged that she sustained neck injuries, low back
injuries and headaches from the accident. Dr. Sanderson, who saw Ms. Brown on a monthly
basis after the accident and up until trial, testified that:
as a direct result of the motor vehicle accident,
(Ms. Brown) had sustained significant strain of
several muscles; namely, all the muscles
encompassing the spine from the back of the skull
to the bullock region. certain muscles of the upper
and lower elltremities; and related to certain of
these muscles, she had peripheral nerve irritability
and dysfunction most pronounced in her upper
extremities.
.
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94-6128 CIVIL TERM
The doctor for the defendant. Dr. Boal, whl) examined Ms. Brown on April 12, 1996, testified
that, according to his professional opinion, Ms. Brown had healed from her allcged injury. He
concluded that Ms. Brown "most likely suffered a strain of her cervical spine and perhaps her
lumbar spine at the time of the accident." Furthermore, he stated that his conclusion was bll5ed,
at least in part, on Ms. Brown's depiction of her medical history, and therefore his conclusion
could change if the information given was false.
Evidence WII5 also presented that prior to the accident. Ms. Brown had been treated for
back problems, headaches, and neck pain. In fact, within the month prior to the accident Ms.
Brown met with her doctor concerning back problems. It should also be noted that Ms. Brown's
statements before and during trial were not entirely consistent. At deposition, Ms. Brown denied
being treated for baek and neck problems prior to the accident, but at trial she admilled to
previous treatment for her back and neck. Further, Ms. Brown's complaint on October 18, 1994.
over a year after the accident. failed to mention that the accident had caused any back problems.
Finally, Mrs. Brown. who now complains of migraine headaches, said at deposition that she
suffered from migraines prior to the accident and at trial claimed that she only suffered from
sinus headaches prior to the accident.
It is well established that a trial judge may not grant a new trial based on the weight of
the evidence, unless the verdict was so against the weight ot the evidence that injustice "stands
forth like a beacon" or "shocks the conscience of the court." fullid v. Shu, 419 Pa.Super. 227, 615
A.2d 109 (1992). It is the jury's role to a.,sess the evidencc and to accept or reject conflicting
testimony given by witnesses. J3ronchak v. Rubman, 263 Pa.Super. 136, 397 A.2d 438 (1979). If
the testimony is uncontradicted, the jury is not required to accept evcrything or anything a party
pre~ents, even a doctor's medical evidence.
2
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94-6128 CIVIL TERM
The plaintiff argues that while it is true that the jury is the final finder of facti, it may not
"isnore what is patent to the eye, olJvious to the mind and clear to the normal procels of
ordinary computation." ThomDson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961). We allree that
the medical opinions of both doctors indicate that Ms. Brown suffered an injury from the
accident; we do not believe. hOwever. that it was obvious. based on all the evidencc, that the
accident caused Ms. Brown's injuries. We do not find it outrageous that the jury chose to ignore
the testimony that the accident caused injury to Ms. Brown. Several facti support this decision:
The damage caused to the plaintiffs car was very minor; the plaintiff had already received
treatment for back problems, neck pain and headaches prior to the accident; the plaintiffs
credibility was put in question at trial; and the opinion of at least one of the doctors was based
primarily on information given by Ms. Brown. Thus, we will not disturb the verdict.
ORDER
AND NOW, this
l'
day of November. 19~6. the motion of the plaintiff for a
new trial is DENIED.
BY THE COURT,
;fH.~ ;L
Timothy Keatin". Esquire
For the Plaintiff
Girard Rickards, Esquire
For the Defendant
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ClaTI.fCATI O. SlaVIC.
I, Timothy P. Keating, Esquire, attorney for Plaintiff, do
hereby certify that a true and correct copy of the within NOTICE OF
APPEAL wa. served upon the following individuals on the below date,
by placing same in the United States Mail, first class postage
prepaid, addressed as follows:
THE HONORABLE KEVIN A. HESS
Judge of Cumberland County
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013
LAWRENCE WELKER
Prothonotary
Cumberland County Courthouse L r/c..,^d.)
1 Courthouse Square
Carlisle, Pennsylvania 17013
GIRARD RICKARDS, ESQUIRE
4705 Duke Street
Harrisburg, Pennsylvania 17109
(Attorney for Defendant)
OFFICIAL COURT REPORTER
Cumberland County Courthouse
1 Courthouse S~uare
Carlisle, Pennsylvania 17013
BY:
l~~
Timothy . Keating,
E~
DATID:
December ~___, 1996.
PYS510
1994-061'28
Cumbe~nd County Prothonotary's p(fice Page
~ivil Case Inquiry
BROWN LISA L (~~) CLAPPER MIRIAM. C
1
Referonce No..: FUed. . , . . . , , I 10/26/19~4
ca!e TYD8.....1 COMPLAINT Time, 'i" ....: 1 1~~ 8
Ju gmeflt. i' . . . : .00 Exec;ut Qn Dllte 8 881
Ju ge A8S gnedl HESS KEVIN A Sat/Di8/Gotd.. 1 I
Jur~ Trial.,..
Hi~ er Court 1
H er Court 2
.........**.............**............................. .....................**.
General Index Attorney Info
PLAINTIFF FIELDS LESLIE M
KEATING TIMOTHY P
BROWN LISA L
617 GOOD HOPE ROAD
MECHANICSBURG PA 17055
CLAPPER MIRIAM C
9 CREEKSIDE LANE
CAMP HILL PA 17011
DEFENDANT
WIX RICHARD H
RICKARDS GIRARD E
Judgment Index
BROWN LISA L 11/21/1996 PRAECIPE JUDGMENT
.....................**...**.........................................*****....**
. Date Entries ·
................................................................................
10/26/94 COMPLAINT - CIVIL ACTION
11/07/94 SHERIFF'S RETURN (SERVED DEFENDANT 10/28/94)
SHERIFF'S COSTS S23.28 PD ATTY
PRAECIPE FOR APPEARANCE FOR DEFENDANT BY RICHARD H WIX ESa
DEFENDANT'S ANSWER WITH NEW MATTER
PRAECIPE FOR LISTING CASE FOR TRIAL BY LESLIE M FIELDS ESa
~nTION TO COMPEL DISCOVERY FOR SANCTIONS AND FOR A CONTINUANCE
!lULE TO SHOW CAUSE - DATED 11/17/95 - IN RE MOTION TO COMPEL
DISCOVERY FOR SANCTIONS AND FOR CONTINUANCE - RULE ISSUED UPON
PLAINTIFF RETURNABLE 20 DAYS AFTER SERVICE - BY J WESLEY OLER JR J
NOTICE MAILED 11/20/95
STIPULATION
ORDER OF COURT - DATED 12/19/95 - CASE STRICKEN FROM JANUARY 1996
TRIAL LIST - BY HAROLD E SHEELY PJ - COPIES MAILED 12/21/95
PRAECIPE FOR LISTING CASE FOR TRIAL BY GIRARD E RICKARDS ESa
PRETRIAL CONFERENCE - DATED 5/1/96 - BY J WESLEY OLER JR J
ORDER OF COURT - DATED 5/1/96 - AGREEMENT REACHED AT PRETRIAL
CONFERENCE - BY J WESLEY QI,ER JR J - COPIES MAILED 5/2/96
VERDICT - JURY SELECTED 5/26/96
VERDICT - IN FAVOR OF DEFENDANT - NOT NEGLIGENT
PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF
ORDER OF COURT - DATED 6/3/96 - IN RE PLAINTIFF'S MOTION FOR POST-
TRIAL RELIEF - PLAINTIFF GRANTED LEAVE TO FILE SUPPLEMENTAL AND/OR
ADDITIONAL POST-TRIAL MOTIONS WITHIN 20 DAYS OF THE LODGING OF THE
TRANSCRIPT - BY KEVIN A HESS J - NOTICE MAILED 6/4/96
TRANSCRIPT FILED
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY GIRARD E RICKARDS ESa
OPINION AND ORDER - DATED 11/7/96 - IN RE MOTION FOR NEW TRIAL -
DENIED - BY KEVIN A HESS J - COPIES MAILED 11/8/96
11/21/96 PRAECIPE FOR ENTRY OF JUDGMENT AGAINST THE PLAINTIFF AND JUDGMENT
ENTERED
11/21/96 NOTICE MAILED TO PLAINTIFF
..*......*.*.....*.*..**.**....*****.............~....*..*********************..
· Escrow Information ·
· Fees' Debits Bea Bal Pvmts/Ad1 End Ba1 ·
......****************..****.***,**.*****i*****.,.**********.*..***...*.*.**.*..
IH~i~U
l~~Ua~
11/17/95
U~H~~~
03/P/96
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OS/22/96
85/31/96
6/04/96
n~u~u
35.08
.5
5'80
5. 0
9.00
:88
:88
.00
COMPLAINT
TAX ON CMPLT
SETTLEMENT
JCP FEE
JDMT
35.08
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5,00
5,00
9.00
54.50 54.50 ..00....", '.,'.--,!1n
.................................. ................ ""~l'!'f.l'j .il'i.lt t....... ...-.........
· End of Case Information '<' , - - , , I . "'lllonCl.
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Super1Jr Court of Pennsylvania
Office of the Prothonotary
434 Main Capitol Building
P.O. Box 9300
Harrisburg, Pennsylvania 17108
(717) 772-1294
December 11, 1996
Notice of Appeal Docketing
Superior Court Docket No. Assigned
009'79HBG96
PROTHONOTARY
Cumberland COUNTY
Cumberland Cty. Courthouse
Carlisle. Pa 17013
RE: Brown, L V Clapper, M
You are hereby advised that the attached docket
information has been entered into the superior court records
in a case in which you appear as an officer of the court,
Please review this information carefully and notify this
office immediately if you believe correction(s) are in order.
Thank you.
David A. Szewczak
Prothonotary
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12/11/96
0902
SUPERIOR COURT OF PENNSYLVANIA
OFFICIAL DOCKET
DOCKET # 00979HBG96
TITLE . FOR MAIL.
TIMOTHY P KEATING 001T Y
831 MARKET STREET
POBOX 222
LEMOYNE, PA .17043 717-761-2121
GIRARD E RICKARDS 002E Y
4705 DUKE STREET
HARRISBURG, PA 17109 717-652-8455
FULL CAPTION
001T LISA L BROWN
V
002E MIRIAM C CLAPPER
COUNSEL
44874
58867
CONSOLIDATED DOCKET NUMBER
BACKGROUND DATA
TRIAL COURT RECORDS
CATEGORY:
COURT NAME:
COUNTY:
JUDICIAL DISTRICT:
CASE TYPE/CHARGE:
TRIAL COURT CHARGES:
JUDGE (S) :
DISPOSITION TYPE:
DISPOSITION DATE:
APPEAL FILE DATE:
DISPOSITION ENTERED:
TRIAL CRT DOCKET NO. :
OFFENSE TRACKING NO. :
CV
CIVIL
CUMBERLAND
09
HESS, K
JUDGMENT ENTERED
11/21/96
12/04/96
94-6128 CIVIL TERM
I
STATUS INFORMATION
12/25/96 DOCKETING STATEMENT DUE
01/13/97 LOWER COURT RECORD DUE
DOCKET ENTRIES
12/11/96 NOTICE OF APPEAL
12/11/96 DOCKETING STATEMENT EXITED
T=APPELLANT E=APPELLEE
FOR
001T.
001T
*=COURT APPOINTED
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IV. SPECIAL EVIDENTIARY MATTERS
Defendant Miriam Clapper was not injurec:l in the accic:lent.
However, she suffered a stroke approximately one year after
the accident and has since perished. The dead man's rule may
apply to exclude certain evidence that the plaintiff de8ire.
to put forward. Additionally, Defendant believe. that the
plaintiff'. medical expert has not testifiec:l that the alleged
injuries were caused by the accident to a reasonable degree of
medical certainty.
V. WITNESSES FOR DEFENDANT CLAPPER
A. Lisa Brown (as on cross)
B. Anna Pochodzay
C. Richard Boal, M.D. (by video tape)
D. Records Custodians in the absence of a stipulation as, to
authenticity of the records
VI. DEFENDANT'S EXHIBITS
A. Records of Acri Chiropractic
B. Records of Dr. Delafuente
C. Records of Douglas K. Sanderson, M.D.
VII. SETTLEMENT
On November 17, 1995, the Defendant offered the sum of
$2,500.00 to settle this case. The offer is contingent upon
the Plaintiff reimbursing the Defendant $145.00 for the fee
charged by Perry A. Eagle, M.D. when the Plaintiff failed to
show for an independent medical examination. As of this date,
the Defendant has not received a demand from the Plaintiff.
Respectfully submitted,
WIX, WENGER , WEIDNER
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By ~;t;.. /~~cC~r1~ ,<'~;';:;:ire
I. D. #58867
Dated I '116/1 (;
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
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. LIEMOVNI:, P1ENN.VLVANIA 17043
APR 24 1996
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~ISA L. BROWN,
IN THE COURT OF COMMON PLBAS
CUMBERLAND COUNTY, PENNSYLVANIA
l...t.J.!f
No. 94-6-1-411
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Plaintiff
vs.
MIRIAM C. CLAPPBR,
Defendant
'R.-TRIAL MEMORANDUM
And now, this
'2~ 0
,_L_
day of April, 1996, comes Plaintiff,
by and through her counsel of record, Timothy P. Keating, and
submits the following in accordance with Cumberland County Local
Rule 212-4:
1. A .tatament of the ba.ic fact. as to liability.
This matter is an automobile accident which occurred on
February 6, 1993, at 4:30 p.m., on the Carlisle Pike.
While
Plaintiff was stopped in traffic, she got rear ended by the
Defendant.
The weather conditions were dry at the time.
The
e.tent to which there is a question of liability relative to this
accident is pretty much uncontested.
2. .'.tat..-nt of the ba.ic fact. a. to d...ge..
A. a reault of tho accident Plaintiff suffered soft tissue
injuries, shoulder pain, neck problems, headaches and back pain.
She ha. sought on-going treatment for the injuries she received
.
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relating to the accident.
3. . .tat..-ot a. to the principal i..u.. of liability and
c:laIIage..
There does not seem to be any significant issues relating to
liability. As to damages, the issue is whether the medical
problem. that she is complaining about is causally rolated to the
accielent. Plaintiff, prior to the accident, had .ome medical
difficulties. It is anticipated that the defense will claim that
all of her problems are related to a preexisting condition and that
none of her proolem. are causally related to the accident.
4. . .~ry of legal i..ue. regareling adllhsiblUty of te.tillOny,
exhibit., or any other _ttsr, and legal authoritie. relied on.
Plaintiff does not believe that there are any significant
legal is.ues regareling the admissibilty of testimony, exhibits or
any other matter. The deposition of Plaintiffs treating physician,
Dr. Sander.on i. being transcribed and will want to have someone
r.ael it into the record. Relative to records and medical report.,
ccun.el is willing to etipulate to the admission of them. Counsel
would like to .tipulate to the admissibility of the emergency room
t"'\
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. Re.pacUully aubalitted,
Keating, ire
COSTOPO S, FOSTIR & FIBLDS
831 Market Street/P.O. Box 222
Lemoyne, Pennaylvania 17043
Phon..: (717) 761-2121
ATTORNEY FOR THB PLAINTIFF
Datedl
4/7T/1U
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IN THE COURT OF COMMON PLEAS or
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94 6128 CIVIL 1994
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
LIfJA BROWN,
plaintiff
v.
MIRIAN C. CLAPPER,
Derendant
D...xDAMT'. '.O.O..D POIMT. .0. CBARG.
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1. The Plaintifl! claim. she was injured and su.taineel elamaqe.
a. the r..ult or the accident which occurred on February 6, 1993.
The Plaintiff has the burden of provinq her claims. Pa. SSJI CCivl
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3. In thi. ca.e, the Plaintiff i. alleging that she
.ustained injurie. a. a result of the negligence of Defendant,
Miriam Clapper. Ordinarily, a Plaintiff mu.t prove the following
element. in a negligence ca.e:
a. that the Defendant wa. negligent;
b. that the Defendant's negligence wa. a substantial factor
in bringing about the Plaintiff's harm; anel
c. the extant of the injuries austained.
The partie. agree that Miriam Clapper waa negligent in cau.ing
the accident of February 6, 1993. Therefore, you must deciele
whether the automobile accident of February 6, 1993 wa. a
substantial factor in bringing about harm to LiBa Brown, and if so,
what the extent of her injurie. were.
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... A negligent act by a Defendant doe. not make that
Defenelant liable to the plaintiff unle.. it ia .hown thllt the
e::. negligent act wa. a .ub.tantial cau.. of the plaintiff'. injurie.,
8aal1 v. Ba.hline, 481 Pa. 255, 392 A.2d 1280 (1978).
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5. In order tor the Plaintiff to recover in thi. ca.., the
Defendant'. conduct mu.t have been a .uJo.tantial factor in Joringinq
about the Plaintiff'. harm. Thi. i. what the law recoqnize. a.
leqal cau... A .uJoBtantial factor i. an actual, real factor,
althouqh the re.ult may be unuBual or unexpected, but it iB not an
imaginary or fanciful factor or a factor havinq no connection or
only an in.iqnificant connection with the Plaintiff'. aUeged
injurie.. Pa. SSJI Icivl 3.25.
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7. You (the Jury) are not to be faulted it you do not
believe all that you are tolel and all that your common experience
doe. not accept. That is not to say that you may disregard obvious
injury. It is, however, to say that you are not obliged to balieve
that every injury causes pain or the pain alleged. You may beUeve
that it is a tran.ient rub of lite and living, a momentary stab of
tear and pain, or neither. BoaaavaraDU v. Ponist, 581 Pa. 162, 542
A.2d 516 (1988).
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8. The number ot witnesse. otfereel by one side or the other
doe. not, in itselt, determine the weight ot the evidence. It is
factor, but only one ot many factors which you shoulel consider.
Whether the witnes.ea appear to be biased or unbiased; whether thsy
are interested or disinterested persons, are among the important
factor. which go to the reliability of their testimony. The
important thing is the quality ot the testimony ot each witness.
In short, the test is not which side brings the greater number ot
witne..es or presents the greater quantity of evidence; but which
witne.s or witnesses, and which evidence, you consider most worthy
ot beliet. Even the testimony ot one witness may out weigh that ot
many, it you have reason to believe his testimony in preterence to
their.. Obviously, however, where the testimony ot the witne.aes
appear to you to be ot the same quality, the weight ot numbers
a.sume. particular significance. Pa. SSJI reiv} 5.03.
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10. A witne.. who has special knowledge, .kill, experience,
training or education in a particular science, profe.sion or
ocoupation may give his opinion as an expert as to any matter in
which he i. .killed. In determining the weight to be given to his
opinion, you .hould consider the qualifications and reliability of
the expert and the reasons for his opinion. You are not bound by
an expert'. opinion merely because he is an expert; you may accept
it or reject it, as in the case of other witnesses. Give it the
weight, if any, to which you deem it entitled. Pa. SSJI Ccivl
L12.
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LISA BROWN, . IN THE COURT or COMMON PLEAS
.
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v. . NO.
.
. CIVIL ACTION - LAW
.
MIRIAM CLAPPER, .
.
Defendant : JURY TRIAL DEMANDED
PLAINTIFF'S PROPOSED POINTS FOR CHARGE
j)
1.
Under all the law and evidence in this c8se, the verdict
must be for the plaintiff.
2. As a general principle of law, one who causes injuries to
or damages to another by his or her negligence muet restore the
injured party as equally as possible to her original condition.
~ Ordinarily, this is not possible in any other way except by having
the negligent party pay a sum of money which will compensate the
injured party for her loss. The plaintiff has brought this suit to
recover compensation by way of d~mages which plaintiff claims to
have suffered as a result of the negligence of the defendant. The
basis of this suit is negligence. 3 Laub, Trial Gui~, Sec. 619.1
3. Negligence is the absence or lack of that due care which
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a reasonable man must exercise under the circumstances. Lanni v.
Pennsv1vania Railroad, 371 Pa. 106, 110.
4. In order to determine if the defendant in this case
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failed to exercise that degree of care, which a reasonable person
would have exercised under the circumstances, you must determine
the facts in the case and the actions of the defendant. When you
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.examine those actions, you must apply the test of a reasonably
prudent person.
5. You are instructed that the plaintiff must prove her case
only by a fair preponderance of the evidence. This means that the
plaintiff does not have the burden of proving her case beyond a
reasonable doubt but only by the greater weight of the evidence.
Se-Lin~ Hosierv v. Marauiliers, 364 Pa. 45. If you will imagine
the 8cales of justice with all the evidence that you find in favor
of the defendant on one side and all the evidence that you find in
favor of the plaintiff on the other side, if the scales should tip
ever so slightly in favor of the plaintiff, then the plaintiff has
met her burden of proof and you must find for the plaintiff.
6. The plaintiff has met her burden of proof if there are
sufficient facts for you to reasonably say that the wight of the
evidence favors the plaintiff. The evidence is sufficient where a
reasonable conclusion would place responSibility on the defendant,
Smith v. Bell Telechone Comca~y of Pa., 397 Pa. 134, 153 A.2d 477
(1959).
7. In a civil case such as this one the plaintiff has the
burden of proving those contentions which entitle him to your
verdict. However, in a civil case the plaintiff does not have to
prove these contentions beyond a reasonable doubt. It is
sufficient simply that these contentions are established by a fai~
preponderance of the evidence. The evidence establishes a
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contention by a fair preponderance if you are persuaded that it is
more probably true than not.
8. To put it another way, think, if you will, of an ordinary
balance scale, with a pan on each side. Onto one side of the
scale, place all of the evidence favorable to the plaintiff; onto
the other, place all of the evidence favorable to the defendant.
If, after considering the comparable wight of the evidence, you
feel that the scales tip, ever so slightly or to the slightest
degree, in favor of the plaintiff, your verdict must be for the
plaintiff. If the scales tip in favor of the defendant, or are
equally balanced, your verdict must be for the defendant.
9. Members of the jury, in determining whether the defendant
failed to act as a reasonably prudent person under the
circumstances, you must base your decision on the applicable duty
of care.
10. The failure to exercise the appropriate degree of care by
the driver of an automobile may constitute negligence and the
defendant's liability may be grounded on such negligence if it is
the proximate cause of the accident in question.
11. In this case, you have heard evidence that the defendant
struck the plaintiff's automobile from behind while plaintiff was
stopped.
12. If you find that the defendant here did not exercise a
reasonable degree of care when approaching plaintiff's car, then
ry
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you may find that she was negligent, and if you also find that this
negligence was a substantial factor in causing injuries to the
plaintiff, then you must return a verdict in favor of the plaintiff
against this defendant.
13. A person operating a vehicle on the highway is under a
eluty to be continuously alert and to maintain a proper lookout for
any warnings of danger that is reasonably likely to exist. Wilson
Freiaht Forwardina Co. v. Seal, 367 Pa. 18 (1951).
14. The law requires a driver to maintain relentless
vigilance at the wheel, which necessarily requires the driver to
keep a constant view of what is ahead of her. If a driver fails to
see something which is clearly visible within her field of vision,
you may conclude that she was not maintaining a proper lookout, and
thus was negligent. Kmatz v. Lochiatto, 421 Pa. 363 (1966).
15. The operator of a motor vehicle must have her vehicle
under control at all times. Having one's vehicle under control
means that in any situation likely to arise, the driver will be
able to stop the vehicle before doing injury to any person.
SchoUeld v. Druschel, 359 Pa. 630.
16. If you find that the Defendant did not keep her vehicle
under proper control, then you may find that this de~endant was
I'. negligent, and if you also find that this negligence was a
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substantial factor in causing injuries to the plaintiff, then you
must return a verdict in favor of the plaintiff against this
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defendant.
17. In order to find the defendant negligent, it is IlQt
necessary that you find she violated the Motor Vehicle Code. It is
sufficient that you find that she did not exercise due care under
1) the circumstances in that she did not have her vehicle under
adequate control.
18. I instruct you that under law of the Commonwealth of
Pennsylvania the operator of a motor vehicle must be alert and have
her vehicle under constant control at all times so that she will be
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~ able to stop it before doing injury to any person in any situation
that is reasonably likely to arise under the circumstances. Hardv
v. Clover Leaf Mills, 426 Pa. 206, 210 (1967): SolUnaer v.
Himchak, 402 Pa, 232 (1960),
19. Members of the jury, I must caution you that in order to
find the defendant negligent, it is not necessary that you find she
"'\"\ violated any of the provisions of the Motor Vehicle Code. It is
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sufficient that you find that she did not exercise due care undor
the circumstancos.
Q\USATION
20. In order for the plaintiff to recover in this caee, the
negligence of the defendant must have been a substantial factor in
bringing about the accident. This is what the law recognizes as
legal cause.
A substantial factor is an actuel, real factor,
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although the reeult may be unusual or unexpected, but it is not an
imaginary or fanoiful factor or a factor having no conneotion or
only an insignificant connection with the accident. pennsvlvania
8tandard..Jl.IU:Y.-1DstrucUons. Sec. 3.25.
DAMAGES
21. ._onca"l'Mt~AeteX'mj,oed. tbe iOBlIe ef HeWJ. ity , if your
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verdiot i. in favor of the plaintiff, you are next to conoider
damag...
A. a general principle of law, one who has caused
injurie. to or damagas to another must restore the injured party as
equally a. possible to original condition. This is only possible
(..._ by having a X'esponsible party pay a sum of money which will
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compeneate the injured party for losses. You must therefore find
en amount of money damages which you believe will fairly and
adequately compensate the plaintiff for all of the physical and
financial injury which she has sustained as a result of the
accident. The amount which you award today must compensate the
plaintiff completely for damages sustained in the past, as well as
da.age the plaintiff will sustain in tha future.
Standard Jurv
In.truction, Sec. 6.00.
22. The plaintiff is a~o entitled to be compensated for all
of the pain, Buffering and mental anguish which she has undergone
() up to thi. time, and which you may find that h8-or she will endure
1n the future.
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23. The plaintiff is entitled to be fairly and adequately
compensated for past, present and future loss of her ability to
enjoy any of the pleasures of life as a result of her injuries.
Standard Jurv Instruction, Sec. 6.01(1).
24. The plaintiff is entitled to be fairly and adequately
compensated for such physical pain, mental anguish, discomfort,
inconvenience and distress as you find that he or she has endured
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(~ from the time of the accident until today, and as you believs she
will endure in the future as a result of his/her injuries.
Standard Jurv Instruction, Sec. 6.01(E) and 6.0l(F).
25. You are instructed in computing the damages due to the
plaintiff because of pain and suffering, you must take into account
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the plaintiff' I!'l feelings of loss of well being and the inability of
plaintiff to enjoy what he or she was able to enjoy prior to
receiving her injuries. Cocoran v. McNea~, 400 Pa. 14, 161 A.2d
367 (1960).
26. Pain and suffering must be included in the calculation of
a just verdict. Pain and suffering are substantive losses and just
as a person is entitled to collect damages from one who wrongfully
-y inj ures limbs, organs, and other parts of the body, so is she
equally entitled to collect damages for physical and sensory
torment and pain and suffex'ing. Buraan v. Ci tv of Pi ttsburah, 373
Pa. 608, 96 A.2d 889.
27. I have no test to tell you how much you should award for
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pain, Buffering, inconvenience, mental distress, embarrassment and
diacomfort. These are difficult things to assess. I do have the
duty, however, to bring to your attention the fact that pain and
suffering are not limited to any particular part or time of the day
or period of the day. It will be for you to say what portion of a
24 hour day the plaintiff has or will endure physical and mental
anguish,
pain,
suffering,
distress,
inconvenience
and
embarra.sment. It will be for you to decide how many days of the
week, how many weeks of the year, how many years of the remainder
of life you believe that he/She will endure this.
While the
purpose of awarding damages is not penal, it is, however, your duty
to make an award to in full appreciation of the extent and nature
of the injuries. It is described in the law as an amount which
must be fair, and it must be just, and it must fully appreciate the
nature of the pain and suffering she has endured.
adequate.
28. The plaintiff is also entitled to damages as in your best
It must be
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judgement will reasonably and adequately compensate for the
physical injuries to her. In arriving at this sum, you may find
that you should take into consideration the damages suffered by
bodily structures, loss of bodily functions, inability following
the accident to pursue the normal course of her life, and her
inability to engage in the same activities, vocations, and
pleasures following the accident as before.
DiChiaccio v.
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Rochscraft Stone Products Co., 424 Pa. 77, 225 A.2d 913 (1967).
29. The plaintiff is entitled to be compensated in the amount
of all medical expenses which you find she will reasonably incur in
'Y the future for the treatment and care of her continuing injuries.
Pa. SSJI (Civ.) 6.01(a,b).
30. The plaintiff is entitled to be compensated for all
~1" medical expenses which you find she will reasonably incur in the
~~ future for the treatment and care of her continuing injuries.
31. If you find that the plaintiff's damages are not capable
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of exact ascertainment, that does not mean that they are not
recoverable. The law only requires that a reasonable quantity of
information must be supplied for you to fairly estimate the amount
of damages from the evidence. Ashcraft v. C.G. Hussev & Co., 58
A.2d 170, 172.
32. If you find that the defendant is liable to the
plaintiff, you must then find an amount of money damages which you
believe will fairly and adequately compensate the plaintiff for all
the physical and financial injury she has sustained as a result of
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the accident. The amount which you award today must compensate the
plaintiff completely for damages sustained in the past, as well as
damages that plaintiff will sustain in the future. Pa. SSJI (Civ.)
6.00.
33. If you find that the defendant is liable to the
plaintiff, you must then find an amount of money damages which you
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CC(Q)~1f
1 LISA M. BROWN,
PLAINTIFF
I IN THB COURT OF COMMON PLEAS
I CUMBBRLAND COUNTY, PBNNSYLVANIA
I
I CIVIL ACTION - LAW
I NO. 94 6128 CIVIL 1994
I
I JURY TRIAL DBMANDBD
2
3
v..
MIRIAM C. CLAPPBR,
4 DEPBNDANT
VIDEOTAPB DEPOSITION OFI
RICHARD J. BOAL, M.D.
DEFBNDANT
DBNISB SAMPSON, RBPORTER
NOTARY PUBLIC
MAY 10, 1996, 7:05 A.M.
875 POPLAR CHURCH ROAD
CAMP HILL, PENNSYLVANIA
TAKIN BYI
BBFORB:
DATB:
PLACB:
COSTOPOULOS, FOSTER AND FIELDS
BYI TIMOTHY P. KEATING, ESQUIRB
FOR - PLAINTIFF
WIX, WBNGBR , WBIDNER
BYI GIRARD E. RICKARDS, ESQUIRB
FOR - DEFENDANT
ALSO PRBSENT: DOUGLAS MacINTYRE, VIDIO IMAGIS
~ 7liri;i, 'li1lh ir]*I4/, ~tinsSm;u, 8",-
llS "'NE S~-'IET . HA-'-'IUU-'O, "A 17101
H.mlllu,g 111.an.MoM ,.. 111-:t.U-1le31 ~ncUl.' 111'~SI01
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1 THE VIDEOTAPE SPECIALIST I My name ia Dougla.
2 MacIntyre and I repreaent Video Imagee, 3004 Black Oak
3 Drive, Red Lion, Pennsylvania. Today's date i. May 10th,
4 1996. The time of day ia 7:05 a.m. Thi. depo.ition i.
5 being videotaped at 875 popular Church Road, Camp Hill,
6 Pennsylvania.
7 The caption of this caae i. Liaa L. Brown
8 verau. Miriam C. Clapper. The name of the witne.. i.
9 Richard J. Boal, M.D. This deposition is being videotaped
10 on behalf of Defendant. Counsel will now pleaae introduce
11 themselves.
12 MR. RICKARDS: Girard Rickards for Defendant,
13 Miriam Clapper.
14 MR. KEATING: My name is Timothy Keating. I'm
15 here on behalf of the Plaintiff, Lisa Brown.
16 THE VIDEOTAPE SPECIALIST: The court reporter
17 will now please identify herself and swear the witneaa.
18 RICHARD J. BOAL, M.D., called as a witne.a,
19 being duly aworn, testified as follows:
20 DIRECT EXAMINATION ON QUALIFICATIONS
21 BY MR. RICKARDS:
22 Q Dr. Boal, would you state your name and
23 professional address, please?
24 A My name is Richard John Boal. Our addre.. ia
25 875 Poplar Church Road, Camp Hill, penn.ylvania.
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Q
Sir, what is your occupation?
A
I'm an orthopedic surgeon.
Q
Dr. Boal, would you tell the jury a little bit
4 abuut your educational background and how you got to be an
5 orthopedic surgeon?
6
A
After completing college in 1968 I attended
7 Temple University School of Medicine. I graduated from
8 Temple in 1972. I became licensed to practice In
9 Pennsylvania in 1972 and I've been licensed to practice in
10 penn.ylvania since that time.
11 Upon completion of my medical school, I did a
12 aurgical internship in Denver, Colorado. Upon completion
<:> 11 of that I wont back to Philadelphia for another four years
14 of orthopedic surgery residency training at Temple
15 University Hospital. That was completed in 1977.
16 I then went into the United States Air Force
17 for two years as a major practicing orthopedic surgery.
18 During that time I became Board certified in orthopedic
19 aurgery. Upon completion of the military duty, I came to
20 Harrisburg and I've practiced here since that time.
21 Q Dr. Boal, you've mention~d orthopedic. .everal
22 timea. Would you explain to the jury what the field of
23 orthopedics encompasses?
24
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Essentially it's a specialty of medicine which
\ 25 treats problems related to the okeletal system, the
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1 ligamentoua tiasue that supports the akeletal aystem, the
2 jointa, the muscle., and the peripheral nerves.
3 Q And you've mentioned another term, that being
4 Board certified. How doe. one get to be Board certified
5 in your field?
6 A A person muat complete an approved orthopedio
7 surgery residency, must then go out into practice for a
8 period of time and show competency in hi. practice, and
9 then take an oral and written examination over a couple of
10 day period, again, to prove competency. And once -- if
11 one pasaea those test., then one ia Boar.d certified.
12 Q Dr. Boal, you're in the -- you have a private
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19 A Ye., I do.
20 Q Dr. Boal, are you on the .taff of any of the
21 local hospitala?
2l A Yes, Harrisburg Hospital and Holy Spirit
23 Hospital and Seidle Hospital.
24 Q And do you belong to any profea.ional
25 organizationa?
practice here in Camp Hill. In the context of your
practice, do you treat individuals who have neck and baok
problems?
A Yea.
Q And do you also treat individual a who have been
involved in automobile accident.?
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Ye., I belong to the American Academy of
2 Orthopedic Surgeon..
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MR. RICKARDS I We would offer Dr. Boal a. an
4 expert in orthopedic .urgery at thi. time. Any que.tion.
5 on qualification.?
6
MR. KEATING: Just one que.tion.
7 CROSS EXAMINATION ON QUALIFICATIONS
8 BY MR. KEATING:
9
Q
You're not an expert in automobile colli.ion
10 recon.truction, are you, Doctor?
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No, .ir.
MR. KEATING: Then I have no question. and
c:> 13 accept him as a qualified expert.
14 DIRECT EXAMINATION
15 BY MR. RICKARDS:
16
Q
Dr. Boal, throughout the course of your
17 testimony there may be timee when I a.k you to render
18 opiniona. What I would ..k i. if you would
any opinion
19 that you render., please do so within a reaaonable degree
20 of medical certainty. Can you agree to that?
21
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Ye., sir.
Q
Now, in connection with this law.uit, .ir, did
23 you examine Lisa Brown at the request of my office?
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That'i11 correct, I did.
Q
And when did that examination take place?
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On April 12th of 1996.
As part of the examination, Dr. Boal, did you
A
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3 take a hiatory from the patient, in other worde, aak her
4 what happsned?
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Yes.
Q
And what did Lisa Brown tell you?
She told me that she waa involved in an
A
8 automobile accident on February the 6th of 1993. She
9 reported she wa. .topped in her car when her car wa.
10 rear-ended by another vehicle. I asked her whether any
11 part of her body hit another part of the car, and ehe
12 atated it did not.
13
She told me she was alert at all times, that
14 she was not unconscious. I did ask her how fast the other
15 car was going, and she told me she did not know that. I
16 did a.k her how much damage was done to the car, and ahe
17 gueaaed between five and $700 was done to her car.
18 She did not really know the make of the car
19 that hit her from the rear. She did tell me she was
20 wearing a aeat belt at the time of the accident. She told
21 me that the accident happened on Saturday, and on Sunday
22 ahe went to Holy Spirit Hospital for evaluation. I aaked
23 her what seemed to be her problem at that time, and ahe
24 told me that ahe was told at the hospital she had etrained
25 her neck and shoulder.
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1 She w.. told to take a.pirin and apply heat to
2 the area. She told me that when that did not work .he
3 went to a Dr. Douqla. Sanderson for treatment. I asked
4 her what .he understood that hi. diaqno.i. of her problem'
5 was, and .he told me that he told her .he had a mu.cle
6 .train of the neck and low back. And he placed her on an
7 exercise proqram.
8 I apecifically a.ked her what the proqram
9 con.iated of, and ahe told me that e.aentially .he wa.
10 in.tructed to do iaom.tric exerciee. approximately every
11 20 minute. and chanqe po.ition. every 10 minute.. I a.ked
12 her if .he .till did the.e exerci.e. two years later, and
13 ahe told me ahe does them about twice a day.
14 She also told me that she sees Dr. Sanderaon
15 about once a month at this point. I aaked her if ahe ever
16 took any particular medicines for the injurie., and she
17 told me the only medicine she took wa. Tylenol and Advil.
18 She did repo~t to me that she'a 22 years old. She'.
19 otherwi.e in excellent health. She reported no allerqie8
20 and no other medical problem..
21 I asked her what kind of work ahe waa doinq,
22 and ahe told me ahe work. in a temp. position, that i.
23 qoinq in and replacinq permanent workers at variou. type.
24 of jobs while they are on vacation. She does typinq. She
25 told me in terma of educa~ion she'. colleqe educated. She
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went to Penn Stat~ and ha. a degree in .ocial .tudie.. I
waa ju.t trying to get an idea from thi. of what her
abilitie. might be. I a.ked her
Q Let me atop you there for ju.t a aecond,
Doctor. You mentioned aome isometric exerci.ea that Li.a
had told you that .he did.
A Yea.
Q What type of exerciae or what part of the body
waa it that .he did theae exerciaea for?
A Well, she -- when I apecifically a.ked her what
they were, .he .howed me aome exerciae. ehe did with her
forearm. and thoae were the only exerci.ea .he related to
me that ahe did at thia point. I a.aume that they had
aomething to do with her upper extremities and neck but
I'm not cer.tain of that.
U But what she showed you was with her hand. and
forearm.?
A Correct.
Q Did ahe tell you how ahe wa. feeling on the
particular day of the examination, Doctor?
A Yea, I did aak her on the day of examination
how ahe felt, and .he told me that her neck hurt. and both
her ahouldera hurt. She reported her left ahoulder hurt.
a little more than her right ahoulder. And .he told me
ahe occa.ional1y geta headache..
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She did tell me she had a headache a. wa talkad
on the day of ths examination. I did ask her if .ha had
problem. with headaches prior to the accident, and she
reported that .he did have problema prior to the accident.
Sha did tell me that har headachea are somatimea in the
front of her head and .ometimea more toward the back of
her head.
with re.pect to her shoulder pain, I asked her
how bad her shoulder pain was, and her re.pons. wa. .he
deals with it. She also states that she had .om. low-back
pain.
Q Now, Doctor, in connection with thia
examination then, my office I believe sent you some
records relating to Lisa Brown's treatment prior to her
examination with you. Do you recall briefly reviewing the
xecord. from the Holy Spirit Ho.pital, Acri Chiropractic,
I gue.a, Dr. Delafuente, her family physician, and Dr.
Sander.on as well?
A Yea.
Q And what did your review of thoae record.
indicate?
A In reviewing the information that you sent to
me, it was obvioua that .he had problema with her low back
prior to the accident and had seen a chiropractor on many
via ita tor her low back. She did tell me ahe doea
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1 exerciae. for her lower axtramitiaa a. well, but .he did
2 not have any pain in the lower extremities.
3 She also did tell me that she doe. .ome jumping
4 rope and running in place for five minutes for her lower
5 extremities. I did ask her after reviewing the report.
6 whether she had had any other studies such as an MRI of
7 her neck or low back and ahe atated .he had not.
8 Q Now, in terms of other atudiea, you mentioned
9 an MRI. What would an MRI show?
10 A An MRI could show -- MRI's can ehow many
11 things. I don't believe this woman has a ruptured diac in
12 her neck and low back, but an MRI could show that if one
13 were pre.ent.
14 Q That's just a different type of test, .uch aa
15 -- a little more complicated than an x-ray, I guesa?
16 A It shows us different types of -- the x-ray
17 e..entially just shows ue bony tissue. The MRI can .how
18 u. thinga such aa the nerves and ruptured di.c. or normal
19 diacs, butahe did not have that test.
20 Q In addition to reviewing the records and asking
21 Lisa Brown what her problem was, did you also perform an
22 examination?
23 A Yes.
24 Q And, first of all, I guess would you tell tha
25 jury what your examination of her low back revealed?
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A On in.p.ction of h.r low back ....ntially I
do thi. with th.m wearing a gown open in the back -- her
apin. wa. atraight. Her pelvi. wa. level. She could bend
forward and get within about four inche. of touching the
floor. She told me a. ahe was doing that on .ome day. .he
can actually touch the floor.
She could hyperextend, which mean. arch her
back backward., and laterally bend without any difficulty.
I examined her with reapect to reflexe., muacle atrength,
aenaation, and what are called tension .igns to .ee
whether there wa. any evidence that ahe had a ruptured
disc in her lumbar spine which might be cau.ing
probl.m. in one or both leg..
And there waa no evidence that she had any
po.itive neurologic finding. whataoever. So essentially
her low-back examination from a physical standpoint wa.
within normal limit.. Certainly not everyone can bend
forward and touch their toea.
Q Dr. Boal, did you al.o examine Li.a Brown'.
neck?
A Yes.
Q And what did that examination r.veal?
A She had no tend.rne.. to palpation about h.r
neck. She could touch her chin to her cheat. She could
bend the whole way down and do that. She could
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1 hyperextend and turn and tilt her head on her nack with no
2 difficulty. Again, ahe was entirely intact neurologically
3 in the upper extremitie.. I checked her reflexa., her
4 muscle .trsngth, her .enaation, and they were all within
5 normal limit..
6 She had full range of motion in both .houldsr.,
7 that ia, ahe could put her arm. above her head or behind
8 har back without difficulty. There wa. no evidence of any
9 muscle atrophy about her shoulder. either on the right or
10 left aide. I did do a test callod vertex compre.sion
11 where one appliee force on the top of the haad.
12 If someone has a ruptured disc, oftentime.
<:> 13 they'll complain of arm pain, and her only complaint wa.
14 .ome pain where I was pushing on the top of her head. So
15 es.entially, again, her examination with reapect to her
16 neck wa. essentially within normal limit8.
17
Dr. Boal, in connection with your examination,
Q
18 review of the record., and apeaking to Li.a Brown, were
19 you able to make any concluaiona a. far a8 what her
20 phy.ical condition wa8 on the day of your examination a.
21 it relate. to the automobile accident that she told you
22 about?
23
A
Ye..
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24
25
And what conclusions did you come to?
I thinK that ea.entially Ms. Brown mo.t likely
Q
A
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1 .uffarad a .train of h.r cervical apine and parhap. her
2 lumbar .pine at the time of the accid.nt. A. I .tated in
3 my report to you, a .oft-ti.sue injury auch aa this
4 typically heal. within four to aix month. at a maximum.
S And I think that ...entially .h.'s r.covered from thi.
6 injury.
7
Q
Dr. Boal, you .aid mo.t lik.ly that .he
8 .uffered the.e conditions. And in reading your report it
9 indicatea that you think from her hi.tory that that waa
10 accurate. Do I take that to m.an that if her hi.tory wa.
11 inaccurat., that that might change her opinion?
12
13
14
15
A
I'm .orry. I don't understand that.
Q
Sure.
A
Repeat that, please.
All right. You had testified ju.t a moment ago
Q
16 that you thought she probably had sustained a .train to
17 her neck or back?
18
19
A
Corr.ct.
Q
And your report indicat.s that according to her
20 hiatory that that will be the case, that if -- and her
21 hi.tory is what Lisa Brown told you. That'. one of tha
22 things you're basing your opinion on?
23
24
A
That's correct.
Q
And if the history was actually different than
~ 25 what Lisa Brown told you, would that have an .ffect on
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2
A
On my opinion. Ya., for axampla, if .he -- if
3 har car wa.n't hit and aha complained of head and neck
4 pain or neck pain and back pain without any actual injury
5 beinq done, then I would have to .ay that ahe probably
6 didn't .uffer a atrain, ye..
7
Q
Now, in term. of her low-back pain, did you
8 form an opinion ae to what -- how her complaints on the
9 day of the examination of her low back, how they relate to
10 the automobile accident or don't relate for that matter?
11
A
Aqain, if ahe did suffer a atrain, I believe it
12 waa a mild strain. And I just want to say that the reason
,~ 13 I believe thi. is that there was no evidence of any
14 fracture. There was no evidence of any major liqamentou.
15 diaruption. There was no evidence of any neuroloqic
16 problem.
17 And we know when you don't find these thinq.
18 that people do qet better after them. So the
there was
19 no avidence of any major trauma to either the neck or
20 back.
21
Q
In terma of whether or not any treatmant would
22 be recommended for Li.a Brown, did you have an opinion
23 about that?
24
A
I don't think she need. any formal medical
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25 traatment at thi. point. I think that certainly it'.
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1 healthy tor all of u., a.pecially atter a period when
2 wa'va maybe baen la.. active, to try to gain motor
3 .trength and mu.cle tona and tlaxibility. And certainly
4 you can do that on your own.
S Hy point i. .he cartainly can -- it would
6 benetit her moat likely to be in aome aort of home
7 exarci.e program like tor moat of ua, but other than that,
8 I dor.'t think ahe ne~d. any .pecitic medical traatment.
9 Q And, Doctor, would you place Ha. Brown under
10 any re.trictions as a result ot the automobile accident a.
11 ot the day ot your examination?
12 A No, I would not.
13 Q Doctor, just a couple ot other thing.. Dr.
14 Sander.on, we took hi. testimony a .hort time ago, within
15 a couple of weeks, and he referred to a couple of term.,
16 one of which was sway-backedne.s. And he referred to that
17 .pecifically in the context of Lisa Brown. What exactly
18 i. .way-backedne.., Doctor?
19 A Well, a sway-back is another name, a nonmedical
20 term for lumbar lordo.is, which i. a curve in the lumbar
21 .pine. And we all have a lumbar lordoeia pr.aent. The
22 apine i. -- if one looks at the spine from the aide, it'a
23 not atraight up and down. It ha. curves to it. And that
24 lower curve in your low back is called a lumbar lordoai..
25 And a common tarm for that is sway-back if it ia
..
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(7) 1 pronounced.
2
Q
And ara there othar cauaea for .way-backedne..
3 othar than tha automobi1a accidant?
4
A
Well, in my mind an automobile accident doe.n't
5 cauae .omaone to h~ve a .wayback. A person either haa a
6 .~ay-back or they don't. I mean, if you look at their
7 back they have an increa.ad lumbar lordo.i. or thay don't.
8 Certainly if .omeone suffered compre..ion
9 fractures of the apine or .omething auch a. thi., it could
10 change the appearance of the back, but Ms. Brown didn't
11 have any such injury at all. And I don't think the car
12 accident is in any way responsib~e for her poeture.
'0
13
Q
Thank you. Doctor, the opinion. that you've
14 randered throughout the course of your testimony, have
15 they been within a reasonable degree of medical certainty?
16
17
A
Yes, they have.
MR. RICKARDS: Okay. Thank you.
18 Cro.s-examine.
19 CROSS EXAMINATION
20 BY MR. KEATINGI
21
Q
Doctor, the examination that you performed on
22 April 12th of Lila Brown, that wae done at the requeat of
23 Mr. Rickarda who ia representing the Defendant in thi.
24 accident?
I,
25
A
That'. correct, sir.
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And, ol course, you were paid by Mr. Rickard.
2 for that examination?
3
4
A
Yes, I wa..
Q
And a. well a. being paid lor your te.timony
5 here today by him, is that correct?
6
7
A
That'a correct, .ir.
Q
I notice in your report you make relerence to
8 the lact that Liaa could not or did not indicate the
9 extent of the apeed with thft impact ol the two
10 automobilea, ia that correct?
11
12
A
That'o correct.
Q
But is it your understanding that the impact
'.::.) 13 wa8 minimal or aignificant or what?
14
A
It waa my understanding from the amount of the
15 damage done to the car, if that again i. factual, that it
16 wa. certainly not severe. I would put it lesa than
17 moderate, probably mild damage done to the car, and
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18 therelore a relatively low lorce involved.
19 Q And even though that impact may not have been
20 severe, it'. true that different people's bodie. react in
21 dillarent ways when impacted in such a manner? What I
22 mean by that is .ome people can suatain a very forceful
23 impact and not have any problems, and 80me peopla can
24 .uatain relatively minor impact and have difficultie. lrom
25 that; is that a correct statement?
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1 A I think you'd have to be more .pecifia.
2 Q Well, what I'm aaying ia there'. aome
3 generalitia., but when it come. to the amount of impact
4 and how much damage i. done, it'. a very .ubjective and
5 apecific thing; ia that --
6 A I think, again, I think you have to be
7 apecific. If you'ra a.king if the .ame amount of force in
8 one per.on could break a neck and in another par.on not
9 break a neck, the anawer i. that i. correct. In thi. caa.
10 there wa. no evidence that the force wa~ great enough to
11 impart any .evere damage or even moderate damage to h.r
12 body part..
13 Q Wall, maybe not to her body part., but it could
14 have been a factor in the cervical atrain and the lumbar
15 apina problam. that .he auffered after that accident; i.
16 that correct?
17 A It could be in general. In her .pecific ca.a I
18 don't beliava thare'. any evidence -- any medical avidence
19 that it wa~ a factor.
20 Q Doctor, you indicated that there wa. no MRI
21 done on Li.a Brown; ia that correct?
22 A Correct.
23 Q And that'. not unuaual, i. it?
24 A No.
25 Q And prior to rendaring your report -- and
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you've reviewed all of tha medical record. of Li..,
.pecifically Dr. Sander.on'.; i. that corract?
A Th.t'. correct, .ir.
a Did you review tho.e note. and those report.
prior to your examination of Li.a?
A No, I did not.
a But those report. and tho.e record. did help
you formulate your opinion of your April 18th that you
rendered, you've written?
A Th.t's correct.
a Do you know Dr. Sanderson?
A Yes.
a Do you aqree that he's a competent and
well-qualified doctor?
A I think he has some different opinions .bout
treatment th.n I do.
a And ~here is latitude for . difference of
opinion a. to -- in the medic.l profe..ion a. to the
extent of injurie. and how they .hould be treated; i. that
correct?
A There'. some latitude, .ir.
o Doctor, in your report you st.ted that with
re.pect to Li..'. back notea .how that she .till h.. 80me
b.ck pain which predated her injury. Is th.t an
indication th.t you can tell that the p.in that ehe'.
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I~ 1 auffering now i. not ralatad in any way to the accident?
2
3
A.
Q
4 Brown laat?
5
6
A
Q
That in it.elf ia not an indication.
Doctor, how long did your examination of Liaa
Probably 20 to 25 minute..
And you concluded a. a re.ult of that
7 axamination, if I read your report correctly, that .ha
8 .hould not be under any reatriction. a. ~ ra.ult of tha
9 automobile accident of February 8th; ie that correct?
10
11
A
Q
That'. correct.
Do you believe that she ahould be under any
12 re.trictions due to her medical condition that i.
1<) 13 unralated to the accident?
14
15
A
Q
No.
You indicated in your report that ahe doesn't
16 need any further treatment a8 a result of the accident; i.
17 that correct?
18
19
A
Q
Yea, air.
But you do indicate that ahe ahould atill
20 exercise and -- exercise and try to strengthen her
21 cervical and lumbar .pine; is that correct?
22
23
A
Q
Yea.
24 typically haal within what amount of time?
You also indicated that these types of in juri..
,
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25
A
Ligamentoua tiasue will heal within -- study
157
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~ 1 after .tudy ha. .hown that it heala within four month..
2 Certainly if someona ia oldar that can take a little
3 longar, but healthy ligamentou. tisaua if damagad repair.
4 it.elf in four month a and cartainly within six month. it
5 ahould be healed.
6
It will be healed in aix months or .hould ba
Q
7 healed in six months?
8
9
Will be.
A
Q
And that doean't vary from person to peraon?
Well, as I say, if someone is diabetic or haa
10
A
11 .ome other underlying problem, it can take a little
12 .longer, but in general for someone in her age group, the
~ 13 ti..ue should heal within four to six months.
14
MR. KEATINGI I have no further cro.s
15 examination.
16 REDIRECT EXAMINATION
17 BY MR. RICKARDS I
18
Dr. Boal, juat a couple follow-up quaation..
Q
19 Mr. Keating a.ked you about Dr. Sanderson's treatment.
20 What exact treatment is your understanding that Dr.
21 Sander.on has given to Liaa Brown?
22
The only thing I can see from hia notes i~ a
A
23 seriea of some exeroia.a to do for her soft ti.aue..
24
And in term. of the exerciae. that you would
Q
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25 recommend Liaa Brown to do, does the rea. on for that have
1
22
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1 anything to do with her phy.ical condition generally a.
2 oppo.ed to apecifically becau.. of thia accident?
3 A I would aay at thi. point, .a I atatad, I think
4 har ti..ua. are healed. I think it purely ralata. to her
5 phy.ical condition not to this accident. Tha fact that
6 ahe ha. not done anything for -- of any 8ignificant
7 activity for the la8t couple of year. would decondition
8 her. And I think for any of U8 it would be healthier to
9 be more fit.
10 MR. RICKARDS I No further que.tion..
11 MR. KEATING I I have no further que.tion..
12 THE VIDEOTAPE SPBCIALISTI This videotape
13 depo.ition i8 now concluded. The time of day ia 7134 a.m.
14 (Whereupon, the videotape depo.ition wa.
15 concluded at 7134 a.m.)
16
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151
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1 COUNTY or LIBANON
I
SS
2 COMMONWIALTB or PINNSYLVANIA I
3 I, Dani.a A. Samp.on, a Notary Public, authoriled
4 to ad.ini.tar oath. within and for tha Commonwealth of
5 pann.ylvania, do har.by c.rtify that the foragoing i. the
6 ta.timony of Richard J. Boal, M.D.
7 I further c.rtify that bafor. the taking of .aid
8 depo.ition, the witne.. was duly .worn; that the que.tion.
9 and an.wer. were taken down stenographically by the .aid
10 Report.r-Notary Public, and afterward. reduced to
11 typewriting under the direction of the said Report.r.
12 I further certify that the said depo.ition wa.
.~ 13 taken at tha time and p1ac. .pecified in the caption .heet
14
15
16
17
hareof.
I further certify that I am not a relative or
amployee or attorney or coun..1 to any of the partie., or
a relative or .mployee of .uch attorney or coun.el, or
18
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20
21
22
23
24
25
financially inter..ted directly or indir.ctly in thi.
action.
I further certify that the said depo.ition
con.titute. a true record of the testimony given by the
.aid witn....
IN WITNBSS WHBRBOF, I have hereunto .et my hand
t}lia l:lt.h daJ.._aLHa.~. 1996.
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l!J~'1 c,~;)~;:,~~;~,~,~,_~ ..: . __0".. .~.._..1
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INDEX TO WITNESS
NAME
DIRECT
CROSS REDIRECT RECROSS
3 DOUGLAS K. SANDERSON, M.D.
4 BYI Mr. KelSting 3, 5
5 BYI Mr. Rickards 17
6
7
8
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12
. 13
14
15
16
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22
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ANDREINE REPORTING
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STIPULATION
It is hereby stipulated by and between counsel
3 for the respective parties that sealing, certification
4 and filing are hereby waived; and that all objections,
5 ~xcept as to the form of the question, are reserved to
6 the time of trial.
7
DOUGLAS K. SANDERSON, M.D., called as a
8 witness, having been duly sworn, was examined and
9 testified as follows:
10
HR. KEATING: Today is April 16th, 1996. We
11 are at the offices of Dr. Douglas Sanderson, 205
12 Grandview Avenue, Camp Hill, Pennsylvania, concerning
~ 13 the case of Brown vs. Clapper. We're taking the
14 deposition of Dr. Sanderson today for purposes of the
15 case that was just made reference to.
16
17
DIRECT EXAMINATION
ON QUALIFICATIONS
18 BY MR. KEATING:
19
Q
Doctor, a couple questions about your
20 background initially.
21 You dre a doctor?
22 A I'm a physician, yes.
23 Q And do you have a specialty?
24 A Orthopedic surgery.
25 Q And when you say orthopedic surgery, could you
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1 explain to the jury what kinds of injuries you treat in
2 connection with that specialty?
3
A
Orthopedic surgery i. a surgical specialty
4 which deals with afflictions of the musculoskeletal
5 system which could be trauma, infection or new growth,
6 tumors involving muscles, joints, bones, ligaments that
7 hold joints together, peripheral nerves, meaning nervea
8 excluding the brain and the spinal cord, and all soft
9 tissues including the skin surrounding the structures.
10
Q
Let's go a little bit into your educational
11 background. Could you tell the jury a little bit about
12 where you attended school and what your background is
4It 13 in that respect?
14
A
I graduated from Brown University in
15 Providence, Rhode Island, in 1959; and then I went to
16 the Johns Hopkins University School of Medicine and
17 obtained my M.D. in 1963; did one year of straight
18 surgical internship at the Johns Hopkins Hospital in
19 Baltimore, Maryland; following that, I did a year of
20 assistant surgical residency at the Hartford Hospital
21 in Hartford, Connecticut; and then returned for a
22 three-year orthopedic surgical residency at Hopkina. I
23 terminated that in June, the end of Juno 1968. Since
24 then I've been in my own private p~actice of orthopedic
25 eurgery in the greater Harrisburg area.
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(717) 232-8151
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Are you affiliated with any hospitala at all
2 ourrently?
I'm presently on the full-time active ataff at
3
A
4 the Holy Spirit Hoapital, and I'm on the consulting
5 staff of Seid1e Memorial Ho.pital, they're together
6 now, and that qualifies me to be a consultant with
7 Harrisburg and Polyclinic as part of the Capital Health
8 Region Network.
9
Q
And what about any professional organizations
10 that you belong?
11
A
I might add I'm also on the active staff of
12 Grandview Surgery and Laser Center in this building.
.
13
14
15
Q
A
And you are Board certified?
I became Board certified in January of 1970.
MR. KEATING: I would move to have this
16 witneas be qualified as an expert.
MR. RICKARDS: No questions on qualifications.
17
18
19 BY MR. KEATING:
20
DIRECT EXAMINATION
21 opportunity to treat Lisa Brown?
Q
Doctor, in your practice, did you have the
22
23
A
Yes, sir, I did and still do.
And do you recall when it was that you first
Q
25
24 saw Lisa?
A
February 25th, 1993.
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ANDREINE REPORTING
(717) 232-8151
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1
Q
And at that time, what was the reason for her
2 seeking treatment from you?
3
A
At that time she consulted for the primary
4 complaint of shoulder pain and occipital headaches.
5 Occipital means the back of the skull.
She related
6 onset of these symptoms through a motor vehicle
7 accident that occurred at approximately 4:30 p.m. on or
8 about February 6, 1993, at which time she was the
9 driver of the vehicle. She was restrained.
10
It was stopped in traffic as she was headed
11 toward Camp Hill on the Carlisle pike near Hampden
12 Square Shopping Center, at which time her vehicle was
... 13 struck from behind by another. She did not believe she
14 lost consciousness. She was not aware of nor could
15 remember striking any object within her vehicle. She
16 had immediate stiffness in the back of her neck but
17 within two hours, became worse presenting also with a
18 rather severe occipital headache.
19
The following day her symptoms were worse and
20 that brought a consultation at the outpatient
21 department of Holy Spirit Hospital. X-rays were taken
22 at that time, She was told she had no fracture or
23 dislocation. By then she also had an increase in pain
24 between her shoulder blades.
25
Within the next day after the accident after
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1 did guard motion of the head and neck throughout the
2 evaluation to a elight degree. She demonetrated some
3 difficulty in just getting up from a seated to a
4 .tanding position. She walked with a Btride shorter
5 than her body build would indicate. She also walked
6 with a left or a right-Bided compoBite limp.
It seemed
1 to be due mostly to weakneBs in the gluteal or buttock
8 muscles as well as the calf and foot muscles.
9
Her posture was altered from normal or a
10 slight to moderate reduction of the normal degree of
11 lumbar lordosis or sway-backedness.
12
o
Okay. Doctor, excuee me for a second, what do
~ 13 you mean by lumbar lordosis?
14
A
When one looks at a standing human being from
15 the side, the cervical region bends convex toward the
16 front of the body. The thoracic region bends away from
11 the back of the body, and the lumbar region again bends
18 toward the front of the body. Her posture indicated
19 less than normal bending forward of the lower back and
20 increased bending forward of the upper back, so-called,
21 round-shoulderness.
22
23
o
Okay.
A
When asked to move her lower back in varioua
24 directions, she demonstrated a slight to moderate
25 uncomfortable restriction of bending backwards in the
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ANDREINE REPORTING
(111) 232-8151
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1 lower back and less limitation and discomfort in other
2 planes of motion. When attempting to stand on one foot
3 at a time, her balance was poor and more so on the left
4 than on the right. There was tenderness as well aa
5 spasm of the paralumbar muscles, meaning the muscles
6 surrounding the lower back; and that tenderness and
7 spasm was more pronounced on the right side than the
8 left.
9
There was also tenderness of a greater degree
10 at the origin of the buttock or gluteal muscles. There
11 was swelling of the right more than left knee and left
12 leg, foot and ankle. There was no evidence of
~ 13 irritation of either sciatic nerve by stretching it.
14 She had apparent normal appreciation of light touch in
15 the lower extremities but did demonstrate some
16 irritability of the tibial and the peroneal nerve
17 particularly on the left side.
18
Q
Okay. Doctor, for the jury, could you tell
19 them what the tibial nerve is?
20
A
A tibial nerve is a branch of the sciatic
21 nerve that provides sensation to the brain, primarily
22 from the bottom of the foot; and the peroneal nerve
23 provides sensation to the top and side part of the fore
24 foot.
25
Q
And the sciatic nerve?
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ANDREINE REPORTING
(717) 232-8151
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1 A I did not find it irritable, but branches of
2 it were irritable and particularly in the left foot.
3
4
o
Okay. Where is the sciatic nerve located?
The sciatic nerve is composed of several nerve
A
5 roots in the lower lumbar spine that are joined
6 together as the sciatic nerve deep in the pelvis and
7 emerge from the pelvis deep to the buttock musc1ea and
8 traverse down to the very back of the thigh at which
9 point it splits into several different branches
10 providing messages to make muscles work in the lower
11 extremities and provide sensation from the lower
12 extremities to the brain.
. 13 I found her to have significant tenderness a.
14 well as weakness of the left more than right buttock
15 muscles, the quadriceps muscles, which are the big,
16 front thigh muscles, and the calf muscles with which
17 muscles in the bottom of the foot work in concflrt.
18
Evaluating the upper body, active motion of
19 the neck and shoulders was more uncomfortable and more
20 so in bending her neck to the left, bending it
21 backwards as opposed to forward, and turning to the
22 left more to the right. There was tenderness and spasm
23 of the muscles surrounding the neck.
It was, at that
24 time, more pronounced on the right side, and a similar
25 degree of tenderness and spasm was noted of the musolea
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(717) 232-8151
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1 between and over the shoulder blades.
It was less
2 pronounced but definite tenderness and spasm of the
3 chest muscles and other muscles that rotate the
4 shoulders toward the center of the body.
5
There was minor findings noted in the bicep.
6 or the front arm muscle. The swelling of the left more
7 than right forearm and hand with proportionate
8 tenderness of the forearm pronators that turn the
9 forearms palm down.
She had slight lack of normal
10 sensation to light touch over the median nerve
11 distribution which is the palm side of the thumb,
12 index, long and part of the ring finger and overly
It 13 sensitive to pinprick over the ulnar nerve discribution
14 which is the palm side of the pinkie and half the ring
15 finger.
There was irritability of each ulnar nerve at
16 the elbow, so-called funny bone nerve; also of each
17 radial nerve in the foreman which gives oensation to
18 the brain on the top of the hand, and of each median
19 nerve in the distal forearm near the wrist.
20 There wao rather pronounced weakness of the
21 shoulder external rotators which are located between
22 and over the shoulder blades that rotate our arms away
23 from the center of the body, not quite as much as the
24 internal rotators, a good bit of the left more than the
25 right forearm pronators; grip strength was quite
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(717) 232-8151
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1 reduced from normal.
The fine muscles in the hand
2 which give us the ability to do manipulative activities
3 were also quite weak.
4
Q
Doctor, I just want to interrupt for half a
You said her grip strength was reduced from
How would you know what normal was prior to
5 minute.
6 normal.
7 the examin~tion for her?
Is there a standard or?
8
A
Well, there are several ways of judging that.
9 I judge strength by having the patient resist my
10 counter moves of my muscleD.
And I would consider
11 normal strength when someone can grip my two fingers
12 and cause a minor degree of discomfort in my finger..
. 13 In this case, I felt absolutely no discomfort.
14 Q I noticed in your report a reference to an
15 x-ray that was taken of the cervical spine on February
16 7th at the hospital which indicates there was a virtual
17 straightening of the normal lordotic curvature in a
18 lateral view.
What is that, what does that mean and
19 what is that indicative of, Doctor?
20
A
When thfl bone and joint structures are
21 otherwise normal but the side view of the cervical
22 spine shows straightening, that indicates significant
23 spasm or uncontrolled contraction of the muscles
24 surrounding the neck or the cervical spine which I WAS
25 able, Obviously, to duplicate on my clinical
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o
And ae a result of your examination, what did
3 you conclude concerning her medical condition?
4
A
I concluded, I concluded that as a direct
5 result of the motor vehicle ~ccident, that she had
6 sustained significant strain of several muscles,
7 namely, all the muscles encompassing the spine from the
8 back of the skull to the buttock region, certain
9 muscles of the upper and lower extremities; and related
10 to certain of these muscles, she had peripheral nerve
11 irritability and dysfunction most pronounced in the
12 upper extremities.
.
13
14
o
Did you suggest to her a course of treatment?
Yes. Treatment for such muscle injuries is
A
15 directed toward rehabilitation, thereof; advice
16 generally including use of symptomatic care measures
17 which will provide only temporary relief of pain
18 appreciation and advise the patient on very specific
19 physical limitations, how to do things differently than
20 normal or how to restrict certain positions or
21 activities to a certain period of time, the prinCiple
22 of which is to avoid or minimize aggravation of the
23 strained muscles. And the other component is to advise
24 the patient on the performance of strengthening
25 exercises.
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Q
Could you tell us what types of exerci.e. she
2 wa. advised to do and how often?
3
A
Initially, she was advised on the performance
4 of regular and progressive, resistive isometric
5 strengthening exercises or more significantly involved
6 muscles which would involve the shoulder rotator.,
7 forearm pronators, gluteal muscles, quadriceps muscles,
8 the plantarflexor muscles. Isometric meaning,
9 isometric exercises simply in this case meaning making
10 the muscles work in a controlled fashion at their
11 least, stretched length, because a strained muscle will
12 be aggravated by stretching, excessive pressure and by
... 13 overwork. Therefore, I advise my patients to institute
14 these for a duration and level of effort that does not
15 produce discomfort, to be performed at regular
16 intervals throughout the waking day, gradually
17 increasing the time and the effort in order to regain
18 adequate strength.
19
Q
Could you tell us how often she was treated by
20 you and what type of progress she made?
21
A
I believe I've seen her in follow-up
22 approximately 25 times, the most recent being
23 yesterday. That would make it anywhere from every,
24 approximately every four to six weeks.
25
Q
And how consistent was she in following the
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What extent have you found that Liaa has the
2 willingness to try to rehabilitate herself by following
3 the directions that you give?
4
A
I found her, at all times, to be earnest in
5 wanting to restore her body to normalcy or as close
6 thereto as she can. I've never had any impression that
7 she is malingering or seeking secondary gain in any
8 way. She was successful with her isometric
9 strengthening program over approximately a two-year
10 period, that she no longer had symptoms for the
11 recommended initial limitations.
12
At that point she started a more vigorous
.. 13 exercise program which is intended to allow her to
14 regain strength more rapidly but she could gradually
15 progress toward normal activities as far as how long
16 she liked to do things and getting back to normal ways
17 of doing things. With this more vigorous exercise
18 program, she was being quite successful. She is not
19 totally restored to maximum medical improvement. With
20 reasonable diligence that she has demonstrated, I would
21 eetimate her ability to do so within the next four
22 months to six months would be considered 80 percent
23 positive.
24
25
(Pause. )
MR. KEATING: I have, that's all the questions
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1 I have.
2
CROSS EXAMINATION
3 BY MR. RICKARDSI
4
Q
Dr. Sanderson, my name is Girard Rickard.. I
5 represent Mrs. Clapper, the Defendant in this case.
6
Can I ask you initially who, who referred Lisa
7 Brown to your practice?
8
A
I believe it was her present stepfather who is
9 also a patient of mine and had been a patient of mine
10 prior to my meeting Lisa.
11
Q
And let me ask you this, Uoctor, your initial
12 meeting with her was on February 25th, 1993. That was
4It 13 about 19 days after the accident?
14
15
A
I believe 17, but in that ball park.
All right. Well if the -- the accident was
Q
16 February 6th and you didn't see her until February
17 29th, that's -- those are the right dates and w~'ll let
18 somebody else do the math.
19
20
A
You got it.
And do I understand you to say that Lisa Brown
Q
21 told you that before this automobile accident, she did
22 not remember having complaints of neck pain?
23
A
Of this nature or of the severity, she could
24 not recall having these same, similar complaints at any
25 time in her life. The only orthopedic problem
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1 significant as to which she was aware of was of her
2 left knee for which she had undergone arthroDcopic
3 surgery in 1990 &nd with which she .til1 has on and
4 off, intermittent but not disabling problems.
5
Q
And, in fact, regarding the knee, Doctor,
6 isn't it true in November of 1995, one of her visits
7 with you, her chief complaint was a knee problem?
8
9
A
That was of a different nature.
Q
Let me ask you this, the complaint of knee
10 problems in November of 1995, you attribute that to the
11 automobile accident of February of 19931
12
A
No, sir, I do not. Her complaint of anterior
c:> 13 left knee pain in November of 1995 was due to a
14 pre-patella bursitis which is pain in the same area of
15 the knee of which she complained to me which she had
16 had in 1990 but for a much different reason.
17 Q Now in terms of your initial meeting with Liea
18 Brown, I take it that she didn't tell you that she had
19 a prior history of being treated for headache problems?
20 A In the sense that she had chronic einus
21 probleme of which she frequently took medication.
22 Q She told you that?
23 A Yes.
24 Q Did she tell you that she had sought
25 chiropractic help for occipital headaches between May
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1 of 1991 and October of 1992?
2 A No, sir.
3 Q And that -- did she tell you that she had
4 sought chiropractic help for low back pain back in the
5 .pring of 1991?
6
7
A
No, sir.
Did she tell you that 6he had also received
Q
8 chiropractic treatment for complaints of right-hand
9 numbness prior to the automobile accident that we're
10 talking about?
11 A No, sir.
12 Q So would you be surprised to learn that her
Q 13 family doctor, in fact, had diagnosed her with
14 tendinitis of the right wrist back in February of 1991?
15 A Would I be surprised? No, I wouldn't be
16 surprised.
17
Q
Well the reason I ask about the wrist, Doctor,
18 is in your conclusions, you mention certain muscles in
19 the extremities and particularly the upper extremities.
20 Can I ask you to expound specifically on what, what
21 areas of the extremities you're relating to the
22 automobile accident?
23
A
I related my testimony so far, muscles of the
24 shoulder girdle located between the middle of the
25 shoulder blades, muscles corning from the front of the
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1 increased neck pain that she consider tryin9 Darvocet
2 as a painkiller until her problema were resolved.
3
o
Did you tell Lisa Brown not to do any
4 exercisin9 other than the specific exercises you had
5 9iven her over the couree of her treatment?
6
A
I did, not, not quite in that light. I
7 advised that ehe perform specific strengthening
8 exercises, as I stated, for the most significantly
9 involved muscle groups that I diagnosed and conversely
10 as part of the advice for specific, physical
11 limitations that would encompass all the more vigorous
12 exercises.
13
o
Now, Doctor, throughout the course of your
14 treatment and the time that Lisa Brown has been coming
15 here, are you aware of any other incidents where she
16 suffered an aggravation of her neck or back problems as
17 a result of other, other incidents?
18
A
Yes, sir. I believe it was two different
19 occasions. She at the time of her office visit related
20 that she had slipped, I think, once in mud and prior to
21 that slipped on slippery ice and/or snow and that was
22 back two yeare ago.
23
Q
In your initial visit with Lisa Brown, do I
24 read your notes correctly that her complaint about her
25 low back at that point in time, that is February 25th
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1 anyone undergoing her similar problems that has the
2 ability and h~s been successful in completing their
3 rehabilitation because, simply, success from a
4 rehabilitation program is dependent on, one, the
5 patient having adequate knowledge and power to achieve
6 it, which is my responsibility as a teacher; two, it is
7 necessary to apply the knowledge on a full-time basi~
8 which I've already tried to explain is behaviorally
9 quite difficult for any individual; therefore, one of
10 my jobs is constantly, when discussing patients'
11 problems, to do my best to stimulate the thought
12 processes of the patient so that they can provide the
c:> 13 adequate level of motivation and sslf-discipline to
14 apply their knowledge on a full-time basis.
15
Q
Let me ask you some specific questions
16 relating to notes -- and I'd ask you to refer to your
17 notes, Doctor -- the entry of May 10th of 1993.
18
19
20
21
A
May 10th?
Q
Yeah.
A
Yes, sir.
Q
And at that point in time, Liea Brown came in
22 to you and told you that, according to your notes, that
23 she was feeling well with no new symptoms and was not
24 having any trouble sleeping at that point in time?
25
A
That's correct.
I
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Q
In -- I guess you had mentioned a slip and
If you would take a look at your note of
3 February 4th of 1994, was that the occasion when Miss
4 Brown carne in and told you that she had, she had
5 fallen, had fallen?
6
7
A
Right, correct.
Q
And on March 18th of 1994, Miss Brown told you
8 that she was having some headaches that she attributed
9 to exams at school?
10
11
A
That was her assessment, yes.
Q
All right. In one other note, Doctor, January
12 16th of 1995, that would have been the time when Miss
c:> 13 Brown mentioned slipping in the mud the day before her
14 visit?
15
16
A
That's correct.
17 Doctor, and one was that Miss Brown had a
Q
You mentioned a couple of your findings,
19
18 sway-backedness I believe you told me?
A
Yeah, a reduction of the normal sway-backed
21
20 posturing of the lower back.
Are there cases of sway-backedness that are
Q
22 not caused by automobile accidents?
23
24
A
Oh, certainly.
Q
And the same question with
25 round-shoulderedness, you described I guess like a
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1 hunched over; is that a fair assessment, her shoulders
2 would be towards the ground?
3
4
A
Q
Poor posture.
Poor posture. And those are things that can
5 be caused by somethins other than an automobile
6 accident?
7
A
Certainly; but are extremely common following
8 rear ended car accidents because one postures, stands,
9 walks only as well as the muscles that do that against
10 the force of gravity or function.
11
Q
12 bad posture?
Oh, muscle strain problems are the most common
o
13
A
14 affliction of mankind.
15
Q
You would agree, though, some people just have
16 trauma, an individual who would have sway-backedness
Let me ask you this, Doctor, in the ahsence of
17 and round-shoulderedness, might they have the similar
18 symptoms that Lisa Brown has?
19
A
20 There's micro trauma and there's macro trauma.
It all depends on what you define as trauma.
2l
22
Q
A
Okay. Fair enough, Doctor.
Well, in essence, yes, there are plenty of
23 people that have no history of automobile accidents
24 that have poor posture due to poor functioning
25 musculature, I grant that.
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Are you familiar with Richard Boal, an
Q
2 orthopedic surgeon?
3
4
A
Yes, I am.
Q
And do you have an opinion, Doctor, as far as
5 one way or the other on his credentials as an
6 orthopedic surgeon?
7
8
9
A
No, I, I participated in part of his training.
MR. RICKARDS: Thanks. No further questions.
REDIRECT EXAMINATION
10 BY MR. KEATING:
11
12
o
I do have one or two redirect.
Doctor, I just have a couple other questions
13 and one is, there was some question, not question, but
14 some area about motivation to recuperate. Did you find
15 in your opinion that Lisa, as compared to your other
16 clients, showed motivation in order to recuperate?
17
A
Lisa in my impression of attending her and her
18 problems and many other patients over many years of
19 private practice, did a very good job. She made
20 mistakes that were not intended.
She has improved
21 further than many other patients with much more severe
22 injuries that took longer to get the results as she has
23 gotten.
And she's done an admirable job all at the
24 same time trying to get through college, trying to work
25 her way through college and earn a living at the same
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1 time.
That's extremity difficult for any individual to
2 do, and I'm not sure if I could have done as well as
3 she did under the same circumstances.
4
Q
The other thing is, during cross examination
5 there was made some reference to the May 10th, 1993
6 where it says, states that she is feeling well with no
7 new symptoms. She did state to you at that time, I
8 assume because it's in the report, is that correct,
9 that she was feeling well and had no new symptoms?
10
A
Yes. When I make these office notations I,
11 typically, the first entry is a summarization of the
12 patient's subjective assessments of his or her
c:> 13 problems. And that summarization is just to indicate
14 that she had improved far enough that her symptoms were
15 not interfering with her sleep because when they were
16 severe, they were/ and also that she had no additional
17 problems contributing to her pain disability level.
18
And as far as my objective findings for that
19 date, she had made significant improvement and that has
20 to be related to the physical limitations I recommended
21 and not to what all of us here would consider a normal
22 level of activity, indicating that she had made
23 eignificant progress over the prior two months plus.
24
Q
The other thing, Docto~, is the March 18th,
25 1994 wae brought out that she had attributed headaches
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1 to her exams and, of course, during Counsel's
2 questions, he pointed out that she had a bit of a
3 history of complaining of headaches.
Did you indicate
4 that there's a difference between sinus headaches
5 versus occipital headaches versus stress?
I'm not sure
6 I undsrstand to what extent, if it's possible, to tag
7 one casual relationship to one typs of headache or not.
8 I just don't know.
Could you give us any insight on
9 that?
10
A
Well, in this instance I can say, in Answering
11 your question, there's been text upon text and papers
12 upon papers and journals that have been written upon
CD 13 various causes of headaches which there must be at
14 least 250 different attributable reasons.
In Lisa's
15 case of my knowledge of her orthopedic problems,
16 headaches in the back of the neck, back of the head are
17 muscular in origin, or if the shoulder muscles are
18 weak, they cannot hold up the weight of the arm against
19 gravity and that weight hangs off the neck muscles and
20 the strain is a headache; just like straining the calf
21 muscles, the Charlie horse that jumps peoplfl out of
22 bed.
23
Sinus headaches typically are more frontal,
24 but they can cause tightneas of the neck muscles, also,
25 if they get severe enough.
So in her case as long as
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1 she has tenderness, spa8m and weakness of the shoulder
2 mU8cle8 and tells me the headaches are primarily in the
3 back of the head as opposed to the spinous facial
4 region, I will attribute those headaches to her muscle
5 strain difficulties. In other word. she has had no
6 findings of shoulder muscle strain; at the most, ehe
7 has her more typical sinus headaches which i~ quite
8 common in this part of the country.
9
MR. KEATING: I don't have any further
10 questions.
11
12 BY MR. RICKARDS:
RECROSS EXAMINATION
13
14
One follow-up on headaches, Doctor.
You talked about headaches related to the
Q
15 musculature, headaches from sinus problems. There's
16 another type of headache that, I think, has come up in
17 the testimony of Miss Brown and that's a migraine
18 headache. Is that a different type of headache than
19 the other two?
20
Yes. A migraine is a totally different entity
A
21 not related to muscles. Migraine usually is
22 attributable to the vasculature or blood vessels
23 supplying the scalp region with a blood supply.
24 Thsy're often accompanied by visual, auditory aura, 80
25 to speak, and are of a totally different nature of
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1 those of which Mias Brown has complained to me.
2 required a totally different type of treatment.
It
3
4
5
MR. HICKARDS: That's all I have. Thanks.
MR. KEATING: I think that's it.
(Whereupon, at 3:53 p.m., the deposition
6 conc luded. )
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1 COUNTY OF DAUPHIN
2
3 COMMONWEALTH OF PENNSYLVANIA
SS
4
5
I, Natalie L. Andreine, a Notary Public,
6 authorized to administer oaths within and for the
7 Commonwealth of Pennsylvania, do hereby certify that
8 the foregoing is the testimony of DOUGLAS K. SANDERSON,
9 M.D.
10
I further certify that before the taking of
II said deposition, the witness was duly sworn; that the
12 questions and answers were taken down stenographically
<:) 13 by the said Reporter-Notary Public, and afterwarde
14 reduced to typewriting under the direction of the said
15 Reporter.
16
I further certify that the said deposition was
17 taken at the time and place specified in the caption
18 sheet hereof. I further certify that I am not a
19 relative or employee or attorney or counsel to any of
20 the parties, or a relative or employe~ of such attorney
21 or counsel, or financially interested directly or
22 indirectly in this action.
23
I further certify that the said deposition
24 constitutes a true record of the testimony given by the
25 said witness.
,
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1
IN WITNESS WHERBOF, I have hereunto set my
2 hand this lOth day of May, 1996.
3
4
/l~' ~J1td~r'vJ-
~ie L. An reine, Reporter
Notary Public
NI)lilrl,d :-:;l_:-,!
Na18Ue L.. Andr8lfIt,l, Notal'j Publk;
Lower P""ton Twp, Dauphin County
My CommIuIon EJCPires Dee, 20, 1*
The foregoing certification does not apply to
any reproduction of the same by any means unless under
the direct control and/or supervis~on of the certifying
reporter.
^NDREINE REPORTING
NATALIE L. ANDREINE, COURT REPORTER
122 Locust Street
Harrisburg, Pennsylvania 17101
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