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HomeMy WebLinkAbout95-00932 ~ Personal Injury Claim (Contributory Negligence) The Plaintiff claims that she was injured and sustained damages as a result of the negligent conduct of the Defendant. Plaintiff has the burden of proving her \/ claims, The Defendant denies the Painti1l's claims and asserts as an affirmative defense that the Plaintiff, herself, was negligent and that such negligence was a substantial factor in bringing about Plainti1l's injuries, The Defendant has the burden of proving this affirmative defense. Based upon the evidence presented at this trial, the only issues for you to decide in accordance with the law 8s1 shall give it to you, are: First: Was the defendant negligent? Second: Was the defendant's conduct a substantial factor in bringing about harm to the plaintill'? Third: Was the plaintiff. herself, negligent and was such negligence a substantial factor in bringing about her own injury? pennsylvania suggested Standard Civil Jury Instructions 3.00 SUDDEN EMERGENCY The defendant claims that he was confronted with a "sudden emergency," and the burden of proving this defense is on the defendant. He is required to show that, suddenly and without warning, he was confronted with a dangerous situation he did not create and which required immediate evasive action, " A defendant Caced with a sudden emergency is still required to respond ~ " reasonably, The reasonableness ofWs response must be determined in light oCthe cixcumstances and the time tbe defendant had to react and not whether he could have responded differently ifhe had had more time to think, If you find that there was no emergency or that the emergency was created by the defendant, then the deCendant has not met his burden of proof, If you find that the deCendant bas proven that he was confronted with a sudden emergency not oChis own making, you must determine whether the deCendant's response to that emergency was reasonable undor the cixcumstanccs, If you find that the defendant's response was reasonable under the cixcumstanccs, your verdict must be for the deCendant. Pennsylvania Suggested Standard Civil Jury Instructions 3.18 JANE L, SCHWENK alkla JANE L" BLOSSER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v, : No, 95-932 CIVIL TERM GARTH YINGLING, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PLAINTIFF'S POINTS FOR CHARGE Plaintiff, through her allorney, Lawrence J, Neary, Esquire respectfully requests This Honorable Court to charge the jury as follows: 1. Standard SUl!l!ested Pennsvlvania Jurv Instruction 3,00 - Issues in the case - Personal \:i Injury Claim - without reference to contributory or comparative negligence, i-' 2, Standard SUl!l!ested Pennsvlvania Jurv Instruction 3,01 - Negligence - Definition \\ 1-'\~., 3, Standard SUl!l!ested Pennsvlvania Jurv Instruction 3,03 - Ncgligence per se Violation of Statute, To aid you in detennining the reasonableness of care exercised by the Defendant in this case, we must make reference to the laws of this Commonwealth, in effect at the time this incident occurred, The Motor Vehicle Code, 75 Pa,C,S,A, 3361 dictates the duty of care required of someone in the same situation as the Defendant. "No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring this vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching" ,an intersection of when approaching or going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or hil!hwav conditions, " If you find that the Defendant, Mr, Yingling violated this Section of the Motor Vehicle Code, you must tind the Defendant negligent as a matter of law, 2 6, The condition of the roadway must be considered by a driver in regulating his speed \ \ ....---- and controlling his vehicle, Bohner v, Stine, 463 A2d 438 (Pa,Super 1983) /" , \' .--: \ 7, The operator of a motor vehicle may be negligent for driving too fast for conditions then and there existing, Thus, if you find that the Defendant was driving too fast for conditions existing at the time of the accident, this would constitute negligence on his part, MeDoul!all v, Chalmers, 162 A2d 51 (Pa,Super 1960) 4 , I )/\ 8. Standard Suggested Pennsylvania Jurv Instruction 3,03 - Negligence per se Violation . J of Statute, To further aid you in detennining a reasonableness of care exercised by the Defendant in this case, we must make reference to the laws of this Commonwealth, in effect at the time this incident occurred. The Motor Vehicle Code, 75 Pa.C,S,A, 3310 dictates the duty of care required of someone in the same situation as the Defendant, This section reads as follows: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicle and the traffic upon and the condition of the highway," If you find that the Defendant, Mr, Yingling violated this Section of the Motor Vehicle Code, you must find the Defendant negligent as a matter of law, 5 ( (. j 9, The negligent party is liahle for all injuries caused by his negligence, The tenn injury refers as much to the aggravation of an already existing disability as it does to the infliction of a new injury, When a personal injury caused hy the negligent party aggravates an existing infinnity or disease, resulting in the prolongation of the injuries and the corresponding increase in damages, compensation for such added or increased damages may be recovered, Thus the negligent party is liable for all haml caused by his negligent act, though increased by an unknown physical condition, which could not have been discovered or anticipated prior to the incident. In this case, Jane Blosser has a prior injury to her lower back she claims was either aggravated or reinjured as a result of the automobile accident, The fact of her prior injury does not relieve the Defendant of his responsibility for the aggravation of the prior injury if he is , found to be negligent, Pavorskv v, Enl!els, 410 Pa,Super 100, 188 A2d 731 at 733 (1963) Or, stated another way, the negligent party must take the victim as he finds her, The negligent party is liable to the full extent of the victim's injuries even if the victim's particular sensibility resulted in more hann than the negligent party could have foreseen, Lehsco v, Southem Eastern Pennsvlvania Transit Authority, 251 Pa,Super 415, 380 A2d 848 at 852 (1977) 6 '0' {jJrA.Yp. )~tYY' 71 2.. : ()} 1ft; .;I:I~\ I) lQ~(:\ j, (1)()1Jf- -\- _ _\; (. j) ," 0 \ t) L _ , ~-Q)\~6.D O-Or/-{;l'\.P c I (I', 017 WJJV ~ Jo (?UJ<=c\ ft,J- #-2- . ~. '.. /, " i ,.- , , , , , , .r I \ r , , \ . , - - , , \t.~~'~' i f ! \ '~'_".:~ .!.,,__~1 . . _~1~' .. "\.1 \ JANE L. SCHWENK alkla, JANE L. BLOSSER, Plaintiff IN THE COURT OF eOMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. . . . . : GARTH YINGLING, Defendant : NO. 95-0932 CIVIL TERM VERDICT QUESTION 1: Was defendant, Garth V yingling, negligent? NO YES If your answer to Question number 1 is "No", return to the Courtroom and do not answer any furthsr questions. If your answer to Question number 1 is "Yes", go on to Question 2. QUESTION 2: Was the defendant's negligence, a substantial factor in bringing about YES the plaintiff's harm? V' NO If you answer Question 2 "No", the plaintiff cannot recover and you should not answer any further questions and should return to the Courtroom. QUESTION 3: Was plaintiff Jane L. Schwenk Blosser contributorily negligent? YES v NO If your answer to Question number 3 is "No" proceed to Question number 6. If your ..nswer is "Yes", proceed to Question number 4. -'"", QUESTION 4: Was the plaintiff's contributory negligence a substantial factor in causing the accident? YES ~ NO If your answer to Question number 4 is "No", skip Question number 5 and go to Question number 6. If your answer is "Yes", proceed to Question number 5. QUESTION: 5 Taking the combined negligence that was a substantial factor in bringing about plaintiff's harm as lOO%, what percentage of causal negligence was attributable to the defendant and what percentage was attributable to the plaintiff? Percentage of causal negligence attributable to defendant? S5 % Percentage of causal negligence attributable to plaintiff? 45 % TOTAL lOa % If you have found the plaintiff's causal negligence to be greater than 50%, then the plaintiff cannot recover and you should not answer Question number 6 and should return to the Courtroom. QUESTION 6: What amount do you award to plaintiff for her injuries? $ v \01 COO ,0,/ MARCH 19, 1996 ~))) <"~i..;' ,~~t .ff,Y ,1/",'1 ': _ ~ - ".~: . . ,.q"',,, t.t'i"'''' ..' ,(,' I' ~':1J l~'~'Jlj,;;":Jkv}'\'''' ';' r",' , ?t!,.l:'~,,::,,~\'-;~-I' il. <:;J./\.. . 7 ~~)/;7"r",'"i1,~;T'-'n- ::.. p't <, ,J ~l.!cj 11 ~r, .'j '"'.'" r ~,'., ~ ,\ h~~q:.'1! V-"'Jl,.!}.t""f\.~4: ..;. ",. " < ,'v"4,., l~lr,.:\..1 ," .. I' ""'", , Fjf.f{:.;,}:t.;A.~/!'l:; ,I~.; . ~:: :"; . '> . l; 1;',L."'~',-;{",\j.~'~"f'.,~..... . "l"':~' 'I~ !I.l~;j,:. 'I: >; E ..' t..., .-. ",' ~. , . I ' ~iJ)"l,':~~'>;\,"""H~' 1.1,"...' t~' ;.'. ; r' :Vli~;<?:."I!:~ -L:~':-ri\\' 'J'; , , \> l. :\,-' /' ~).-~jj'1'-!'~':~1'fl.-~'t~..,~:.., ..=,~. It ,,'J.:'f' :< -... 1 >';- r;!t><!.f~h;'f~ t\.\I:~r\."l:"~I;;',I,", )~' !. .'. ~~." " "''','''" 1?~V :j.,~l!,\. ';:.1~ ,J)'." ,-" ~ .: . ;~:-:>~-'..) 'i~,~:}.\_;'Lh:j, ":.....~,; ~J"y:(\ ~,~~/: "v ,'tl" '-~"~' '. !;~[:,~~::(~:;'~ ~,; ,::::~;:: ~_::'~~' ,'"~.< ': ,}' -"c '.,' ~r4Jf\ ~Y::'-:,,1\,\.'~I",1 ~,~ ,":, t"~ "'/' " 1 '. ',,,' _"'- ,'- ". ,.,i"U.omcu ." .-' "'.'1'':;'l:'1":;~; t",' r.:. . t ,: t (I - t . . "" c' .-' , '-' '-'-.' .' -' ~r~~~.';~!~~:/~ ~';,it: ';', \ .".' ~'., "_-1/-~.'-;;'.,Co~N,'ELLy,'REiD..~SPAD,E:: t~'::j :!"-,,,...:'.'.: :~.c.{.' ;~,.~' -), ,-" - . . ." - " ~,~~'(io..~~"'i...,...'1 ~. ;;~y~ .n'.. ,,_ _.' ;. toe-112WAU<<JT &maT : "'!;:-V!{h)l1.\~.~ '~~:"" . ',;>" , ~ t ~ ,.::i _.' ;"!._'_-;_--',~o~8OIlk3/:-,-j .,t, ~~.~~~.~-!! ;.:.,1....:...'... B' ,~: 'u.~1ftft nn-YlVNtAI1108 ~"l$;-tI''::-l:::'<H/tl..~~ '.. . ~- -,,'t,''- ~-.rUllfN .- ,.,:O\o;.t;,).':..~'!.'::~....~. ;"'.,. ,~;,',.l . "717.238-4ne" "',~>:5~~:~fJ~~:\~\;F<~:':,., ,:,..,,': ,,;', FAX~7D3 ,,", 'I,' . ~: " .... JANE L, SCHWENK a/kl:l JANE L,. BLOSSER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLANDCOUNTY,PENNSYLVANIA v, : No, 95-932 CIVIL TERM GARTH YINGLING, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PLAINTIFF'S PRE-TRIAL MEMORANDUM I, FACTS AS TO LIABILITY: This action arose out of a motor vehicle collision that occurred on Murch IS, 1993, the day after the "Blizzard", on Old Gellysburg Road in Lower Allen Township ut approximately 9:30 p,m.. While traveling at about 5 miles per hour, without any vehicles behind her, Pluintiffs vehicle cume upon a sheet of ice in a low spot on the roud. Her vehicle skidded into a snow bunk and only the rear end wus on the roadway. After the vehicle cume to rest in the snow bank, Pluintiff turned to check on her pussengers when she saw the Defendant's vehicle upprouching out of control us it slammed into the rearend of hcr vehicle, Defendunt admilled he saw Pluintiff upply her brakes at which time he left off the gus pedul und when he suw the other vehicle begin to slide, he then pumped his brnkes but could not hring his vehicle to u stop before striking the rearend of the Plaintiff's vehicle, II. FACTS AS TO DAMAGES: Plaintiff, prior to this incident, had experienccd lumbar pain duc to disc involvcment which had heen surgically repaired and heuled and was not producing uny puin at the limc of the incidcnt, Shortly after impucl Plaimiff inulIcdiutcly cxpcricnccd thc rclurn of low hack puin with -.. a diminished reflex in her leg which indicated a pinched nerve, It was thought that she Imd re- injured her old injury and a physical therapy course was prescribed, Over two and a half years, the pain persisted despite conservative treatment and restrictions from lifting and strenuous activities, In September of 1995, an MRI was perfonned which indicated a ruptured disc which indicuted a new and distinct injury to the spine, This type of injury is generally not subject to surgicaltreuunent and will result in continued chronic low back pain for the foreseeable future, No treatment or medication will relieve the symptoms or will return her spine to its pre-injury condition, Her current restrictions include no heavy lifting or prolonged silting and standing, J1/, ISSUES OF LIABILITY AND DAMAGES: LIABILITY ISSUE: WAS THE DEFENDANT NEGLIGENT IN THE OPERATION OF HIS MOTOR VEHICLE BY FAILING TO HAVE HIS VEHICLE UNDER CONTROL, DRIVING AT AN EXCESSIVE RATE OF SPEED UNDER THE CIRCUMSTANCES AND BY FAILING TO STOP HIS VEHICLE WITHIN THE ASSURED CLEAR DISTANCE AHEAD" Suggested Answer: Yes DAMAGES: WHAT AMOUNT IS TO BE AWARDED TO THE PLAINTIFF FOR HER PHYSICAL PAIN, MENTAL SUFFERING, INCONVENIENCE, HUMILIATION AND LOSS OF LIFE'S PLEASURES? IV, SUMMARY OF LEGAL ISSUES: This euse involves the Defendant's vehicle skidding on an ice covered roadway and care is required in addressing this concept to the jury in the points for charge, 2 V, WITNESSES: Jane Blosser - Plaintiff Richard C, Blosser, husband of Plaintiff ,I Deposition for use at trial of Doctor Robert p, Lonergan taken on November 21, 1995 (Note objection in transcript on page 36) VI, EXHIBITS: None VII. CURRENT STATUS OF NEGOTIATIONS: A revised demand of $75,000,00 was submitted after the MRI continued the existence of a separate and distinct disc injury, The Defendant's final offer of $6,750,00 was made on March 6, 1995 following the tiling of the Complaint on February 22, 1995, VIII. OTHER ISSUES: Defendant had requested that Plaintiff submit to an IME which she did, but as of yet Plaintiffs attorney has not been provided with a copy of the report nor have they scheduled the Doctor's deposition, if he is to testify at trial. Respectfully Submitted, CONNELLY, REID & SPADE Datc:#h 3 JANE L, SCHWENK alk/a JANE L., BLOSSER, Plaintiff v, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No, 95-932 CIVIL TERM GARTH YINGLING, Defendant : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE Please reiastate the Complaint entered to the above captioned action and direct the Sheriff to serve the Defendant, Garth Yingling, at 4612 Brian Road, Mechancisburg, PA 17055, Respectfully Submitted, CONNELLY, REID & SPADE Date: '~/I/ 9 ')" -' 171 08 (~\ l/\ I " ~ ." :u L."1 N '. .... -<= -0 =>:: ...; u:> CJ1 . -....-,.. .-_. -~ _:-,'.7'0- "- JANE L. SCHWENK n/kln JANE L" BLOSSER, Plnlntlff : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 1j-- tj 3:.2- Oql.;,j_~I/wV'--/ v. GARTII YINGLING, Defendnnt : CIVIL ACTION. LAW : JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court, If you wish to defend against the claims set forth in the following papers, you must take action within twenty (20) days after this Complaint and notice are served, by entering a wrillen appearance personally or by allomey and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff, You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER 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, Fourth Floor Cumberland County Court House I Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (7 I 7) 240-6200 Date: ::)k6/9~-" / 4, This accident resulted solely from the negligence and recklessness of the Defendant herein and was due in no manner whatsoever to any act or failure to act on the part of the Plaintiff, 5, The negligence and recklessness of the Defendant consisted of the following: a. Failure to properly operate and control his motor vehicle: b, Driving at an excessive rate of speed under the circumstances: c, Operating his vehicle without due regard for the rights, safety and position of the Plaintiff at the point aforesaid: d. Failing to stop his vehicle within the assured clear distance ahead, e, Failing to keep a reasonable and proper look out on the highway for other vehicles: f, Failing to exercise a degree of care, caution and skill reasonably required under all the circumstances, including the weather conditions, 6. As a result of this accident, Plaintiff has suffered injuries which are or may be serious, including aggravation of a previous back injury,which involved a laminectomy at the S I level, left sided back strain, numbness in her right leg and foot, shock to the nerves and nervous system and various other ills and injuries, 7. As a further result of this accident, Plaintiff has been obliged to receive and undergo medical attention and care and to incur various medical expenses and may be obliged to continue to expcnd such sums or incur such cxpenditurcs for an indefinite time in the futurc, 2 8, As a further result of this action, Plaintiff has suffered a loss of earnings and loss of earning capacity which may exceed the sum recoverable under the limits in 75 P,S, ~1711. 9. As a further result of this accident, Plaintiff has suffered physical pain, mental anguish, inconvenience, humiliation, and loss of life's pleasure and may continue to suffer the same for an indefinite time in the future, WHEREFORE, Plaintiff demands Judgment in an amount in excess of $20,000,00 plus costs of suit. Respectfully Submitted, CONNELLY, REID & SPADE Date: ;)/;)Q /9) / ' By: __ a~ nee J, Neary, squire ttOrney for Plain:' f 108 - 112 Walnut Street p, 0, Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telccopicr Pa. I.D, No, 25827 3 ~~~ - ~ '- ~ ~V ~, ........ ~ ~., l") ~ \.J.J c:1 l.;...,.1 "' llJ - "UX ~.~ ... \..N 2..; ---J ~I ,~tT".r '., ....... ;,:.,.,'''' ....... ~ ;;'.'"\1 :1 ~ c:- ~j~ ;::~, N ,.-:J:..~('.J .,:u:.t.;"T1 W 'f::::-, ),..no~ I;) G" ~o~;; ... ,\::> I.r;~'" -0 ""I .. -= ~j L. =J,., - eI -< ~ ,~'~, ~-' ~~ '~. ~,l\ ~ ~ "- ~t ~ ,~ ~" ~~' -- .- .. _.~--...__.. SlIglll 1'1' I S Ilg'l'lJllN eOMMONWEALTII OF PENNSYLVANIA In The Court of Call1lon Pleas of O,"berland County, Pennsylvania No. 95-932 eivil Term eanplain t and Not ice eOUNTY OF CUMBERLAND Jane [,. Schwenk a/k/a Jane L. Blosser VS Garth Yingling R. THOMAS KLINE, Sheriff, who being duly sworn according to law, says, that he made diligent search and inquiry for the within named defendan t to wi t. Garth Yingling bu t was unable to loca te him in his bailiwick, He therefore returns the eomplaint and Notice defendant, Garth Yingling, NOT FOUND, as to the within named Defendant moved and left no forwarding address with the Post Office. I , Sheriff's Costs. Docketing Service Affidavit Surcharge 18,00 6,72 So answers. , ...-;;"P" / i-;.-::::;>";- /$- IR, ~1I0MAS KLINE, Sheriff 2,00 26,72 I'd, by Atty, 3-06-95 Sworn and subscribed to before me this 1,/0, I.. day of }/ l~...d.....- 19 . , '/ ~ A.D. ,"-, 1"1 ,~- D /) Lu\'.,--, tJ'",i,. I ~ , T Prothonotary JANE L, SCHWENK nlltln JANE L" BLOSSER, Plnlntlff v, GARTH YINGLING, Defendant : IN TilE COURT OF COMMON PLEAS OF : CUMBERLAND COUNIT, PENNSYLVANIA : No, 1J-~ yJ;}- (]-L~L~tL Jk.fY\- : CIVIL ACTION. LAW : JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLATM RIGHTS You have been sued in Court, If you wish to defend against the claims set forth in the following papers, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER 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, Fourth Floor Cumberland County Court House 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 Date: q/cJU!9:)" / . TRUE COPY FROM RECORD III TealtllMlY whereof, II:.~r8 unlb set my _ II1d ~ seal of sal C t rlIaIe, PI. .> day' of 111 q~ \. .-lA- ,,' t . 4, This accident resulted solely from the negligence and recklessness of the Defendant herein and was due in no manner whatsoever to any act or failure to act on the part of the Plaintiff, 5, The negligence and recklessness of the Defendant consisted of the following: a, Failure to properly operate and control his motor vehicle; b, Driving at an excessive rate of speed under the circumstances; c, Operating his vehicle without due regard for the rights, safety and position of the Plaintiff at the point aforesaid; d, Failing to stop his vehicle within the assured clear distance ahead. e, Failing to keep a reasonable and proper look out on the highway for other vehicles; f, Failing to exercise a degree of care, caution and skill reasonably required under all the circumstances, including the weather conditions. 6, As a result of this accident, Plaintiff has suffered injuries which are or may be serious, including aggravation of a previous back injury, which involved a laminectomy at the S 1 level, left sided back strain, numbness in her right leg and foot, shock to the nerves and nervous system and various other ills and inj uries. 7, As a further result of this accident, Plaintiff has been Obliged to receive and undergo medical attention and care and to incur various medical expenses and may be obliged to continue to expend such sums or incur such expenditures for an indefinite time in the future, 2 8. As a further result of this action, Plaintiff has suffered a loss of earnings and loss of earning capacity which may exceed the sum recoverable under the limits in 75 P,S. 91711. 9. As a further result of this accident, Plaintiff has suffered physical pain, mental anguish, inconvenience, humiliation, and loss of life's pleasure and may continue to suffer the same for an indefinite time in the future, WHEREFORE, Plaintiff demands Judgment in an amount in excess of $20,000,00 plus costs of suit. Respectfully Submitted, CONNELLY, REID & SPADE w nce 1. Neary squire omey for Plai 'f 108 - 112 Walnut Street p, 0, Box 963 Harrisburg P A 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa, 1.D. No. 25827 Date: d/JO /9';- / ' By: 3 YERIFICA TION I, JANE L, SCHWENK a/k/a JANE L, BLOSSER, hereby acknowledge that I am a Plaintiff in the foregoing action; that I have read the foregoing Complaint and the statements made therein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa,C.S, Section 4904 relating to unswom falsification to authorities. -~ ,/ Datero-I.'-\..('J~' \ \"tL{"') ) ... ~ "~) -:2-:-:, ~~.; .:~ ~.) l-/ 'I .' ...'.'1..... ., ,-' J I 0"':1 ':','_4( ..:, '/ L .~S, /"" : i I. U Ulj .:.'.;! '1...,'/ ''';'~,IO -= SHERIFF'S RETURN CASE NO: 1995-0093: P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SCHWENK JANE L ET AL VS, YINGLING GARTH WESLEY COOK , Sheriff or Deputy Sheriff of eUMBERLAND County, Pennaylvnnin, who being duly sworn nccording to low, says, that he served the within upon YINGLING GARTH COMPLAINT the defendant, at 1995 at 4612 MECHAN ICSBURG, 1745100 HOURS, BRIAN ROADT PA 17055 on the 10th day of April , CUMBERLAND YINGLING, WIFE OF County, Pennsylvania, by handing to JENNIFER GARTH YINGLING AND ADULT IN CHARGE OF RESIDENCE a true and attested copy of the COMPLAINT and at the same time directing Her attention to the contents thereof, Sheriff's CoStSI Docketing Service Affidavit Surcharge 18,00 7,28 ,00 2,00 So answer~;.., // "./'/'/ _"""(~~~,,, . //'" f- ~::(:.....~~.c ?,,-:D..,r::..., ~ho,"as Kl1ne, Sher111 $27,28 LAWRENCE NEARY 04/12/1995 by /~i /}, -C~/~t:'t:',,/ De p,U1;' Sworn ond subscribed to before me ,r,!:::- day of {l11.J , this 19 (;~/ A, D, Y'lL'-' /-, Jlu.(L..~I-T7' ~onOEary ',n'" . ,{.-.;;:,;'.~';'~,j io.',;, .'. . ". ~, ',' 'I'hu Lull' Offit'tl" of HARRINGTON, KAUFFMAN & SIIILLlNG :121 IN. Frunl Slrl'vl,lIurrhihurg. P/\ 17110 " aB a reBult of PlaintiffB careleBsness as further set forth in Defendant'B New Matter, 4, It is specifically denied that the Defendant was negligent or reckless in any manner and it is averred that the accident was as a result of the actions of the careless and negligent acts of the Plaintiff, 5, It is specifically denied that the Defendant was in any manner negligent or reckless and averB further: a, He did not fail to properly operate and control his motor vehicle; b, He was not driving at an excessive rate of speed under the circumstances; c, He was operating his vehicle with due regard for the rights, safety and position of the Plaintiff; d, He did not fnil to stop his vehicle within the assured clear distance ahead; e, He did keep a reasonable and proper lookout on the highway for other vehicles; f. He did exercise the degree of care, caution and skill reasonably required under the circumstances, including the weather conditions; 6, Mter reasonable investigation, Answering Defendant is without sufficient knowledge and information to form a belief as to the truth or accuracy of 2 paragraph 6 ofthe Complaint, and, accordingly, said averments arc denied. Strict proof thereof is demanded at time of trial. 7. Mter reasonable investigation, Answering Defendant is without sufficient knowledge and information to form a belief as to the truth or accuracy of paragraph 7 ofthe Complaint, and, accordingly, said averments arc denied. Strict proof thereof is demanded at time of trial. 8. Mter reasonable investigation, Answering Defendant is without sufficient knowledge and information to form a belief as to the truth or accuracy of paragraph 8 ofthe Complaint, and, accordingly, said averments arc denied. Strict proof thereof is demanded at time of trial. 9. Mter reasonable investigation, Answering Defendant is without sufficient knowledge and information to form a belief as to the truth or accuracy of paragraph 9 of the Complaint, and, accordingly, said averments are denied. Strict proof thereof is demanded at time of trial.' WHEREFORE, the Defendant demands judgment in his favor and against the Plaintiff with costs. NEW MATTER 10. The accident complained of in the Complaint of the Plail1tiff was caused or contributed to by the negligence, carelessness and recklessness of the Plain tiff as follows: a. She was not properly operating her motor vehicle under the 3 circumstances including thc wcathcr conditions; b. Shc was operating her motor vchicle in an exccssive ratc of speed undcr the circumstances; c. Shc failcd to kcep her motor vehicle undet. proper control undcr the circumstances; d. She applicd hcr brakes while travcling on icc and packed snow. 11. Plaintiff assumcd thc risk of hcr activitics and of injurics as a rcsult thereof. 12. If thc Plaintiff suffercd injurics and damages as describcd for rcasons sct forth in thc Complaint, said injuries and damages werc caused or contributed to by conditions over which the Answering Dcfendant had control and for which he is not rcsponsible. 13. If thc Plaintiff suffcrcd injuries and damages as sct forth in the Complaint, said injurics and damagcs were not proximately caused by any negligent act or omission on bchalf of the Answcring Dcfendant. 14. Somc or all ofPlainti1l's claims arc barred by the Pennsylvania Motor Vehicle Financial Responsibility Act. 15. The claims of the Plaintiff are barred or reducible under the Comparative Negligence Statute by rcason of the causal negligence of the Plaintiff as set forth above. ~ VERIFICATION Defendant, Garth Yingling, verifies that the facts set forth in the foregoing Answer and N'Jw Mattcr arc true and corrcct to the best of his knowledge, information and bclicf and understands that statements made hcrein are subjcct to the penaltics of 18 Pa. C.S.A. Section 4904 rclating to Unsworn Falsification to Authorities. Dated: ~ //1/ q \- t rth Yingling THE LAW OFFICES OF HARRINGTON, KAUFFMAN & SHILLING ATTORNEY: C. William Shilling SUPREME COURT I.D. NO.: 46995 3211 NORTH FRONT STREET HARRISBURG, PA 17110 (717) 231-7207 ATTORNEY FOR: Defendant Garth Yingling I i" I I i i i , f I JANE L. SCHWENK aIkIa JANE L., BLOSSER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GARTH YINGLING, Defendant DOCKET NO. 95.932 Civil Term I I I )1 vs. " CERTIFICATE OF SERVICE 9 ~;. (] 111' ,'l AND NOW, this L day of "''1" ~ , 1995, I, C. William Shilling, Esquire, attorney for Defendant, Garth Yingling, affirm that I servcd the Answer and New Matter to the Complaint by depositing same in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Lawrencc J. Nearly, Esquire 108-112 Walnut Street P,O. Box 963 Harrisburg, PA 17108 . William Shillin quire Supreme Court . No.: 46995 Attorncy for Dcfcndant Garth Yingling I I. ~ ~ ,. '.11 .." I I":; " r. l__' :"'? _c_ t.n LT, , {I , , . , ;1-- ~ " II. Paragraph II states a conclusion of law to which no rcsponsivc plcading is required. 12, Admitted in part and denicd in part. It is admittcd that the injurics and damages werc caused or contributed to by conditions of which the Dcfcndant had control. It is denied that the Defendant, under the circumstances. is not responsible for his actions. 13. Paragraph 13 states a conclusion of law to which no responsive pleading is requircd. 14, Paragraph 14 states a conclusion of law to which no responsive pleading is required, 15. Paragraph 15 states a conclusion of law to which no responsive pleading is required. 16. Denied. Plaintiff has selected the full tort option on her motor vchicle insurance. WHEREFORE, Plaintiff demands judgment against the Defendant as set forth in the Complaint. Respectfully Submitted, Date: ';/ih ')-- , I CONNELLY, REID & SPADE . ~ 'lc"u ------ ' By: "', I Lawr~n'ce J. Nea ,ESqUirC( A!t9rney for; / 108 - 112 Walr\ut Strcet P. O. Box 963 Harrisburg P A 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D, No, 25827 " -' 2 '. ... VERIFICATION I, JANE L, SCHWENK alkla JANE L, BLOSSER, hercby acknowlcdgc that I am a Plaintiff in the foregoing action; that I have read thc forcgoing Rcply to New Matter and the statements made thercin are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.e,S, Section 4904 relating to unsworn falsification to authorities, Date: 2.<0 r"'~) <Mk- ( l. \CvIJ:. .,~ Jane L. Schwen ' ( Sf~ ~ (2::/cJr;:U/L In L, Bios er I ) '.J' '. ... ~ ~ : . i I f , I I i i I I. I ! i , t ; I i CERTIFICATE OF SERVICE I, L1wrcnec J. Ncary, Esquire, of Connclly, Rcid, & Spadc, attorncys for Plaintiff hcreby certify that I have on the date shown below, scrved a copy of the foregoing Reply to , New Mattcr to the person(s) and in the manncr indicated below: UNITED STATE FIRST CLASS MAIL, POSTAGE PREPAID C, William Shilling, Esquirc HARRINGTON, KAUFFMAN & SHILLING 3211 N, Front Street Harrisburg PA 17110 Respectfully Submitted, CONNELLY, REID & SPADE Date: 'j/ tt/fi5-- I ", I .. , LAW OFFICES OF HARRINGTON, KAUFFMAN & SHILLING ATTORNEY: C. William Shilling SUPREME COURT I.D. NO,: 46995 3211 NORTH FRONT STREET HARRISBURG, PA 17110 (717) 231-7207 ATTORNEY FOR: Defendant Garth Yingling JANE L. SCHWENK aIkIa JANE L., BLOSSER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. GARTH YINGLING, Defendant DOCKET NO. 95.932 Civil Term CERTIFICATE OF SERVICE AND NOW, this ~~ day of ~ . 1995, I, C, William Shilling, Esquire, attorney for Defcndant, Garth Yingling, affirm that I scrved the Interrogatoties Propounded by Defendant for Answer by the Plaintiff by depositing same in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania, addresscd to: Lawrence J, Nearly, Esquire 108.112 Walnut Street P.O. Box 963 lIarrisburg,PA 17108 C. William S' g, Esquire Supreme Court I.D. No.: 46995 Attol'l1cy for Defcndant Garth Yingling \ [, LAW OFFICES OF HARRINGTON, KAUFFMAN & SHILLING ATTORNEY: C. William Shilling SUPREME COURT I,D. NO.: 46995 3211 NORTH FRONT STREET HARRISBURG, PA 17110 (717) 231-7207 ATTORNEY FOR: Defendant Garth Yingling JANE L. SCHWENK aIkIa JANE L., BWSSER. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VB. GARTH YINGLING, Defendant DOCKET NO. 95.932 Civil Term CERTIFICATE OF SERVICE AND NOW, this q'ffi.- day of M~ .1995, I, C. William Shilling, Esquire, attorney for Dcfendant, Garth Yingling, affirm that I scrvcd the Request for Production of Documents Addressed to Plaintiff for Answer by depositing same in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Lawrence J. Nearly, Esquire 108.112 Walnut Street P.O. Box 963 Harrisburg, PA 17108 C. William ng, Esquire Suprcm ourt I.D, No.: 46995 Attorney for Dcfendant Garth Yingling , LAW OFFICES OF HARRINGTON, KAUFFMAN & SHILLING ATTORNEY: C. Willlam Shilllng SUPREME COURT I.D. NO.: 46995 3211 NORTH FRONT STREET HARRISBURG, PA 17110 (717) 231-7207 ATTORNEY FOR: Defendant Garth YingUng JANE L. SCHWENK alkJa JANE L" BLOSSER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VB. GARTH YINGLING, Defendant DOCKET NO. 95.932 Civil Term CHANGE OF ADDRESS NOTICE You are hereby notified that as of June 12. 1994. the address of the Law Offices of Harrington, Kauffman & Shilling will change. NEW ADDRESS: Law Offices of Harrington, Kauffman & Shilling 100 Pine Strcet Suite 300 Harrisburg, PA 17101 NEW TELEPHONE NUMBERS: Main number: 717-720-0700 Fax numbcr: 717-236-9080 Please mark your records accordingly and address all future communications in this matter to the above location, LAW OFFICES OF HARRINGTON, KAUFFMAN & SHILLING 1.\ " Tim J. Harlin CERTIFICATE OF SERVICE AND NOW, this 15th day of June, 19915, I, Tim J. Harrington, Jr., Esquire, attorney for certain defendant(s) affirm that I served the attached Notice of Change of Addre88 by depositing same in the United States Mail, postage prepaid, in Harrisburg, PennsylVania, addressed to: Lawrence J. Nearly, Esquire 108.112 Walnut Street P.O, Box 963 Harrisburg, PA 17108 ~, Tim J. H n, Supreme Court I.D, 3211 North Front Street Harrisburg, PA 17110 (717) 231.7209 . A t \ \ I I \ .' c., '.2 '., ,;;<:r-. : ~I . :r I'~ .. ';,.', ;!l... ," {.l:;' '_~~ ;...~~~ (; , '. 'In l'" .... .-l',. -~:; <- CO ,., r-> - ;:::; .n <:> -0 ::s: ~ , LAW OFFICES OF IIARRINGTON, KAUFFMAN & SIIILLlNG A nORNEY: C. William Shilling SUPREME COURT 1.0. NO.: 46995 100 PINE STREET, SUITE 300 IIARRISBURG, PA 17101 (717) 720.0700 A nORNEY FOR: Defendant Garth Yingling JANE L. SCHWENK aJk/a JANE L., BLOSSER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, GARTH YINGLING, Defendant DOCKET NO, 95.932 Civil Tenn { CERTIFICATE OF SERVICE AND NOW, this 18~ay of -:full,! . 1995, I, C, William Shilling, Esquire, i , ! , i I I I i I I i i ! i I I I ! attorney for Defendant, Garth Yingling, affinn that 1 served the Defendant's Response to Plaintiff's Request for Production ofDocumcuts by depositing same in the United States Mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Lawrence], Nearly, Esquire 108-112 Walnut Street P,O. Box 963 H:\rTisburg, P A 171 08 n !;:; -,"fl.l rJ~ U~ ~~iJ3 """ ;~; () ~;.{::: ". (.n ".., j"Yl ,;, I o ~n :rJ t-n:g :n~ (~o :;'''3 ..-..,. "~h 15m --, ~. ~ [ r :!'! N .. :;J - N -.J r I \. i , ! i "...' '. 43. JANE L. SCHWENK AlKJA JANE L. BLOSSER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v GARTH YINGLING NO. 95.932 CIVIL TERM ORDER OF COURT AND NOW, DECEMBER 19, 1995, at the request of defendant, the above. captioned matter Is hereby continued from the JANUARY 1996 trial term. Prothonotary Is directed to rellst for the March 1996 trial term. No further continuances will be granted, By the Court, (C (L( [_--:, Harold E. Sheely, P.J. Lawrence J. Neary, Esq, For lhe Plaintiff N\e\\~6 \"/:I\\'1S C. William Shilling, Esq, For the Defendant Court Administrator :br i I t [, , I ! I , I I I n ", (') r:; '-'1 ." i~fri ~~., :;J ril l:H! ~ ~.) I' i::n r~.. ; ", "',:y >, : ..JL ," "II : '" : .~'lO : "T1 ,,"rj :t- .., , ._- ~.~2~) . r-) .. " - r;;' orn . ; ..I w..~ f..rl '. 0- j ~1 ., . -I .... i ~/ I I i I l I , i.#. \ I - NOTICE- Commonwealth of Ponnsyl....nnlil null! 4017_1 concornlng I/ldaolnpe dt!POSlllOfl5 roqulfos Ihallhis ....ldoolilpO deposItion cflssulIo ho kepi in thO Cu<:ilody 011110 allornuy lor Iho party laking 1t10 depositIOn ills theroforu tho responsibility ollhts nllornoy 10 tDvlow nus videotopo prIOr 10 115 uso inlnnllo insure lhnl n ~nh::;lnctory record ollho doposition has boon modo ~'/(/f'(J '''';lgm; has made n dupllcnlo tapo 01 this deposition so thnl in tho unlJluJly o\lonllhallhls orlglnal cassella is dofOCtlvo, Ihoro Ollisls i1 dupllCnll) orl{Jlnal vldeolnpo lor your CQIlVCflionco. Vicloo ''''ilfll~S will koop this dupll- cnlo tapn on Mo 111 our ollleo lor 10 days oflcrlhodlllo 01llU5 doposllion II wo hn\lo flol boon informed by any party willun ltus 10 day period thai tho dUl1l1calo is fNlll1red, il will then be OIi150d Thank You! Vidml Imagt!s PfIllp!;SIQnoll h'/)dl Vult.'OWt)Jflg 3004 UI;\C1o, Qilk [JIIVl'. flod lion, PA 17355.717.755.4959. FAX 717.845.4503 . ,~ .. .-.. I ; ,I VIdeo es :::~ =...:.c.. :':'0(::.. =:::.. :'. ..- ...:,:. "'1.-:!.':~:; VIDEO ~PERAT~R'S CERTTFIC~TE J, David Kllnifold, rer.lfy tha; I I<!o: --;;; v::w o;~_'"i1tcr. in :he :.:lmDot",~:h (State) of --t!!?Il-,--, Count)' of Ui3.iJJJ1fJ . \o'be::~n .'::; tU~n ~e vic:c'.~::<! deposition of _~..flJ(;C to. YfiKJJS fJ)(J. ,DO th: h3l.!1: day of /Z?IV&Id-, l~ in the ez:...=e o~ ,.,.L sOY UJI-NK tI'l.k/l r.,) ,1f3L12XJ JV2 VS. JL~~>>1 Y/l1!rJUiIlo, MfO tum tf2, elf). f lled in the . Cas: I :26. :. :9.3 ?__. J further certify that: The witness was fully 5lIol'1l or ~L.."ed mar "..:J te.'7,~fyU::i: al.d, The original vidWC"=tte llCCOIIfWly-'.ng ills o;..~1fi::lte contains a t':e and correct record on videotape of the l1lxNe 6esi5Date: pro:eedII;ES, od ms not ~n altered Dr edited in any way while in DY custoiy mil lei b6 ?laye~ back on any ~d 16 inch VIIS forDtat videocassettte player without dtificul:-;r: all: I I1llI not an attorney for !llr aDY J'C":'>U v. of uy pa.rty cr att.!:rney :.: -.:is action nor do I have uny interest in this case. .....-- ,~,~~~~~ Direct Examination Began: /: :lJ ~I'1 Cross Examination Began: Ol.~ Redirect Began/Ended: a: 7 R/R Direct Began/Ended: Direct E.Dmi:!llti~n End..~;:J:.:;xj Cross E~:ni=tic~ End..~ ~ : <It. Recross =~ga:l/ Eo:ed ,!) .'V?-/.-- R/R Cross ~san/:nded Times Off the Record: Times On the Record: ;J:g ~ J: 3q ;>l: 'It> ;:):~7 ;J!t.fo CJ:VI Net Total Running Tiue: /I-/~ II:U: t.. "'.Io!! L:ia: :"f ::;rCJ.lda. ....... KEEP THIS DC&.lJ.1{fiT ~~~r=-IHE yl[.:OCA.i:,;,ET'!" AL;\LL --'Gs.J..u..U . ""/ , AO=-: ~51:~IAL _::;.,. ,"JEC"l?ING .' I h.,.,........ .,,~~ ~...' . . . J , ' .~ "', -..'..- ..-.:----......."":..r...,- . ~ .., '..': . 'j " .:," ~"... .:'f~ ,. . . . .' , . ',. . ' " ,I .-- '. '. JANE L. SCHWENK A/K/A JANE L. BLOSSER, PLAINTIff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COllNTY, PENNSYLVANIA V CIVIL ACTION - LAW NO. 95-932 CIVIL TERM GARTH YINGLING, DEFENDANT JURY TRIAL DEMANDED DEPOSITION OF: ROBERT P. LONERGAN, M.D. TAKEN BY: PLAINTIFF BEFORE: KAREN C. ALBRIGHT, RPR NOTARY PUBLIC )..; DATE: NOVEMBER 21, 1995, 3:10 P.M. PLACE: 207 HOUSE AVENUE CAMP HILL, PENNSYLVANIA APPEARANCES: CONNELLY, REID & SPADE BY: LAWRENCE J. NEARY, ESQUIRE PLAINTIFF'S EXHIBIT I 3.1 '9b ~~ '0..~ \)~ FOR - PLAINTIFF HARRINGTON, KAUFFMAN & SHILLING BY: C. WILLIAM SHILLING, ESQUIRE FOR - DEFENDANT \"...i Hugltes, 7ll6riglrf, 'Foltz &-> JVatde :Reporting &"'UC, 811c. 115 PINe STReET' HARRISBURG, PA 17101 Hnrrisburo 717.232.5644 Fax 717.232.9637 LanCDsl!!r 717.393.5101 .....- . . ~. ~.. . '-.. f"""', 1 2 3 4 5 6 7 8 9 10 11 12 t') 13 14 15 16 17 18 19 20 21 22 23 24 25 Y 2 NAME ROBERT F. LONERGAN, M.D. BY: MR. NEARY BY: MR. SHILLING WI'rNESSES DIRECT CROSS REDIRECT RECROSS 3 35 20 39 (', 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 U 3 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived. ROBERT F. LONERGAN, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. NEARY: Q Dr. Lonergan, my name's Larry Neary, and I represent the plaintiff in this case, Jane Blosser. We're here in your office today, November 21st, for the purpose of taking your deposition for use at trail. Also present is defendant's counsel, Mr. Shilling. Doctor, please state your name for the record. A Robert P. Lonergan. Q Where is your office located, Doctor? A My office is at 207 House Avenue in Camp Hill, Pennsylvania. Q Doctor, what is your occupation? A I'm an orthopedic surgeon. Q Are you licensed to practice medicine in Pennsylvania? A Yes, I've been licensed to practice medicine in Pennsylvania since 1967. ,-., 1 2 3 4 5 6 7 8 9 10 11 12 f) 13 14 15 16 17 18 19 20 21 22 23 24 25 ~j 4 Q Doctor, what is your educational background? A I have 3ttended the University of Scranton where I received a Bachelor of science Degree, and Temple University school of Medicine, I received a Doctorate of Medicine Degree in 1965. I did my internship at Polyclinic Hospital, and then trained in orthopedic surgery at Upstate Medical Center in Syracuse, New York. I completed that residency program in 1972. And I was Board certified after two years of mandatory private practice in 1974. A Board examination then leads to certification as an orthopedic surgeon with the American Academy of orthopedic surgeons. Q since that time what has been your experience? A I'm basically a community orthopedic surgeon. I have University affiliation with Temple University in philadelphia where I'm on the teaching faculty for the orthopedic Training Program, and have been so for 20 years, but my primary practice is in the community. And I do all types of orthopedic surgery, including joint replacement, arthroscopy, sports medicinc and trauma, and most orthopedic conditions which are within the realm of orthopedic surgery. Q Are y,.u affiliated with any local hospitals? A Yes, my primary hospital is Holy spirit Hospital in Camp Hill, Pennsylvania, I am also on the r-'\ 1 2 3 4 5 6 7 8 9 10 11 12 (') 13 14 1!:i 16 17 18 19 20 21 22 23 24 25 \UJ 5 staff of Polyclinic Hospital and Harrisburg Hospital, and on the consulting staff at Rehab Hospital in Mechanicsburg. And as I said, on the teaching staff at Temple University Hospital, and to some degree at Hershey Medical Center. Q Doctor, are you a member of any professional societies or groups? A Yes I'm a member of the American Academy of orthopedic Surgeons, and also of the Pennsylvania orthopedic Society. For many years I was a member of the AHA and pennsylvania Medical society. I restricted membership to the specialty societies recently because of a tremendous change in our political situation. Q Doctor, you seemed to imply this, but you do .. see and trcat patients as a regular part of your practice, is that correct? A That's correct. I see in the neighborhood of two or three thousand patients every year. MR. NEARY: I'd like to offer Dr. Lonergan as an expert witness in this case. Would you like to cross-examine as to his qualifications? MR. SHILLING: No questions at this time. BY MR. NEARY: Q Doctor, have you been Jane Blosser's trcating physician in this case? r) 1 2 3 4 5 6 7 8 9 10 11 12 j'~" l ) 13 14 15 16 17 18 19 20 21 ~2 23 24 25 ~J 6 A Yes. The patient's name when I first saw her was Jane Schwenk -- S-C-H-W-E-N-K. I assume we're referring to the same individual who is now Jane Blosser according to my office records -- which are in front of me, by the way. Jane gives me her address now as Summit View Court in New Cumberland, Pennsylvania. Q Did you have occasion to see her after an automobile accident in March of 1993? A I did. Q And did you obtain a history from her at that time? A Yes, I did. The history was that the patient had been involved in an automobile accident and was driving a small station wagon, I believe, and told me that her car was allegedly struck from the rear. I believe it was a cavalier Chevy station Wagon. That was the history that was related to me on the 30th of March, 1993, in one of my offices here in Camp Hill. Q Did she bring x-rays with her at that time? A I believe she did, yes. Q What complaints was she experiencing? A At that time she was having pain in the lower back and in the right lower extremity. And according to my office notes her x-rays were reported as negative from a fracture standpoint. In other words, there was no 7 evidence of a fracture in her lower back, but it was my clinical impression at that time that she had aggravated her lower back and right lower extremity. Q And you note that this was an acute situation? A That's correct. Q What does that signify? A It signifies there was some fresh injury. She, as you know, had undergone back surgery prior to that time and had recovered, in my opinion. Q Tell us about this back surgery. When did she have prior back surgery with you? A She had been followed by me for a lower back problem and had a right lower extremity problem in 1990 and 1991. And we had done what's called an MRI, or magnetic resonance imaging test on her in 1991, that showed that she had a herniated disc between the fourth and fifth lumber vertebrae, and that the disc was herniated toward the right side. This produced pressure on the right sciatic nerve, and caused her to have pain in the lower back and right lower extremity, or right leg. She had been treated conservatively for a considerable period of time Q What do you mean by conservative treatment? A By conservative treatment, I would mean treatment by pill medication or therapy or anything that ~ 1 2 3 4 5 6 7 8 9 10 11 12 ,"-) 13 . ., 14 15 16 17 18 19 20 21 22 23 24 25 ~ 8 does not involve surgery or involves no invasive or risky or drastic intervention or treatment. And when one talks about a back problem, when they talk about conservative treatment, they're talking about nonop~rative treatment versus operative treatment. So she was treated nonoperatively for a period of time. In fact, a long period of time, and she was also seen by some doctors near the Philadelphia area and underwent more or less a second opinion at that point. And both of the doctors in Philadelphia and I felt she had failed the conservative treatment and probably would not be relieved unless she had surgery on her lower back to relieve herself of the disc herniation. She decided in favor of that surgery because of the chronic pain and she underwent the surgery at Holy Spirit Hospital in camp Hill on February the 27th, 1992. Q What was her course after that surgery? A After the surgery she healed well from an incision standpoint. The leg pain subsided. The numbness in her leg subsided to a minor amount of tingling, all of this by March the 6th, 1992. She was, of course, on some limitations when I first saw her following surgery, and she was in the recovery phase. And we followed her for a period of time following the surgery, and she appeared to improve considerably, r1 o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 9 Q Whel1 was the last time you saw her before March of 1993? A The last time I saw her before March of 1993, was December the 11th, 1992, so it would have been roughly four months prior to that time. Q What was her condition at that time? A At that time she was doing pretty well. She was told to avoid any lifting. She had negative straight leg raising, which is a test done to test for tightness in the sciatic nerve. She had no complaints that required treatment at that time, and in fact, she was doing so well at that time that we had not planned to see her for a year. And the purpose of the appointment which was given to her for December of 1993, which would have been a year from that time, would be so if she were doing well we could simply close the book on this case and consider the case to be finished. That was to give her that year's grace period to see how her activities were going, how the pain would be, and so forth. At that time basically she was cut free from medical treatment. That would be on December 11th, 1992, because she had done well enough at that point I didn't feel she required any further treatment. Q Going back to after the accident, your first visit in March of 1993, did you make a diagnosis at that ("'"\ C~l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 10 time? A In March of 1993, which was the office visit following the accident, the diagnosis was that she had sustained a reinjury of the lumbar spine and of the -- of one of her lumbar discs. Q Did you know what disc at that time? A I did not know what disc at that time. At that time it was basically immaterial, because she had already recovered from the surgery and, in fact, not only had recovered by December of 1992, but had not seen fit or had a reason to see me up until March 30 of 1993, so she apparently continued to do well following the time I last saw her in the office. My concern was that she had either reinjured the disc we had operated on or perhaps injured another disc or another portion of the lower spine. Q What type of treatment was offered to her at that time? A Well, at that time, I suggested that she simply rest, and I believe we gave her some pain medication at that time and told her to stay off her feet and not to do anything heavy. And I told her that if she did not improve in a short period of time -- in other words, if this did not respond like a low back sprain would respond and I would expect that to clear up in four to six weeks or so -- that we should consider repeating the MRI or the ~ 1 2 3 4 5 6 7 8 9 10 11 12 (~) 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 11 test that we did for her former disc problem. Q Did you have occasion to see her again in 19931 A Yes. I saw her again on May the 3rd of 1993, and she was slightly better; however, she was still having a fair amount of pain. I suggested she start some exercises to try to increase the strength in her lower back. The exercise that I suggested was one where she would not have to do any bending in her lower back, so I told her that I felt she should avail herself of some exercise to see if she would improve. But no other treatment was recommended at that time. Q Did you see her later in 1993, then? A Yes, I saw her on two other occasions in 1993. I saw her the end of september of 1993. She seemed to be somewhat improved following the accident, and she was walking reasonably well. Her reflex in her leg was a little diminishud, that is, the little reflex where you tap somebody's leg with a hammer was somewhat diminished. Q What is the significance of that? A It indicates there's some pressure on the nerve root. It's hard to tell how much pressure on the nerve root at that time. She wasn't a hundred percent, but she was improved. The only difference, now it was several months following the accident but she still had some persistent residual complaints, but she was not in a ,,-.., ~ ) .......,,- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 \"./ 12 position in september where I felt she required any further surgery. She was again seen in the office in December of 1993, and obviously now that she was six months from the time of the accident she was functioning and doing reasonably okay, but was still having right leg pain, and at that point I mentioned in my notes that I didn't feel she was probably ever going to return to a hundred percent because of the chronic nature of the complaints and also because now she was starting to show some narrowing of the disc by X-ray, not by MRI but by plane X-ray, and that indicated that more of the disc is now gone and that there's now been some settling in the lumbar spine. Q Did you impose any restrictions? A Well, she was told by me at that time that she would probably be permanently restricted or at least for the foreseeable future from heavy lifting or heavy pushing or pulling or anything that would require strenuous use of the lower back. I told her if she needed help I would be at her disposal, and I didn't hear from her for a while following that. Q When did you have occasion to see her again? A The next time I saw Jane, according to my records, was in september of 1995. Q Had she sought treatment elsewhere in the t""\ 1 2 3 4 5 6 7 8 9 10 11 12 CJ 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 13 interim? A Yes. I believe she was being treated in the interim at the Carlisle Army Hospital by the physicians on staff there, and treated basically for the same kinds of problems that I treated her for. Q Have you reviewed their notes? A Yes. The notes were made available to me, and I did review them. Basically the treatment they rendered was that of conservative treatment. I believe she took muscle relaxants for a period of time and given advice on the case of her back. There was no aggressive treatment taken at the Army Hospital. In other words, nobody recommended any invasive treatment at this point in time. Q At your visit in September of 1995, what did you find at that time? A In September of 1995, the patient's symptoms had worsened somewhat and she had continued to complain of pain in the right lower extremity and continued to show a loss of reflex in the right ankle, and she told me at that time in September of 1993, that she had gotten progressively worse since the time of the accident, and also since I had last seen her. At that time I felt that her symptoms, based on the chronic nature of the symptoms and based on the localized nature of the symptoms warranted that we do another MRI to see cxactly where we '..,..-. ,"-'" 1 2 3 4 5 6 7 8 9 10 11 12 (oJ 13 14 15 16 17 18 19 20 21 22 23 24 25 ~. 14 stood with regard to the disc and to see whether or not things had become worse or changed at all since her original injur.y. Q Was the MRI performed? A Yes, the MRI was done on September the 22nd, 1995, just two months ago. Q Did you have occasion to review the results of if MRI.with her? A Yes, I did. Q What did the MRI show? A The MRI showed an L5-S1 disc herniation to the right, which indicated that a piece of the disc had actually spit itself out of the disc and it became what we call an extruded fragment, and that indicates that when a disc ruptures, an actual piece of the disc gets spit inside the spine and becomes lodged against one of the nerves leaving the spine to go down the leg. Q Doctor, what is the purpose of the disc material? What function does it serve? A It's a cushion or a shock absorber which fits between the vertebrae. If you were to picture a column of marshmallows -- in other words, if you took marshmallows and piled them one on top of another like a column, those would signify the vertebrae or the bodies of the vertebrae. If you wanted to put little cushions in 15 /""'., , ' 1 between those marshmallows very similar to human disks, 2 you would get a package of caramel wafers that have the 3 cream filled center in them that you get at the movie 4 theatre, if you put one of them in between each 5 marshmallow you will then have put a disc between each 6 vertebrae. When a disc slips or ruptures, it indicates a 7 crack has occurred in the outer caramel ring and some of 8 the cream filled center oozes outside the ring, like 9 ~oothpaste, and that's basically what a ruptured disc is. 10 It does not indicate that the disc explodes or that it 11 slips or moved or anything of that nature. It's simply 12 the center core of the disc or inside of the disc oozes (:) its way out through a crack in the restraining ring and 13 14 gets outside of the disc and into the spinal canal and 15 wreaks havoc with all of the tissues that it comes in 16 contact with. It's more or less like resting a hot poker 17 against a nerve root. It will singe the nerve root 18 chemically and cause the nerve root to ache all the way 19 down your leg. 20 Is that distribution of pain that you expect Q 21 from that type of injury? 22 Yes. Typically the patient will complain of A 23 back pain, but even more seriously of pain in the region 24 of the buttock and down the back of the leg. Undermost 25 circumstances. occasionally discs will cause pain in the v 16 ,r-, 1 front of the leg, but mostly from behind. 2 Q Is that a different disc level than the prior 3 surgery that had taken place? 4 A According to the MRI it is. There's some 5 confusion in the notes, because the disc which she had 6 originally had operated on had been referred to as L5-S1. 7 But according to the MRI which was done in 1992, at that 8 time the disc which was ruptured was the L4-5 disc~ On 9 this occasion, the disc which was ruptured was the L5-S1 10 disc, and those are basically two different levels in the 11 spine. 12 But whether or not one argues the difference in ....""--"'- (' ) ; '-or.. 13 levels, the fact that there is a fresh herniated or 14 ruptured disc on the MRI in September of 1995, indicates 15 that this is a reinjury. And the reason that I know that 16 is having been the operating surgeon, I know having looked 17 directly at the disc that there were no elements of a 18 ruptured disc remaining at the time at the end of her 19 surgery. If there were, she, first of all, would have had 20 symptoms. In other words, second of all, it would have 21 meant what we did in surgery would have done nothing for 22 her, which was not the case. 23 Q With this finding, what course can she expect 24 to experience over this next couple months? 25 A The problem with her situation right now have \'..J f"', 1 2 J 4 5 6 7 8 9 10 11 12 ",......... \,) 1J 14 15 16 17 18 19 20 21 22 2J 24 25 U 17 is two-fold. First of all, my philosophy on baok surgery is very well-known throughout camp Hill and the central pennsylvania area. That is, you don't have a back operation unless you're absolutely incapable of treating the condition any other way. The reason is success rate in back surgery is, first of all, in my opinion, not that terrific. And second of all, reoperations on the back have an even more dismal rate of recovery, and the reason for that is because when you reoperate, you're operating through the scar tissue from the first operation and for reasons that clearly can't be explained, these people don't recover as well and they don't retain as much as a recovery as they do after the first -- quote -- successful unquote -- operation. For 'that reason, I would be very reticent to recommend surgery to Jane after a second herniation. Especially since she remains functional although painful. Q So what will you expect to happen to that portion of the extruded disc over a period of time? A Over a period of time, the extruded disc will become pretty much like a piece of chewing gum that you stuck underneath your table and forgotten about. When you first put the chewing gum under the table, if you were to corne back in a week or so it might still be malleabie or soft or mushy. A couple months later it's going to get ~ 1 2 3 4 5 6 7 8 9 10 11 12 Cl 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 18 pretty hard. If you go back a year or two later, it's rock hard, and probably has shrunk a little bit because of the loss of moisture in the chewing gum. That's pretty much how a disc behaves. A disc will not disappear completely, but it will get hardened, it will scar itself down to the inside of the spine and probably will relieve some of the pressure on the nerve root, but not all of the pressure on the nerve root. It's possible that she may improve, but it's unlikely that she'll ever be totally free of back pain or sciatica. And yet, on the other side of the coin or on the flip side of this, I'm reluctant to recommend that she have any surgery because there is the chance with the surgery she can get even worse than she is right now. It's not an easy situation to treat anybody the first time when they rupture a disc, but as an experienced orthopedic surgeon I can tell you it's a horror show to try to treat somebody two or three times after they herniate a disc because your odds on success go down and the patient's symptoms tend to become more chronic each time they reinjure a back or disc. Q Does this result in modified restrictions for Jane? A \~hat it does for Jane is put her in the category of somebody who should henceforth be considered 19 ~ 1 as a sedentary employee. In other words, even more than I 2 stressed with her first operation, now she should avoid 3 any type of heavy lifting, anything that requires any 4 pushing or pulling with her lower back, anything that 5 requires prolonged sitting or prolonged standing. In 6 other words, both of those activities can be detrimental 7 or produce pain. If, for example, she had to sit in a car 8 and drive four or five or six hours, I would think it 9 would be uncomfortable for her to do that. Also, if she 10 were to have to stand on her feet for more than a half an 11 hour at any given time, I think it would be uncomfortable 12 for her to do that as well. I think the symptoms will wax ~'-) \.-., . 13 and wane, but I think they're going to be permanent at 14 least for the foreseeable future. 15 Q Are there any medications she can take to help 16 those symptoms? 17 A There's no medication that anyone can take to 18 relieve this problem. I think that would be in the 19 headlines on CNN if we could find something that would 20 cure back pain. There are things she can do to lessen her 21 symptoms. She can take over-the-counter anti-inflammatory 22 medication such as Advil, Alleve, things of that nature. 23 She can take muscle relaxants, if we need to prescribe she 24 can take mild narcotic type of medication if the pain gets 25 bad, but there's nothing that really that will return her ~ ~ 1 2 3 4 5 6 7 8 9 10 11 12 r-l 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 20 to normal, if that's what you're asking. Q Doctor, do you have an opinion to a reasonable degree of medical certainty that the symptoms and problems that she has experienced since March of 1993, whether they are related to her automobile accident in March of 1993? A Yes, I do. Q And what is that opinion? A My opinion, based on the history that I was given and based on the examination that was performed in December prior to the accident, my opinion is that there's a direct causal relationship between her present symptoms and those that occurred after March of 1993, and the accident. Q And would the accident be the cause of those symptoms? A Yes. Given even the fact there was no over event in her life that would have precipitated this injury, yes, it's my opinion that the accident would have caused these symptoms. MR. NEARY: Thank you, Doctor. That's all the questions. You may cross-examine. CROSS-EXAMINATION BY MR. SHILLING: Q Doctor, what is degenerative disc disease? "...... 1 2 3 4 5 6 7 8 9 10 11 12 :'") 13 14 15 16 17 18 19 20 21 22 23 24 25 V 21 A Degenerative disc disease is something that all of us get. We get it just because it's a human condition. And what it indicates is that as we age, and beginning in to our late teens and early twenties the discs, in our lower lumbar spine especially, begin to dehydrate or dry out. And one of the things that's really shed a lot of light on that recently has been the MRI. People .can have degenerative disc disease when their discs dry out, and when the discs dry out they lose their spongy ability to cushion the back as well as they did before. And the critical difference is that the vast majority of people who have degenerative disc disease are nonsymptomatic. In other words, these are people that continue about their everyday lives, do lifting, do heavy house work, and so on and so forth, and don't have any major back problems. In many cases, in fact, in most cases the term degenerative disc disease is a radiology term. It's a term that's put on a radiology report, but may have no bearing whatsoever on what the patient's symptoms are. On the other hand, if you have somebody who has no other findings in their back and you do and MRI on them and they complain of back pain and they have quote degenerative disc disease -- unquote -- that is a reason to suspect the degenp.rative disc disease as a cause of l1 1 2 3 4 5 6 7 8 9 10 11 12 t;;i) 13 -j 14 15 16 17 18 19 20 21 22 23 24 25 ~ 22 their low back pain. And to complicate your question even more, you can accelerate degenerative disc disease by injuring it. In other words, if you have somebody who is 24 or 25 years old, and they show signs of degenerative disc disease, and you then find out that they sustained an injury whereby they slipped on the ice and fell vigorously on their buttocks, that type of an injury can accelerate the deterioration of that disc faster than it normally would have occurred in their natural history. So it's a big wastebasket term in that it doesn't help much to know that the patient has degenerative disc disease, you need to know more about the patient, more about the circumstances, and more about their pain to be able to assign their symptoms to degenerative disc disease. Q You assigned Ms. Schwenk's problems to degenerative disc disease, didn't you, Doctor? A The only thing that would be assigned to degenerative disc disease would be back pain. If you'll note carefully, we didn't talk in the last couple of paragraphs that I just alluded to, we did not talk about a herniated disc, which is a different ball game altogether than degenerative disc disease. Degenerative disc disease will cause low back discomfort from time to time, but ,t"'""j ('J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I....) 23 ordinarily it does not cause leg pain or sciatic. And the difference between this patient and somebody with degenerative disc disease alone and nothing else is that she had significant sciatica or right lower extremity pain. Q But again, you did diagnosis her as having degenerative disc disease in september of 1995, correct, Doctor? A That's correct. Q Doctor, when you saw her back in 1990, 1991, she had a herniated disc, correct? A That's correct. Q And according to the post-operative diagnosis that you filled out at Holy Spirit, I note that you diagnosed it as a severe herniated disc laterally at L5 and 51, is that correct? A That's correct. Q In fact, you did the operation over the L5-S1 spinous process, is that correct, Doctor? A That's correct. Q That's where the herniation was, correct Doctor? A That's correct. Q The herniation was on the right side of the disc, is that correct? ,---.. 1 2 3 4 5 6 7 8 9 10 11 12 .<...ic,- I J 13 ,."..,; 14 15 16 17 18 19 20 21 22 23 24 25 \.,,) 24 A Yes. Q And she had a large extruded petrified disc at L5-S1? A That's correct. Q Do you know what caused that, Doctor? A What caused the,disc at L5-S1 to rupture, I don't recall. Q Is there anything your notes which would indicate? A The notes I have here begin in October of 1991, and I really shouldn't say under oath, because I really don't know. I can vaguely recall that there may have been a fall involved in it, but I'm not sure about that. Q Doctor, once a disc has been herniated, you'll agree with me that it is easily then reinjured? A Well, I will agree with you up to the point that once a disc is herniated it is more vulnerable to reinjury, yes, that much is true. How much violence it takes to reinjure it is open to a lot of question, but certainly once it's ruptured it can be more easily ruptured I think than in the average population, yes. Q After you did the operation on February 27th of 1992, which as I understand is called a laminectomy? A That's correct, yes. Q One of your criteria to Ms. Schwenk was that ,.---, 1 2 3 4 5 6 7 8 9 10 11 12 {,c'j 13 " 14 15 16 17 18 19 20 21 22 23 24 25 \.,,) 26 A That's correct. Q When you saw Miss Schwenk in March of 1993, you said your diagnosis was -- that she had sustained a reinjury of the lumbar spine? A Yes, based on the history that I was given, yes. Q Did you prescribe any physical therapy for her? A Yes. At that time we suggested physical therapy in hopes of getting her over this acute situation. Q How much physical therapy did you prescribe for her, Doctor? A Well, I don't recall exactly how much physical therapy she had -- that's contained somewhere in these notes -- but I would suspect she would have had anywhere from three to six weeks of physical therapy, which I would suspect would include things like ultrasound and moist heat and controlled exercise program. Q Doctor, if I told you that she had testified or agreed in her deposition that she had only been to physical therapy a total of six times, would that affect her ability to recover? A Well, no, I don't think so. I don't think that physical therapy was given as a cure. It's not a cure, it was just to help her in her symptoms. So if she that had only been to physical therapy six times, it would indicate '" 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 Y 27 one of several things to me. First of all, that the therapy wasn't doing any good, which if the patient made a judgement after six visits that it wasn't doing any good, I would have to agree with, or that she had gotten much worse, which I wasn't made aware of, or that she had not had the time or the money or the inclination to do it, which I wasn't aware of. So I'm not sure exactly why she would have only gone five or six times. But the fact that she didn't go any more than five or six times to me doesn't make or break her recovery. It's just a way of giving her some type of treatment which is noninvasive and which should help get her over the hump, so to speak. As we speak, I'm reviewing these physical therapy notes from Marty Deangelis -- who is an excellent physical therapist, by the way, and who is very conservative, so I know the patient wasn't having vigorous manipulation, and so forth. I don't really see anything out of the ordinary in terms of treatment, just specific controlled exercises, as I mentioned. Q Doctor, by May 3rd of 1993, when Ms. Schwenk or Mrs. Blosser came back to see you, your notes indicate that the only thing she has is the residual flick of pain with straight leg raising, but it's not bad and she seems to be improved, is that correct? A That's correct. ~ (J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 a 22 23 24 25 w 28 Q You indicate that she seems to be coming along well? A in time. Yeah, she seemed to be improving at that point Q You then didn't see her for almost five months. A Yes. Q And at that time she was still doing pretty well, correct, Doctor? A No, I saw her in May of 1993. The next time I saw her I think -- unless I'm wrong -- wasn't until September of 1995. MR. NEARY: THE WITNESS: BY MR. SHILLING: Q And at that time she was doing pretty well? A Yes, I have that note in front of me now. Yes, she was doing well at that point with only about a quarter of inch of atrophy in the calf. Q She seemed to be walking well? A Her reflexes seemed about equal. Q And straight leg raising was negative? A Yeah. Q When you saw her in December of 1993, you talked about periodic right leg pain, but you seem to indicate because of the chronic degenerative disc changes No. I'm sorry, it was september 1993. r~ 1 2 3 4 5 6 7 8 9 10 11 12 ('C) 13 14 15 16 17 18 19 20 21 22 23 24 25 1....) 29 you don't expect that she's ever going to get a hundred percent better? A Yeah. One thing you have to keep in perspective is I was not aware as a treating physician that she had ruptured her disc. What she was being treated for as September the loth, 1993 and September 20th, 1995, in fact, until that point in time my assumption was we were treating the a low back strain or a degenerative disc disease, but I had no objective evidence at that point in time that she had even ruptured her disc. Q At least through December of 1993, there was no subjective evidence that the disc had been ruptured? A Other than this right leg pain. Q And all of your notes through December loth of 1993 indicate that she had improved, she was doing pretty well, she had some periodic right leg pain, but basically she was fairly well recovered? A Yes. And somewhere in between December of 1993 and the time I saw her on Scptember the 20th, 1995, she had availed herself of treatment at the Carlisle Army Hospital, so there was at some point a point where she got worse again. Q And the treatment, Doctor, we're talking about a two years between the time you were treating her in 1993 and saw her again in 1995, almost two years? ~ .4 w 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 A Yeah, a good 18 months or more, right. o And, Doctor, you did avail yourself of the records from the carlisle Army Barracks medical care? A I do have those records, yes. o The last record indicates that the last time she saw anybody there was in May of 1995, correct, Doctor? A That's correct, that would have been, in fact, three or four months before I saw her. o Again, there's no talk through any of the records there of a herniated disc, is ther~, Doctor? A There is and there isn't. She somewhere in May of 1995, or before that she was treated for and underwent what is called an epidural steroid injection. Now we're getting into a little bit more invasive treatment. That would indicate whoever was seeing her at that time felt sufficiently strong about her low back nerve root problems, that they would have recommended that she have an epidural steroid injection. That is an indication that something was definitely amiss in the disc. Q There's nothing in here that would indicate -- she had an MRI done, that would show she had anything done A No, there's no objective study in the same category as an MRI that would show she had a herniation. Or at least I wasn't aware of it. She had, however, been on some fairly heavy medication for her low back and leg r-. 1 2 3 4 5 6 7 8 9 10 11 12 (--) 13 14 15 16 17 18 19 20 21 22 23 24 25 l.....) 31 pain. Q But she did not see anybody at the outpatient clinic until some time in 1994, correct, Doctor? A Yes. At least the records here indicate that she was seen as far as I can tell in December of 1994 for low back pain. Q Which was a year after you that had last seen her? A That's correct, yes. Q And there's no indication that she had seen anybody in between? A Not to my knowledge. Q Doctor, when you saw her again in December of 1995, did you retake a history from her? A I didn't record a history from her. The only thing I said she apparently is still having problems and complaints of low back pain with activities. As I recall, I don't recall any change in the history. I did indicate, however. That we discussed the fact that she was involved in an accident, because in the second paragraph of my note of September the 20th, 1995, she did mention the accident which occurred in 1993. Q And that's in reference to where you indicate she's involved in a court case based upon that automobile accident? . ..--~ .... . . ,....... ~ 1 2 3 4 5 6 7 8 9 10 11 12 ~ 13 14 15 16 17 18 19 20 21 22 23 24 25 . 32 A She made known she was involved in litigation at that point in time, yes. There was nothing in the history to indicate there had been any other event other than the automobile accident. Q There's nothing in your notes that indicate that you actually took a history from her if, in fact, anything intervened between the time you saw her in December of '93 and the time you saw her in September of '95, correct, Doctor? A Yes, the correct answer is that I did not specifically question this patient as to whether or not there had been any other significant injury to her lower back other than this accident in 1993, that is correct. Q In fact, if there was something else that happened or intervened between 1993, December of 1993 and September of 1995, that could have also caused the rupture to her disc and not the accident, isn't that correct, Doctor? A I guess that depends on what the magnitude of the injury was, yes, of course. A But it wasn't until September of 1995, that she was diagnosed as having a ruptured disc at that time? A There was no objective evidence, as I said, there was nothing objective done in terms of studies that would indicate that that was a valid diagnosis until the ,...., 1 2 3 4 5 6 7 8 9 10 11 12 e,l 13 14 15 16 17 18 19 20 21 22 23 24 25 . 33 MRI was again taken in September of 1995. Q Which was two and a half years after the accident? A That's correct, yes. Q Doctor, she again had an extruded disc at L5-S1 on the right-hand side? A That is correct. Q Which was the same as what she had in February of 1992, correct, Doctor? A Yes, except being that the MRIs are different in the sense that the one in 1992 indicated that this herniation was at L4-5, and that's a rather complicated set of circumstances. If you count from the top vertebrae down, it's -- this could conceivably be at the lower level, but that doesn't really matter to me, but it's herniated nonetheless, and the point is I know the original herniated disc was removed. Whether it occurred at the same level or different level really has no bearing on her present symptoms. Q I'm trying to clear up for the case and jury, Doctor, according to your operative records the herniation was at L5-S1 in February of 1992? A According to my operative note. The only way we could resolve this conflict would be to have both MRls in front of us, which I do not right no\o.'. One thing is . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 34 clear to me, as an orthopedic surgeon, if this occurred at exactly the same level, it was removed. The herniated fragment of the disc was removed. We would be starting over. If we had done an MRI we would have been starting over with an essentially clear spinal canal which did not have any obstructed disc in it. If a year later, or as noted here, two and a half years later, if we do another MRI and there's another herniated disc in there, it becomes a moot point from an orthopedic standpoint whether it's L4-5 or L5-S1, because it's the one causing her symptoms. My operative note indicates that the disc was at L5-S1. I would have to actually go back and look at the operative X-rays and at the MRI to determine why that was noted as L5-S1, because the radiologist noted it at L4 and L5. Either the radiologist is one level off or the operating surgeon is one level off. I would guess that it's at the last disc in her spine and that the discrepancy is the number of vertebrae that she has in her spine. Q Doctor, you said that now one of the things that would be uncomfortable for her to do is to sit in a car for four or five hours, correct? A I think that would be uncomfortable because of the sciatica that would occur. I think the back pain is a " 1 2 '3 4 5 6 7 8 9 10 11 12 ....1.. C) 13 14 15 16 17 18 19 20 21 22 23 24 25 U 35 whole other ballgarne. Obviously, that would be aggravated as well. Q But that was the same thing you told her back in May of 1992, is that correct, Doctor? A That's correct. That's because the nerve was still sensitive and I did not want her to aggravate any of her symptoms by sitting for prolonged periods or doing any heavy lifting. Q When plaintiff's counsel asked you if you have an opinion based upon a reasonable degree of medical certainty as to whether or not there was a direct causal relationship between the motor vehicle accident and Miss Schwenk's symptoms after March 15th of 1993, you indicated that, yes, you did have an opinion and that opinion was based upon the history you had taken and the examination that you had done of the plaintiff. Am I not correct, though, Doctor, you're referring to the history that you took of the plaintiff in March of 1993 and not of any history that you took in September of 1995? A That's correct. MR. SHILLING: Thank you, Doctor, I have nothing else. REDIRECT EXAMINATION BY MR. NEARY: Q Doctor, you're not in any way changing your ,roo.., 1 2 3 4 5 6 7 8 9 10 11 12 ('~) 13 14 15 16 17 18 19 20 2l 22 23 24 25 "-i 36 opinion that what has occurred after September of 1995, what was subsequently learned after 1995, that that wasn't related to the automobile accident? MR. SHILLING: Objection. Leading THE WITNESS: To put this in perspective, this patient had successful surgery for a herniated disc as of March of 1993, or at least the beginning of March of 1993, and then was involved in an accident which is the only event that I'm aware of which would have precipitated her present problems. Or at least since her surgery is the only event. She went from a person who was virtually asymptomatic or had no symptoms at the time that I saw her following her surgery to a person who now has a recurrence of her symptoms following an automobile accident. There was no other event in my opinion that would have precipitated a recurrence of those symptoms other than the automobile accident. I was not aware of anything in her history that would have done that. There was also nothing from the time she first mentioned this onset of symptoms in March of 1993 until September of 1995, which changed either in her lifestyle or in her daily living that would have precipitated another onset of symptoms. So my conclusion was that the ongoing symptoms that she had for the past two and a half years which she had been rid of in March of 1993, were due ,") 1 2 3 4 5 6 7 8 9 10 11 12 ("'j 13 14 15 16 17 18 19 20 21 22 23 24 25 1".,,) 37 to the automobile accident. Q Doctor, a second MRI wasn't done immediately? Is there any reason why that wasn't done? A There's two reasons. First of all, the hope was that she would improve sufficiently and permanently enough that we would not have to do anything in the way of testing or in the way of aggressive treatment. The second reason that it wasn't done is because if one finds a large herniated disc, the temptation is to go back and reoperate on it, and I'm old enough and experienced enough in this profession that's a temptation one should not really avail themselves of for a good six months or a year or until the patient has had sufficient time to heal their symptoms without the use of invasive treatment. I was in no rush to do a second MRI. Even if I was faced with something that needed surgery, I would not do surgery immediately in view of the fact she had been through surgery once. If she goes through surgery once and gets away with it without any complications and improves, there's absolutely no guarantee if she goes through it again the odds are going to be successful. In fact, historically, the outcome is only going to be half as successful. Q Doctor, you mentioned she had an epidural steroid injection. What is that? - 1 2 3 4 5 6 7 8 9 10 11 12 ~c~ 13 14 15 16 17 18 19 20 21 22 23 24 25 W 38 A An epidural steroid injection is a process by which a patient goes in to the hospital as an outpatient. They go usually to the Anesthesia Department, and the anesthesiologist sits them on a table in a gown with their back exposed and proceeds to perform an injection which is very similar to a spinal tap. Novocaine is put in the back and in between the vertebrae from behind a small catheter is threaded into but not inside of the spinal canal. It's just outside the spinal canal. once that level is reached with the tube, the anesthesiologist through a syringe through the tube squirts cortisone in and around the spinal sac and all of the nerve roots. And the theory is the cortisone drips down around where the disc is herniated and will cause the swelling of the tissues to subside and relieve the symptoms. Q And is that not always successful? A Well, it's a SO/50 shot. It's sort of the treatment of the '90s, and it's really caught on because it's a fairly safe thing to do and there's a good 50 percent or 60 percent success rate with it. When you're dealing with back pain you will take any odds if you can avoid surgery, yes. It's something I do frequently. I think it's a good treatment. If it proves to be successful, will certainlY cheer it on. MR. NEARY: Thank you, Doctor. That's all the t') 1 2 3 4 5 6 7 8 9 10 11 12 ('~) 13 14 15 16 17 18 19 20 21 22 23 24 25 \.",J 40 COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA: SS I, Karen C. Albright, a Notary public, authorized to administer oaths within and for the commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of ROBERT LONERGAN, M.D.. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary public, and afterwards reduced to typewriting under the direction of said Reporter. I further certify that said deposition was taken at the time and place specified in the caption sheet hereby. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify that said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my h this 8th day of January, 1996. ~:f :; [.Ij C:. r' "'LlC " '.nty 11, 1916 ~:.: ~t ' ~ t'.1 C. - 'I , ORIGINAL t . J .."'-, JANE L. SCHWENK, A/KIA, JANE L. BLOSSER, PLAINTIFF . . . . V . . . . GARTH YINGLING, . . DEFENDANT . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-932 CIVIL TERM JURY TRIAL DEMANDED " VIDEO DEPOSITION OF: LANCE O. YARUS, D.O. TAKEN BY: DEFENDANT BEFORE: BOBBI JO HAHN, RPR NOTARY PUBLIC DATE: MARCH 13, 19961 1:53 P.M. PLACE: 410-12 CUMBERLAND STREET LEBANON, PENNSYLVANIA , , .'-"( ! '..' CONNELLY, REID & SPADE BY: LAWRENCE J. NEARY, ESQUIRE APPEARANCES: FOR - PLAINTIFF HARRINGTON, KAUFFMAN & SHILLING BY: C. WILLIAM SHILLING, ESQUIRE FOR - DEFENDANT ,,)' Hushes, 7{[brigld, 'Foltz rfr J/atole :Refxmins &rl;a, 8nc. 115 PINE STREET' HARRISBURG, PA 17101 Harrisburg 717,232,5644 Fax 717,232,9637 Lancastor 717.393,5101 ,----...\ 0) 'J 3 1 2 THE VIDEOGRAPHER: My name is David 3 Manifold. I represent VideoImages, 3004 Black Oak 4 Drive, Red Lion, Pennsylvania. Today's date is March 5 13th, 1996. The time of day is 1:53. This deposition 6 was videotaped at 410 Cumberland street, Lebanon, 7 Pennsylvania. The caption of the case is Jane L. 8 Schwenk also known as Jane L. Blosser versus Garth 9 Yingling, Case No. 95-932 Civil. The name of the 10 witness is Lance O. Yarus, D.O.. This deposition is 11 being videotaped on behalf of Defendant. Counsel will 12 now please introduce themselves. 13 MR. NEARY: My name is Lawrence J. Neary; and 14 I represent the Plaintiff, Jane Schwenk also known as 15 Jane Blosser. 16 MR. SHILLING: And I'm C. William Shilling, 17 and I represent Garth Yingling. 18 THE VIDEOGRAPHER: The court reporter will 19 now please identify herself and swear in the witness. 20 THE COURT REPORTER: Bobbi Hahn. 21 22 LANCE O. YARUS, D.O., called as a witness, 23 being duly sworn, testified as follows: 24 DIRECT EXAMINATION 25 BY MR. SHILLING: ..-. 13 ".~ ) .......1 14 15 16 17 18 19 20 21 22 23 24 25 J -- 4 1 o Good afternoon, Doctor. Would you state your 2 full name for the record, please? 3 A Lance Owen Yarus. 4 o And where is your place of practice, Doctor? 5 A I practice in Lebanon, Pennsylvania and 6 Lancaster, Pennsylvania. 7 o And Doctor, would you go through your 8 education for us, please? 9 A Sure, I graduated from Syracuse University in 10 1977. I then went onto my medical school training and 11 graduated in 1981. After that, I completed a one year 12 rotating internship and then my four year residency which I completed in orthopedic surgery in 1986. I began my practice in 1986 in Lebanon and Lancaster. And during that time, achieved my certifications in both orthopedic surgery and pain management. o And Doctor, where was your orthopedic residency done at? A I completed my residency in Philadelphia. o And Doctor, are you a member of any professional memberships or organizations? A There's a couple of organizations that I belong to that pertain to orthopedic surgery. Pennsylvania Orthopedic Society, Pennsylvania Medical Society, the American Medical Association, American 1 2 3 4 5 6 7 8 9 10 11 12 13 '.- 14 15 16 17 18 19 20 21 22 23 24 25 ....) 5 Osteopathic Association; and I think there's a couple of others listed there as well. o And Doctor, are you Board Certified? A Yes, I am. o Okay. And would you explain for the jury, Doctor, what Board Certified means? A Board certification occurs while you're practicing. It's a method to show the public that you hold yourself out to be an expert in the field and you've accomplished goals to meet that requirement. The goals that you need to accomplish are passing of a written examination, oral examination. And in osteopathy, we also have a practical exam where you actually demonstrate your surgical skills. Two Board certified individuals actually observe you in major cases. They also review approximately 200 charts complete with X-rays and also office charts. And then all that information is taken to the board, and then the board decides whether or not you receive your certificate based on that information. o And Doctor, are you affiliated with any hospitals in the area? A Yes, I am. o And which hospitals are they? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ....) 6 A I have full privileges at Good Samaritan Hospital in Lebanon, the Veterans Administration Hospital~ and in Lancaster, Saint Joe's Hospital and Community Hospital of Lancaster. MR. SHILLING: I would present Dr. Yarus as an expert in orthopedic surgery. MR. NEARY: I have a few questions I'd like to ask the doctor regarding his qualifications. CROSS EXAMINATION ON QUALIFICATIONS BY MR. NEARY: o Doctor, when were you first Board Certified? A My first certificate, I believe, was in 1989. o Okay. A And I then recertified in 1994. o And how many offices do you have at the present time? A Two offices. o And do you practice with anyone else? A At the present time, I have a spine associate, yes. Q And do you have an office in the Harrisburg area at all? A No. o Do you treat patients with low disk -- low back disk herniations in the course of your practice? Ii ,.~-, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J 7 A Daily, yes. MR. NEARY: That's all the questions I have. DIRECT EXAMINATION BY MR. SHILLING: Q Doctor, did you have a chance to examine Jane Schwenk-Blosser at my request? A Yes, I did. Q And when was that examination done, Doctor? A January 24th of 1996. Q And Doctor, when you first saw Mrs. Blosser, did you take a history from her? A Yes, I did. Q What's the purpose of taking a history, Doctor? A History is about 90 percent of the diagnosis. It involves asking questions that are pertinent to the injury that the person sustained. In addition, we also ask questions that pertain to how it affects the individual, what types of symptomatology they're experiencing, what they can and can't do in their daily lives. And in addition to that, questions are asked about past medical, past surgical history, complete systems review is done as far as heart, lungs, kidneys, abdomen, genital/urinary tract, anything that haa to do i I I I I I I I I I I I i I. I i I i ! ;: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ) .=~ a 1 with the body as a whole. And specific questions, again, are asked about occupational history, anything that you can glean from the individual that helps understand how the injury has affected them in any way. Q Doctor, before we go onto that, back up. Did you review any records prior to your examination of Mrs. Blosser? A I usually review the records after I complete the exam. I take the chart horne, and then look at everything and then create the report. Q And Doctor, when you took the history from Mrs. Blosser, what did you find out? A She indicated that she had sustained injury in a motor vehicle accident. The date of injury was 3/15/1993. She had been the driver of the vehicle. She told me that she had problems with her back in the past and that she actually had a ruptured disk. And she had undergone surgery for that in 1991. She also said that she had surgery in February of 1992. As far as the accident, she indicated that she was seen at Holy Spirit Hospital the day following the incident. After that, she carne under the care of Dr. Lonergan. She told me that she was last seen October of '95. She had been seeing an army physician on an as needed basis. She received physical therapy. She also 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 9 had epidural injection, and she indicated that that was not helpful in relieving her symptoms. When she presented, her chief complaint was of low back pain. She also indicated that she had numbness in the right leg down to the toes. She also described having foot spasm and cramping. I asked her about her activity level and what she was able to do, and she indicated she was not able to sit or walk greater than one hour. She described discomfort in the low back area. She had trouble utilizing a vacuum cleaner, was not able to lift the cleaner. She said that she was able to perform the activities of daily living for a very short time following the surgery that she had. And after that, she indicated that she had problems lifting such as a laundry basket and indicated that she did have numbness and tingling on the outer aspect of her leg and in most of the toes on the right side. We talked about her activities and her job at Best Friends Day Care as a latchkey supervisor. She indicated she had been a teacher's aide, and she said she was no longer working at that facility. However, she was working at West Shore YMCA. And she said that she was a latchkey supervisor there. When she presented, she did indicate that she 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~~) 10 was not working during the course of our exam. Medication included Amitriptyline and Premarin. She indicated her allergies to medication and her past medical history. Surgical history included the back surgery, hysterectomy and left ovary removal. I asked her about her hobbies, activities and general life style. She told me that she was married and that she enjoyed crafts. She did not indicate that she was participating in any recreational or community activities. And as far as the rest of systems review, that was unremarkable. o Doctor, the Amitriptyline and premarin, what are they for? A Premarin is a hormonal medication usually used in post menopausal individuals. Amitriptyline is Elavil. It's a mood elevator used for individuals who have depression usually taken at nighttime. o Doctor, did you also perform a physical exam of Mrs. Blosser? A Yes, I did. o And what did that exam show, Doctor? A During the course of the history, she was uncomfortable. She did stand. She was shaking her right lower extremity. She said that she was having difficulty with her foot, and she was stretching it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,~ 11 while she was standing. I conducted a structural examination, and that involves looking at the curvature of the spine to see if there's any alterations, flattening, contour changes of the muscle, any evidence of curvature of the spine. And essentially, that showed no abnormality. And that included the cervical spine, thoracic spine and lumbar spine areas. I watched her walk, and I found that she had normal gluteal participation. She didn't have any asymmetry in weight bearing. She was able to toe and heel walk. She did have a well healed surgical scar from her operative intervention. I didn't see there was any retraction of the wound or abnormalities with the wound itself. I palpated the musculature of the spine and found that that was normal as well. I then conducted motion testing, and that was painful for her in all the ranges that we tested. I palpated during the course of range of motion and did not find that there was any muscle spasm. Neurologically, we tested for reflexes. And in the lower extremity, there are three areas that one tests. r found that she had symmetrical reflexes in the patellar area. The extensor, which is raising the great toe to test for the 4-5 level because there's no tap reflex for that one, that was normal. 1 2 3 4 5 6 7 8 9 10 11 12 -.- 13 , "'~ 14 15 16 17 18 19 20 21 22 23 24 25 ~ 12 And aa far aa the Achillea reflex which mediates the level of the lumbar spine at 5-81, that did have a deficit on the right compared to the left. As far as senaation, again, on the right side, ahe had a dermatomal diatribution deficit on the right compared to the left. And by that, I mean when I pin pricked the area, ahe had decreaaed aenaation on the right aide Icompared to the left at lateral calf that would the level of the foot and correapond to 5-81. Q Doctor, when you talk about there'a no evidence of palpatory muacle apaam, what did that mean? A That means placing my hand on the back and aaking the peraon to go through range of motion. If there'a spasm or the muacle ia going to change in any way from the influence of that particular motion, you'll be able to feel that aa an operator. Q And when you also talk about that Mra. Bloaaer formal clearing phase a in the toe and heel walk toe and heel walk, what are you referring to? A You aak the person to walk on their toea and walk on their heels. There'a two thing a really that you're looking for. One ia to strengthen the extremitiea, whether or not the muacle performa by obaerving it particularly in the calf area. And alao whether or not the person ia going to complain of 13 1 radicular symptoms, radiation one side compared to the 2 other or both aides. 3 Q Doctor, after you had completed both your 4 history and your physical exam on Mrs. Blosser, did you 5 review any records? 6 A Yes, I did. 7 Q And what records did you review, Doctor? 8 A I had the Holy Spirit Hospital Emergency 9 Facility records from 3/16/93. There was a patient 10 information aheet. There were radiologic reports of 11 the lumbar spine and right hip. There was an order 12 form and discharge summary. There were records from 13 central Penn Sports Medicine Therapy, 4/16/93. The 14 records of Dr. Lonergan were available including a 15 prescription for exercise. 16 The rehab membership at YMCA, a letter of 17 9/25/91. The MRI report of 9/30/91. Office records 18 that included 10/4/91 through 3/6/92. The operative 19 summary of 2/27/92. The admission and discharge 20 summary of 2/27/92 to 2/29/92. Office records of 21 5/29/92 and 12/11/92. There were x-ray records of 22 3/16/93, office records of 3/30/93, 5/3/93, 9/29/93 and 23 12/10/93. There was also an MRI with enhancement of 24 9/22/95. Various office records from 9/20/95 and 25 9/6/95. There were records of Dr. Benedict, West Shore ,..) , ~ - -- ~-~.. --".",. .-..,.-.~.~.~, 1 ~ ~ 3 4 5 6 7 8 9 10 11 12 - 13 14 15 16 17 18 19 20 21 22 23 24 25 , ) ~~.~ 14 Anesthesia Associates, records of Dunham Army Clinic; and that was the extent of the records that I reviewed. Q Doctor, when reviewed the records from Dr. Lonergan relating back to the operative summary of February 27, 1992, what did that operative summary tell you? A Basically that she underwent excision of what was described as a large disk herniation at L5-S1 on the right. Q And Doctor, when you do a large disk excision, ,does that mean that all of the disks in that area is removed from the spine? A The disk that's pressing up against the nerve is removed, and then one goes into the disk space and cleans out the area as best can be expected. There's always some residual against the wall of the bone that remains. Basically, you're taking out a good portion of the material that's sits between the bones of a particular level. But one can never scrape out all of the disk material. Q And Doctor, when we took Dr. Lonergan's deposition, there was some confusion as to whether the operation done in 1992 was done at L4-L5 or L5-S1. Can you shed any light from your records review on that? 1 2 3 4 5 6 7 8 9 10 11 12 13 "q 14 15 16 17 18 19 20 21 22 23 24 25 ~~ 15 A Definitely when you look at the MRI there wae an anomaly that wae characterized at 4-5. And when there ie that type of information given, eometimee there'e fueion of the 51 segment and there'e a dispute about how to number the particular areae. In this case, I was satisfied that, in fact, ehe wae operated at 5-51; and that correlates with everything that'e in the record. When you look at the plain X-rays, the confusion was the anomaly which has nothing to do with the accident. It's juet a congenital finding that one reade on the etudy. It didn't indicate to me that the level that wae operated was incorrect. It was 5-51 and all of that is reflected consietently in the record. The MRI ie the only study that mentions that 4-5 anomaly, and it really has no eignificance whateoever. Q Doctor, while we're talking about an MRI, how accurate are MRIe? A In the lumbar spine? Q In the lumbar spine. A Very inaccurate. Highly over read. The study is very sensitive. It characteristically ie very confusing, and that's why we don't rely on it to make surgical decisions in cases where we're coneidering operative intervention. We don't make any decisions on 1 2 3 4 5 6 7 B 9 10 11 12 13 ,.,." 14 15 16 17 lB 19 20 21 22 23 24 25 ,....,j 16 the study itself any way. It's always the clinical exam and then the study is used to correlate the findings. And we use other studies in conjunction with that to make decisions about operative intervention. Q Doctor, you had indicated when you did your examination, physical examination, of Mrs. Blosser that she had a decreased sensation at the L5 -- correction, that she had a reflex deficit in the Achilles -- A That's correct. Q -- on the right compared to the left? A Yes. Q Is this something that would have concerned you? A I think only if I saw her for the first time or I was evaluating her without any past history it would have concerned me. But in reviewing the record, it was consistent throughout that, in fact, she had the reflex deficit and the finding of sensory loss that corresponds to the area in which she was operated where she had her pathology previously. So from that perspective, it was not a concern and certainly made sense because the reflex was out and she had been operated there previously. That's something that you'll find quite characteristically and very commonly. So from a clinical perspective, I don't 1 2 3 4 5 6 7 8 9 10 11 12 13 -..--\ ) 14 15 16 \ 17 18 19 20 21 22 23 24 25 ) .....,... 17 think it has any significance; and in her case, certainly it didn't have any significance. Q In the records you reviewed, Doctor, did she have that deficit prior to March 15th of 1993? A Definitely, yes. Q And that was shown in the reports that you had? A Right, that was consistent in the records that I reviewed. Q Okay. Doctor, in the records that you reviewed, would you go through and tell the jury what it is that the records indicated to you? A In the MRI of 9/22/95, there was evidence of some metallic artifact on tho right; and that indicates that she had been operated there at 5-81. There was central canal stenosis. Q Excuse me, Doctor. What is central canal stenosis? A Central canal stenosis is just the diameter where the nerve roots come out and where the -- I don't want to say the cord because that stops at L2 -- but where the fibers from the nerves come down. That's where they're housed, within that casing. And thd diameter was measured, and it was found to be a little bit less than one would expect. Again, that has no 1 2 3 4 5 6 7 8 9 10 11 12 ~.~ 13 ) ..~ 14 15 16 17 18 19 20 21 22 23 24 25 ~~~ 18 great significance. The 5-51 area showed a central and right transligamentis disk extrusion extending to the right lateral recess of 51, and there was some swelling of the 51 nerve root. All that means is that there were readings that were consistent with some type of finding. I don't particularly think it was significant because of the clinical exam and what the records showed, but that's the rendering of the individual reading of the study saying that there was disks there. I don't think that was the case, but that's what it looks like. And you can characteristically get the studies right after you do surgery and still see findings there. And I think it's because of the sensitivity of the weighted studies that you see on MRI. It's very technically difficult to explain, but it's something that you see. And we know from studies that were done that this really isn't significant as far as what the finding is showing. So to the lay person when you say, oh, there was still disk there, yet she had been operated there, what does that mean. Well, it doesn't really mean much in a case like this because the individual doesn't manifest with continuing symptomatology. She gets 1 2 3 4 5 6 7 8 9 10 11 12 13 ) "1'" 14 15 16 17 18 19 20 21 22 23 24 25 ...J 19 better which is the end result of the story. In the body of the records, she did have continuing back pain. The incident was described, and the past hietory was outlined. And the reason that I said that she had a documented history of right sided numbness and disk pathology and reflex that was out is that in 1992, the following surgery, the record reflected the diagnosis of a 5-S1 disk and thereafter she still had findings that were consistent with the reflex being out. In '91, she had right sided sciatica. She had no particular incident but was felt to have an acute disk. Dr. Lonergan had operated her and limited her activities postoperatively. As far as her findings as of 12/11/92, she did not have any straight leg raising signs. She had a little bit of narrowing at 5-S1 which is not uncommon. Q Doctor, when you say she did not have any straight leg raising signs, what do you mean by that? A Stretching out the sciatic nerve didn't reproduce her symptomatology at that point in time. When you look at the record of March of '93 and the incident that was described, she had complained of radiating pain in the right lower extremity. She was characterized as reaggravating her lower back; and on 1 2 3 4 5 6 7 8 9 10 11 12 13 ) ."., 14 15 16 17 18 19 20 21 22 23 24 25 ..) 20 that basis, therapy had been recommended. On May 3rd of '93, she had some residual pain with the straight leg raise. She was recommended to undergo the stair master program. Q Doctor, when you said that physical therapy was recommended -- A Right. Q -- did you also review the physical therapy records? A Yes. Q And how long did the physical therapy last? A I think that she had six sessions; and the last one was April 16th of '93, as I recall. Q Doctor, did you also get to review the records from Dunham Army Clinic? A Yes. Q What did they show you? A She did, in fact, have a chief complaint of lower back pain mostly on the right side. She didn't completely resolve with the symptoms after epidural steroid, and that's where the Elavil had been prescribed. In 1994, she had complained of pain in the right leg and numbness in the toes. The Achilles was absent on the right compared to the left, and she had been referred for further care after that evaluation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 21 Q Doctor, when you talk about the epidural injections that were done, would you explain to the jury what these injections are and what they're used for? A Basically, what you're doing is injecting cortisone into the level of the nerve root; and that's where it comes off of the fine filaments that are housed within the canal of the spine. What you're trying to do is reduce the symptomatology associated with swelling and associated with the symptoms of radiating pain. The yield of epidural steroid is approximately 40 to 50 percent. It's not a very high yield, but it certainly is a good measure to implement before you consider surgery. Q The epidural injections, Doctor, are they considered fairly safe? A Absolutely, yes. Q And Doctor, the fact that Mrs. Blosser had epidural injections, would this be uncommon after having had a discectomy in 1992? A Not at all, no. Q And why is that? A Well, if you have symptomatology and it's related to inflammation which I believe she had, it certainly is a great way to direct the treatment at the 1 2 3 4 5 6 7 8 9 10 11 12 13 , . ) 14 " 15 16 17 18 19 20 21 22 23 24 25 ,~ 22 area where the symptoms are occurring so it's certainly reasonable. Q And Doctor, someone who has had a discectomy such as Mrs. Blosser, what is the likelihood that they will have recurrent problems in that area? A Well, we tell our patients when we give informed consent that there can be a 10 to 15 percent recurrence rate at the same level or a disk herniation at a level above or below. Q And what could cause theve problems, Doctor? A Well, there's any number of things that can cause it. simple things like sneezing, coughing, getting out of a car, going to the bathroom, getting up in the morning, twisting the wrong way, lifting. There are hundreds of things that can cause it from the simplest to the most severe. It's hard to predict, but it's a negative pressure that occurs. And then if there is disk fragments still left, it can come out and cause the same symptoms. Q Would an individual who had had a discectomy such as Mrs. Blosser and then was working as a latchkey supervisor with school age children, would that affect their tendency to be -- to receive symptoms or have symptoms such as Mrs. Blosser is having? A True, that type of activity can cause the 1 2 3 4 5 6 7 8 9 10 11 12 --) 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ 23 same symptoms; and the weather changes can cause the symptoms as well. o And Doctor, you had indicated that you had reviewed the report of the MRI that was done by Dr. Lonergan in 1995? A Yes. o In reviewing the records, how far post accident was this MRI? A Well, the accident was in March of '93 so we're talking anywhere from a year and a half to almost two years. o And Doctor, in reviewing the records from Dunham Army Clinic and the other records that were available to you, was Mrs. Blosser's complaints of pain constant or were they intermittent? A They were intermittent. She had flare ups here and there that was characterized. o Would this be consistent with someone who has had a discectomy? A Even somebody who hasn't had a discectomy can have that have kind of symptomatology, yes. o Doctor, what were your impressions -- what impressions did you reach as a result of your physical examination and history that you took of Mrs. Blosser and the review of the medical records? 1 2 3 4 5 6 7 8 9 10 11 12 13 ) 14 15 16 17 18 19 20 21 22 23 24 25 J 24 A As far as general impression, I thought basically she did have an injury in the motor vehicle accident. I would have characterized it as soft tissue in nature. The Holy Spirit record reflected the strain i I ' and sprain, and I think that's accurate. She received , , , , appropriate therapy for her condition. She had the MRI which shows some findings that 5-S1 that without the other history involved may be considered significant. I don't find it so, that being a disk herniation at 5-S1. I think that the motor vehicle accident did cause a low back injury, and I would characterize it as a strain and sprain. Q A strain and sprain, Doctor, how long would that take to resolve itself? A It's hard to put an exact figurA on it; but generally, we say four to six weeks for symptoms to at least start resolving. As far as tissue injury, 120 days is what the physiologic literature will tell you. Q And Doctor, in reviewing the records that you had available to you, did you reach a conclusion within a rcasonable degree of medical certainty as to whether or not Mrs. Blosser had recovered to her pre-accident status? A Yes. Q And what is that opinion, Doctor? .~ ) _I 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I think she definitely reverted to her pre-injury status and had no changes that would be considered as causally related to this accident. Q And would that show up in this four to six week time frame, Doctor? A Yes. Q According to the records? A Correct. Q And Doctor, have you reached an opinion within a reasonable degree of medical certainty as to whether or not Mrs. Blosser received a disk herniation as a result of the accident on March 15th, 1993? A Yes. Q And what is that opinion, Doctor? A Irrespective of the MRI, I don't think there's any indication in the record based on her clinical findings that she did, in fact, have a disk pathology related to that incident. Q And Doctor, have you reached an opinion within a reasonable degree of medical certainty as to whether or not there was any causal relationship between the motor vehicle accident on March 15th, 1993 and her presentation to you at the time the IME was done which was January 24th of this year? A Yes. 27 1 A I believe she's performing work functions or 3 was as a latchkey supervisor, and that certainly would be appropriate for her. o Doctor, do you believe that the accident of 1 . , , 2 4 ~ 5 March 15, 1993 caused any material or made any 6 contributory changes in her medical condition? 7 A No, I don't think there was any material or r G , 8 inherent change in her condition. Again, the level 9 that's identified if you just want to look at the MRI 10 certainly would seem a~ such; but taking everything 11 else into consideration, the review of the records, 12 what her clinical findings were and how they norrelate 13 to her past history, I don't believe there was any ,) 14 significant change or change in general that related to 15 L5-S1 that would be contributory from the accident. 16 o Would that be an opinion within a reasonable 17 degree of medical certainty, Doctor? 18 A certainly is. 19 MR. SHILLING: Thank you very much, Doctor. 20 THE WITNESS: You're welcome. 21 CROSS EXAMINATION 22 BY MR. NEARY: 23 0 Dr. Yarus, you were asked to perform this 24 review by Attorney Shilling; is that correct? 25 A Yes. J 28 '\ 1 Q And did he ask you to prepare a report? 2 A Correct. 3 Q Did he send you the medical records that you 8 A Yea, he did. I I , I I t. t, , I i I i I I I I 4 reviewed? 5 A I believe that's correct. 6 Q And did he sent you a letter with those 7 records? 9 Q May I see that letter, please? 10 A Yea. 11 MR. SHILLING: Do you want to go off the 12 record? ,~) 13 BY MR. NEARY: 14 Q That's all right. I can't seem to find it in 19 Q And I note included with that was a check for I I l l I 15 here. Can you show me -- oh, here it is. I'm 16 reviewing a letter written by Mr. Shilling on January 16th of 19961 ia that correct? 17 18 A Yes. 20 $600. What did that cover? 21 A That covers the examination. 22 Q And did that cover -- did that include your 23 testimony in court today? 24 A Not my time today, no. 25 Q Is there an additional charge for that? ,..) i I , I I, I I I I ~ ~) ~ 30 1 Q Before this deposition? 2 A Yes. 3 Q Now, you met with Jane Blosser for 4 approximately one hour; is that correct? 5 A I don't recall the time; but probably in that 6 time frame, yes. 7 Q Would that be the length of time that would 8 be usually -- that you usually attribute to these 9 examinations? 10 A It depends. I mean if somebody presents with 11 an upper extremity injury or carpal tunnel, it's not 12 going to take that long to complete an exam. The 13 history usually takes the longest in the exam, 14 somewhere between 15 and 20 minutes. 15 Q Did you find Jane Blosser to be an accurate 16 historian? 17 MR. SHILLING: Objection as to the question. 18 THE VIDEOGRAPHER: We're going off camera. 19 The time of day is 2:26. 20 MR. SHILLING: As to whether or not Dr. 21 Lonergan found her to be an accurate historian 22 MR. NEARY: I'm asking if he did. 23 MR. SHILLING: I mean Dr. Yarus to be an 24 accurate historian. I don't think he can tell whether 25 or not she was accurate as far as the historian. I ') h,) .".,) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 think that the question is misworded because he has no knowledge of her entire history so -- MR. NEARY: Let's go back on the record. BY MR. NEARY: Q I'll withdraw that question and ask you another question, Doctor. Are you familiar with Dr. Lonergan? A I know of him, yes. Q Have you ever had occasion to review his work or his opinions before? A Yes, I have. Q And did you discuss anything with Dr. Lonergan before you prepared your report in this case? A Not at all. Q You didn't talk with him at all? A No. Q Have you had an opportunity to review Dr. Lonergan's deposition which would have been read to the jury earlier today or earlier in this trial? A I didn't read it, but I went over some of the portions of it with counsel before the deposition today. Q Now, in your examination, you noted that there was a diminished Achilles reflex. How do you determine that? 32 1 A with a reflex hammer you tap on the back '1 2 portion of the tendon right above where it inserts into 3 the heel. 4 Q And was that the same physical finding that 5 Dr. Lonergan has found in his most recent visit? 6 A Yes. 7 Q Okay. And would that be consistent with his 8 findings that he has made for Jane Blosser over the 9 past months? 10 A Yes. 11 Q And what does that symptom -- what does that 12 reveal about what's going on back in the disk? 13 A It can reveal several things. It doesn't ) -,~..- 14 necessarily have to do with the disk per se but more 15 the nerve root and the particular level that mediates 16 that reflex, particularly 5-S1. 17 Q So that symptom takes you back to a level on 18 the back, is that correct, or disk level? 19 A It takes you back to a level where the nerve 20 would exit that supplies that particular reflex. 21 Q And does that then cause a pain sensation 22 that radiates down into the leg? Does it come across 23 as a pain sensation? 24 A Pain is so sUbjective. It could be 25 characterized by an individual as pain. If you ask .,.."J so 34 ~ 1 Q May 29th of 1992. 2 A Okay. 3 Q And can you tell us how long after the 4 surgery that was? I believe the surgery may have been 5 in February of 1992. 6 A It was February 27th of '92. 7 Q So in May approximately three months later; B is that correct? 9 A Sure. 10 Q Now, in there, he notes that there haa been a 11 alight return of her Achilles reflex on the right? 12 A That'a right. 13 Q And what significance ia that? 14 A Well, in taking the disk out and in 15 manipulating the nerve away from that kind of 16 compresaion, certainly, you're going to see hopefully a 17 reflex return. But as he aaid right after that, he 1B told her that it will alwaya remain diminished; and 19 that ia true. 20 Q Now, on December 11th, 1992, that was the 21 last time he saw her; is that correct? 22 A Correct. 23 Q And ia that normal in your practice when you 24 do a laminectomy that final visit perhaps is about six 25 to eight month a later? ~ . -..,\ . 1 Q 2 procedure 36 And that would mean then the diak the procedure that waa done on the disk 3 waa aomewhat auccesaful; ia that correct? 4 A 5 Q I think that'a fair, yes. Now, then you look at the report of March 6 30th, 1993 after the automobile accident. At that 7 time, he reports that she ia having a radiculopathy to B the lower extremity. What doe a that mean? 9 A That meana aha haa radiating aymptomatology 10 in the right leg. 11 Q So it was firat noted approximately 15 daya 12 after the automobile accident; ia that correct? 13 A ) 14 Q That'a correct. 15 December of '92 through March of 1993; ia that correct? " And she hadn't been to the doctor from 16 A 17 yes. 1B Q At least to Dr. Lonergan, that'a correct, Now, I'll direct you to the Dr. Lonergan'a 19 note dated May 3rd of 1993. And what doea he detect at 20 that time regarding the straight leg raising teat? 21 A He deacribea it aa a flick of pain with 22 straight leg raiaing, but it'a not bad. And she aeema 23 to be improved. 24 Q Now, the fact that he was gathering or he _J 25 received -- he obtained a flick of pain with that teat, 38 -, 1 was done so it really doean't have any significance. 2 And a quarter of an inch comparing one side to the 3 other ian't really atatistically significant aa far aa 4 measurement is concerned. 5 Q He also notea she has an Sl reflex may be a 6 little diminished. Ia that the same thing aa what ahe 7 had been experiencing aince March of 1993? 8 A Correct. 9 Q I'll direct you to the report of December of 10 1993. And at that point, did he make any atatements -- 11 well, strike that. In December of 1993, he noted she 12 was still having some chronic or periodic right leg .'_d,. ) .. 13 pain; is that correct? 14 A Right. 15 Q Then you reviewed the Dunham Army Clinic 16 recorda; is that correct? 17 A Yes. 18 Q And from those recorda, you mention in your 19 report let me juat find that for a aecond. In 1994, 20 she complained of pain in the right leg and numbneaa in 21 the toes. And it aays the Achillea, I asaume, reflex 22 was abaent on the right compared to the left. 23 A Exactly. 24 Q So that'a aimilar to what Dr. Lonergan had 25 noted back in December of 1993? ,.".J ') 1 2 A Q 39 That's correct. And is that the same symptom that's reported 3 in 1995 juat before the MRI that was conducted? 4 A 5 Q Yea, that's correct. Now, in reviewing Dr. Lonergan'a notes, do 6 you agree with him that aurgical intervention is not 7 necesaary in thia case? B A 9 Q 10 A Yea. That will not solve any problem? I don't think there's any problem to solve so 11 surgery certainly ian't recommended, yes. 12 Q And do you agree with Dr. Lonergan that the ~=" ) ,..~4 13 MRI report indicates that there is a new diak injury, 14 something that waa there that waa not there back in 15 19921 16 A I think it indicates that there is diak 17 material there, yes. 1B So -- and that's different than what was Q 19 there back in 1992? 20 A I have to refresh my memory with 1992. I 21 have to look at that MRI. 22 I think the first MRI waa '91 or '92. The Q 23 surgery was in '92? 24 25 J A Right. Q Now, if Dr. Lonergan indicated he removed ) .l~ ) ~J ~ 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extruded disk material in 1992, then in 1995 we see a new diak extruaion -- A I don't think you can make that aasumption, and that'a where being a lay peraon in this field ia very confuaing. That finding can be there forever and ever. He could have taken that disk out -- and thia has been done -- and gotten the MRI on the same day aeveral hours after he did it and that finding would look the aame. So I don't take much stock in what you're seeing in 1995 aa opposed to what was there in '92 even though he aays that he took a diak out at that level. And that'a entirely posaible. That's characteristic of MRIs. It doean't mean anything significant aa far as what's there. Q Did you review either the MRI actual reports? A I think I reviewed the record that reflected what was on the MRI. Q You didn't actually review the films? A Oh, no, I didn't have them, that's correct. Q Now, Dr. Lonergan aeema to believe that that disk injury was at a different level than the previously -- than the previoua injury in 1992; is that correct? MR. SHILLING: question as ~- I'm going to object to the 41 ) 1 THE VIDEOGRAPHER: We are going off camera. 2 The time of day iB 2:39. 3 MR. SHILLING: Basically, Dr. Lonergan is not 4 sure whether or not it's at a different level or not. 5 Dr. Lonergan specifically stated in his deposition that 6 he would have to review the original MRI, review the 7 original reports to determine whether or not he was in 8 error that the operation was at L5-S1 or that the 9 radiologist was in error when they said it was L4-L5. 10 Dr. Lonergan is not sura. He admitted in his 11 deposition that there was confusion. 12 MR. NEARY: I'll withdraw the question. 13 We'll go on. 14 BY MR. NEARY: 15 Q I'll withdraw that previous question and go 16 onto another question. It might be easier to answer. 17 Now, the -- you say tha important part of the -- of 18 your diagnosis goes with the history that a client 19 reports -- a patient reports; is that correct? 20 A History is a great portion of making a 21 diagnosis, that's absolutely true, yes. 22 Q Now, do you agree that -- you do say in your 23 report that she -- on the last page of your report, it 24 says residuals appear to be consistent with that of a 25 motor vehicle accident in 1993. Is that your opinion? ) ~ '1 _:) ~~ 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 1B 19 20 21 22 23 24 25 42 A I'm not sure where you're reading that. I'm sorry. Q Paragraph labeled causation. It says the records of army facility did not reflect any new injuries, only aggravation of her preexisting condition. Then you go on to say I don't believe -- or excuse me, the sentence before that. It says the residuals appear to be consistent with that of her motor vehicle accident in 1993. Am I reading that correctly? A That's correct. Q What residuals are you referring to that are consistent with her motor vehicle accident? A In regard to having a soft tissue injury and swelling of the Sl nerve root and the findings of radiculopathy, that certainly is reasonable to assume occurred as a result of the accident. And if you look at the record of Dr. Lonergan, that symptomatology resolved. And of the last examination as we read into the record, certainly the straight leg raise wasn't remarkable as it would have been initially. Those are the residuals that I'm talking about. Q Now, you made the statement that mout people that have a soft -- have a soft tissue injury in the back, a sprain or strain, recover within four to six 43 "") 1 weeks; io that correct? 2 A Yes. 3 Q That's not everyone; is that correct? 4 A Oh, no, that's not written in stone; but 5 certainly, that's a reasonable time frame if you're 6 treating the individual. 7 Q For approximately 80 percent of your '''.) 8 patients? 9 A A good -- 10 Q Not your patients but patients in general? 11 A I see a lot of people that have been treated 12 elsewhere before they get here so I can't really say 13 that's 80 percent. But if I have someone that presents 14 initially and has a back strain and we get that person 15 the appropriate 1reatment, the medication for 16 anti-inflammatory, we restrict their activity and do 17 everything that's allorhythmically appropriate for that 18 particular presentation, it's reasonable to assume in 19 that time frame if there's nothing else wrong, we don't 20 discover any disk herniation or problems of that nature 21 that -- that in that time frame, they're going to get 22 better. 23 Q What percentage of people don't recover 24 within that period, just statistically that statistical 25 studies have shown? ''-0) 1 ~ ~ 44 1 A Well, if you started adding the mix in of 2 workers' compensation individuals, everything else 3 comes into play. That's the psychosocial aspects of 4 treatment so for my mix of patients, it'B hard to 5 predict. But 6 Q I'm talking general. 7 A If you just look at the pure literature in 8 general and the physiologic literature and the 9 musculoskeletal literature, that time frame is going to 10 be about what you said, 80 to 85 percent of the people 11 will get better in that time frame. 12 Q Now, you don't take any objection to the 13 treatment that Dr. Lonergan gave her? 14 A Oh, not at all. 15 Q Now, do you agree with Dr. Lonergan that 16 these symptoms are permanent that she's experiencing at 17 the present time or at least permanent for the 18 foreseeabla future I think is the word he used? 19 A She may have symptoms. What mediates them is 20 anot.her object of disagreement maybe; but in general, 21 she could have symptoms for a long time to come. She 22 had flare ups of her Bymptomatology, and the record 23 reflects that. So I would assume that might be 24 something that occurs to her from here on in. 25 Q And do you agree with the restrictions that ) ) ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 Dr. Lonergan has placed on her activity level? A I don't particularly agreo with them aa it relates to the motor vehicle aocident. It may be for some other reaaon; but in general, aD far aD restrictions, I wouldn't impose any on her as of the data of the examination that I oonducted. I don't think it's reaaonabla or neoessary. l Q You would impooe no reotrictiona on her activitias regarding lifting or sitting or standing? A I don't balieve I would have, no. Q Now, in the history, you reviewed the records very carefully. In tha hiatory, you mention there could be any number -- any number of causes that might cauae a further diak problem. Did you find any of thoae noted in the reoord? A No. Q And would that be aomething that each doctor preaumably would inquire aD to the patient has there been any change, any activity, any incident that might have brought on this poin? A Well, I oan't apeak to what somebody else would have done as far as a copious history taking. I know we conducted the most copioua history that one can in looking at her complaint and what she presented for. It's only aD good ns the person that you're ) -=) ,~ 47 1 think there's been testimony that tho disk was 2 extruded. 3 MR. NEARYI Not from him but from Dr. 4 Lonergan. 5 MR. SHILLING 1 And again, the question that's G being asked would assume that ths doctor has said it 7 was extruded. And he opecifically said that it 8 probably wasn't. So if it was rsphrased as to Dr. 9 Lonergan'o oaying it was extruded, that would be more 10 appropriate. 11 MR. NEARYI Okay. Would you -- back on the 12 record. 13 THE VIDEOGRAPHERI We're back on camera. The 14 time of day is 2147. 15 BY MR. NEARYl 16 Q Let me re-ask that question, Doctor. 17 Obviously, Dr. Lonergan believea that there has been a 18 diak extruaion. And as I underatand, you don't believe 19 thatl io that correct? 20 A I don't think what the MRI is saying ia 21 something we ohould hang our hat on. I think the 22 clinical situation ia what'a more important. From that 23 perspective, I agree with you aa far as the queation 24 you're posing that there'a nothing in the record that 25 points to any other incident as far as the disk 48 ~ 1 extrusion. We discussed that, and I don't believe 2 that's the case. 3 MR. NEARY: Thank you. That'a all the 4 questions I have. 5 THE WITNESS: You're welcome. 6 REDIRECT EXAMINATION 7 BY MR. SHILLING: 8 Q Doctor, I just have a couple real quick 9 follow ups to counsel'a queations. Mr. Neary said Dr. 10 Lonergan saya that the symptoms are permanent for the 11 foreseeable future. And you agreed with counsel on 12 that. Are these symptoms related to the surgery or to ~') "~f' 13 the car accident? 14 A Well, I think that when you have somebody 15 that's had surgery and you have a hiatory of flare ups 16 as we discussed, certainly that person can have 17 symptomatology off and on forever. So it's entirely 18 posaible that ahe would have symptomatology 19 irrespective of the incident involving the motor 20 vehicle. 21 Q And also Mr. Neary had asked you whether or 22 not Dr. Lonergan'a recorda of December, 1993 indicated ~J 23 that the Achillea was absent on the right as compared 24 to the left to which you agreed. My question ia though 25 was this also present prior to March of '93 aay in . i i I " 49 1 \ December of '92? why I rendered the opinion as I did. I believe that , I I I I A It was something that waa preaent, and that's she did have a reflex that never really came back completely. MR. SHILLING I Thank you aoctor. RECROSS EXAMINATION BY MR. NEARYl Q Doctor, how can you say that though when on March 30th he indicates that her -- excuae me. Back on December of 1992 or excuse me, in May of 1992, he says her reflex had returned on the right before the automobile accident. MR. SHILLING: Objection as to what the doctor saya. I believe that it says a alight return and not a return. MR. NEARY: I'll aak the aame question. BY MR. NEARYl Q Dr. Lonergan notes that there was a slight return of the Achilles reflex in May of 1992; is that correct? A Right. Q So there waa then a change between May of 1992 and what he observed in March of 1993? A I think if you look at May of '93 you see her ~~i"~\ifj~~~wJ;~~~:~;;:';:~~~Y}:::i(_,:::'-. ,". '" , i'~(~1':~:*;'''\'._I:~'''';'~\f:,I/'(,,;',}' 1 :'f.-' '" ' ,I. IOILl WllJnqtJ.Utii ,,\,' :: 1.:1, \'\~r"" .'.' "~ , . ' , , ' ff~ ~)'~~l~~i ~';,). ;.' ~:,;, ~ -', " l' OOt01lnSIJ;lQlJS~OOI .\' '.' ,'.- " ~~C1r,j~!;'~'f![f';I':\';'': :"l~j!' ",> ' NITlIHho Nvw:l:mvX 'NOJ.ONIIDIVH ' . 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')~ ," ,,0- ~::?}f~Z~.;~i'~~5':~~~d;!:j' /~: ~':':I; ~,! <, -!.:;;;, ,," "Y-,!f1)'-(~'~I':,<,:'.~~~t~,\,-'j'; ',/, ,".,' , r~~ri,;Jt-'/-rfi:~'fl.\~~rFl- .','1 .<, , ~. ,. \ r,l"~; ~JJ:.~:::(J " '..:....t)li.i ~, It,. , "~~;~rtrl~~}~::fr':~: :'~~-;:~: f;;', n ;. ':,;,,:,~ ~ , ".n. l1,/, r1: ".."+' .,' ~, 1\',,;.<-- ~.~~~~~I~it?i?!&1~.g~,~~1i:~'!~:iii:~:;: .:;,,_~.~-~-:' .- .'. '1'.' . ..'.! .'-i-7,"~':::,~:'};'l_'7'fYi;,"':";-'tt."'~t~f\t::,'~~'i!'J j',' _', ",',", t'~, :::,0"","\' '''-''''i1'1.....''....: \ ,.:.,..~fl,11 ",': " ", ~ ; -.,' - !,'~) ;i~;,::'~i:S;:~~,t~N;::_%[j;~;~;~:;~y~~?~'~,t~}:t~1d ;' \,~, " .-.",1.\.,.,_ "!:'1,::.uNYOlly..');;;t'~;\;;;~"1i-\~ . 'F ,-,I .-;' ~:~~, :\!~'dt'~; Pl'. ii, c,;051 ~:i-.V,!t'~~;'~li ~~\,';,<.:;\tt~~;~,A8~ ". ' ,',<.' ';,'.1..:1. 'nOA'.1llNIVDIIOiI/UNSHAwt' :.' ,'.' i,"~..':.~'t,a.nog~~~~i~8(~7~~~i'm~r,l~ ',:.' '.'i!?,~> la~i:~'oi~:'~'8.'~'iimil~tiif1~~.tIXI '..':'.':','.'.' 0:'[ i"~ O.l' Oil~I.lONcA8iWi "IIIY' ., " q', '_I ',c'.' , ;'. l~' -.; " , " .' i~~~' ., ~,' , <"'-,' ,,'; " " ." , , 'I" ';f <:' , : ~" "!',: )~;rT:;:\',~~"',~ . " ~, Plaintiff start to skid, he allempled to steer to the left and also pumped his brakes, Unfortunately, due to the ice on the road, he tapped the left rear of her car with the right front of his car. Damage Willi minimal to both cars, II. FACTS AS TO DAMAGES The Plaintiff had suffered from back pain and injury prior to the happening of this accident. In February 1992, she had a laminectomy at L5 S 1. After the accident the Plaintiff treated with Dr, Lonergan until December 1993, with a total of four (4) visits, Plaintiff was then treated at Dunham Anny Clinic until 1995 with little or no reference to any back problems, It wasn't until September 1995 that an MRI was done of Pia inti Irs back which indicated a herniated disk, There is no direct causation shown between the accident and a herniated disk, m. ISSUES OF LIABILITY & DAMAGES a, Liability: ., Was the Defendant negligent in the operation of his motor vehicle, or did his negligence rise to more than 50%? Suggested answer: No. b. Damages: What, if anything, should the Plaintiff be awarded for her alleged injuries as a result of the motor vehicle accident? Suggested answer: Zero. IV. SUMMARY OF LEGAL ISSUES None, ~, V. WITNESSES a. Garth Yingling b. Deposition for use at trial of Dr. Lance Yarus, . .,.....~. c, Defendant reserves the right to call any of the individuals listed on Plaintiff's Pre- Trial Memorandum, VI. EXUmlTS None, VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS The Plaintiff originally demanded $50,000 to settle this case. After the MRI perfonned in September of 1995, Plaintiff withdrew their offer of 550,000 and then demanded 575,000 to settle this case. Defendant's offer to date has been 56,750 to settle this case. VIII. OTHER ISSUES None. C. William Shilling, Es . Supreme Court I.D .. 46995 Attorney for De ant Garth Yingling , ' '''''''. _ _. ' ~ _ ,. _~ ,,'-.M.~ , _ . .c, .-......~~.Ir--~ , -~,; . I ' , ',' . . '. . . : '.,' ,'!. ... JANE L. SCHWENK a/kIa, JANE L. BLOSSER, Plaintiffs 3 IN THE COURT OP COMMON PLEAS OP I CUMBERLAND COUNTY, PENNSYLVANIA I I IN RE: PRETRIAL CONPERENCE At a pretrial conference held Wedneaday, Pebruary 28, 1996, before the Honorable Harold E. Sheely, President Judge ' :'.-, Esquire, and I ", Esqu: appr , IN /?/0 are some slig ind~ Iry .' Lring on Wedl 'II '/ has a non~ that has been previously sohedu1ed. As I see it, tne onLY waz to accommodate both would be to start thia trial on Monday, if posaib1e. This was a motor vehicle accident that occurred on March 15th, 1993, on Old Gettyaburg Road, Lower Allen Townahip. Apparently it waa a severe weather day, and the Plaintiff skidded on ice and struck a snow bank to her right. , "~" ..... ''O"-'+<'-'''~,"''''_-'' _ ..... ~ . . ",...,. . . ,'~, ). ............-4- .- ~ :..:.....,- ~~.....-- '''''_, .',. . ' ~. , '. . , '.'. I '," ' . ' ~ l ' ! JANE L. SCHWENK a/kia, JANE L. BLOSSER, Plaintiffs 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , IN RE: PRETRIAL CONFERENCE At a pretrial conference held Wedneaday, February 28, 1996, before the Honorable Harold E. Sheely, preaident Judge, present for the Plaintiff was Lawrence J. Neary, Esquire, and appearing for the Defendant was C. William Shilling, Esquire. This is a jury trial which should take approximately one and a half daya to complete. There are some slight problems with availability of counsel. Mr. Neary indicates that he has a Social Security disability hearing on Wednesday morning, and Mr. Shilling indicates that he has a nonjury trial in Schuylkill County on Friday morning that has been previously scheduled. Aa I see it, the only way to accommodate both would be to start this trial on Monday, if posaible. This waa a motor vehicle accident that occurred on March 15th, 1993, on Old Gettysburg Road, Lower Allen Township. Apparently it was a severe weather day, and the Plaintiff skidded on ice and struok a snow bank to her right. I I, I ~ , 95-0932 CIVIL TERM The Defendant who was following then hit the rear of the Plaintiff's vehicle. The Defendant indicates that Defendant's vehicle struck the left rear of the Plaintiff's vehicle with tho right front of his vehicle. A recent MRI indicated the exiatence of a distinct disc injury. It was originally believed that the injury was an aggravation of a preexisting back injury, and that's what the Plaintiff plead in her complaint. However, with the new MRI raport, the Defendant will be proceeding at trial on the theory that this was a separate and distinct injury, and had nothing to do with the prior back injury to the Plaintiff. Plaintiff will only have three witnesses, that being the Plaintiff herself, her now husband, Richard C. Blosser, who was present in the car with her at the time of the accident, although they were not married at that time, and also the deposition of Dr. Robert P. Lonergan will be read at trial. Dr. Lonergan is an orthopedic surgeon. The Defendant will only have two witnesses at trial, probably, and they are tha Defendant himself and also the deposition of Dr. Lanca Yarus will also be read at trial. It is noted that the daposition of Dr. Yarua has not yet been taken. Hopefully it can be done and completed prior to trial. If this 95-0932 CIVIL TERM cannot be accomplished, counsel are directed to notify the Court Administrator, and we will direct that the case be listed for the next term of civil Court. At the pretrial conference today the damand of the Plaintiff was still $75,000.00. The Defendant has offered $10,000.00. It looks like, therefore, the caae will be tried. I might add that the Defendant in his pretrial memorandum has stated that they believe there is no direct causation between the accident and the herniated disc, although, as I indicated, hia doctor has not yet said that because he has not yet been depoaed, and no report has yet been furniahed to counsel for the Plaintiff. By the Court, / / ~" l! I.t c/ I / ! /----- Sheel , P.J. Harold E. Lawrence J. Neary, Esquire For the Plaintiff C. William Shilling, Esquire For the Defendant mal . DATE: (l'lOAch I'ir', /99~ CIVIL No.3 Courtroom' I NO. Cf...5- 93Q CIVIL It!rm ~ ?':) 1.I~UI -W !jZr-- 2.' c.-h\"o'~J I<~V\ ~ Z5 . '12..J.... '\) 'l> ( -3,' LX(l~U/~ n- 4.' "-\ "-"'-"-. / J(cu.-Uv^- 115 5.' (J 8,-. k~ 1lV Vi C;1Yld- 9 6.' >1<11 h~1 C!Jt~ 55 7.' Il (\~ J<' er\,l-u:.- +e-. 11 J J),:L ) :3 lD f '0 :(t\kJl~\ C(T-o~~t,,-~Y-29 11.. ~8& Al'\na...b~ 3:6 12.1 O\e.v~+o J)o:-h-;ctd. S'7 ,13~~~;?d~~ &t+S- H.' ~tlW" ~wcJl.Q I {Yl&i.r Ii"" p. r1 , ~Wi-rt I d. '-Y"'\ :J .) 51'. 1+1- , 16.' Vc: <:"ots./ VJ i \ \l';)'"", SI 17.' t\ec..ka.rd )-r;:a y t8> 18 c v... I 19.' Jitbb5) j.' ~ 42 20.' OVYv\lS-)OVl.j bU~ 82 d\,;ll Jr.... H) cti~ \.\ 2- . - .. ...# (I\Q'Kh /'1 ,CI'74> I '~d\\\Cc.1 . . ._,~ . JANE L. SCHWENK a/k/a JANE L. BLOSSER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-0932 CIVIL TERM GARTH M. YINGLING Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE Please mark the judgment as satisfied and mark this action as ended, settled and discontinued. All costs have been paid by the Defendant. Respectfully Submitted, Date: r/f/f~ & .. 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