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16 Hoffer
COLLEEN GREENE. Individually IN THE'COURT OF COMMON PLEAS OF
and as Administratrix of the CUMBERLAND COUNTY. PENNSYLVANIA
Estate of Richard Greene.
Plaint! ff
V. CIVIL ACTION - LAW
THOMAS J. SMARSH. D,C,. P.C,.
t/d/b/a SMARSH CHIROPRACTIC. NO. 95-1844 CIVIL TERM
Defendant
IN RE: PRETRIAL CONFERENtE
A pretrial conference was held before the Honorable
George E. Haffer. judge. on Wednesday. February 26. 1997.
In this medical malpractice action. Terry S. HYman.
Esquire. represents the plaintiff; and Joseph A. Ricci. Esquire.
represents the defendant Smarsh Corporation.
Mr, Hyman indicates at the pretrial conference that he
will not be pursuing any individual allegations against Smarsh
indi vidually,
Richard Greene died at age thirty-nine from a rapidlY
progressing form af cancer in the lungs. Previously he had been
to Smarsh Corparation for chiropractic treatment, Routine
x-rays of his spine were taken. as a diagnostic tool in the
chiropractic treatment. Plaintiff has expert medical testimony
ta indicate various problems with the x-rays. among which were
that the x-rays were not taken with proper positioning and were
not properly reod. The expert indicates. that if properlY read.
they would have shown an abnormality on the lung. indicating a
cancerous growth. which could have been treated, The underlYing
claim. of course. is if treated. the plaintiff had a chance of
continued health,
Defendant's expert is in the field of oncology and
,
95-1844 Civil Term
Page 2
will not be testifYing as to the x-rays per se. but will be
indicating that the type of cancer observed in this case was a
particularly virulent sort which could not have been treated
with success. even if found at the proper time,
Both counsel have indicated that the Jury charge will
be of the standard medical malpractice sort. including an
increase risk of harm charge,
The case is estimated to take three days to try with
four challenges apiece.
Because of the times this case has been taken off the
trial list. and because each side indicates that they may be
calling live expert witnesses. we encourage the court
administrator to place this case on the top of 0 trial list in a
particular Judge's courtroom.
Plaintiff was a smoker. and various witnesses in the
case have been questioned about that during depositions, Should
the defendant wish to bring out this testimony through his
expert witness. and attempt to form some conclusian from that.
he is directed to outline such Questions for the court.
indicating the use of the testimony. together with a supporting
charge, Since the expert has not said anything about this in
his report. the court.s initial reaction is that such areas will
not be allowed to be testified to. but we will await further
arguments from counsel on the question. Should defense counsel
desire to pursue this. he is directed to file an offer with
supporting brief by by Friday, March 7, 1997, and plaintiff's
counsel shall respond within three days of receipt of
that document.
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95-1844 Civil Term
Page 3
Defense counsel has not provided any expert report
concerning the interpretation of the x-ray film or whether the
interpretation of the film was done within the standard of care
insofar as relates to whether the nodule was present or whether
the nodule would have been recognized by a chiropractor
exercising the ordinary care of their practice, He is not
presenting anY expert testimony on those issues and agreed that
would not be done, AdditionallY, there has been no economic
report to be filed so there will be no economist presented on
behalf of the defendont,
By the Court,
Terry S, Hyman, EsqUire
4503 North Front Street
Harrisburg, Pa. 17110
For the Plaintiffs
Joseph A, Ricci, EsqUire
2000 Linglestown Road
Suite 108
Harrisburg, Pa, 17110
For the Defendant
Court Administrator
Prothonotary
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opinion that the cancer from with Mr. Greeno suffered was a
particularly aggressive tumor which was incurable even at the
time of its earliest possible discovery. Thus, from the outset
it is clear to opposing counsel that causation will be at issue.
In setting forth his opinion, Dr. Bierman has listed those
records which he found persuasive in formulating his opinion.
The records are familiar to opposing counsel as many were in fact
produced by opposillg counsel in discovery. Thus the facts
contained within those records should not present any surprise
and Dr. Bierman should be able to point to those fact which help
support his opinion. As recently noted by the Pennsylvania
superior Court:
In deciding whether an expert's trial testimony is within
the fair scope of his report. The accent is on the work
'fair.' The question to be answered is whether, under the
particular facts and circumstances of the case, the
discrepancy between the expert's pretrial report and his
trial testimony is of a nature which would prevent the
adversary from preparing a meaningful response, or which
would mislead the adversary as to the nature of the
appropriate response.
Dible v. Vag ley 612 A.2d 493, 499 (Pa.Super., 1992) citing
Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa. Super. 285,
290, 502 A.2d 210, 212-213 (1985). In the case at bar, the fact
that the Plaintiff's decedent had a history of heavy smof:ing is
certainly apparent from the medical records. Further, given the
fact that this matter concerns a carcinoma of the lung, it is
certainly predictable that an oncologist would feel that smokillg
COLL~~N GREENE, Individually
and as l\dmi nst ra t rix of the
ESTl\TE OF RICHARD GREENE,
Plaintiff
IN 'I'm: COURT OF COHMON PLEl\S
CUMllERLlIND COUNTY PENNSYLVANIl\
CI VI L ACT lOll -- LA\~
V.
No. 95-1844
THOMAS SMARSH, D.C., P.C.,
Defendant
JURY TRIAL D~Ml\ND~D
MEMORANDUM OF LAW REGARDING SCOPE OF DEFENDANT'S EXPERT'S
TESTIMONY
The abovo capt.ioned matter is a chiropractic malpractice
action which seeks recovery of damages for the alleged failure to
timely diagnose a cancerous tumor of the lung. Defendant Thomas
Smarsh D.C., P.C. has identified Dr. William Biorman as its
expert witness. At the time of the pro-trial conference in this
matter, counsel for the Plaintiff objected to Dr. Bierman
discussing smOking as a potential cause of the Plaintiff's
decedent's cancer. This court has requested that this memorandum
be prepared to discuss the potontial admissibility of testimony
concerning the impact of the Plaintiff's decedent's smOking
history.
Initially it must bo noted that the discovery rules of this
Conunonwealth are intonded to prevent unfair surprise at the time
of the trial. Accordingly a party is required to produce pre-
trial reports of the testimony of any anticipated expert
witnesses. See Pa.R.C.P. 4003,5 In the case at bar, the
Defendant has producod the pre-trial report of Dr. William
Bierman, a board certified, medical oncologist who has sated his
opinion that the cancer from with Mr. Greene suffered was a
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particularly aggressive tumor which was illcurable even at the
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time of it.s earliest possible discovery. Thus, from the outset
it is clear to opposing counsel that causation will be at issue.
In setting forth his opinion, Dr, Bierman has listed those
records which he found persuasive in formulating his opinion.
The records arc CamU iar to opposinlJ counsel as many were in fact
produced by opposing counsel in discovery. Thus the facts
contained within those records should not present any surprise
and Dr. Bierman should be able to point to those fact which help
support his opinion. As recently noted by the Pennsylvania
Superior Court:
In deciding whether an expert's trial testimony is within
the fair scope of his report. The accent is 011 the work
'fair.' The question to be answered is whether, under the
particular facts and circumstances of the case, the
discrepancy between the expert's pretrial report and his
trial testimony is of a nature which would prevent the
adversary from preparing a meaningful response, or which
would mislead the adversary as to the nature of the
appropriate response.
Dible v. Vagley 612 A.2d 493, 499 (Pa.Super., 1992) citing
Wilkes-Barre Iron v. pargas of Wilkcs-Barre, 348 Pa. Supcr, 285,
290, 502 A.2d 210, 212-213 (1985). In the case at bar, the fact
that the Plaintiff's deccdcnt had a history of heavy smOking is
certainly apparent from the medical records. Further, lJiven the
fact that this matter concerlls a carcinoma of the lung, it is
certainly predictable that an oncologist would feel that smoking
cannot be ~ersuasively argued the counsel will be surprised if
there is testimony about smoking. Accordingly, Dr. Bierman
should be permitted to testify about the impact of smoking on the
nature of Hr. Greene's carcinoma.
Respectfully submitted,
_..
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I'ilrrcll & Ricci. P,C,
~ooo I.II1~blll~'11 lid,
Sullo loa
1t,";i>lllu~, 1>;\ 17110
(717)65%101
i'/lAR 0 7 1997tf'
,
COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C./
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
(" ~ OoRfDER r A r-
AND NOW, this ~ day ~
upon consideration of Plaintiffs' Motion to amend the
, 1997,
Complaint to
include punitive damage, said Motion is hereby GRANTED.
BY THE COURT:
J.
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
.
.
v.
.
.
NO. 95-1844
THOMAS J. SHARSH, D.C., and
THOMAS J. S~UffiSH, D.C., P.C.,
t/d/b/a SHARSH CHIROPRACTIC, JURY TRIAL DEMANDED
Defendants :
PLAINTIFF'S MOTION TO AMEND THB PLEADING
1. The above-captioned case arises out of a delay in the
diagnosis of Richard Greene's lung cancer.
2. Richard Greene was a long-time patient of Defendant
Smarsh Chiropractic. As part of his care, Smarsh took repeated
x-ray films which showed not only Mr. Greene's spine, but also his
lungs.
3. In February 1992, Mr. Greene had repeat x-rays taken at
Smarsh. His previous films had shown clear lungs. The February
1992 film showed a distinct solidary nodule in the right upper
lung. The Defendants concede that a licensed Chiropractor has a
duty to identify the presence of abnormalities in the lung.
Defendants have offered no testimony or expert repolt indicating
that the nodule was not present or could not have been identified
and noted by a Chiropractor using the ordinary care of his
profession.
l07452/PJM
4. The February 1992 x-rays were taken by a Smarsh
employee, Richard Bashore, D.C,
5. In February 1992, Bashore had just graduated from
Chiropractic school and was on his first job. Bashore had
previously worked most of his adult life as a bartender for Hershey
Resorts. other than taking a few science courses at HACC, he did
not receive a college diploma prior to attending chiropractic
school.
6. Bashore specifically testified that in February 1992, he
was still in his probationary training period with Smarsh. Bashore
testified it was not his responsibility to interpret the films nor
order additional films should the films be in any way inadequate.
He was, according to his own testimony, acting as a technician
rather than a doctor at the time.
7. Bashore testified the responsibility for looking at the
films and deciding if they were adequate lay with his supervising
chiropractor, Ronald Duriske,
8. Bashore could not testify under oath that he ever read
any of the films taken of Richard Greene in February 1992.
9. Ronald Duriske, D.C., contrary to Bashore's testimony,
testified that he, Duriske, had no responsibility to read the films
nor interpret them. Duriske indicated that responsibility lay with
the practitioner taking the films, namely, Dr. Bashore.
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10.
Duriske, like Bashore, could not testify that he
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actually looked at any of Richard Greene's February 1992 x-ray
films.
11. No qualified person at Smarsh actually looked at Mr.
Greene's films.
12. Smarsh Chiropractic made no written interpretation of Mr.
Greene's February 1992 films. As part of its practice, Smarsh uses
pre-printed computer forms which generate a report to be submitted
to insurance carriers. The pre-printed forms contain form language
used on all reports, suggesting that the x-ray films were read and
interpreted, even if they had not been.
13. In this case, Smarsh did, in fact, charge Mr. Greene's
insurance company for the February 1992 films and sent a report
implying that the films had been read and interpreted, even though
there is no evidence the films were ever read by any qualified
practitioner.
14. 'Further, in discovery, Defendant claimed that the
February 1992 film which showed Richard Greene's lung cancer was
not "of diagnostic quality", as a justification for failing to read
the film.
15. Despite the fact that the x-ray was not read and
purportedly had no medical value, Defendant Smarsh nonetheless
charged Mr, Greene's Workers' Compensation carrier fully for the
x-rays as a "reasonable and necessary" medical expense.
3
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At the time the decedent received medicnl core nt Smnrsh Chiropractic, Dr, Smlll'sh
wos not providing cllre to patients, Dr, Smllrsh hnd been diagnosed with n brllin tumor und
withdrew from IIctivo trentment of pntionts to IIl10w him to nttond to his own mediclIl needs,
Dr, Smllrsh's bmin tumor proved to be benign, However, Dr. Smnrsh, due to surgical
removal of the tumor, developed an eye.hnnd coordination deficit which prevented him from
providing octulIl chiroprllctic mnnipulation to patients, Thus, Dr, Ronnld Duriske WIIS the
senior chiropractor during Dr, Smllrsh's nbsence, Dr, Dul'iske nnd Dr, Richnrd Onshore
uctually provided the chiropractic treatments to the decedent,
The decedent was ultimntely dingnosed with an undifferentiated lurge cell curcinoma
of the lung on June 2, 1992, This diagnosis wns renched after the decedent presented to the
Holy Spirit Hospital emergency room on May 28, 1992, As a part of the emergency room
examination, the decedent had II chest x-ray taken which revealed a 9.5 centimeter right lung
mass, The decedent's lung cuncer was extremely aggressive and, unfortunotely, he pnssed
IIIvny three months IlIter in September of 1992,
II. STATEMENT OF FACTS AS TO DAMAGES
Plaintiff c1l1im she incurred $8,530,93 in medical, burial nnd funeral expenses,
Plaintiffs deposition testimony clearly shows the decedent's earning capacity was adversely
nffected by his work. related bnck injury, prior to the diagnosis of cuncer, Tho decedent wns
not expected to work at any point in the future due to the naturo of his back injury, Even
when the decedent did work, he hnd 0 very sporadic work history, His employment with an
employer usunlly only lasted a couple of months, The decedent dropped out of high school in
tenth grade nnd only obtained his GED nfter entering the military,
The decedent nlso stopped pursuing hobbies ns n result of his work,relllted bnck
injury, pl'ior to the dingnosis of cnncer, Additionnlly, tho decedent performed no housewOl'k,
coolling, 01' ynrd wOl'k due to the sel'Cl' pnin in his bnck,
2
Defendnnts contest their l'espolIsibility for nny nnd nil nllegntions of domnges,
III. STATEMENT OF LIABILITY AND DAMAGES ISSUES
(A) WHETHER THE DEFENDANTS' TREATMENT OF THE
DECEDENT DEVIATED FROM THE THEN.EX[S'r[NG,
ACCEPTABLE STANDARDS OF CHIROPRACT[C CARE,
(Il) WHETHER DEFENDANTS' ALLEGED FA[LURE 'ro
DIAGNOSE THE DECEDENT'S LUNG CANCER WAS THE
CONTHIIlUT[NG FACTOR TO H[S DEATH, GIVEN 'rHE
AGGRESS[VE NATURE OF THE CANCER AND THE
EXTREME[N POOR PROGNOSIS FOR SURVIVAL,
(C) WHETHER THOMAS J. SMARSH, D,C., P,C, tJd/b/o SMARSH
CHIROPRACT[C [S VICARIOUSLY L[ABLE FOR
CHIROPRACT[C TREATMENT RENDERED BY RONALD
DURlSKE, D,C. AND RICHARD BASHORE, D.C,
IV. LEGAL ISSUES
Tho burden of proof in 0 chiropl'llctic molproctice oction is upon tho P[ointiff to
provide: (1) the heo[thcnre provider did not possoss ond employ the required skill nnd
know[odge, or; (2) the hen[thcnre providor did not exercise the core ond judgment of II
I'ensonnb[e mon in like circumstances. [t is further necessnry to prove thot the injury
comp[oined of either: (1) resulted from the foilure on the port of the hellthcore provider to
possess ond employ the required omount of skill ond knowledge, or (2) resulted from the
heo[thcnre providel's' foiluJ'lJ to exercise caro ond judgment of 0 reosonoble mon in like
circumstances, Donllldson v, Mnffucci, 397 Po, 548 (1!J59); Incollin!!o v, Ewin!!, 444 Po, 263
(197l); Grnv v, Grunn!!le, 423 Po, 144 (1966), In the nbsence of a specinl contrnct, 0
healthcare provider is neither a warrantor of a cure nor a guarnntor of a result of the
treatment, Cllrl v, Mllt7.ko, 231 Pn, Super, 446 91968); 40 Po, C,S,A, ~130I.606, As
explained by Chief Justice Stern of the Pennsylvonio Supreme Court:
, , . no pl'Csumption or inference of negligence IIrises merely
beclluse the medicIII cnre 01' surgical operation terminnted in nn
unfortunllte result which might hnve ol'curred even though
proper cnre IInd skill hnd been exercisml nnd whel'o the common
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CERTIFICATE OF SERVICE
AND NOW, this 21" dny of Fcbrunry, 1997, !, Joscph A. Ricci, Esquirc, hercby ccrtify
thllt ! servcd n true nnd correct copy of the foregoing PI'e-Trial Memol'andum of
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Defendants upon nil counsel of record by depositing n copy of snmc in the United Stntcs
mnil, regulnr delivery, postngc prepnid nt Hnrrisburg, Pcnnsylvnnill, nddrcssed ns follows:
Terry S. Hymnn, Esquire
ANGINa & ROVNER, P,C,
,1503 North Front Strcet
Hnrrisburg, PA 17110
(Counscl for Plnintifl)
, Esquire
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"EXHIBIT A"
SErrTLEMENr ANNUI'IY Febnliuy ." 1997
PAOOOE IlLUS'ffiATICt-lS Pilge 1 ot' 1
FOR COLLEEN GREENE
DFSOOPI'ICN OF BEllEFITS YIELD GlIAIlIINnm- -
ILLUSTRATICt-l ID. 1 :
Up Front M:Jni.es $ 100,000 $ 100,000
Annuity Certain continuing
for 10 years, providing
$ 1,000 per ITDllth level incare $ 120,000 $ 120,000
Plus, LI..1nll Sum payrrents of:
$ 10,000 in 10 years $ 10,OaO $ 10,000
'rorAL SEl'IUMENT PAOOOE $ 230,000 $ 230,000
ILI..USrnATICt-l ID. 2
Up Front M:Jni.es $ 100,000 $ 100,000
Annuity Certain continuing
for 15 years, providing
$ 750 per rronth level incare $ 135,000 $ 135,000
Plus, LI..1nll Sum payrrents of:
$ 25,000 in 15 years $ 25,000 $ 25,000
'rorAL SEl'IUMENT PACKAGE $ 260,000 $ 260,000
ILLUSTRATICt-l ID. 3
Up Front M:>nies $ 100,000 $ 100,000
Lump Sum payrrents of:
$ 10,000 in 2 years $ 10,000 $ 10,000
$ 15,000 in 4 years 15,000 15,000
$ 20,000 in 6 years 20,000 20,000
$ 25,000 in 8 years 25,000 25,000
$ 30,000 in 10 years 30,000 30,000
$ 35,000 in 12 years 35,000 35,000
$ 40,000 in 14 years 40, 000 40,000
$ 175,000 $ 175,000
'rorAL SEI'l'LEMENI' PACKAGE $ 275,000 $ 275,000
THE
PENSION Portion of annuity guarantet.'Cl in tho .)Vent at' [Jt"Cl1Iltlll"O death.
COMPANY
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Ronald I. Cantor, M.D.
William A. Biermann. M.D.
Frederick M. F~llin, M.D.
.~:JocIQtd,
Hematologyl Ml't!I~rll OncolollY
TIlom". Jelfer.on :uruvu,1I1Y
SUIl' <.14100
III Soutl: ,-lc',er.'JI 31".,
PhUoaelpl1la, FA 11l1075CQ2
VOle", ~15'951'O;03\l
:0." 215'9SS.0HlO
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~.lont'omerl Hospital
SUlle 50~
13':>0 Powell Sue.t
:O;omatoWn, P.' 19-401
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Che,<rnuf HI11 Ho.plta:
Suite 221
uell~ Cennont')""n Menue
r:llladclIjllla, PA 1911,
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Feb. 3,j 1997
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J05ep~ to,. Ricci
FalTcll1& Rtcet, P,C,
Suite IP8
2000 Llnglestown Road
I~arrts~urg. PA 17110
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~l,have ~ev1elVed the follo\\ing records to preHare an ell.-pert Medlenl Oncolog}'
OPIn" ionltn the case of Green v. Smarch: !
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Lkgal Dpcumcnts :
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Ii. Compiatnt ,
2, An~"Ier of Defendants I
:3: F;xpett report of Dr. Jelfrey Pcrrapato un t.l~half of Plalmiff
.J:; Deposition of Colleen Green
5; DepO~ltlon of Dr, Ronald Durlslce
6i Deposition of Dr. TholTlRS Smarsh
Depo.slt~on of Dr. Richard Bashore
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MedlcallRecords
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, I. RecoIils of Smarsh Chlropl'a<:Uc
, 2. Recorfis of Holy Spil"U Hospital
:),1 ere, .corps of Andrews and Patel I
.j.,: Rccorj:is of Oakwood Center I
. 5, R,ecor~s of Community General osteopathjc: Hospital
,6. Records of Dr. Rtchard Fldeler
7..Rec'Jrl1s of Dr. Richard AquIno I
8: Records of Internists of Central PA i
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'The Inltlal X-ray was done In Fcb 1997 amli~howed a 1.5 em nodule In the
IWlg ( !urns were not provided ). In late Mnylhe was found to have a large mo.:3S
on CT Scan. The skull was Involved \VItil a rjlctastatic lesion at that time. Thus,
it h~ ~een proposed that the disease had progressed from a theoretical Stage I
toiStage IV In a little more than 3 months, It has been stated that In Feb, 1992
th~ lesIon was resectable. TIle curnblllty of ~he lesion U1 Feb, 1992 In tills case
Islthe major questton. '
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In:the ~acuum of real Ulll~. a 1,5 L1n lung nbdule Is surgically rt':l;t':crable.
R#seetlon with Intent to cure does not mean that the lung cancer 15 cured. In
fact. tile Oncology Uterature abounds with ~ata that demonstrates that when a
lung c!U1ccr is resected for cure, the dlseas~ may well have silently spread.
Large cell carcinomas tend to be more l1kelli' to behave In this manner. In this
caSe w,e: have the enUre time sequence that :shows us that the tumor had
already'sllently spread In Feb 1997, and thus was not curable at the time of
the Inillal surgery. /
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Inlmy pplnJon. beyond a reasonable doubt. I Mr, Greene's c:lI1ccr would not
have ~cn cured If the lesion were resected;in Feb. 1992 given Its pattern ef
spread some 3 short months later.
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Farrell & Ricci, P,C,
2000 r.ln~lc,tuwn Rd.
511llc 108 f\r\
lIotrrbbllr~, PA 171tO ~
(717) 652,6101
I.
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PBNNSYLVANIA
CIVIL ACTION - LAW
.
.
v.
.
.
:
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C., :
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
.
.
.
.
JURY TRIAL DEMANDED
.
.
PLAINTIPF'S PRB-TRIAL MEMORANDUM
I. STATEMBNT OF THB CASB
Richard Greene died a quite painful death from lung cancer in
september, 1992. He was 35 years old at the time, leaving behind
a wife and two minor children.
For two years prior to his death, Mr. Greene underwent
treatment at Smarsh Chiropractic for an ongoing back injury. In
February, 1992, Smarsh took x-rays of Richard Greene's spine which
included Mr. Greene's lungs within the x-ray view. The films were
taken by Richard E. Bashore, a chiropractor, who had just graduated
from Chiropractic school and was still in his "training" period
with Smarsh.
At the time, Dr. Thomas Smarsh was physically unable to
practice as a chiropractic, leaving Dr. Ronald Duriske in charge of
the Smarsh Chiropractic practice.
Drs. Smarsh, Duriske, Bashore, as well as Plaintiff's expert,
uniformly testified that a chiropractor receives sufficient
lO1l44/PJH
ORIGINAL
training in x-ray interpretation, and has the duty to, identify
abnormalitieR in the lung on the spine films regularly taken as
part of chiropractic diagnosis and treatment. The chiropractor is
not required to make a diagnosis of the lung abnormality, but is
required to recognize the presence of something which should not be
there, and refer the patient to a medical doctor for follow-up
care.
Hr. Greene's x-rays taken by Smarsh in February, 1992, show a
two-centimeter solitary nodule in his lung. This finding was quite
noticeable and should have been seen by the chiropractor
interpreting the film.
In his deposition, Dr. Bashore testified that when taking Hr.
Greene's films, he was acting strictly as a technician. According
to Bashore, the obligation to interpret the films or, if they were
in any fashion inadequate for interpretation, to re-order adequate
films, lay at the door step of Dr. Duriske, the supervising
chiropractor, not with himself.
Duriske, however, in his deposition, indicated that full
responsibility for the interpretation of the February film and the
determination as to whether additional films were needed, lay with
Bashore, the chiropractor who took them.
Neither Duriske nor Bashore testified that they had in fact
viewed and interpreted Hr. Greene's February, 1992, films. The
2
Smarsh records do not contain any written interpretation of the
February, 1992, films.
Interestingly, Smarsh did charge Plaintiff's workers'
compensation carrier for the films and their interpretation as
reasonable and necessary medical charges related to diagnosing Mr.
Greene's back injury. Additionally, Smarsh sent a word processor
generated form report letter to the compensation carrier stating
the February x-rays showed continuing medical problems in the
patient's neck, which would require all views taken on February,
1992, to have been reviewed.
Plaintiff's expert, Dr. Norman Kettner, is the Chairman of the
Department of Radiology at a major School of Chiropractic Medicine.
He is a chiropractor himself and is obviously familiar with the
role radiology plays in day-to-day chiropractic practice. His
report is attached hereto. Dr. Kettner will testify to the rather
basic conclusion that when a chiropractor takes, and charges for,
an x-ray film, somebody needs to actually interpret it. Had that
been done in this case, the nodule in Mr. Greene's lung should have
been recognized by a chiropractor using the ordinary skills and
training of his profession, at which point Mr. Greene should have
been referred immediately for cancer work-up.
The chiropractors at Smarsh failed to look at Mr. Greene's
films and refer him for treatment fell below the standard of care.
3
As a result, Hr. Greene's lung tumor progressed from 2 centimeters
in February to ~ centimeters when discovered in April.
Also attached is the report of Dr. Jeffrey Perrapato, a
thoracic surgeon associated with the Cleveland Clinic. Dr.
Perrapato indicates that had the two-centimeter lesion been worked
up in February before it progressed to 8 centimeters, the patient
had a 50-60% chance of survival. At the time of discovery, Hr.
Greene had a 0% chance of survival. In fact, Richard Greene did
live only about six months, during which he underwent
extraordinarily painful treatment. He left behind his wife and
children.
II. WITNESSES
Plaintiff may call any of the following witnesses:
1. Colleen Greene
2. Thomas Smarsh, as if on cross
3. Ronald Duriske, as if on cross
4. Richard Bashore, as if on cross
5. The office manager of Smarsh D.C., P.C.
6. Dr. Jeffrey Perrapato
7. Dr. Norman Kettner
8. A supervisor from Gabler
9. Harie Bobeck, Colleen Greene's mother
10. Racquel and Richard Greene/ Jr.,
children
4
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11. Pauline Henry, Plaintiff's mother
12. Hanuel HcDilda, a co-worker
Plaintiff also reserves the right to call any person who is
identified in Plaintiff's medical records, including physicians who
treated him, any person identified by Defendant, and to reasonably
supplement this list.
III. BXHIBITB
Plaintiff may use any of the following exhibits:
A. Plaintiff's medical records and bills. .
B. Plaintiff's x-rays
C. Wage information from Plaintiff's employer at the time of
death
D. Anatomical charts or exemplar x-rays in conjunction with
Plaintiff's experts' testimony
E. Chiropractic textbooks and/or standards to be introduced
in direct. (Plaintiff reserves the right to utilize
texts, standards or diagrams in cross-examination,
depending upon the manner in which Defendants or their
expert testify,)
F. Photographs of Plaintiff
G. Bills and Reports from Smarsh to Compensation carrier
Plaintiff reserves the right to supplement this list with
timely notice to Defendants.
5
IV. LIMITATIONS ON DErBNSB EXPBRT TESTIMONY I
This cass was originally listed for trial on the November,
1996, trial list. In october, the parties agreed to withdraw the
listing to complete expert discovery. At the time, plaintiff had
provided ~ liability reports, but was waiting for an economist's
wrongful death damage calculation.
At that point, despite several letters and phone calls,
Defendant had not produced any liability or damage expert report.
In December, 1996, plaintiff produced his economist report
showing economic losses between $350,000 and $550,000 dollars.
Plaintiff also filed a Motion in Limine to preclude Defendants from
offering expert testimony based on its failure to identify any
expert despite the case being listed for the January trial term.
In January, 1997 at the Pretrial, Defense counsel requested a
continuance to complete its expert discovery. Judge Hoffer
thereupon issued an Order, requiring Defendant to produce its
liability or causation experts no later than February 6, 1997.
Defendant did produce an expert report on causation, but no
report addressing the Defendant's conformance to the standard of
care. Additionally, Defendant did not produce an expert economist
report.
Plaintiff has filed a Motion to Preclude Defendant from
Offering any expert testimony on negligence. plaintiff will also
6
request, at Pre-trial, that any defense expert on damages be
likewise precluded at trial.
V. AMBNDMBNT FOR PUNITIVB DAMAGBS
Given the facts elicited in discovery and the complete failure
of Defendants to offer a defense of their conduct through an
expert, Plaintiff submits a Charge on Punitive Damages is justified
in this case. Plaintiff, therefore, attaches a Motion to Amend the
Pleadings to allow the jury to award punitive damages.
VI. SBTTLBHBNT NBGOTIATIONS
Plaintiff has made a demand of $785,000,
offered $200,000,
Defendant has
Respectfully sUbmitted,
ANGINO & ROVNER, P.C.
/~~E"Uir.
I. . No._ ~B07
4503 Nortb Front street
Harrisburg PA 17110
(717) 238-6791
Counsel for Plaintiff
DATED: February 18, 1997
7
.
COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SHARSH, D.C., and
THOMAS J. SHARSH, D.C., P.C.,
t/d/b/a SHARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 1997,
upon consideration of Plaintiffs' Motion to amend the Complaint to
include punitive damage, said Motion is hereby GRANTED.
BY THE COURT:
J.
COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
THOMAS J. SHARSH, D.C., and
THOMAS J. SHARSH, D.C., P.C.,
t/d/b/a SHARSH CHIROPRACTIC,
Defendants
NO. 95-1844
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION TO AMEND THE PLEADING
1. The above-captioned case arises out of a delay in the
diagnosis of Richard Greene's lung cancer.
2. Richard Greene was a long-time patient of Defendant
Smarsh Chiropractic. As part of his care, Smarsh took repeated
x-ray films which showed not only Hr. Greene's spine, but also his
lungs.
3. In February 1992, Hr. Greene had reDeat x-rays taken at
Smarsh. His previous films had shown clear lungs. The February
1992 film showed a distinct solidary nodule in the right upper
lung. The Defendants concede that a licensed Chiropractor has a
duty to identify the presence of abnormalities in the lung.
Defendants have offered no testimony or expert report indicating
that the nodule was not present or could not have been identified
and noted by a Chiropractor using the ordinary care of his
profession.
l07452/PJM
4. The February 1992 x-rays were taken by a Smarsh
employee, Richard Bashore, D.C.
S. In February 1992, Bashore had just graduated from
Chiropractic school and was on his first job. Bashore had
previously worked most or his adult life as a bartender for Hershey
Resorts. Other than taking a few science courses at HACC, he did
not receive a college diploma prior to attending chiropractic
school.
6. Bashore specifically testified that in February 1992, he
was still in his probationary training period with Smarsh. Bashore
testified it was Dot his responsibility to interpret the films nor
order additional films should the films be in any way inadequate.
He was, according to his own testimony, acting as a technician
rather than a doctor at the time.
7. Bashore testified the responsibility for looking at the
films and deciding if they were adequate lay with his supervising
chiropractor, Ronald Duriske.
8. Bashore could not testify under oath that he ever read
any of the films taken of Richard Greene in February 1992.
9. Ronald Duriske, D.C., contrary to Bashore's testimony,
testified that he, Duriske, had no responsibility to read the films
nor interpret them. Duriske indicated that responsibility lay with
the practitioner taking the films, namely, Dr. Bashore.
2
10. Duriske, like Bashore, could not testify that he
actually looked at any of Richard Greene's February 1992 x-ray
films.
11. No qualified person at Smarsh actually looked at Mr.
Greene's films.
12. Smarsh Chiropractic made no written interpretation of Mr.
Greene's February 1992 films. As part of its practice, Smarsh uses
pre-printed computer forms which generate a report to be submitted
to insurance carriers. The pre-printed forms contain form language
used on all reports, suggesting that the x-ray films were read and
interpreted, even if they had not been.
13. In this case, Smarsh did, in fact, charge Mr. Greene's
insurance company for the February 1992 films and sent a report
implying that the films had been read and interpreted, even though
there is no evidence the films were ever read by any qualified
practitioner.
14. Further, in discovery, Defendant claimed that ,the
February 1992 film which showed Richard Greene's lung cancer was
not "of diagnostic quality", as a justification for failing to read
the film.
15. Despite the fact that the x-ray was not read and
purportedly had no medical value, Defendant Smarsh nonetheless
charged Mr. Greene's Workers' Compensation carrier fully for the
x-rays as a "reasonable and necessary" medical expense.
3
16. By charging a workers' compensation carrier for x-rays
which had no treatment value and were, by Defendants' own
characterization, diagnostically useless, Smarsh engaged in
frau4ulent conduct under the Workers' Compensation Act.
17. Where a licensed chiropractic practice takes an x-ray
film and does not read it, but nonetheless charges the patient and
his insurance company for services which are not rendered and which
the Defendants themselves claimed to be diagnostically valueless,
Defendants' conduct is of a nature justifying the imposition of
punitive damages.
WHEREFORE, Plaintiff prays Your Honorable Court will grant its
Motion to amend the pleading and permit the jury to decide
exemplary damages.
Respectfully sUbmitted,
ANGINO & ROVNER, P.C.
Hyma , E qu re
No. 3680
4503 North Fron Street
Harrisburg PA 17110
(717) 238-6791
Counsel for Plaintiff
DATED: February 18, 1997
4
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
33
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 95-1844 CIVIL TERM
THOMAS J. SHARSH, D.C., and
THOMAS J. SHARSH, D.C., P.C.,
t/d/b/a SHARSH CHIROPRACTIC, : CIVIL ACTION - LAW
Defendants JURY TRIAL DEMANDED
IN RE: PRETRIAL CONFERENCE
At a pretrial conference held Thursday, January 2,
1997, before the Honorable George E. Hoffer, in the medical
malpractice action, present for the plaintiff was Terry S.
Hyman, Esquire, and present for the Defendants was Joseph A.
Ricci, Esquire.
The Defendant is a chiropractor. His office took
certain x-rays of the decedent. Plaintiff claims that the
x-rays were either misread or not read, and the x-rays all the
while showing a stage of cancer. Plaintiff's claim is if the
proper diagnosis could have been had, decsdent's chances of
continued life would have been greatly increased.
Mr. Ricci's expert has withdrawn from the CAse only
last Friday, and he will need time to obtain a new expert. On
that basis, and because Mr. Ricci's law office is having a
transformation, Mr. Ricci requests a continuance until the next
term of trials, which would be March 17, 1997.
We direct
either counsel to relist the case for trial during that time.
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COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS,
: CUMBERLAND COUNTY, PA
: NO. 95-1844
vs.
: CIVIL ACTION - LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
tJd/b/a SMARSH CHIROPRACTIC
DEFENDANTS
: JURY TRIAL DEMANDED
REPLY OF DEFENDANT THOMAS J. SMARSH, D.C., P.C. TO PLAINTIFFS
PETITION AND RULE TO SHOW CAUSE WHY DEFENDANT SHOULD NOT BE
PRECLUDED FROM OFFERING EXPERT TESTIMONY ON LIABILITY
AND NOW, comcs Dcfcndant Thomas J. Smarsh, D.C., P.C., by nnd through his
counscl, Fnrrcll & Ricci, P.C., by Joscph A. Ricci, Esquirc nnd rcsponds to Plnintiffs Pctition
and Rulc to Show Causc as follows:
1. Admittcd.
2. Admittcd
3. Admittcd.
4. Admittcd.
5. Admittcd.
6. Admittcd.
By way of furthcr rcsponsc, counscl for Dcfcndant tclcphoncd
counscl for Plaintiff bcforc thc c10sc of busincss oa l~cbrullry 6, 1997 to ndvisc thnt n rcport
hlld bccn prcparcd by Dcfcndant's cxpcrt and was to bc faxcd to dcfcnsc counscl. Dcfcnsc
counscl furthcl' indicatcd that liS soon as thc rcport WIIS rcccivcd, it would bc faxcd to
Plaintiffs counscl.
1
CERTIFICATE OF SERVICE
AND NOW, this("c::l"-;lay of Fcbl'ullry, 1997, I, Joscph A. Ricci, Esquirc, hcrcby cm'tify
that I SC1'VCrl II truc and corrcct copy of thc forcgoing REPLY OF DEFENDANT THOMAS
J. SMARSH, D.C., P.C. TO PLAINTIFF'S PETITION AND RULE TO SHOW CAUSE
WHY DEFENDANT SHOULD NOT BE PRECLUDED FROM OFFERING EXPERT
TESTIMONY ON LIABILITY upon all counscl of rccord by dcpositing a copy of samc in thc
Unitcd Statcs mail, rcgular dclivcry, postagc prepllid at Harrisburg, Pcnnsylvania,
addrcsscd as follows:
Tcrry S. Hyman, Esquirc
ANGINO & ROVNER, P.C.
,1503 North Front Strcct
Harrisburg, PA 17110
(Counscl fOl' Plaintiff)
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Jos'cph A. Ricci, Esquirc
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S PRE-TRIAL MEMORANDUM
I. STATEMENT OF THE CASE
Richard Greene died a quite painful death from lung cancer in
September, 1992. He was 35 years old at the time, leaving behind
a wife and two minor children.
For two years prior to his death, Mr. Greene underwent
treatment at Smarsh Chi~opractic for an ongoing back injury. In
February, 1992, Smarsh took x-rays of Richard Greene's spine which
included Mr. Greene's lungs within the x-ray view. The films were
taken by Richard E. Bashore, a chiropractor, who had just graduated
from chiropractic school and was still in his "training" period
with Smarsh.
At the time, Dr. Thomas Smarsh was physically unable to
practice as a chiropractic, leaving Dr. Ronald Duriske in charge of
the Smarsh Chiropractic practice.
Drs. Smarsh, Duriske, Bashore, as well as Plaintiff's expert,
uniformly testified that a chiropractor receives sufficient
101H.I/PJM
..
.
~
training in x-ray interpretation, and has the duty to, identify
abnormalities in the lung on the spine films regularly taken as
part of chiropractic diagnosis and treatment. The chiropractor is
not required to make a diagnosis of the lung abnormality, but is
required to recognize that the presence of something which should
not be there and refer the patient to a medical doctor for follow-
up care.
Mr. Greene's x-rays taken by Smarsh in February, 1992, show a
two centimeter solitary nodule in his lung. This finding was quite
noticeable and should have been seen by the chiropractor
interpreting the film.
In his deposition, Dr. Bashore testified that when taking Mr.
Greens' films, he was acting strictly as a technologist. According
to Bashore, the obligation to interpret the films or, if they were
in any fashion inadequate for interpretation, to re-order adequate
films, laid at the door step of Dr. Duriske, the supervising
chiropractor, not with himself.
Duriske, however, in his deposition, indicated that full
responsibility for the interpretation of the February film and the
determination whether additional films were needed, lay with
Bashore, the chiropractor who took them.
Neither Duriske nor Bashore testified that they had in fact
viewed and interpreted Mr. Greene's February, 1992, films. The
2
..
I'
.
smarsh records do not contain any written interpretation of the
February, 1992, films.
Interestingly, Smarsh did charge Plaintiff's workers'
compensation carrier for the films and their interpretation as
reasonable and necessary medical charges related to diagnosing Mr.
Greene's back injury. Additionally, smarsh sent a word processor
generated form report letter to the compensation carrier stating
the February x-rays showed continuing medical problems in the
patient's neck, which would require all views taken on February,
1992, to have been reviewed.
Plaintiff's expert, Norman Kettner, is the Chairman of the
Department of Radiology at a major School of Chiropractic Medicine.
He is a chiropractor himself and is obviously familiar with the
role radiology plays in day-to-day chiropractic practice. His
report is attached hereto. Dr. Kettner will testify to the rather
basic conclusion that when a chiropractor takes, and charges for,
an x-ray film, somebody needs to actually interpret it. Had that
been done in this case, the nodule in Mr. Greene's lung should have
been recognized by a chiropractor using the ordinary skills and
training of his profession, at which point Mr. Greene should have
been referred immediately for cancer work-up.
The chiropractors at Smarsh failed to look at Mr. Greene's
films and refer him for treatment fell below the standard of care.
3
J.
01
.
.
As a result, Mr. Greene's lung tumor progressed from 2 centimeters
in February to ~ centimeters when discovered in April.
Also attached is the report of Dr. Jeffrey Perrapato, a
thoracic surgeon associated with the Cleveland Clinic. Dr.
Perrapato indicates that had the two-centimeter lesion been worked
up in February before it progressed to 8 centimeters, the patient
had a 50-60% chance of survival. At the time of discovery, Mr.
Greene had a 0% chance of survival. In fact, Richard Greene did
live only about six months during which he underwent
extraordinarily painful treatment. He left behind his wife and
children.
II. WITNESSES
Plaintiff may call any of the following witnesses:
1. Colleen Greene
2. Thomas Smarsh, as if on cross
3. Ronald Duriske, as if on cross
4. Richard Bashore, as if on cross
5. The office manager of Smarsh D.C., P.C.
6. Dr. Jeffrey Perrapato
7. Dr. Norman Kettner
8. A supervisor from Gabler
9. Marie Bobeck, Colleen Greene's mother
10. Racquel and Richard Greene, Jr., Plaintiff's children
11. Pauline Henry, Plaintiff's mother
4
.
. ~
IV. DISCOVERY PROBLEMS
The case was originally listed for trial on the November,
1996, trial list. In October, the parties agreed to withdraw the
listing to complete expert discovery. At the time, Plaintiff had
provided two liability reports, but was waiting for an economist's
wrongful death damage calculation.
At that point, despite several letters and phone calls,
Defendant had not produced any liability or damage expert report.
Plaintiff has now produced his economist report showing economic
losses between $350,000 and $550,000 dollars. Defendant still has
not produced a liability expert report of any type.
Plaintiff, therefore, requests Defendant be precluded from
offering any liability or causation experts at trial.
V. SETTLEMENT NEGOTIATIONS
The parties have not yet seriously discussed settlement.
Plaintiff has just made its demand of $7'5,000 known to Defendant.
Respectfully submitted,
ANGINO & ROVNER, P.C.
S. quire
No.
4503 Nor
Harrisbu
(717) 238-6791
Counsel for Plaintiff
DATED: December 26, 1996
6
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C:.IHlJllI TIIIIH ICIC ~rHla:H\. I'.C.
February 16, 1996
Mr. Terry S. Hyman
Attorney at Law
4503 North Front Street
Harrisburg, PA 17110-1708
RE: GREENE, Richard
Dear Mr. Hyman:
A brief summary of my review reveals that limited view of the
right upper lung field on Mr. Greene's chest x-ray done during
cervical spine films demonstrates a one to one and a half
centimeter solitary pulmonary nodule. Review of the chest x-rays
done the latter part of May, three months later, shows a nine and
a half centimeter mass in the same general area as the nodule.
The CT scan confirmed extensive mediastinal involvement. He was
also found at this time to have metastases to his calvarium and
it was clearly unresectable the end of May, beginning of June, at
the time this extensive workup was performed. This was proven to
be a large-cell carcinoma or a non-small-cell carcinoma.
There is a significant probability that this gentleman was
resectable on his initial studies at the end of FebruarYI
although we do not have a CT scan or any other test to prove or
disprove the presence of regional or distant metastases. The x-
ray does show a small solitary nodule that was probably amenable
to resection. By failure to have him fully evaluated at that
time, Mr. Greene, more probably than not, lost the opportunity
for a resection of his lung cancer. Patients with a single,
solitary node of non-small-cell carcinoma have a survival rate of
50-60% fOllowing resection. In patients who cannot be resected,
the survival rate is nil.
sincerely yours,
Wdr -A"~
Jeffrey T. Perrapato, M.D.
JTP:rt
"".11"111 ~1"'I'I'llll... lIull.lllljt 1~ln (;1111 It 1111.) ~1Ii11':!OU t\lIll1l111I1HfI. '11.11111111 (IJ'tl;tn I U:i:l F,\'\ fllfll:H;II:'~IIl)
C " R R ] C U L U M V 1 T . E
.
t.jAME: .
JEFFREY THOMAS PERRAPATO
PERSONAL HISTORY:
Birthdate: October 4. 1943'
Birthplace: Middletown, New York
Marital Status: Married. Wife: Carol Marie
Children: Spn. Jeffrey Jr.
Hobbi es: Sa i1 i ng. scuba d iv i ng. photography
.>
EDUCATl O.N:
College: Georgetown, 1961-1965 Degree: Biolog1 (Honors)
Medical School: Georgetown, 1965-1969
General Surgery Residency: Albany Medical Center, 1969-1971
Chief Re~ident. Georgetown Medical Center, 7/1/76-12/31/76
Chief Resident. D.C. General Hospital, 1/1/77-6/30/77
Thoracic I'. Cardiovascular Surgery Residency:
Cleveland Clinic Foundation, 7/1/77-6/30/79
Cincinnati Children's Hospital. 9/1/78-11/30/78
National 80ard ,of Medical Examiners: Certified 7/70
American Board of Surgery: Certified 7/78
American Board of Cardio Thoracic Surgery: Certified 6/80
Medical License: New Jersey and Michigan
~\1l:lT ARY:
Navy, USS Hanley, Senior Medical I'. Diving Officer, 8/71-7/73
MEDICAL SOCIETY:
American Medical Association
Southeaster~ Surg,cal Congress
Fellowship, American College of Surgery
Fellow~hip, American C,ollege of Cardiology
Fellowship, American College of Chest Physicians
Fellowship, Society of Thoracic Surgery
TEACHING POSITIONS:
Assistant Instructor in Surgery--Georgetown
Medical Officer (Thoracic)--D.C. General Hospital
PRESENTATIONS: (...
"Blood Conservation During Myocardial Revascularization"
~
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LOOAN
COt.Lf(1f Of O1IRO/'1V.cnC
July 24, 1996
Mr. Terry S. Hyman
Attorney at Law
4503 North Front Street
H&rrisburg, PA 17\10-1708
RE: Estate of Richard Green vs. Thomas Smarsh, D.C. and Smarsh Chiropractic
Dear Mr. Hyman,
I have reviewed copies of the clinical records of Mr. Green as well as the various
radiographs during treatment by Thomas Smarsh, D.C. and Smarsh Chiropractic.
1. It Is my opinion that the radiographic examination perfonned on 2-25-95 of the
cervical spine in the ~ !IIId lateral projection demonstrates an iII-defmed soft tissue nodule in the
pulmonary apex. It is also my opinion that this finding, although present on a teChnically ,
substandard radiograph, could and should have been noted. The radiologic education of
chiropractors places significance on the evaluation of this region of the radiograph during the
perfonnance ofa cervical spine ~ and well as other radiographic examinations. The emphasis
on radiographic detection of the pulmonary apex is for the purpose ofdetccting abnonnalities
such as infection or neoplasm which may arise incidentally during the course ofa cervical
radiographic examination.
2. In the event there is recognition of an apical abnonnaIity raising the suspicion of
neoplasm infection or trauma, additional radiologic imaging and consultation would be obtained in
a timely fashion in order to detennine the underlying nature of the abnonnaiity.
3. The patient history and objective physical examination arc essential to the c1inical data
base. They are used to fonnulate an initial clinical impression. A routine history should be
initialed and/or signed, thus establishing the identity ofthe primary examining practitioner.
Persons other than the primary clinician perfonning or recording clements of the history or
physical eXaminatlOf .s.hould have their names and/or initi.a1s appear on the fonn: Iri addition,
patient progress is provided by means of records, notes, (SO~) that document the presence or
'. .' ...... .' .,' . ,., .. .,,," . ." .... ";'"
1851 Schotlller Road
rOIl Oft\ce Bo. 1065
Cheslel1ldd.l1luouri 630Q6.106S
:114/227.2100
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1. Dean's List, University of Wisconsin,
Milwaukee 1970.1972
2. Dean's List, Logan College 1977.1979
3. Cum Laude, Logan College 1980
4. Instructor ofthe Year, Logan College 1984
5. Distinguished Service Award for CUnical
Science Division, Logan College 1985
6. Distinguished Service Award for CUnical
Science Division, Logan College 1986
7. Instructor of the Year, Logan College 1987
8. Special Recognition Award for
Chiropractic Education and Research 1988
9. Instructor ofthe Year, Logan College 1988
10. Certificate of Appreciation from the
Student Doctors Council, Logan College 1988
11. Distinguished Service Award for CUnical
Science Division, Logan College 1989
12. Fellow International College of
Chiropractors 1992
Acndemlc Appointments:
~', .
,
I. Professor of Clinical Science
Logan College of Chiropractic
September, 1993
2. Instructor
Postgraduate Division
Northwestern College of Chiropractic
March, 1993
3. Instructor
Postgraduate Division
Los Angeles College of Chiropractic
January, 1993
4. Tenured Faculty Member
Logan College of Chiropractic
1989
5.
Associate Professor of Clinical Science
Logan College of Chiropractic
September, 1987
6. Chainnan
Department of Radiology
Logan College of Chiropractic
August, 1984
2
~
5. Tutorial on Vivo Spectrosc,. .
April 1991
6. American Chiropractic College of Radiology
Annual Meeting
1993 - Annual Attendance
7: American Chiropractic College of Radiology
Annual Meeting
1994 - Annual Attendance
8. Radiologic Society of North America
Annual Meeting
1995 - Annual Attendance
9. American Chiropractic College of Radiology
Annual Meeting
1995 - Annual Attendance
10. Radiologic Society of North America
Annual Meeting
1995 - Annual Attendence
Orllllnal Papers:
1. Is it platybasin, basilar impression or invagination, NW Kettner. Roentien Brief
Council on Diagnostic Imaging; March 1982.
2. Calcified aneurysm of the internal iUac artery - a case study. NW Kettner, IE
Danz. Journal of Chiropractic October 1982: 19(10):70.
3. Three diverticular diseases of the abdomen. NW Kettner. Roentien Brief
Council on Diagnostic Imaging; December 1984.
4.
Scaphoid fracture with osteonecrosis. NW Kettner, JH Shorten. Journal of
~hiropractic June 1987; 24(6):75-77.
5.
Acute plastic bowing fractures: a review. NW Kettner. Chiropractic Sports
Medicine October 1987; 1(4):141-143.
6.
Prostatic metastasis to the cervical spine: a case study. JH Shorten, NW
Kettner. Journal of Chiropractic July 1988; 25(7):69.
8.
Abdomina1 aortic aneurysm - the total picture. TR Yochum, (JM Guebert, NW
Kettner. .Applied DiolP1ostic Imaiini JanuarylFebruary 1989; 1(1).
Limiting professional liability: improving x-ray quality. OM Guebert, NW
Keltner, TR Yochum. Applied Diaillostic Imallin~ May/June 1989; 1(3).
,7..
.,
7
9.
10.
11.
12.
13.
1. rvertebral disc derangement: the MR in. )ng perspective. NW Kellner,
GM Guebert, TR Yochum. Applied Diallnostic ImaIPnll May/June 1989,1(3).
The chiropractor's guide to radiographic technology. GM Guebert, NW
Kettner, TR Yochum. Applied Diallnostic Imsllinll July/August 1~1(4)
The radiology of segmental instability. NW Kellner, GM Guebert, TR
Yochum. Applied DiSlIJ10stic ImalPnll September/October 1989; 1(5):37-48.
The tilt-up view: a closer look at the lumbosacral junction. TR Yochum, GM
Guebert, NW Kellner. Applied Diawnostic ImalPnll November/December
1989; 1(6):49-60.
14.
Supra-hyoid thyroglossal cyst: a case study. NW Kellner. JOllmal of
Chiropractic October 1989; 26(10):81-82.
Differential diagnosis: a strategic approach. NW Kellner. DeTracts June
1989; 1(3):123-131.
15.
Osteoblastic metastases: a case report. DR Hobson, NW Kellner. Roentllen
Bricl'Council on Diagnostic Imaging; January 1991.
16.
The radiology of cervical spine injury. NW Kettner, GM Guebert. Journal of
Manipulative PhysiolOlzical Therapeutics November/December 1991; 14(9).
17.
Carpal instability: pathomechanics and contemporary imaging. MS Barry, NW
Kettner, C Peirre-Jerome. ~hirQpractic Sports Medicine May 1991; 5(2):38-
44. .
18.
MRI of the wrist: occult osseous lesions. NW Kellner, C Pierre-Jerome.
1ouma! of Manipulative Physiolollical Therl\peutics December 1992;
15(9):599-603.
19.
Hemispherical spondylosclerosis: a case study. NW Kellner, SR HilUs.
Roentllen Brief Council on Diagnostic Imaging, April 1991; 3:7-9.
20.
Synovial osteochondromatosis and a solitary osteochondroma effecting the
same hip: a case report. MS Barry, NW Kettner. Roentwen Brief
Council on Diagnostic Imaging, October 199 I; F(2):5.
21.
Unstable spondylOlisthesis in an athlete. JB Essman, NW Kellner. Topics in
Diallnostic Radiololl}' 1993; 1:12-14.
,22.
Radiology of the stress fracture. IK Roug, NW Kettner. Topics in diavostic
RadiolollY and Advanced Iml\lPn1l1993; 1:12.23. '
Myositis' ossificans traumatica: B case study with plain film and advanced
imaging. C Pierre-Jerome, NW Kettner. Topics in Diaillostic RadiolollY Rnd
Advsnced Imaiinll 1993; 1:21-23.
23.
8
24. L onostic imaging ofa.thletic injury. NW tiner, MSBany. Conservative
Management of Athletic Injuries, HT Hyde, ed. Williams & Wilkins (In
press).
25. Sternoclavicular osteoarthrosis simulating an apical lung lesion. MS Barry,
DR Kuhn, NW Kettner. TQpics in Diai"ostic RadiolollY and Advance Ima~na
1993; 1(2):6-9.
26. Partial sacral agenesis: a case study. II< Roug, NW Kettner. Journal of the
Neuromusculoskeletal System. Fall 1994; 2(3):140-143.
27. Solitary osteochondroma of the cervical spine: a case study. BA Eaton, NW
Kellner, JB Essman. Journal of Manipulative and Physioloilical
Therapeutics. May 1993; 18(4): 250-253.
28. Diagnostic Imaging ofUpper Extremity Trauma. Normwn W. Kettner. Audio
Lecture. DC Trscts. 7(3); 1995.
29. Yochum TR. Rowe U: Skeletal Radiolo~. Chapter 6. Diagnostic Imaging
of the Musculoskeletal System. Williams and Wtlkins. Baltimore, MD. 1996.
Contributing Author.
30. Cervical traction device study: a basic evaluation of home-use supine cervical
traction devices. PP Venditti, AL Rosner, NW Kettner, G Sanders.
Journal of the Neuromusculoskeletal System. Summer 1995; 3(2): 82-91.
Editorial Condensations:
~..
I.
Radiographically subtle soft-tissue injuries of the cervical spine. Analysis by
NW Kettner. DeTracts April 1990; 2(2):70-73.
2.
Geriatric assessment in the office setting. Analysis by NW Kettner, C
McInturff. DeTracts October 1990; 2(5):261-263.
Differential diagnosis ofsait disorders in the elderly. Analysis by NW Kettner,
D Kessler. D.C Tracts October 1990; 2(5):264-267.
3.
4.
Osteoporosis: an updated approach to prevention and management. Analysis
by NW Kettner, SC Ehlermann. D.C Tracts October 1990; 2(5):275-278.
s.
Neck pain in the elderly: common causes and management. Analysis by NW
Kettner, RR Mariner. D C. Tracts October 1990; 2(5):275.
The pathophysiology of cervical spondylosis and myelopathy. Analysis by NE
Kettner, P Dougherty. D C. Tracts October 1990; 2(5):279-284.
7.
Peripheral neuropathy: causes and management in the elderly. Analysis by NW
Kettner, RW Gehrs. DC Trscts October 1990; 2(5):285-288.
9
Postdddoral Seminars: (198j 186)
Bone Pathology. I
Bone Pathology - 2
Bone Pathology. 3
Skeletal Oncology
The joints, part 1
The joints, part 2
Anomalies
Intro to the Chest - 1
Intro to the Chest - 2
Intro to the Chest - 3
Intro to the Chest - 4
Intro to the Chest - 5
Intro to the Chest - 6
Intro to the Chest - 7
Chiropractic Roentgenology. 4
Chiropraclic Roentgenology - 9
Chiropractic Roentgenology - 10
Chiropractic Roentgenology - 11
Chiropractic Roentgenology - 12
Chiropractic Roentgenology - 13
Chiropractic Roentgenology - 14
Chiropractic Roentgenology. 15
Chiropractic Roentgenology. 16
Chiropractic Roentgenology - 17
Chiropractic Roentgenology. 18
Chiropractic Roentgenology - 19
Chiropraclic Roentgenology. 20
Chiropractic Roentgenology. 21
Chiropractic Roentgenology. 22
Chiropractic Roentgenology - 23
Chiropractic Roentgenology - 24
Chiropraclic Orthopedics
Chiropractic Orthopedics
Chiropractic Orthopedics
Chiropractic Orthopedics
Trauma
The Abdomen GI Tract
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiroprafli9 Examiner
Independent Chiropractic Examiner
GIIGU System
Chiropractic Roentgenology
Chiropractic Roentgenology
Chiropractic Roentgenology
Differential Diagnosis
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palin Beach, FL
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
Detroit, MI
St. Louis, MO
Columbia, SC
Detroit, MI
St. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
Orlando, FL
West Palm Beach, FL
Jackson, MS
11
12/17/83
01/21/84
02/18/84
04/28/84
09/15/84
10/20/84
11/10/84
01/19/85
02/23/85
03/23/85
04/13/85
05/04/85
09/21/85
09/21/85
04/19/85
05/18/85
06/29/85
07/27/85
08/24/85
09/28/85
10/26/85
11/23/85
12/14185
01/25/86
02/22/86
03/22/86
05/24/86
06/28/86
07/26/86
08/23/86
09/27/86
10/12/85
11/09/85
01/11186
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11116185
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02/08/86
05/17/86
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1111.2/86 .
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12/6-7/86
02/15/86
03/15/86
10/25-26/86
12/13-14/86
09/20/86
Po~tdoctorAI Seminars: (1986 '90)
Radiological Evaluation of Spinal
and Pelvic Pain
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropraclic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropraclic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropraclic Radiology
Chiropraclic Radiology
Advanced Imaging
AI of Spinal Column
AI Chronic Pain Syndromes
AI Chronic Pllin Syndromes
Chiropraclic Orthopedics
Chiropraclic Orthopedics
Chiropractic Orthopedics
DDX: Spinal and Pelvic Pain
Tumor & Tumor-like Lesions
Tumor & Tumor-like Lesions
Tumor Recognilion
Trauma oflhe Axial Skeleton
Infeclions ofSkelelon
Infeclions of Skeleton
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiolo~., "
Melabolic Bone Disease
Metabolic Bone Disease
Metabolic Bone Disease
Metabolic Bone Disease
Dysplasias, Anomalies &
Vascular Disorders
Binningham, AL
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
51. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
SI. Louis, MO
St. Louis, MO
SI. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
SI. Louis, MO
St. Louis, MO
51. Louis, MO
51. Louis, Mo
51. Louis, MO
St. Louis, MO
St. Louis, MO
51. Louis, MO
St. Louis, MO
St. Louis, MO
St. Louis, MO
Newark, Nl
Mobile, AL
Jackson, MS
Cape Girardeau, MO
Balon Rouge, LA
Balon Rouge, LA
Balon Rouge, LA
Columbia, MO
SI. Louis, MO
Bloomfield, NJ
Bloomfield, Nl
SI. Louis, MO
Bloomfield, Nl
Miami, FL
SI. Louis, MO
SI. Louis, MO
Columbia, SC
Bloomfield, Nl
Bloomfield, Nl
Miami, FL
Miami, FL
Bloomfield, Nl
12
10/18-19/86
01117-18/87
0212 I -22187
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06/13-14/87
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10/10-11187
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03/12.13/88
03/19-20/88
04/16-17/88
05/14.15/88
09/10-11/88
10/08-09/88
11/12.13/88
12110.11/88
01121.22189
02111.12189
03/1 1.12189
04/08-09/89
OS/20-21/89
06/10-11/89
01/28-89/89
01/24-25/87
08/27.28/88
10/22-23/88
05/16-17/87
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12/01-02I9Q,
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01/13-14/90
04/28-29/90
05/12-13/90
02117-18/90
'Poddoctoral Seminars: (199& _. )3)
Dysplasias, Anomalies &
Vascular Disorders
Appendicular Skeletal Trauma
Pathomechanial Syndromes
Skeletal Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
DI: Spinal Pathology
Radiology Cervical Spine Trauma
Neuro Diagnostic Imaging
Neuro Diagnostic Imaging
Neuro Diagnostic Imaging
Imaging of Unstable Cervical Sp.
Pathomechanics of Upper Exlrem.
Pathomechanics of Upper Exlrem.
Tumor & Tumor-like Lesions of Bone
Tumor & Tumor-like Lesions of Bone
Tumor & Tumor-like Lesions of Bone
Tumor & Tumor-like Lesions
Tumor & Tumor-like Lesions
Advanced Imaging of Spinal Pain
Sports Injuries
Sports Radiology
Sports Radiology
Sports Radiology
Soft Tissue Injury Cervical Spine
Pediatric Sports Injury
Advanced Imaging for Chiropractor
Diagnostic Imaging for Chiro.
Diagnostic Imaging of Sports Inj.
Diagnostic Imaging
Certified Chiro. Sports Phys.
Certified Chiro. Sports Phys.
Skeletal Radiology
Diplomate Chiro. Sports Inj. #13
Diplomate Chiro. Sports Inj.
Diplomate Chiro. SpO{ts.Inj. #4
ABCA Practice Guidelines
Degenerative Joint Disease
Degenerative Joint Disease
DI: Destructive Lesions
DI: Destructive Lesions
DI: Soft tissues Injuries
Miami, FL
Bloomfield, NJ
51. Louis, MO
Newark, NJ
Columbia, SC
Wichita, KS
Columbia, SC
Wichita, KS
Wichita, KS
Richmond, VA
Richmond, VA
Richmond, VA
51. Louis, MO
Miami, FL
St. Louis, MO
St. Louis, MO
51. Louis, MO
Orlando, FL
Atlantic City, NJ
Atlantic City, NJ
St. Louis, Mo
St. Louis, MO
51. Louis, MO
Tulsa, OK
Tulsa, Ok
51. Louis, MO
Phoenix, AZ
Pittsburgh, P A
St. Louis, MO
Huntsville, AI..
Miami, FL
Minneapolis, MN
St. Louis, MO
51. Louis, MO
Ft. Lauderdale, FL
St. Louis, MO
Coraopolis, P A
St. Louis, MO
St. Louis, MO
St. Louis, MO
Minneapolis, MN
Columbia, SC
St. Louis, MO
Elizabeth, NJ
Elizabeth, NJ
Elizabeth, NJ
SI. Louis, MO
Newark, NJ
13
06/23-24/90
03/17-18/90
06/ I 5- I 6/90
11/11-12190
01112-13/91
01/19-20/91
02102-03/91
02116-17/91
03/16-17191
04/06-07/91
05/04-05/9 I
06/01-02191
02109- I 0/9 I
05/14-15/91
05/18-19/91
09/1 4-1 5/91
10/26.2719 I
08/23.24/91
09/28.29/9 I
03/07-08/92
11/23.24/9 I
12121-22191
01/18-19192
03/13-14/93
03/20-21/93
12112-13/91
12114-15/91
04/04.05/92
06/13.14/92
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03/27.28/93
09/18-19/93
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10/16-17/93
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P05tdoctoral SeminaI'!: (1994- )
Diagnostic Imaging
Diagnostic Imaging
Diagnostic Imaging
Certilied Chiropractic Sports Phy.
Certilied Chiropractic Sports Phy.
Diagnostic Imaging
Sports Radiology
Sports Radiology
Sports Radiology
Manipulation under Anesthesia
Diagnostic Imaging
Diagnostic Imaging
Diagnostic Imaging for Chiro
Diplomate Chiropractic Orthopedics
Manipulation under Anesthesia
Orthopedic Radiology
Diagnostic Imaging
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Fundamentals ofMR Imaging
Diplomate Chiropractic Orthopedics
Radiography ofthe Cervical Spine
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
CCSP - Sports Radiology
Differential Diagnosis
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Radiculopathy
CCSP - Sports Radiology
CCSP - Sports Injuries
Diagnostic Imaging
Diplomate Chiropractic Orthopedics
Rheumatology
Rheumatology
Sports Radiology
Imaging of the Upper Extremity
Articular Disorders
Fundamentals ofMRI
Pathomechanics of Spinal Degeneration
CCSP ,:..,
Family Practice Pediatrics
Diplomate Chiropractic Orthopedics
Imaging of the Upper Extremity
Diagnostic Imaging Articular Disorders
Differential Diagnosis
Diplomate Chiropractic Orthopedics
St. Louis, MO
St. Louis, MO
Lake ofOzarks, MO
Phoeniz, AZ
A1toona, PA
St. Louis, MO
Kenner, LA
Ft. Lauderdale, FL
Bethesda, MD
St. Louis, MO
Pittsburgh, PA
Pittsburgh, PA
Shreveport, LA
51. Louis, MO
51. Louis, MO
51. Louis, MO
Little Rock, AR
51. Louis, MO
St. Louis. MO
St. Louis, MO
Philadelphia, P A
Tan-Tar-A, MO
Philadelphia, P A
Albuquerque, NM
Philadelphia, P A
Eugene, OR
Lincoln, NE
Philadelphia, P A
Albuquerque, NM
A1burquerque, NM
51. Louis, MO
Allentown, PA
Oslo, Norway
51. Louis, MO
Albuquerque, NM
St. Louis, MO
Philadelphia, P A
51. Louis, MO
51. Louis, MO
51. Louis, MO
51. Louis, MO
51. Louis, MO
51. Louis, MO
51. Louis, MO
Baton Rouge, LA
St. Louis, MO
51. Louis, MO
St. Louis, MO
Baton Rouge, LA
14
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01/15-16/94
02/05-06/94
03/05-06/94
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04/23.24/94
OS/21-22/94
07/09-10/94
07/23-24/94
08/27-28/94
09/17-18/94
10/02/94
10/08-09/94
1 1/05-06/94
11/12-13/94
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12/14/94
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07/15-16/95
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10-19.95
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BIOGRAPIDCAL HIsTORY
JEROME M. STALLER, Ph.D.
JEROME M. STALLER has been admitted as an expert witness before state and federal courtS
on matters including lost earnings due to personnl injury or wrongful death, race and sex
discrimination, and commercial damages. He was appointed by the coUrt as expert economic
witness in the national Bendectin mass-tort litigation. He has served as n consultant to both
union, management, and public groups. .
Dr. StaUer served on the federal Pay Board, the federal Cost of Living Council, and the U.S.
Department of Labor. At those agencies, he addressed a wide range of policy issues, including
general mncro policy, wage policies, welfare refonn, inflationary impact analysis,local labor
market infonnation policy, immigration policy, bargaining policies, and general manpower
policies.
Dr. Staller received his doctorate in labor economics and statistics from Temple University in
1975. During the course of his stUdies, Dr. Staller was the recipient of Temple University and
U.S. Department of Labor feUowships.
He has published and presented papers on a variety oftopics, including structured settlements,
relative wages and escalation, treatment of escalators under wage and price controls, the impact
of stabilization on the coUective bargaining process, the impact of energy policy on the supply
and demand for labor, the impact of illegal aliens on the labor market, and the impact of
bargaining on faculty in community colleges. He has lectured before bar organizations and
judicial conferences, and he serves as consulting editor to Medical Mnlpractice Law and Strategy
and Product Liability Law and Strategy.
Dr. Staller is a lecturer in law at Temple University School of Law. He served as an associate
professor on the faculty of the University of Maryland. He has taught at Pennsylvania State
University and St. Joseph's CoUege and has lectured at Villanova Law School. He serves on the
panels of the American Arbitration Association and the National Center for Dispute Settlement.
He is a member of the American Economics Association, the Industrial Relations Research
Association, and Omicron Delta Epsilon-Economics Honorary Society.
.
Dr. Staller's book "What Arc the Chances: Risks, Odds and Likelihood in Everyday Life."
written with Bernard Siskin. Ph.D. and David Rorvik, was published by Crown Publi.hin!l in
1989.
SUITE 1200 . 1608 WALNllT STREET. PHILADELPHIA, PENNSYLVANIA 19103 . (21~) 5046-~00 . FAA (21~) 732.el~8
MARYl.4NDOFFlCE; ol44OOAKTREEROAD . ROCKVILlE,MARYLAND 20813. (301) no-lees
NEWYDRII OFFICE; tBO WEST END AveNUE. sum; l!,l" NEWYORI<, NEW YORK 10023 . BOO _8 I//TERNET: FORECOCHSLC,ORO
CURRICULUM VITAE
JEROME M. STALLER, Ph.D.
President
The Center for Forensic Economic Studies
EDUCATION
TEMPLE UNIVERSITY Ph.D. in Economics, 1975
Areas: Economic Theory; Labor-Manpower; Urban-Regional; Statistics.
Dissertation: The Impact of Bargaining on Faculty in Two-Year Public Colleges.
TEMPLE UNIVERSITY B.A. in Economics, 1967
AWARDS AND HONORS
Temple University Fellowship for study in the Department of Economics,
1968-1970.
United States Department of Labor Research Fellowship, 1967-1968.
Omicron Delta Epsilon - Economics Honor Society, 1969.
GOVERNMENTEXPERmNCE
SENIOR STAFF ECONOMIST, U.S. Department of Labor, Office of the
Assistant Secretary for Policy, Evaluation and Research, November, 1973 -1980.
CHIEF OF WAGE A.'lAL YSIS, Cost of Living Council, Washington. D.C.,
January, 1973 - November, 1973.
GOVERNMENT EXPERIENCE
LABOR ECONOMIST, Pay Board, Washington, D.C., August, 1972-
Jnnumy, 1973.
ACADEME
LECruRER, Temple University School of Law. Use of economics nnd statistics
in law.
ASSOCIATE PROFESSOR, University ofMarylnnd University College,
1975-1980. Courses taught: labor economics; labor relations.
INSTRUCTOR, Pennsylvania State University, Media, Pennsylvania, 1968-1974.
Courses taught: Micro nnd mncro economics, statistics.
LECTIJRER, SI. Joseph's University, Philadelphia, PA, Jnnumy, 1972-
September, 1972.
COORDINATOR, Phi Delta Kappa - Temple University. Research Symposium
on Employment Relations in Higher Education, November, 1968.
SEMINARS AND PUBLICATIONS
"mY nnd the Americans With Disabilties Act: A Cautionary Tale," with Barbara
O'Connell nnd Brinn P. Sullivan, Claims magazine, March 1996.
"Little-Known Study May Prove Fatal to 'Hedonic' Testimony," Medical
Malpractice Law & Strategy, Janumy 1996.
"Misleading Analyses Fail to Prove Reduced IQ Linked to Income," with Edward
Friedman, Product Liability Law & Strategy, November 1995.
"Economic Analysis in Forensic Rehabilitation," Chapter in The Iiandbook of
Forensic RehabiliraJion,lIDI Publishers, Houston 1995.
Expert rcpons for the National Institute for Trial Advocacy's mock-trial materials
in Po/isi v. Clark and Parleer v. Gold, 1995.
"Debating Damages," Claims magazine, May 1995.
SEMINARS AND PUBLICATIONS
"Value of Life Estimates: Too Imprecise for Courtroom Use," with Brian P.
Sullivan and Edward A. Friedman, Journal of Forensic Economics Vol. VII, 2\0. ::!
(Spring/Summer 1994).
"How a Court Assessed Recovery for Reduced Life Expectancy," Medical
Malpractice Law and Strategy, April 1994.
"Current State of CPLR Articles 50-A, sO-B: Few Answers, New Questions,"
with Kenneth Mauro, Esq. and Brian P. Sullivan, Ph.D., New York Law Journal,
January 27,1994.
"Hedonic Damages: Junk Science Goes to Court," Chronicle of the National
Association of Railroad Trial Counsel, September/October 1993.
,
"Court of Appeals Clarifies Right of Recovery," Maryland Lawyers' Association
Trial Reporter, July 1993.
"Faulty Damages Calculations Can Ruin Case," with Bruce J. Klores, Esq.
Product Liability Law and Strategy, Junl: 1993.
"Economists Can't Total Life's Value," with Edward A. Friedman, Ph.D., The
National Lnw Journal, March 23, 1?92.
"When 'Astronomical' Isn't Enough: Presenting Future Medical Damages," The
Legal Intelligencer, February 1 I, 1992.
"What Price Life? Hedonic 'Experts' Claim to Know," with A. Michael Barker,
Esq., New Jersey Law Journal, February 3. 1992.
"Comment on the Accuracy and Usefulness of Hedonic Loss Estimates," .....ith
Brian P. Sullivan, Ph.D., Journal of Forensic Economics, Vol. V, No.2 (Winter
1991).
"Periodic Payment Laws May Not Meet Their Goals," with Kenneth Mauro, Esq.,
Medical Malpractice Law and Strategy, December 1991.
"Annuitists' Testimony Can be Misleading," Medical Malpractice Law and
Strategy, November 1991.
"Testiplony From Oz: 'Hedonic' Damages in Personallnjury," For the Defense,
August 1991.
. .
. ,
SEMINARS AND PUBLICATIONS
"Losing Money Litigating: The Cost of Backlog," Penna. Law Journal-Reporter.
May, 1984.
"Periodic Payment and Settlement Act of 1983,"
The Practical Lawyer, June 1983; The Legal Intelligencer, May 1983;
The Washington Law Reporter, June 1983; The Audio Lawyer, July 1983.
"Example of an Economic Assessment by an Economist," The Trial Lawyer's
Guide, Summer 1983.
"The Attorney's Dile=a: Obtaining a Proper Fee from a Structured Settlement,"
The Practical Lawyer, 1983.
"Valuation and DistributiolJ ofMwital Property," Matthew Bender, 1984.
"Alternative Dispute Resolution and Employment Rights Cases," Paper presented
to the Practising Law Institute, February 1984.
"An Economist Looks at Kaczkowski v. Bolubasz," Paper presented to the
Pennsylvania Trial Lawyers Association, Civil Program Judges, Philadelphia,
May 1981.
"Economics for the Defense," Paper presented to the National Association of
Railroad Trial Counsel. Washington, June, I 98 I.
"The Economics of CompenSation," Paper presented to the BNA Symposium on
C:lmparable Worth, New York, March, 1981.
"The Two Heads ofOFCCP," with B. Siskin, proceedings of the 1980 Spring
meetings of the Industrial Relations Research Association.
"Impact of the Davis-Bacon Act: A Comment," Policy Analysis,
Summer 1979.
"Wage Indexation and Wage Differential," Industrial Relations Research Assoc..
Proceedings of the Tbinieth Annual Winter Meeting, December, 1977.
"Relative Wages and Escalation," Paper presented before the Industrial Research
Association, New York, 1977.
"The Iinpact of Illegal Aliens on the Labor Market," In the Domestic Task Force
Report on Illegal Immigration, December, 1976.
"
.
.
SEMINARS AND PUBLICATIONS
"The Conflict Between Equity and Stabilization," Paper presented before the
Atlantic Economic Association, September 1975.
"Bargaining: Its Impact on Faculty in Two-Year Public Colleges," National .-
Center for the Study of Collective Bargaining in Higher Education. April 1975.
"Treatment of Escalators Under Wage and Price Controls," In Wage and Price
Controls: The U.S. Experiment. Blain Roberts and John Kraft, editors. Praeger
Publishers Inc., New York, with Loren Solnick.
"The Effect of Escalators on Wage Rates in Major Contracts Expiring in 1974,"
Monthly Labor Review, July, 1974, with Loren Solnick.
"The Use of Escalators in the Public Sector," Paper presented before the Public
, Sector Labor Relations Conference Board, June 1974.
"Equity Considerations in the Economic Stabilization Program," Paper presented
before the flISt conference of the Colloquium for Social Philosophy on Equality,
May, 1973.
"Project Independence: Labor Report," Government Printing Office,
Washington, D.C., November 1973.
"The Impact of the Economic Stabilization Program on the Collective Bargaining
Process," Paper presented before the Washington Chapter of the Industrial
Relations Research Association, February 1973, with Ross Azevedo.
"Fringe Benefits in Unionized Community Colleges," November 1972, with
Robert Paterson
"The Broad and Columbia Subway Study," U.S. Department ofTransponation.
September 1971. v.ith several social scientists.
"The State of the Market," Quarterly report to the Automotive Pans and
Accessories Trade Publication, with Ross Azevedo.
"Structuring Settlements in Personallnjury Cases: The Role of the Economist."
ALl-ABA Seminar on Litigating Medical Malpractice Claims, November 5-7,
1981, Washington. D.C.
"Esthnating the Value ofa Lawyer," Air and Space Section of the American Bar
Association. May, 1983.
~ ,
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,.
COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - LAW
NO. 95-1844
THOMAS SMARSH, D.C. AND THOMAS
SMARSH D.C.,P.C., T/D/B/A
SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION
AND NOW, the Estate of Richard Greene by its attorneys, Angino and
Rovner P.C., hereby move to preclude Defendants from offering any expert
testimony on liability and causation for the following reasons:
l. Plaintiff's expert interrogatories were served on Defendants
more than 3 years ago, in September 1994.
2. Upon completion of factual discovery, Plaintiff provided
Defense Counsel with the expert report of Dr. Jeffrey Perrapato, M.D.,
on April 10, 1996. Dr. Perrapato is a thoracic surgeon whose opinion
pertained to medical causation, by indicating the delay in diagnosis of
Mr. Greene's cancer substantially reduced his chance of survival.
(Letter of 4/10/96 attached hereto as Exhibit "A".)
3. On April 19, 1996, Defense Counsel requested additional x-rays
indicating that: "As soon as I receive the films, I will be forwarding
them to my expert for comment. Thereafter, upon receipt of our expert's
report, I will provide it to you." Clearly, then, Defendant had already
identified an expert in April. 1996. Plaintiff provided the requested
104407/TSIl
.
..
"
x-rays on April 29, 1996.
hereto as Exhibit "B".)
4. On July 25, 1996, Plaintiff provided Defendant with the expert
report of Dr. Norman Kettner, D.C., a radiology professor at a major
school of chiropract ic Medicine. Dr. Ket tner described Defendants'
deviations from the standard of care related to Defendants' failure to
discover an abnormality in Mr. Greene's lung. (Letter of 7/25/96
attached hereto as Exhibit "C".)
5. On August 8, 1996, Plaintiff filed a Request for a Status
Conference to have the Court set deadlines for completion of expert
discovery for the November trial term. At that time, the parties agreed
that rather than have a Status Conference, the case should be praecipied
for November and that Defendant would provide his experts by October 1,
1996. (See Defendants' Response to Status Conference Request attached
hereto as Exhibit "0".)
6. On september 4, 1996, Defense counsel, by telephone, indicated
his expert report would be forthcoming on October 1, 1996, or at least
by the first week of October. (Letter of 9/4/96 attached hereto as
Exhibit "E".)
7. On October 4, 1996, Plaintiff's counsel again wrote to
Defendant asking for the expert reports. Upon receipt of the letter,
and in light of the fact Plaintiff had not yet provided an economist
report relating to the separate issue of wrongful death damages, the
parties agreed to continue the case from the November term to the
January term and to exchange expert reports during the next 3 months.
(Letters of 10/4/96 and 10/14/96 attached hereto as Exhibit "F".)
(Letters of 4/19/96 and 4/29/96 attached
2
- .
8. On October 2l, 1996, Defense Counsel informed the Court that:
"At this time, I am still awaiting the finalized reports from my
experts." Presumably, then, in October, 1996, Defendant's liability and
causation experts had reviewed the underlying information and had only
to "finalize" their opinions in a formal report. (Letter of 10/2l/96
attached hereto as Exhibit "G".)
9. On November ll, 1996, Plaintiff again reminded Defendant of
the reason for the continuance to January, and specifically requested
the liability expert reports be provided by November 30, 1996. (Letter
of 1l/ll/96 attached hereto as Exhibit "H".)
lO. On December 2, 1996, Plaintiff listed the case for the January
Term as agreed by the parties. On December l7, 1996, Plaintiff provided
his economist's report. Defendant did not object to the listing at the
call of the list held on December 17, 1996.
11. It is now more than 6 months since Defendants received
Plaintiff's liability and causation expert reports. It is also almost
90 days since the parties agreed to continue the case so that expert
discovery could be completed. No factual discovery has taken place in
the case since April, 1996. Yet, Defendants still have not produced a
single report from their experts on the medical issues in the case.
12. This case involves complicated issues of cancer survival
which, by their nature, require extensive research to properly prepare
to cross examine an expert at trial. Plaintiff has made every
reasonable effort to avoid the prejudice of last minute disclosures of
Defendant's experts. Defendant has implied to Counsel and the Court
3
4
that the expert reports were near completion and would be filed in a
timely fashion for the January term. Yet, we are now at the end of
1996, without a report.
13. Pa.R.C.P 4003.5 requires reasonable and timely disclosures of
expert opinion at a time where meaningful preparation can be done before
trial. The new Medical Malpractice Act indicates a legislative intent
that expert reports in malpractice cases be timely filed to prevent
prejudice and foster efficiency and settlements.
WHEREFORE, Plaintiff prays that Your Honorable Court will grant
this Motion and preclude Defendants from offering expert testimony on
liability or causation at trial.
Respectfully submitted,
.'
ANGINO & ROVNER, P.C.
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Terry/S. Hyman, Esquire
1.0'. No 36607
4503 Nor~hFront Street
Harrisburg PA 17110
(717) 236-6791
Counsel for Plaintiff
-'-
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DATED:
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L1SmOIN
NIIOlE C', OLSON
MICIIAElJ, NAVITSKV
lAW~ENCE F, nA~ONIr
IIAWN L IIrNNINOS
sn,PlllrN ~, PEOEDSlrN
SOLOMON 7. K~EVSKV
JOSEPII M,llODIA
10SEPII M, MELILLO
m~~v s, IIVMAN
DAVID L lU'TZ
MICIIAElI!. KOSIK
PAMElA 0, SilliMAN
~ICIIADD A, SADlOCK
DAVID S, WISNESKI
ANGINO & ROVNER, P.C.
TIlE 8m LAWYERS
-IN-
AMERICA
As you have taken the films from the hospital,
are likewise having an evaluation done by an expert.
be receiving the report?
I assume you
When will I
DIC1IA~D C, ANGINa
NEill. DOVNE~
April 10, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front Street
Harrisburg, PA l7l02
RE: Greene v. smarsh, et al,
Dear Joe:
Please find enclosed a report and curriculum vitae from
Dr. Jeffrey Perrapato, a well-qualified chest surgeon. Dr.
perrapato, in his opinion, Mr. Greene's chance of scrvival was
reduced from 50-60% to 0% from the failure of Drs. Duriske and
Bashore to identify the lesion in Mr. Greene's right upper lung
field.
Very tru~y yours,
TSH/pjg
Enclosures
51518/PJG
4503 NOATII FAONT STAEET. IIAAAISDIIAO. PA 17110.1708
(7171238,8791
FAK (717)238-5810
MARSHALL & FARRELL
I prnr~slonal corporation
ATrORNEYS ATLAW
1323 NORnl FRONT S11lEET
HARRISBURG. PENNSYLV ANIA 17102
FRANCIS J!. MARSHALL.)1t.
MICHAEL A. PARRELL
JOSEPH A. RICCI
KERRY VOSS SMlnl
CHARLES J!. HADDICK.llt.
LORI ADAMCIK KARISS
MARCT.LEVIN'
KEVIN C. COTrONE'
n:LEPIlONE (717) 236-7300
PAX (717) 236-5919
CUMBERLAND COUNTY omCEa
A11UUM wtSTOmCEOU>C.
sum )Of
.... MAJU(IIT mElT
CAMr lUll. P^ nltl1
April 19, 1996
1UD'HONtl(717) 7Jl-&1OO
FAX (717)731.....
_ RUl'tTOIIAW5BURC
. AIIo Mr.btt of Nrw '8M1 Bu
Terry S. Hyman, Esquire
ANGINO & ROVNER, p.e.
4503 North Front Street
Hanisburg, PA 17110
RE: Greene v. Smarsh
Our Flle No. PR.139
Docket No. 2063.S.1994 (Dauphin Co.)
Dear Terry:
Thank you for your letter of Aprl110, 1996. Please be advised that we have not yet
received any films from Holy Spirit Hospital despite my previous request. As soon as I
receive the films, I will be fOlwarding them to my expert for comment. Thereafter, upon
receipt of our expert's report, I will provide it to you.
Very nuly yours,
9r:~h7l. ~i~
Joseph A. Ricci
JAR/mal
lISTElllN
NIlIlLr, C, OI_'ON
MICIIAr,LI NAVITSKV
LAWRENCE 1', IIARONE
IlAWN L IENNINGS
STU'IIEN R,I'EllI'RSEN
SOLOMON 7. KREVSK\'
IOSEI'II M 110RIA
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lOSEI'll M, MELILLO
TERRV f, IIVMAN
DAVID L, LUTZ
MICIIAEL E, KOSIK
rAMI,LA 0, SIIUMAN
RICIIARD A SADLOCK
DAVID S, WISNF.sKI
ANGINa & ROVNER, P,C,
TIlE EEST LAWYERS
-IN-
AMERICA
RIOIARD C, ANGlNO
NEIL J, ROVNER
April 29, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
l323 North Front Street
Harrisburg, PA 17102
RE: Greene v. smarsh, et al,
I
I
Dear Mr. Ricci:
Very truly yours,
~~~~
Pamela J. Gillespie, secretary to
Terry S. Hyman, Esquire
Per our telephone conversation, attached are the original x-
rays from Holy Spirit consisting of:
1. 5/28/92 chest (l); 9/14/92 portable chest (l); and
9/16/92 chest (1).
2. 9/12/92 spine (2) and 9/24/92 spine(2).
please return these original films to us after your expert has
reviewed them. Thank you.
/pjg
Enclosures
51518/PJO
4503 NORTH FRONT 5TREET. HARRISBURG, PA 1711001700
(717) 230.6791
FAX (717) 230,5610
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JOStPII M, Malua
lCRRY S.IIYMAN
DAVIDL WI'Z
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PAMfU 0, SHUMAN
R1CIIARD A, SADLOCK
DAVID S, W1SNI!SKI
NUOLE C. DuriN
ANGINO & ROVNER, P,C,
MICHAEl,! NAVITS~ Y
l-'WRENCE F, OARONE
DAWN L IENNINOS
SOLOMnN Z KREI'SKY
JOStPII M, DoRIA
DUANE S DARRICK
lA'IRS 01CI~71
USlCD IN
TIlE BEST LAWYERS
--IN-
AMERICA
RICHARD C, ANOINO
NmL), ROVNLR
September 4, 1996
Joseph A. Ricci, Esquire
MARSHAL.!. & FARRELL
l323 North Front Street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et al,
Dear Joe:
To confirm our conversation of this date, you indicated I
would be receiving your expert reports by October 1, 1996. We were
in agreement that if I received the reports within the first week
of October, the case could be tried on the November l2th trial
term.
Of course, if there is going to be some prOblem in getting the
reports to me by that date, please let me know so we can arrange a
Status Conference with Judge Bayley. Otherwise, I will assume you
have no objection to the November 12th listing and that a Status
Conference is currently unnecessary.
Very truly yours,
TSH/pjm
cc: Honorable Edgar B. Bayley
51518/PJH
4503 NORTH FRONT STREET, HARRISBURG. PA 17110.1700
{7171238'5781
FAX (717) 236-5810
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DAvm S, WISNESKI
NII0Ll! C. OLSON
ANGINa & ROVNER, P.C..
MICHAEL I, NAVlTSKY
lJ\WIlENCE F, BARONE
DAWlI L /ENNlNOS
SOLOtolON Z. KIlEVSKY
10SEPIIM, DOIlIA
DUANE S, BAIlIUCK
lAMES lltCltrrl
usnn IN
TIlE BFST LAWYERS
-IN-
AMERICA
IlIC1WUl C. ANOINO
NEIL J, ROVNER
October 4, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA l7102
SENT VIA FAX
RE: Greene v. Smarsh, et al,
Dear Joe:
Enclosed is a copy of my letter of September 4, 1996
memorializing your agreement to provide an expert report by the
first week of October thereby making a status conference with Judge
Bayley unnecessary.
If I do not receive the report by the close of business on
Monday I will ask Judge Bayley to hold a telephone conference to
set deadlines which will still allow us to try the case in
November.
S1S1e'PJM
4503 NORTH FRONT STREET. HARRISBURG, PA 17110.170B
(717) 231H17D,
FAX (717) 238-51110
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CERTIFICATE OF SERVICE
"' .
AND NOW, this 27th day of December, I, Betty K. Sheaffer, an
employee of Angino & Rovner, P.C., do hereby certify that I have served
a true and correct copy of PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION in the United States mail,
II
I
,
postage prepaid at Harrisburg, pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
MARSHALL & FARRELL, .P.C.
l323 N. Front Street
Harrisburg, PA 17102
Attorney for Defendant
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COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - LAW
NO. 95-1844
THOMAS SMARSH, D. C. AND THOMAS
SMARSH D.C.,P.C., T/D/B/A
SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION
AND NOW, the Estate of Richard Greene by its attorneys, Angino and
Rovner P.C., hereby move to preclude Defendants from offering any expert
testimony on liability and causation for the following reasons:
1. Plaintiff's expert interrogatories were served on Defendants
more than 3 years ago, in September 1994.
2. Upon completion of factual discovery, Plaintiff provided
Defense Counsel with the expert report of Dr. Jeffrey Perrapato, M.D.,
on April 10, 1996. Dr. Perrapato is a thoracic surgeon whose opinion
pertained to medical causation, by indicating the delay in diagnosis of
Mr. Greene's cancer substantially reduced his chance of survival.
(Letter of 4/l0/96 attached hereto as Exhibit "A".)
3 . On April 19, 1996, Defense Counsel requested additional x-rays
indicating that: "As soon as I receive the films, I will be forwarding
them to my expert for comment. Thereafter, upon receipt of our expert's
report, I wil:t, provide it to you." Clearly, then, Defendant had already
identified an expert in April. 1996. Plaintiff provided the requested
l04407/TSH
x-rays on April 29, 1996.
hereto as Exhibit "B".)
(Letters of 4/19/96 and 4/29/96 attached
4. On July 25, 1996, Plaintiff provided Defendant with the expert
report of Dr. Norman Kettner, D.C., a radiology professor at a major
school of Chiropractic Medicine.
Dr. Kettner described Defendants'
deviations from the standard of care related to Defendants' failure to
discover an abnormality in Mr. Greene's lung.
attached hereto as Exhibit "C".)
(Letter of 7/25/96
5. On August 8, 1996, Plaintiff filed a Request for a Status
Conference to have the Court set deadlines for completion of expert
discovery for the November trial term. At that time, the parties agreed
that rather than have a Status Conference, the case should be praecipied
for November and that Defendant would provide his experts by October 1,
1996. (See Defendants' Response to Status Conference Request attached
hereto as Exhibit "0".)
6. On September 4, 1996, Defense counsel, by telephone, indicated
his expert report would be forthcoming on October l, 1996, or at least
by the first week of October.
Exhibit "E".)
7. On October 4, 1996, Plaintiff's counsel again wrote to
(Letter of 9/4/96 attached hereto as
Defendant asking for the expert reports. Upon receipt of the letter,
and in light of the fact Plaintiff had not yet provided an economist
report relating to the separate issue of wrongful death damages, the
,
parties agreed to continue the case from the November term to the
January term and to exchange expert reports during the next 3 months.
(Letters of 10/4/96 and 10/14/96 attached hereto as Exhibit "F".)
2
8. On October 2l, 1996, Defense Counsel informed the Court that:
"At this time, I am still awaiting the finalized reports from my
experts." Presumably, then, in October, 1996, Defendant's liability and
causation experts had reviewed the underlying information and had only
to "finalize" their opinions in a formal report. (Letter of 10/21/96
attached hereto as Exhibit "G".)
9. On November 11, 1996, Plaintiff again reminded Defendant of
the reason for the continuance to January, and specifically requested
the liability expert reports be provided by November 30, 1996. (Letter
of ll/11/96 attached hereto as Exhibit "H".l
lO. On December 2, 1996, Plaintiff listed the case for the January
Term as agreed by the parties. On December 17, 1996, Plaintiff provided
his economist's report. Defendant did not object to the listing at the
call of the list held on December l7, 1996.
11. It is now more than 6 months since Defendants received
Plaintiff's liability and causation expert reports. It is also almost
90 days since the parties agreed to continue the case so that expert
discovery could be complete~. No factual discovery has taken place in
the case since April, 1996. Yet, Defendants still have not produced a
single report from their experts on the medical issues in the case.
l2. This case involves complicated issues of cancer survival
which, by their nature, require extensive research to properly prepare
to cross examine an expert at trial. Plaintiff has made every
reasonable effort to avoid the prejudice of last minute disclosures of
Defendant's experts. Defendant has implied to Counsel and the Court
3
that the expert reports were near completion and would be filed in a
timely fashion for the January term. Yet, we are now at the end of
1996, without a report.
13. Pa.R.C.P 4003.5 requires reasonable and timely disclosures of
expert opinion at a time where meaningful preparation can be done before
trial. The new Medical Malpractice Act indicates a legislative intent
that expert reports in malpractice cases be timely filed to prevent
prejudice and foster efficiency and settlements.
WHEREFORE, Plaintiff prays that Your Honorable Court will grant
this Motion and preclude Defendants from offering expert testimony on
liability or causation at trial.
Respectfully submitted,
ANGINO & ROVNER, P.C.
./?
~Hymiln, EsqU re
./' i:D?"N~r 36607
4503 No ,~h'Front Street
Harrisburg PA l7110
(717) 238-6791
Counsel for Plaintiff
"
DATED: 1~~it6
4
JOSEPH M, MELILLO
TERRY S, UYMAN
DAVID L, LUTZ
MICUAEL E. KOSIK
PAMELA 0, SIIUMAN
RICIIARO A, SAOLDCK
DAVIO S, WISNESKI
ANGINO & ROVN.ER, p.e.
NIlOLE C, OLSON
MICIIAEL I, NAVITSKY
LAWRENCP. F, RARONP.
IlAWN L lliNNINOS
STEPIIF.N R, PP.OP.RSP.N
SOLOMON Z, KRP.VSKV
10SP.PII M, DORIA
USTED IN
TIlE BEST LAWYERS
-IN-
AMERICA
RICIIARD C, ANOINO
NEIL J, ROVNP.R
April lO, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et al,
Dear Joe:
Please find enclosed a report and curriculum vitae from
Dr. Jeffrey Perrapato, a well-qualified chest surgeon. Dr.
perrapato, in his opinion, Mr. Greene's chance of survival was
reduced from 50-60% to 0% from the failure of Drs. Duriske and
Bashore to identify the lesion in Mr. Greene's right upper lung
field.
As you have taken the films from the hospital,
are likewise having an evaluation done by an expert.
be receiving the report?
I assume you
When will I
Very truly yours,
TSH/pjg
Enclosures
5151S/PJG
4503 NORTH FRONT STREET. HARRISBURG. PA 17110.'708
17171238,678'
FAX (717) 236-5610
I'
JOSEPII M, MELILLO
TIRRY S, IlYMAN
DAVID L. LlTrl
MICIlAEL E. KOSIK
PAMELA 0 SIlUMAN
RICIlARD A, SADLOCK
DAVID S, WISNESKI
ANGINa & ROVNER, P.C.
NIJOLE C, OLSON
MICIlAEL J, NAVITSKY
LAWRENCE F, UARONE
DAWN L.IENNINGS
STII'IlEN R, I'EDERSEN
SOLOMON Z. KREVSKY
JOSEPIl M, DORIA
I
I
\.ISTH) IN
1l1E8ESTLAWYERS
-IN-
AMERICA
RIClIARD C, ANGlNo
NEIL I, ROVNER
April 29, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
l323 North Front Street
Harrisburg, PA l7l02
RE: Greene v. smarsh, et al.
Dear Mr. Ricci:
Per our telephone conversation, attached are the original x-
rays from Holy spirit consisting of:
1. 5/28/92 chest (l); 9/14/92 portable chest (l); and
9/l6/92 chest (1).
2. 9/12/92 spine (2) and 9/24/92 spine(2).
Please return these original films to us after your expert has
reviewed them. Thank you.
Very truly yours,
~~~
Pamela J. Gillespie, secretary to
Terry S. Hyman, Esquire
/pjq
Enclosures
SIS1S/PJG
4&03 NORTIl FRONT STREET, IlARRI5DURG, PA 171\0.1708
(717) 238,67U'
.
FAR (7171236,&610
LlSTID IN
NIlOLE C, OLSON
MICIlAEL J, NAVITSKY
LAWRENCE F BARONE
DAWN L.JENNINOS
STIPIIEN R, PEDERSEN
SOLOMON Z, KREVSKY
JOSEPII M, DORIA
JO~EPH M, MELlUO
TIRRY S, HYMAN
DAVIO L. LI1TZ
MICIIAEL E. KOSIK
PAMELA 0, SIIUMAN
RICHARO A, SAOLOCK
OAVIO s, WISNESIO
ANGINO & ROVNER, P.C.
TIlE BEST LAII'YERS
-IN-
AMERICA
RICIIARD C, ANOINO
NElL), ROVNER
July 25, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
l323 North Front street
Harrisburg, PA l7l02
RE: Greene v. Smarsh, et al,
Dear Mr. Ricci:
Enclosed please find the expert report of Dr. Norman Rettner
in the above matter. His c.v. will follow shortly.
Has your expert finished with the x-rays we forwarded to you?
We look forward to their return.
Very truly yours,
~~~~
Pamela J. McClellan, secretary to
Terry S. Hyman, Esquire
/pjm
Enclosure
51518/PJH
~503 NORTH FRONT STREET. HARRISBURG, PA 17110.170B
(717) 23B-6791
FAX (7171 23HGIO
sought copies of Plaintiffs original x-mys which Plaintiff agreed to provide. By way of funher
response, It Is admItted that Plaintiff requester! Defendant to obtain expert reportS so that the
case could be med during the November tenn. It Is denied that the Defendant was In a
position to obtain all necessaI)' expert reportS at that time since Plaintiff had not provided all
expert reports by that time.
4. AdmItted.
NEW MATI'ER OP DEPENDANT
1. Counsel for the Defendants has discussed this matter with counsel for the
Plaintiff. Counsel for the Plaintiff has indicated a willingness to allow this matter to be listed
for mal, provided Defendant's expert reports are obtained by October I, 1996.
2. Plaintiffs counsel has indicated that If there Is difficulty obtaInIng expert
reports by October 1, 1996, Plaintiffs counsel would be wIll1ng at that time to entertain a
status conference before the CoUrt.
Respectfully submitted,
MARSHALL & FARREU., P.C.
Date:
AUl!USt 29. 1996
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MICIlAEL I. NAVITS~ ~
LA\\'Rr~cn F. "ARONa
OA\\'1< L.ltNNINOS
SOLOMON 7. KREVSKY
JOStPII M. DORIA
OUANt S DARRICK
IA'lts DICI~"I
JOstPII M. MtLlLl.O
1l!RRY S.IIYMAN
DAVIDL. urfZ
MllllAtL E. KOSIK
PAMELA o. SHUMAN
RJCIIARD A SADLQCK
DAVID S W1SNI:SKI
NUOU! C QLSrlN
ANGINO & ROVNER, P,C,
TIlE 8ESTLAWYERS
--IN-
AMERICA
RICIIARIl C. ANO/NO
~'[IL I ROV~'[R
September 4, 1996
Joseph A. Ricci, Esquire
MARSHAl.L & FARRELL
1323 North Front Street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et al.
Dear Joe:
To confirm our conversation of this date, you indicated I
would be receiving your expert reports by October 1, 1996. We were
in agreement that if I received the reports within the first week
of October, the case could be tried on the November 12th trial
term.
Of course, if there is going to be some problem in getting the
reports to me by that date, please let me know so we can arrange a
Status Conference with Judge Bayley. otherwise, I will assume you
have no objection to the November 12th listing and that a Status
Conference is currently unnecessary.
Very truly yours,
TSH/pjm
cc: Honorable Edgar B. Bayley
51518/PJH
4503 NORTH FRONT STREET. HARRISBURG, PA 17110.1708
(7171238.8791
FAX (717) 238.5610
US'reD IN
MIOLAtL I. IIAvrrSKY
LAWRENCE F, BARONt
DAWN L.lENNINOS
SOLOMON 7. KREVSKY
JOSEPH M. DORIA
DUANE S. BARRICK
lAMES lltCINTI
JOSF,PH M. MEUl.LO
TERRY S.IIYMAN
D...vm L. LI1fZ
MIOLAtL E. KOSIK
PAMELA O. SIfUMAN
R1C1WUl.... SADLOCK
D"'vm S.IVISNtSICI
NUOLE C, OLSON
ANGINO & ROYNER, P,C"
TIlE BEST LAWYERS
-Il'i-
AMERICA
IUCIWlD C. ANOINO
NEIL I. ROVNER
October 4, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA 17102
SENT VIA FAX
RE: Greene v. Smarsh, et al.
Dear Joe:
Enclosed is a copy of my letter of september 4, 1996
memorializing your agreement to provide an expert report by the
first week of October thereby making a status conference with Judge
Bayley unnecessary.
If I do not receive the report by the close of business on
Monday I will ask Judge Bayley to hold a telephone conference to
set deadlines which will still allow us to try the case in
November.
5151B/PJH
4503 NORTH FRONT STREET. HARRISBURG. PA 17110.1708
(7171 23tHIT81 .
FAX (717) 238-51110
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CERTIFICATE OF SERVICE
AND NOW, this 27th day of December, I, Betty K. Sheaffer, an
employee of Angino & Rovner, p.e., do hereby certify that I have served
a true and correct copy of PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION in the United States mail,
postage prepaid at Harrisburg, Pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
MARSHALL & FARRELL, p.e.
1323 N. Front Street
Harrisburg, PA 17102
Attorney for Defendant
.'&J {."J:#-
'- ~ ...
COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
NO. 95-1844
v.
THOMAS SMARSH, D.C. AND THOMAS
SMARSH D.e.,p.e., T/D/B/A
SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION
AND NOW, the Estate of Richard Greene by its attorneys, Angin~ and
Rovner P. C., hereby move to preclude Defendants from offering any expert
testimony on liability and causation for the following reasons:
1. Plaintiff's expert interrogatories were served on Defendants
more than 3 years ago, in september 1994.
2. Upon completion of factual discovery, Plaintiff provided
Defense counsel with the expert report of Dr. Jeffrey perrapato, M.D.,
on April 10, 1996. Dr. Perrapato is a thoracic surgeon whose opinion
pertained to medical causation, by indicating the delay in diagnosis of
Mr. Greene's cancer substantially reduced his chance of survival.
(Letter of 4/10/96 attached hereto as Exhibit "A".)
3. On April 19, 1996, Defense Counsel requested additional x-rays
indicating that: "As soon as I receive the films, I will be forwarding
them to my expert for comment. Thereafter, upon receipt of our expert's
report, I will provide it to you." Clearly, then, Defendant had already
identified an expert in April. 1996. Plaintiff provided the requested
l04407/TSH
.
"
,
.
x-rays on April 29, 1996.
hereto as Exhibit "B".)
(Letters of 4/19/96 and 4/29/96 attached
4. On July 25, 1996, Plaintiff provided Defendant with the expert
report of Dr. Norman Kettner, D.C., a radiology professor at a major
school of Chiropractic Medicine.
Dr. Kettner described Defendants'
deviations from the standard of care related to Defendants' failure to
discover an abnormality in Mr. Greene's lung.
attached hereto as Exhibit "e".)
(Letter of 7/25/96
5. On August 8, 1996, Plaintiff filed a Request for a Status
Conference to have the Court set deadlines for completion of expert
discovery for the November trial term. At that time, the parties agreed
that rather than have a Status Conference, the case should be praecipied
for November and that Defendant would provide his experts by October 1,
1996. (See Defendants' Response to Status conference Request attached
hereto as Exhibit "0". l
6. On September 4, 1996, Defense counsel, by telephone, indicated
his expert report would be forthcoming on October 1, 1996, or at least
by the first week of October.
(Letter of 9/4/96 attached hereto as
Exhibit "E". l
7. On October 4, 1996, Plaintiff's counsel again wrote to
Defendant asking for the expert reports. Upon receipt of the letter,
and in light of the fact Plaintiff had not yet provided an economist
report relating to the separate issue of wrongful death damages, the
parties agreed to continue the case from the November term to the
January term and to exchange expert reports during the next 3 months.
(Letters of 10/4/96 and 10/14/96 attached hereto as Exhibit "F".l
2
.
'.
8. On October 21, 1996, Defense Counsel informed the Court that:
"At this time, I am still awaiting the finalized reports from my
experts." Presumably, then, in October, 1996, Defendant's liability and
causation exports had reviewed the underlying information and had only
to "finalize" their opinions in a formal report.
attached hereto as Exhibit "G". l
(Letter of 10/21/96
9. On November 11, 1996, Plaintiff again reminded Defendant of
the reason for the continuance to January, and specifically requested
the liability expert reports be provided by November 30, 1996. (Letter
of 11/11/96 attached hereto as Exhibit "H".l
10. On December 2, 1996, Plaintiff listed the case for the January
Term as agreed by the parties. On December 17, 1996, Plaintiff provided
his economist's report. Defendant did not object to the listing at the
call of the list held on December 17, 1996.
11. It is now more than 6 months since Defendants received
Plaintiff's liability and causation expert reports. It is also almost
90 days since the parties agreed to continue the case so that expert
discovery could be completed. No factual discovery has taken place in
the case since April, 1996. Yet, Defendants still have not produced a
single report from their experts on the medical issues in the case.
12. This case involves complicated issues of cancer survival
which, by their nature, require extensive research to properly prepare
to cross examine an expert at trial.
Plaintiff has made every
,
reasonable effort to avoid the prejudice of last minute disclosures of
Defendant's experts. Defendant has implied to Counsel and the Court
3
~
6
..
)
.
~
JOSEPII M. MalLLO
1l!RR Y S. IIYMAN
DAVID L. LlI17.
MICIIAEL E. KOSIK
PAMELA O. SIIUMAN
RICIIARD A. SADLOCK
DAVID S. WISNtsKI
ANGINO & ROYN'ER, P,C,
NIIOI.E C. OLSON
MICIIAEL), NAVITSKY ~
LAWRENCE F, "ARONE
DAWN L.IENNINOS
s1l!PIIEN R. PEDF.RSEN
SOLOMON 1_ KREVSKY
IOSEPII M. DORIA
USTEDIN
TIlE BEST LAWYERS
-IN-
AMERICA
RIClIARD C, ANOINO
NEILl. ROVNER
April 10, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et al,
Dear Joe:
Please find enclosed a report and curriculum vitae from
Dr. Jeffrey Perrapato, a well-qualified chest surgeon. Dr.
Perrapato, in his opinion, Mr. Greene's chance of survival was
reduced from 50-60% to 0% from the failure of Drs. Duriske and
Bashore to identify the lesion in Mr. Greene's right upper lung
field.
As you have taken the films from the hospital,
are likewise having an evaluation done by an expert.
be receiving the report?
I assume you
When will I
Very truly yours,
TSH/pjg
Enclosures
5151B/PJO
4503 NORTH FRONT STREET, HARRISBURG, PA 11110.1708
FAX (1171238,5610
(7171238,11191
'.
~
6'
..
Ql
MARSHALL & FARRELL
. pro(lostlonAI (orrorallon
AITORNEYS AT LAW
13l3NORnlFRONTSmEBT
IIARRISBURO, PENNSYLV ANIA 17102
FRANCIS B. MARSHALl..JIt
MICHAEL A. FARRELL
JOSEPH A. RICCI
KERRY VOSS SMlllI
CHARLES B. HADDICK, lit
LORI ADAMCIK KARISS
MARC T. lEVIN .
KEVIN C. COITONE'
'J1lLEPHONE (117) 236-1300
FAX (117) 236-5919
April 19, 1996
CUMDUUAND COUNtY orner..
ATaJUMWUTOmCEBLDO.
lumJOt
SUI MAJU(ET m<o:r
CAM'IIILL'AI7Vl1
TnEl'II0NEI (717) 131.....
'AX (711).......,
. AIM M,.bcr 01 N,wlrrwll!A1
- REPLYTOHAJJU5BURC
Terry S. Hyman, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Hanisburg, PA 17110
RE: Greene v. Smarsh
Our File No. PR.139
Docket No. 2063.S.1994 (Dauphin Co.)
Dear Terry:
Thank you for your letter of April 10, 1996. Please be advised that we have not yet
received any films from Holy Spirit Hospital despite my previous request. As soon as I
receive the fllms, I will be fOIWardlng them to my expert for comment. Thereafter, upon
receipt of our expen's report, I will provide It to you.
'.
Very truly yours,
~~171. ~j,JJ
Joseph A. Ricci
JAR/mal
L1S1l!D IN
NIJOLE C, OLSON
MICtlAEL I. NAVITSKY
LAWRENCE F. BARONE
DAWN L. JENNINOs
S1l!PtlEN R PEDERSEN
SOLOMON Z. KREVSKY
JOSEPII M, DORIA
JOSE~H M. MELILLO
1l!RRY s.HYMAN
DAVID L. LI1fZ
MICHAEL E. KOSIK
PAMELA O. StlUMAN
RICIIARD A. SADLOCK
DAVID S. WISNtsllJ
ANGINO & ROYNER, P,C,
TIlE BEST LAWYERS
-IN-
AMERICA
RlCtlARO c. ANOINO
NtIL J, ROVNER
July 25, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et al,
Dear Mr. Ricci:
Enclosed please find the expert report of Dr. Norman Kettner
in the above matter. His c.V. will follow shortly.
Has your expert finished with the x-rays we forwarded to you?
We look forward to their return.
very truly yours,
~~~~
Pamela J. McClellan, secretary to
Terry S. Hyman, Esquire
/pjm
Enclosure
51518/PJM
4503 NORTH FRONT STREET. HARRISBURG, PA 17110.170B
17171238-5791
FAX (717) 23Il.5610
. . . .
sought copies of Plaintiffs original x-rays which Plaintiff agreed to provide. By way of further
response, It Is admitted that Plaintiff requcstcd Defendant to obtain expcrt rcports so that the
case could be trlcd during the Novcmber tenn. It Is denied that the Defendant was In a
position to obtain all necessary expcrt repoltS at that time since Plaintiff had not provided all
expert repoltS by that time.
4. Admitted.
NEW MATI'ER OF DEFENDANT
1. COWlSel for the Defcndants has discuss cd this matter with cOWlSel for the
Plaintiff. COWlSel for the Plaintiff has indicated a wlI1lngness to allow this matter to be listed
for trial, provided Defendant's expert repoltS are obtained by October 1, 1996.
2. Plaintiffs cOWlSel has indicated that If there Is difficulty obtalnlng expen
repoltS by October I, 1996, Plaintiffs cOWlSel would be wllllng at that time to entertain a
status conference before the CoUrt.
Respectfully submitted,
MARSHALL & FARRELL, P.C.
Date:
AUl!U5t 29. 1996
_.~.
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L1S1l!DIN
MICIIAEL I NAVITS~ y
LA\\'Rr~CEF,DARONE
DA\\'1< L. JtNNlNOS
SOLOMON Z KRr,VSKY
JOStPII M IJORIA
DUANE S DARRICK
JA'IES OtCI~"1
JOSEPII M. MtLlLLO
1l!RRY S IIYMAN
DAVID L. LI1fZ
MIULAEL E. KOSIK
PMffiLA O. SIIUMAN
RJCIIARD A SADLOCK
DAVIO S W1S~1lSlC1
NUOLE C. OLSr,N
AN GINO & ROYNER, P,C,
TIlE BEST LAWYERS
--IN-
AMERICA
RICIIARD C. ANGINO
~'[IL I. ROVNER
September 4, 1996
Joseph A. Ricci, Esquire
MARSHAl.L & FARRELL
1323 North Front street
Harrisburg, PA 17102
RE: Greene v. smarsh, et al.
Dear Joe:
To confirm our conversation of this date, you indicated I
would be receiving your expert reports by October 1, 1996. We were
in agreement that if I received the reports within the first week
of october, the case could be tried on the November 12th trial
term.
Of course, if there is going to be some problem in getting the
reports to me by that date, please let me know so we can arrange a
status Conference with Judge Bayley. otherwise, I will assume you
have no objection to the November 12th listing and that a status
Conference is currently unnecessary.
Very truly yours,
TSH/pjm
cc: Honorable Edgar B. Bayley
51518/PJH
4603 NORTH FRONT STREET.HARRI8BURG. PA 17110.1706
(7171238.0791
FAX (7171238.51110
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JOSEPII M. MEUl.LO
TERRY S. HYMAN
D...VID L. LI1fZ
MIOLAtL E. KOSIK
PAMELA O. SIfUMAN
IUCIIARIl.... SADLOCK
D...VID S. W1SNtSKl
NUOLE C. OLSON
ANGINO & ROVNER, P,C.'
M10LAtL I, NAVlTSKY
LAWRENCE F. BARONt
DAWN L.lENNINOs
SOLOMON Z. KREVSKY
10SEPII M. DORIA
DUANE S. BARRICK
lAMES o.CINTI
US1l!D IN
TIlE BEST LAWYERS
-IN-
AMERICA
IUCIIARIl C. ANOINO
NEIL I, ROVNER
October 4, 1996
Joseph A. Ricci, Esquire
MARSHALL' FARRELL
1323 North Front street
Harrisburg, PA 17102
SENT VIA FAX
RE: Greene v. Smarsh, et al,
Dear Joe:
Enclosed is a copy of my letter of September 4, 1996
memorializing your agreement to provide an expert report by the
first week of October thereby making a status conference with Judge
Bayley unnecessary.
If I do n~t receive the report by the close of business on
Monday I will ask Judge Bayley to hold a telephone conference to
set deadlines which will still allow us to try the case in
November.
51518/PJH
.503 NORTH FRONT STREET. HARRISBURG. PA 17110.1708
(717) 23H791
FAX (717) 2311.5610
MARSHALL. FARRELL, RICCI,
SMITH & HADDICK
. prortlllonal corporation
ATTORNtVS AT LAW
1323 NORm FRONT STRttT
HARRISBURG, PENNSYLVANIA 17101
FRANCIS t. MARSIIALL, JR.
MICHAEL A. FARRELL
JOSEPII A. RICCI
KtRRV VOSS SMml
CILARLES t.ILADDICK, JR.
TELEPIIONEI (717) 136-7300
FAX. (717) 236.S919
INTtRNtT. MFRSIII @AOL.COM
C\IMIERUND COUtrn' omClt
PIOI1t1IUnln'RUT
CAM, UI~',\ ."11
TlLllnO"EI (lIT) 111"'""
rAX, (71T)1JI-uIJ
-
LORI ADAMCIK KARISS
MARC T. LtVIN .
KEVIN C. COTTONt .
KRISTEN L. DEEClI
- kEPLY 10 UARJUSIURG
October 14, 1996
..............., el N,...I.., It,
Terry S. Hyman, Esquire
ANGINO & ROVNER, p.e.
4503 North Front Street
Harrisburg, PA 17110
RE: Greene v. Smarsh
Our File No. PR.139
Docket No. 95.1844 (Cumberland Co.)
Dear Terry:
Thank you for your letter of September 30, 1996. I am concerned that you are now
providing additional expert reports. Obviously, I am going to need additional time to
evaluate any economist reports you may have. Additionally, the carrier, client, and I will
have to discuss whether we will obtain countervailing economist experts. Accordingly, I
think It Is unlikely that we will be able to keep this case on track for the November trial
tenn. Therefore, may I suggest that we agree to a one.tenn continuance? ThIs will allow
both of us opportunities to completely assess our expert needs as well as give us an
opportunity to discuss settlement should that be an option desired by the client and the
carrier. Please let me know your thoughts.
aD
-....,.
JAR/mal
.
I. 1
.
Mr. Rick Pierce
October 21,1996
Page 1\vo
".
Again, thank you very much for your cooperation in this matter. If you should
have any questions, please feel free to give my office a caU. I look fOlward to hearing
from you concernlng a ruling from the Court In regard to the request for a continuance.
Very trUly yours,
JAR/mal
Enclosures
cc: Terry Hyman, Esquire (wi enc.)
. ,
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,
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.
.
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1
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,
1
,JOSEPlI M. MaJUll
'Il!IUIY S.IIYMAN
DAVID L. Ll1TZ
MIOLAtL E. KOSIK
PAMEU O. SlflJMAN
IUOWUl A. SAllLOCK
DAVID S. W1SNE51C1
IIIlOLE C. OLSON
ANGINO & RQYNER, P,C.
MIOLAtL I. NAVlTSKY
LAWRENCE F, BARONE
DAWN L.lENNINOS
SOLOMON 7. KREVSKY
IOSEPIl M. DORIA
DUANE S. BARRICK
lAMES llIclNTI
UsnDllI
TIlE BEST u.WYF.RS
-IN-
AMERICA
IUCIWUl C, ANOINO
NEIL I. ROV'l<ER
November 11, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et aL'
Dear Joe:
Although we have agreed to continue the case, I still do
require an expert report in a timely fashion. It is now the
beginning of November, and I very much want your liability experts
by the end of November.
In the meantime, I will endeavor to get our economist report
to you by the same date. I assume this will prevent no problems
for trial. If it does, please advise me.
Very truly yours,
~
n
TSH/bks
51518/PJH
4503 NORTH FRONT STREET, HARRISBURG, PA 17110.1708
(717) 231l~791 .
FAX (717) 23Il.5610
. . , .
CERTIFICATE OF SERVICE
AND NOW, this 27th day of December, I, Betty K. Sheaffer, an
employee of Angino & Rovner, p.e., do hereby certify that I have served
a true and correct copy of PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION in the United States mail,
postage prepaid at Harrisburg, Pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
MARSHALL & FARRELL, P.C.
1323 N. Front Street
Harrisburg, PA 17102
Attorney for Defendant
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COLLEEN GREENE, INDMDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
: -
PLAINTIFF
NO. 95-1844
VS.
CML AcrION - LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CIDROPRAcrIC
DEFENDANfS
: JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 19_, upon consideration of Plaintiffs
Motion to Preclude Defendant from offering expert testimony on liability or causation at
the time of bial, It Is hereby ordered and decreed that said Motion Is Denied.
BY THE COURT:
J.
:
I,
I
I
,
COLLEEN GREENE, INDMDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
f'
I.
I,
I'
I
I
I
: .
PLAINTIFF
NO. 95.1844
V8.
CML AcnON . LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
Vd/b/a SMARSH ClnROPRAcnC
DEFENDANTS
: JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
.19--, upon consideration of Plaintiffs
Motion to Preclude Defendant from offering expert testimony on liability or causation at
the time of uial, it is hereby ordered and decreed that said Motion is Denied. FUrther, this
case is continued to the
.1997, uial tenn of Cumberland County.
BY THE COURT:
J.
COLLEEN GREENE, INDMDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINI'IFF
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
: -
: NO. 95.1844
VB.
: CML ACl'ION . LAW
.
.
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH ClnROPRACI'lC
.
.
.
.
.
.
DEFENDANTS
: JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 19_, upon consideration of Plaintiffs
Motion to Preclude Defendant from offering expert testimony on liability or causation at
the time of trial, it is hereby ordered and decreed that said Motion is Granted. Further,
Plaintiff is precluded from call1ng any expert economist at the time of trial.
BY THE COURT:
J.
..
stated that he would have his expert reports by October I, 1996. To the contrary,
Defendant indicated that he would attempt to obtain expert reports by October I, 1996,
but If there was difficulty, counsel could discuss the status conference at that time.
6. Denied as stated. It Is admitted only that defense counsel Indicated that he
would endeavor to have reports by October I, 1996. No finn promises were made since
defense counsel was relying upon the services of independent third parties.
7. Admitted.
8. Admitted in part, denied in part. It is admitted that on October 21, 1996,
defense counsel infonned the Court that he was awaiting finalized reports from experts. At
that time, no written reports had been provided by any person retained by the defense to
review this matter. It is admitted only that potential experts for the defense were in the
process of reviewing infonnation in October of 1996. By way of further response, as of
October 21, 1996, Plaintiffs counsel had not provided any economist's reports, despite his
stated Intention to do so; accordingly, this matter was not trial ready.
9. Admitted. By way of further answer, defense counsel still had not received
Plaintiffs economist's report, and despite Plaintiffs stated intention to provide such a
report by November 30,1996, such a report was not provided until December 19,1996.
10. It is admitted that Plaintiff mailed a trial listing on December 2, 1996. It Is
denied that Plaintiff provided his economist's report on December 17, 1996. To the
contrary, such a report was not received until December 19, 1996. It is admitted that
Defendant did not make a fonnal objection to the listing at the call, which was held on
December 17. 1996 due to an administrative error In that the cali of the list was not placed
..
2
on counsel's calendar. It is denied that such a failure constitutes an acquiescence in the
listing of this matter. To tile contrary, the late providing of Plaintiffs economist's report
has denied Defendant the opportunity to retain an economist to evaluate this matter on
behalf of the defense. Defendant's liability experts have not provided reports to defense
counsel for use at trial. Accordingly, Defendant's counsel believes this matter is not trial
ready.
11. Denied as stated. It is denied that defense counsel has been in a position to
provide all reports responsive in this matter as Plaintiffs counsel has delayed providing
economist's reports until December 19, 1996. Further, Plaintiffs counsel has not provided
the supporting financial documentation which justifies the conclusions expressed in
Plaintiffs economist report, despite the fact that counsel had been served for many, many
months with defense interrogatories and request for production of documents seeking such
infonnation.
12. Denied. After reasonable investigation, Answering Defendant is without
knowiedge or infonnation sufficient to fonn a belief as to the truth or falsity of the
avennents contaIned in this paragraph and, therefore, denies same and demands strict
proof thereof at time of trial if deemed material. By way of further answer, Plaintiff has
not timely provided economist reports despite the fact that such reports could have been
provided early on in this matter. Plaintiffs delay has denied the defense an opportunity to
properly respond to tile damages' side of this case due to the fact that expert reports were
disclosed over two (2) weeks after this case had been listed for trial by Plaintiffs counsel.
Plaintiff, by listing this matter for trial, certified to this Court that discovery was complete
3
,
1"''''''''I',,,,I''''r''r~fl'''"I1''17
COURT OF COMMON PLEAS
DAUPHIN COUNTY CIVIL ACTION
. SUITS 1994 _~_r.~ / t f-f-{f~~(Jei.."J1"-
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~ar~ft99/4(t '~e4;:bY o~4r-1--:':d Decreed the party's loint mot!..l1Jj
the cnption nnd trnasfer venue of this c.ase to Cumberland County is Rrnnt~~'-'--ll
is therefor ordered that the cnption sholl be amended to rend:
COLLEEN GIlEEN, tNDrVtlJUALLY AND HI TilE Cl!UHT UF COmlUN PLEMi___
M, ADmN rSTRATR IX UF TilE ESTATE CU~lIlEIlLMlU COUNTY. I'ENNS'iL'y.!V:!J A._.
OF HtCIIARIJ GHEENE,
l'tnf.ntlfr
CLVLL ACTlON - LA\~
NO.
JJJjtY....1'JUALUl:JJANIJEIJ_ ____
raltl.~1l.1t_!L~..o__6or.loIVLllq tl qe Anlllllfll
hdm, Fee.. Divorce
hdm.Fee.Cuslody______________ _______
App'l. or Mn~tcr
Cnsh nond
\'.
TIIOt-!AS J. "~Ii\P.SII, D.C.. I'oN!1
-'l'IImlAS J. SNAIlSII, D.r;., I'.C.,
lId/hIlI S~IAIlSII CI"IWI'I~ACTIC, J!.q~U!If1lltS
Amnnnt
,J 0 YI'
,:L.. "
Filing Fee
Ally. hppenronce
Sheriff's Costs
DI!contlnnonce
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JOINT MOTION TO AMEND CAPTION AND TRANSFER VENUE
1. As the instant case is a medical negligence case arising
out of treatment given by employees of ThomaB Smarsh, D.C., P.C.,
to Plaintiff Richard Greene at Defendants' camp Hill office.
2. By stipulation of Counsel (attached as Exhibit A), the
parties agree that the caption should be amended to reflect the
Defendant's proper legal name which is Thomas Smarsh, D.C., P.C.,
t/d/b/a Smarsh Chiropractic.
3. Further, the parties have stipulated that proper venue
for the case lies in Cumberland county and requests that this
Honorable Court transfer the matter to Cumberland County for all
further proceedings.
WHEREFORE, Plaintiff Colleen Greene and Defendant Thomas J.
Smarsh, D.C., P.C., hereby moves Your Honorable Court to grant its
Joint Motion to Amend the Caption and change venue.
& ROVNER, P.C.
Hyman, ESqu re
36807
4503.N. ront street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff
COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
: IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
.
.
Plaintiff :
v.
: CIVIL ACTION - LAW
: NO. 2063 S 1994
THOMAS SMARSH, D.C. AND SMARSH
CHIROPRACTIC, P.C.,
.
.
:
Defendants
: JURY TRIAL DEMANDED
AND NOW, this J?IJ/I day Of~'
Decreed the party's joint motion
1995, it is hereby Ordered
to amend the caption and
and
transfer venue of this case to Cumberland County is granted. It is
therefor ordered that the caption shall be amended to read:
COLLEEN GREENE, INDIVIDUALLY AND : IN THE COURT OF COMMON PLEAS
AS ADMINISTRATRIX OF THE ESTATE : CUMBERLAND COUNTY, PENNSYLVANIA
OF RICHARD GREENE,
plaintiff
v.
CIVIL ACTION - LAW
: NO.
THOMAS J. SMARSH, D.C., AND
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
The amendment of the caption shall relate back to the date of
filing of the action and shall be deemed to have the same legal
effect as if the case had originally been filed under the Amended
Caption.
The case shall be transferred to the Court of Common Pleas of
Cumberland County. As of the date of this order, juriSdiction over
the matter shall be vested in cumberland County Court and all
further proceedings in the case shall be with the Court of Common
Pleas of Cumberland county and the caption shall be amended to
COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - LAW
NO. ,I
,901Q?>...S <l,
THOMAS SMARSH, D.C. AND SMARSH
CHIROPRACTIC, P.C.,
Defendants
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the fOllowing pages, you must take action within
twenty (20) days after this complaint and Notice are served, by entering
a written appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or
for any other claim or relief requested by the Plaintiff. You may lose
money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER 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.
Dauphin County Lawyer Referral Service
213 N. Front Street
HarriSburg, PA 17101
(717) 232-7536
6
COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
Plaintiff
v.
: CIVIL ACTION - LAW
NO'~OUb_ S -lg91
THOMAS SMARSH, D.C. AND SMARSH
CHIROPRACTIC, P.C.,
Defendants
JURY TRIAL DEMANDED
COl1PLAINT
1. Plaintiff Colleen Greene is the wife and Administratrix of the
Estate of Richard Greene, Deceased.
2. Defendant Thomas Smarsh, D.C., is an adult practicing
chiropractic medicine in Dauphin County, Pennsylvania.
3. Defendant Smarsh Chiropractic is a professional corporation
providing chiropractic medical services to the public from offices
\
located in Dauphin county, Pennsylvania.
4. On April 12, 1990, Richard Greene became a patient of Dr.
Thomas Smarsh following a work-related injury to his back.
5. From April 12, 1990 until August, 1992, Defendant Smarsh saw
Mr. Greene on over 100 different occasions. Additionally, Defendant
Smarsh supervised rehabilitation visits on nearly 40 other occasions.
6. While primarily concerned with Plaintiff's spinal injury,
Defendant smarsh, in his advertisements, pamphlets and practice, holds
himself out as providing chiropractic medical services for the whole
person, including symptoms and illness beyond back pain.
7. Defendant Smarsh holds himself out as having expertise in the
taking and interpretation of x-ray films encompassing all areas of the
46018/HI4P
spine. Films of the mid and lower spine by their nature do include
areas of the lung.
8. On April 12, 1990, Defendant Smarsh took radiographs of
Plaintiff's complete spine. While abnormalities were found in
Plaintiff's spine, no abnormality was present in Plaintiff's lungs.
9. Defendant Smarsh was aware that Richard Greene was a smoker.
10. On February 25, 1992, Defendant Smarsh again took x-rays of
Richard Greene's chest and spine. The x-ray taken on February 25
contained a clearly visible, unequivocal, solid nodule in the
Plaintiff's right upper lung.
11. Defendant Smarsh did not advise Mr. Greene of the presence of
the nodule nor recommend any follow up treatment for the abnormality in
his lung. On February 25, 1992, the nodule was approximately 1
centimeter in diameter.
12. On May 28, 1992, Richard Greene reported to the emergency room
of Holy Spirit Hospital with complaints of sharp pain in his right
shoulder for three days. A chest x-ray taken on May 28th revealed a 9.5
centimeter mass in the right upper lung which was pressing against Mr.
Greene's trachea.
13. A needle biopsy of the mass confirmed that Richard Greene had
large cell carcinoma of the lung which had already metastasized to his
mediastinum.
14. By September, 1992, Richard Greene, following a horrible
course of progressive weakness, loss of body function and uncontrollable
excruciating pain, Richard Greene died of lung cancer. Mr Greene was 35
at the time of his death and left his wife, Colleen, and two minor
children without a father, husband and main wage earner.
15. As a direct result of the delay in diagnosis of his cancer
between February and May, 1992, Richard Greene's cancer progressed from
the point where he had a significant possibility of cure to one in which
he had no chance whatsoever of surviving.
16. The delay in diagnosis of Richard Green's lung cancer was
directly and proximally caused by Defendant Smarsh Chiropractic's and
its employee/owner, Thomas Smarsh's, negligence in:
(a) failing to recognize the presence of an abnormality
suggesting cancer on the x-rays taken by Defendant Smarsh in February,
1992;
(b) failing to have the x-rays reviewed by a medical
physician;
(c) failing to examine the lung fields for abnormalities as
part of his review of the films or advise plaintiff to do so;
(d) failing to discuss or recommend consultation with a
medical physician for lung problems during the period he treated Mr.
Greene;
(e) failing to obtain proper consultation or interpretation
of the x-ray films with respect to his treatment of Richard Greene;
(f) failing to recognize the significance of the apparent
and obvious findings present on the x-ray films taken in Dr. Smarsh's
office of Richard Greene.
WHEREFORE, Plaintiff prays for judgment against Defendants in an
amount in excess of Twenty Thousand ($20,000) Dollars, exclusive of
interest and costs, and in excess of any jurisdictional amount requiring
compulsory arbitration.
CLAIM I
Survival Action on behalf of the
Estate of Richard Greene
3
, .
II
Ii
Ii
I
L
,
r
I.
I
I
.,
I
,
17. Paragraphs 1 through 16 are herein incorporated by reference.
18. Plaintiff Colleen Greene, Individually and as Administratrix
of the Estate of Richard Greene, Deceased, under and by virtue of the
Act of 1976, July 9, P.L. 586, No. 142, ~2, 42 Pa.C.S.A. ~8302.
19. Defendants' negligence, as alleged herein, was the legal cause
of Richard Greene's death.
20. Defendant's negligence, as alleged herein significantly
decreased the period of survival, and possibility and success of
palliative treatment of plaintiff's cancer, even if his cancer could not
be completely cured.
20. As a direct result of Richard Greene's cancer and subsequent
death, he has suffered a complete loss of earning capacity and claim is
made therefore.
21. As a direct result of Defendants' negligence, Richard Greene
underwent considerable pain and SUffering prior to his death.
WHEREFORE, Plaintiff prays for judgment against Defendants in an
amount in excess of Twenty Thousand ($20,000) DOllars, exclusive of
interest and costs, and in excess of any jurisdictional amount requiring
..
compulsory arbitration.
CLAIM II
Wrongful Death on Behalf of the Wrongful Death
Beneficiary of the Estate of Richard Greene
22. Paragraphs 1 through 16 and Claim I are incorporated herein by
reference.
23. Plaintiff Colleen Green, Individually and as Administratrix of
the Estate of Richard Greene, Deceased, under and by virtue of the Act
of 1976, July 9, P.L 586, No. 142, ~2, 42 Pa.C.S.A. ~8302.
24. Decedent did not bring in action for his injuries during his
4
lifetime.
25. The following are the names of all persons entitled by law to
recover damages for such wrongful death and their relationship to
decedent:
Name Relationship Address
Colleen Greene Wife camp Hill, Pa.
Raquel Greene Child Camp Hill, Pa.
Richard Greene Jr. child camp Hill, Pa.
26. As a direct result of Defendants' negligence, which caused
Janice J. Roberts' death, the wrongful death beneficiaries have incurred
funeral expenses.
27. As a direct result of the death of decedent, the wrongful
death beneficiaries have suffered a pecuniary loss and have been and in
the future, will be deprived of decedent's services, contribution and
support.
WHEREFORE, Plaintiff prays for judgment against Defendants in an
amount in excess of Twenty Thousand ($20,000) DOllars, exclusive of
interest and costs, and in excess of any jurisdictional amount requiring
compulsory arbitration.
ANGINO & ROVNER, P.C.
Esquire
treet
17110
5
5 -1
COMMONWEALTH OF PENNA:
COUNTY OF DAUPHIN
SHERIFF'8 RETURN
NO. 2063 S 1994
PAGE 55
AND NOW: Nay 31
19 94 . at 9:25 A. M.
SERVED THE
UPON
WITHIN
C.omplnint
Thomas Smarsh, D.C. and Smarsh Chiropratic, P.C.
BY PERSONALLY
HANDING TO
Audred Bechtel, Recp. and person in charge at time of service
1\,0 Copies
~RUE ATTESTED ~F THE ORIGINAL
Complaint
AND MAKING KNOWN TO her
4800 Derry St., Hbg.PA.
THECONTENTB THEREOFAT
JW/NDJ
Plaintiff: Colleen Greene, Individually & as Administratrix of the Estate of Richard Greene
80 ANSWERS .'
.., /,'.<-;, . .......-{. ~c;e~
.-;,~.ifl"" /:.. <t..tA...-'
SIlERI........ 0.... DAUPIIIN COUNTY. PENNA.
SHERIFF'S 008TS . 36.75 IX\. 5/26/94 \lee. 054931
COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE or RICHARD GREENE,
PLAINTIFF
va.
THOMAS SMARSH, D.C. AND
SMARSH CHIROPRACTIC, P.C.,
DEFENDANTS
)
'.
IN THE/COURT OF COMMON PLEAS,
DAUPHIN COUNTY, PENNSYLVANIA
NO. 2063-S-1994
.
.
: CIVIL ACTION - LAW
:
:
I
.
.
I JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
Kindly enter our appearance on behalf of the above-named
Defendant in connection with the above-captioned matter.
DATED:
(, /;;3) tV
DATED:
L.'; L-"/" (
I
Respectfully submitted,
MARSHALL & FARRELL, P.C.
~J'i
Franci E./ Marshall, Jr.
PA I.D~.-No. 27594 /
/.", ,.(('r '. C
Joseph ~ Ricci
,PA 1.0. N .~ 49803
1323 North lFront street
Harrisburg~ PA 17102
(717) 236-7300
Counsel for Defendants
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To the contrary, at times relevant hereto Dr. Smarsh practiced chiropractic in Cumbcrland
County, Pennsylvania. Since March of 1992 Dr. Smarsh has not activcly treated patients.
3. Denied. It is denied that Defendant Smarsh Chiropractic had an office in Dauphin
County, Pennsylvania. To the contrary, therc is no formal business entity known as Smarsh
Chiropractic; instead, Derry Street Chiropractic, P.C., a separate professional corporation,
practices under the name of Smarsh Chiropractic. It is denied that treatments to Plaintifrs
Decedcnt Richard Grecne were provided in Dauphin County. To the contrary, Richard Greene
received his chiropractic treatments at 3599 Old Gcttysburg Road, Camp Hill, Cumberland
County, Pennsylvania.
4. Denied as stated. It is admitted only that Richard Greene became a patient of Smarsh
Chiropractic on April 12, 1990 after injuring his lower back during an April 6, 1990 work-site
injury .
5. Admitted in part denied in part. To the extent the averments contained within this
paragraph are reflected within the records of Smarsh Chiropractic, thcy are admitted. To the
extent the averments contained within this paragraph are not reflected within the records of
Smarsh Chiropractic or are contradicted thereby, they are denied since after reasonable
investigation the answering defendant is without information sufficient to form a belief as to the
truth or falsity of thc avcrmcnts contained therein.
6. Denied as stated. It is admitted that Dr. Smarsh provides treatment to patients for
ailments which are rcsponsive to chiropractic treatment. It is furthcr admitted that these
treatments are not limited to treatment of spinal injuries.
2
7. Denied as stated. It is admitted only that Dr. Smarsh has been trained to read x-ray
films within that standard of care for a chiropractor.
8. Denied as stated. It is admitted that on April 12, 1990 x-rays were taken of Mr.
Greene's spine. It is further admitted that abnormalities were found in the cervical and lumbo-
pelvic spine. It is admitted that no abnormalities of the lungs were reported.
9. Admitted.
10. Denied as stated. It is admitted that x-rays were taken of Richard Greene's spine on
February 25, 1992. It is denied that x-rays were taken of Mr. Greene's chest. By way of
further answer it is denied that the x-rays of February 25, 1992 contained lOa clearly visible,
unequivocal, solid nodule in the Plaintifrs right upper lung.IO By way of further answer it is
denied that the x-rays in question were taken or reviewed by Dr. Smarsh.
II. Admitted in part, denied in part. It is admitted that Dr. Smarsh did not advise Mr.
Greene of an abnormality in his lung since Dr. Smarsh was not the Chiropractor responsible for
the patient's eare in February of 1992. By way of further answer it is denied that the February
25, 1991 x-ray revealed a clearly visible, unequiVOCal solid nodule which was approximately one
(I) centimeter in diameter. By way of further answer, at all times material hereto Dr. Smarsh
acted properly and appropriately within the standard of care for chiropractic treatment of patients
such as Richard Greene. By way of further answer the patient was referred to Dr. Richard
Feideler for consultation.
12. Denied. After reasonable investigation the answering defendant is without sufficient
information to form a belief as to the truth or falsity of the averments contained in this
3
paragraph; and accordingly, denies same and demands strict proof to the contrary at the time
of trial if deemed material.
13. Denied. After reasonable investigation the answering defendant is without sufficient
information to form a belief as to the truth or falsity of the averments contained in the
paragraph' and accordingly, denies same and demands strict proof to the contrary at the time
of trial If deemed material.
14. Denied. After reasonable investigation the answering defendant is without
sufficient information to form a belief as to the truth or falsity of the averments contained in the
paragraph; and accordingly, denies same and demands 5trict proof to the contrary at the time
of trial if deemed material.
15. Denied. After reasonable investigation the answering defendant is without
sufficient information to form a belief as to the truth or falsity of the averments contained in the
paragraph; and accordingly t denies same and demands strict proof to the contrary at the time
of trial if deemed material.
16. Denied. It 15 specifically and unequivocally denied that there was a delay in the
diagnosis of Richard Greene's alleged lung eancer as a direet and "proximal" [sic] result of
negligence on behalf of Smarsh Chiropractic or Thomas Smarsh, D.C. To the contrary at all
times material hereto, the Answering Defendants acted properly and appropriately and provided
care within the standard of care for chiropractic treatment of patients such as Richard Greene.
By way of further answer it is more particularly denied that:
"
(a) Denied. It is specifically and unequivocally denied that the Answering
Defendants were negligent in "failing to recognize the presence of an abnormality suggesting
cancer on the x-rays taken by Defendant Smarsh in February 1992." To the contrary the x-rays
in question were properly and appropriately interpreted within the standard of care for
chiropractic treatment of patients such as Richard Greene. By way of further answer it is denied
that the x-rays in question were taken or interpreted by Dr.Smarsh.
(b) Denied. It is specifically and unequivocally denied that the Answering
Defendants were negligent in "failing to have the x-rays reviewed by a medical physician." To
the contrary, at all times material hereto the Answering Defendants acted properly and
appropriately and within the standard of care for chiropractic treatment of patients such as
Richard Greene. By way of further answer it is d'::nied that the x-rays in question were taken
or interpreted by Dr. Smarsh. By way of further answer the patient was referred to Dr. Richard
Feideler.
(c) Denied. It is specifically and unequivocally denied that the Answering
Defendants were negligent in "failing to examine the lung fields for abnormalities as part of his
review of the films or advise plaintiff to do so." To the contrary the Answering Defendants
acted properly and appropriately and within the standard of care for chiropractic treatment of
patients such as Richard Greene. By way of further answer it is denied that the x-rays in
question were taken or interpreted by Dr.Smarsh. By way of further answer the patient was
referred to Dr. Richard Feideler.
(d) Denied. It is specifically and unequivocally denied that the Answering
5
Defendants were negligent in "failing to discuss or recommend consultation with a medical
physician for lung problems during he period he treated Mr. Greene." To the contrary at all
times material hereto the Answering Defendants acted properly and appropriately and within the
standard of care for chiropractic treatment of patients such as Richard Greene. By way of
further answer the patient was referred to Dr. Richard Feideler for consultation in regard to his
symptomatology.
(e) Denied. It is specifically and unequivocally denied that the Answering
Defendants were negligent in "failing to obtain proper consultation or interpretation of the x-ray
films with respect to his treatment of Richard Greene" To the contrary at all times material
hereto the Answering Defendants acted properly and appropriately and with in the standard of
care for chiropractic treatment of patients such as Richard Greene. By way of further answer
the x-rays in question were neither taken nor reviewed by Dr.Smarsh.
(I) Denied. It is specifically and unequivocally denied that the Answering
Defendants were negligent in "failing to recognize the significance of the apparent and obvious
findings present of the x-ray films taken in Dr. Smarsh's office of Richard Greene." To the
contrary it is denied that there were "obvious and apparent findings" prescnt of the x-ray films
in que5tion. By way of further answer at all times material hereto the answering defendant's
acted properly and appropriately and within the standard of care for chiropractic treatment of
patients such as Richard Greene. By way of further an5wer the x-rays in question were neither
taken nor reviewed by Dr.Smarsh.
6
WHEREFORE, it is re5pectfully requested that this Honorable court enter judgement
on behalf of the Answering Defendants and against the Plaintiffs and that they be awarded
appropriate costs and fees.
CLAIM I
SURVIVAL ACTION ON BEHALF OF TIlE ESTATE OF RICIIARD GREENE
17. The Answering Defendants incorporate by reference their responses to paragraphs
1 through 16 above as if more fully set forth herein at length.
18. Denied. The averments contained in this paragraph are conclusions of law to which
no affirmative response is required. To the extent an affirmative response is required, said
averments are denied and strict proof to the contrary demanded at time of trial if deemed
material.
19. Denied. The averments contained in this paragraph are conclusions of law to which
no affirmative response is required. To the extent an affirmative response is required, said
averments are denied and strict proof to the contrary demanded at time of trial if deemed
material. By way of further answer it is specifically and unequivocally denied that the
Answering Defendants were negligent in the care and treatment of Richard Greene. To the
contrary at all times material hereto the Answering Defendants acted properly and appropriately
and within the standard of care for chiropractic treatment of patients such as Richard Greene.
20. Denied. The averments contained in this paragraph are conclusions of law to which
no affirmative response is required. To the extent an affirmative response is required, said
averments are denied and strict proof to the contrary demanded at time of trial if deemed
7
material. By way of further answer it is specifically and unequivocally denied that the
Answering Defendants were negligent in the care and treatment of Richard Greene. To the
contrary at all times material hereto the Answering Defendants acted properly and appropriately
and within the standard of care for chiropractic treatment of patients such as Richard Greene.
By way of further answer to the extent this paragraph refers to the Plaintifrs alleged damages,
it is denied since after reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the said
averments. Accordingly the averments are denied and strict proof to the contrary is demanded
at time of trial if deemed material.
21. Denied. The averments contained in this paragraph are conclusions of law to
which no affirmative response is required. To the extent an affirmative response is required,
said averments are denied and strict proof to the contrary demanded at time of trial if deemed
material. By way of further answer, it is specifically and unequivocally denied that the
Answering Defendants were negligent in the care and treatment of Richard Greene. To the
contrary at all times material hereto the Answering Defendants acted properly and appropriately
and within the standard of care for chiropractic treatment of patients such as Richard Greene.
By way of further answer, to the extent this paragraph refers to the Plaintifrs alleged damages
it is denied sinee after reasonable investigation the Answering Defendants are without knowledge
or information sufficient to form a belief as to the truth or falsity of the said averments.
Accordingly the averments are denied and strict proof to the contrary is demanded at time of
trial if deemed material.
B
WHEREFORE, it is respectfully requested that this Honorable Court enter judgment In
favor of the defendants and against the Plaintiff and that they be awarded appropriate costs and
fees.
CLAIM II
WRONGFUL DEATH ON BEHALF OF TilE WRONGFUL
DEATH BENEFICIARY OF TIlE ESTATE OF RICHARD GREENE
22. The Answering Defendants incorporate by reference their responses to Paragraphs
I through 16 and Claim I as if more fully set forth herein at length.
23. Denied. The averments contained in this paragraph are conclusions of law to which
no affirmative response is required. To the extent an affirmative response may be required, said
averments are denied and strict proof thereof demanded at time of trial if deemed material.
24. Denied. After reasonable investigation the Answering Defendants are without
sufficient knowledge to form a belief as tot he truth or falsity of the said averments; accordingly
the said averments are denied and strict proof thereof demanded at time of trial if deemed
material.
25. Denied. After reasonable investigation, answering defendant is without knowledge
or information sufficient to form a belief as to the truth or falsity of the averments contained in
this paragraph, and therefore, denies same and demands strict proof thereof at time of trial, if
deemed material.
26. Denied. The averments contained in this paragraph, to the extent they relate to
proximate causation, are conclusions of law to which no affirmative response is required. To
the extent an affirmative response may be required, said averments are specifically and
1I
unequivocally denied and strict proof thereof demanded at time of trial if deemed material. To
the extent this paragraph refers to the Plaintifrs alleged damages, it is denied since after
reasonable investigation, Answering Defendants are without knowledge or information sufficient
to form a belief as to the truth or falsity of the averments contained in this paragraph, and
therefore, denies same and demands strict proof thereof at time of trial, if deemed material.
27. Denied. The averments contained in this paragraph, to the extent they relate to
proximate causation, are conclusions of law to which no affirmative response is required. To
the extent an affirmative response may be required, said averments are specifically and
unequivocally denied and strict proof thereof demanded at time of trial if deemed material. To
the extent this paragraph refers to the Plaintifrs alleged damages, it is denied since after
reasonable investigation, Answering Defendants are without knowledge or information sufficient
to form a belief as to the truth or falsity of the averments contained in this paragraph, and
therefore, denies same and demands strict proof thereof at time of trial, if deemed material.
WHEREFORE, it is respectfully requested that this Honorable Court enter judgment in
favor of the Defendants and against the Plaintiff and that they be awarded appropriate costs and
fees.
NEW MATIER
1. Plaintiff has failed to state a claim upon which relief can be granted.
2. Plaintifrs claim is barred and/or limited by the applicable Statute of Limitations.
3. It is believed, and therefore averred, that the discovery will show that Richard Greene
was negligent and that his negligence exceeded the negligence, if any, of the Answering
10
Defendant, thereby barring Plaintiff recovery by operation of the Pennsylvania Comparative
Negligence Act.
4. It is believed, and therefore averred, that discovery will show that Richard Greene
was negligent and that by virtue of his negligence, Plaintifrs claims may be limited by the
operation of the Pennsylvania Comparative Negligence Act.
5. It is believed, and therefore averred, that discovery will show that Richard Greene
voluntarily assumed a known risk thereby barring recovery by the operation of the Doctrine of
Assumption of Risk.
6. Richard Greene's injuries, if any, were sustained as a result of natural or unknown
causes and not as the result of any action or inaction on behalf of the Answering Defendants.
7. At all times material hereto, Answering Defendants provided full, complete, proper,
reasonable and adequate medical care and treatment in accordance with the applicable standard
of care.
8. No conduct on the part of the Answering Defendants was a substantial factor in
causing or contributing to any harm which Richard Greene may have suffered.
9. If Richard Greene suffered any damage, the damages were caused by the conduct of
others over whom the Answering Defendants had no control or right to control.
10. All claims and causes of action pleaded against the Answering Defendants are barred
by Richard Greene's knowing and voluntary informed consent to the care in question.
11. To the extent it was required to do so, the Answering Defendants took all reasonable
and necessary steps to make a proper and appropriate diagnosis and to the extent it may be
11
determined that that diagnosis was in error, the Answering Defendants assert that the error in
diagnosis was a reasonable and legally justifiable error.
12. Dr. Smarsh did not take nor interpret the 2-25-92 x-rays.
13. The patient Richard Greene was referred to Dr. richard Feideler for consultation
after the 2-25-92 x-rays were taken.
14. Following January 22, 1992, Dr. Smarsh provided to care or treatment to the
patient, Richard Greene.
WHEREFORE, it is respectfully requested that this Honorable Court enter judgment in
favor of the Defendants and against the Plaintiff and that they be awarded appropriate costs and
fees.
Respectfully submitted,
MARSHALL & FARRELL, P.C.
A\
/osePh A. icci, Esquire
, Pa. I.D. No. 803
'1323 North.F nt Street
Harrisburg, PA 17102
(717) 236-7300
Attorney for Defendant
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Dated:
lo,tH'1
12
CERTIFICATE OF SERVICE
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AND NOW, this 19th day of October, 1994, I, Joseph A. Ricci, Esquire, hereby
certify that I served a true and correct copy of the foregoing ANSWER WITH NEW MA TIER
OF DEFENDANTS TO PLAINTIFF'S COMPLAINT upon a1\ counsel of record by depositing
a copy of same in the United States mail, regular delivery, postage prepaid at Harrisburg,
Pennsylvania, addressed as fo1\ows:
Terry S. Hyman, Esquire
ANGlNO & ROVNER, P.C.
4503 North Front Street
Harrisburg, PA 17\10
(Counsel for Plaintift)
cei, Esquire
13
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COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - LAW
NO. 2063 S 1994
THOMAS SMARSH, D.C. AND SMARSH
CHIROPRACTIC, P.C.,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER
1-6. [sic] The allegations herein are a computer generated
recitation of all affirmative defenses to a negligence action. The
allegations fail to state the material facts upon which the defenses are
based and therefore, are, as matter of law, insufficient to raise said
defenses. Plaintiff denies all said defenses if a denial is required.
7. Denied for the reasons stated in the complaint which are
incorporated herein by reference.
8. Denied as a mixed statement of fact and law to which no
response is necessary.
By way of further response, Defendant's
negligence did, in fact, increase the harm or risk of harm to Richard
Greene including his death.
9. Denied. Plaintiff did not consent to a misreading of his x-
rays by the Defendant nor any substandard care.
11. The allegation herein states a conclusion of law to which no
response is necessary. By way of further response, Defendant's error
was not justifiable but rather was conduct below the standard of care of
his profession.
12. Denied. According to Defendant's own records, Richard Greene's
5543UHHP
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S PRETRIAL MEMORANDUM
I. STATEMENT OF THE CASE
Richard Greene died a quite painful death from lung cancer in
September 1992. He was 35 years old at the time, leaving behind a
wife and two minor children.
For two years prior to his death, Mr. Greene was under
treatment at Smarsh Chiropractic for an ongoing back injury. In
February 1992, Smarsh took x-rays of Richard Greene's spine which
included Mr. Greene's lungs within the x-ray view. The films were
taken by Richard E. Bashore, a chiropractor who had just graduated
from chiropractic school and was still in his "training" period
with Smarsh.
At the time, Dr. Thomas Smarsh was physically unable to
practice at chiropractic, leaving Dr. Ronald Duriske in charge of
the Smarsh Chiropractic practice.
Drs. Smarsh, Duriske, Bashore, as well as Plaintiff's expert
uniformly testified that a chiropractor receives sufficient
101144/PJH
training in x-ray interpretation, and has the dutv to, identify
abnormalities in the lung on the spine films regularly taken as
part of chiropractic diagnosis and treatment. The chiropractor is
not required to make a diagnosis of the lung abnormality, but is
required to recognize that the presence of something which should
not be there and refer the patient to a medical doctor for follow-
up care.
Mr. Greene's x-rays taken by Smarsh in February 1992 show a
two centimeter solitary nodule in his lung. This finding was quite
noticeable and should have been seen by the chiropractor
interpreting the film.
In his deposition, Dr. Bashore testified that when taking Mr.
Greens' films, he was acting strictly as a technologist. According
to Bashore, the obligation to interpret the films or, if they were
in any fashion inadequate for interpretation, to re-order adequate
films, laid at the door step of Dr. Duriske, the supervising
chiropractor, not with himself.
Duriske, however, in his deposition, indicated that full
responsibility for the interpretation of the February film and the
determination whether additional films were needed, lay with
Bashore, the chiropractor who took them.
Neither Duriske or Bashore testified that they had in fact
viewed and interpreted Mr. Greene's February 1992 films. The
2
Smarsh records do not contain any written interpretation of the
February 1992 films.
Interestingly, Smarsh did charge Plaintiff's workers'
compensation carrier for the films and their interpretation as
reasonable and necessary medical charges related to diagnosing Mr.
Greene's back injury. Additionally, smarsh sent a word processor
generated form report letter to the compensation carrier stating
the February x-rays showed continuing medical problems in the
patient's neck which, would require all views taken on February
1992 to have been reviewed.
plaintiff's expert, Norman Kettner is the Chairman of the
Department of Radiology at a major School of Chiropractic Medicine.
He is a chiropractor himself and is obviously familiar with the
role radiology plays in day-to-day chiropractic practice. His
report is attached hereto. Dr. Kettner will testify to the rather
basic conclusion that when a chiropractor takes, and charges for,
an x-ray film, somebody needs to actually interpret it. Had that
been done in this case, the nodule in Mr. Greene's lung should have
been recognized by a chiropractor using the ordinary skills and
training of his profession, at which point Mr. Greene should have
been referred immediately for cancer work-up.
The chiropractors' at Smarsh failure to look at Mr. Greene's
films and refer him for treatment fell below the standard of care.
3
As a result, Mr. Greene's lung tumor progressed from 2 centimeters
in February to ~ centimeters when discovered in April.
Also attaohed is the report of Dr. Jeffrey Perrapato, a
thoracic surgeon associated with the Cleveland Clinic. Dr.
Perrapato indicates that, had the two-centimeter lesion been worked
up in February before it progressed to B centimeters, the patient
had a 50-60% chance of survival. At the time of discovery, Mr.
Greene had a 0% chance of survival and, in fact, lived through
about six months of extraordinarily painful treatment before he
died leaving behind his wife and children
II. WITNESSES
Plaintiff may call any of the following witnesses:
Colleen Greene
Thomas Smarsh, as if on cross
Ronald Duriske, as if on cross
Richard Bashore, as if on cross
The office manager of Smarsh D.C., P.C.
Dr. Jeffrey Perrapato
Dr. Norman Kettner
A supervisor from Gabler
Marie Bobeck, Colleen Greene's mother
Racquel and Richard Greene, Jr., Plaintiff's children
4
Pauline Henry, Plaintiff's mother
Manuel McDilda, a co-worker
Plaintiff also reserves the right to call any person who is
identified in Plaintiff's medical records, including physicians who
treated him and, to seasonably supplement this list.
III. EXHIBITS
Plaintiff may use any of the fOllowing exhibits:
A. Plaintiff's medical records and bills.
B. Plaintiff's x-rays
c. Wage information from Plaintiff's employers
D. Anatomical charts or exemplar x-rays in conjunction with
Plaintiff's experts' testimony
E. Chiropractic textbooks and/or standards to be introduced
in direct. (Plaintiff reserves the right to utilize
texts, standards or diagrams in cross-examination,
depending upon the manner in which Defendants or their
expert testify.)
F. Photographs of plaintiff
Plaintiff reserves the right to supplement this list with
timely notice to defendants.
5
identify issues that need to be briefed prior to the next term of
Court.
Respectfully submitted,
ANGINO & ROVNER, P.C.
-~
--,
.-..'
------
an, Esquire
807
Front street
Har Isb g PA 17110
(71 )./2:38-6791
CounSel for Plaintiff
DATED: 10/18/96
7
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1:.\Il11l/J '1'1111/1 \1:11: .I/ll;f:/lL I'.C.
February 16, 1996
Mr. Terry S. Hyman
Attorney at Law
4503 North Front Street
Harrisburg, PA 17110-1708
RE: GREENE, Richard
Dear Mr. Hyman:
A brief summary of my review reveals that limited view of the
right upper lung field on Mr. Greene's chest x-ray done during
cervical spine films demonstrates a one to one and a half
centimeter solitary pulmonary nodule. Review of the chest x-rays
done the latter part of May, three months later, shows a nine and
a half centimeter mass in the same general area as the nodule.
The CT scan confirmed extensive mediastinal involvement. He was
also found at this time to have metastases to his calvarium and
it was clearly unresectable the end of May, beginning of June, at
the time this extensive workup was performed. This was proven to
be a large-cell carcinoma or a non-small-cell carcinoma.
There is a significant probability that this gentleman was
resectable on his initial studies at the end of February;
although we do not have a CT scan or any other test to prove or
disprove the presence of regional or distant metastases. The x-
ray does show a small solitary nodule that was probably amenable
to resection. By failure to have him fully evaluated at that
time, Mr. Greene, more probably than not, lost the opportunity
for a resection of his lung cancer. Patients with a single,
solitary node of non-small-cell carcinoma have a survival rate of
50-60% following resection. In patients who cannot be resected,
the survival rate is nil.
Sincerely yours,
WIr T:' ~
Jeffrey T. Perrapato, M.D.
JTP:rt
\I,',Ii,',d ~1'1'1 iullh'" 1I1111.1i1lj: J .tn f;III1I1+111.1 ,":lIIli' ;!111I hllllllllll/llU. '" I'mlll f.llt I :I1:111:',~I:' I' \ \ "lfI!;I 1:11 :1:.!II'I
C " R R 1 C U L U M
v 1 T . E
NAME:
JEFFREY THOMAS PERRAPATo
PERSONAL H1SToRY:
Birthdate: October II, 1943'
Birthplace: Middletown, New York
Marital Status: Married. Wife: Carol Marie
Chil dren: Spn, Jeffrey Jr.
Hobbies: Sailing, scuba diving, photography
EDUCATlo.N:
College: Georgetow;" 1961-1965 Degree: Biolog1 (Honors)
Medical School: Georgetown, 1965-1969
General Surgery Residency: Albany Medical Center, 1969-1971
Chief Resident, Georgetown Medical Center, 7/1/76-12/31/76
Chief Resident, D.C. General Hospital, 1/]/77-6/30/77
Thoracic & Cardiovascular Surgery Residency:
Cleveland Clinic Foundation, 7/1/77-6/30/79
Cincinnati Children's Hospital, 9/1/78-11/30/78
National Board of Medical Examiners: Certified 7/70
American Board of Surgery: Certified 7/78
American Board of Cardio Thoracic Surgery: Certified 6/80
Medical License: New Jersey and Michigan
m L:lTARY:
Navy, USS Hanley, Senior Medical & Diving Officer, 8/7]-7/73
ME01CAL SoC1ETY:
American Medical Association
Southeaster~ Surg'cal Congress
Fellowship, American College of Surgery
Fellowship, American College of Cardiology
Fellowship, American College of Chest Physicians
Fellowship, Society of Thoracic Surgery
TEACHING POS1TloNS:
Assistant lnstructor in Surgery--Georgetown
Medical Officer (Thoracic)--D.C. General Hospital
f..
PRESENTATIONS:
"Blood Conservation During Myocardial Revascularization"
..'
LOGAN
COl.lme. or O1lflD/'RACTlC
July 24, \996
Mr, Terry S. Hyman
Attorney at Law
4503 North Front Street
Hnrrisburg, PA \7\10-\708
RE: Estate of Richard Green vs. Thomas Smarsh, D.C, and Smarsh Chiropractic
Dear Mr. Hyman,
I have reviewed copies ofthe clinical records of Mr. Green as well as the various
mdiographs during treatment by Thomas Smarsh, D.C, and Smarsh Chiropractic.
\, It is my opinion that the radiographic examination performed on 2-25.95 of the
cervieal spine in the AP ~nd lateral projection demonstrates an ill-defined soft tissue nodule in the
pulmonary apex. It is also my opinion that this finding, although present on a technica1ly .
substandard radiograph, could and should have been noted. The radiologic edueation of
chiropractors places significance on the evaluation of this region of the radiograph during the
performance of a cervical spine AP and well as other mdiographic examinations, The emphasis
on radiographic detection of the pulmonary apex is for the purpose of detecting abnormalities
such as infection or neoplasm which may arise incidentally during the course ofa cervical
radiographic examination.
2, In the event there is recognition of an apical abnormality raising the suspicion of
neoplasm infection or trauma, additional radiologic imaging and consultation would be obtained in
a timely fashion in order to detennine the underlying nature ofthe abnormality,
3. The patient history and objective physical examination are essential to the clinical data
base. They are used to fonnulate an initial clinical impression, A routine history should be
initialed and/or signed, thus establishing the identity of the primary examining pmctitioner.
Persons other than the primary clinician performing or recording elements of the history or
physical examination should have their names and/or initials appear on the form.' In addition,
patie.nt progress is provided by means of records, notes, (SOAP) that doc~ment the ~resence or
.....
18~1 Schoeltler Road
fost omc. 110. 106~
CI1..l<rlleld. Hluourl 6:lOlJ6.1 06~
314/117-2100
absence of a patient clinical response during treatment. The documentation of Thomas Smarsh,
D,C. and Smarsh Chiropractic do not provide the components ofa routine history, physical
examination or daily progress notes. In addition, patients should be informed in advance ofthe
need and the specific nature of a radiographic examination before it is performed. Any significant
risks should, at that time, be addressed. All imaging studies must be accompanied by an
interpretation. An inte!'Jlretation and report is the responsibility of the doctor of record. The
interpretation of an imaging study should be included as part of the patient's pennanent record. A
radiology report should be unique and not a format that utilizes check lists, In addition,
radiographic examination which is suboptimal or non standard requires repeat examination. The
repeat examination may be necesSlll)' at a future date due to patient discomfort or inconvenience,
but should never the less be performed in a timely fashion. The aforementioned radiologic
administrative practices ensure patient safety and reinforce quality assurance. The absence of one
or more of the aforementioned issues appear to have contributed to the delay of diagnosis
suffered by Mr. Richard Green.
Sincerely You ..
Norm1l[t ettner, D.C., DACBR, FleC
Chairman, Department of Radiology
NWK:elc
~..
" "
Awards:
9.
10.
11.
12.
1.
Dean's List, University of Wisconsin,
Milwaukee
Dean's List, Logan College
Cum Laude, Logan College
Instructor of the Year, Logan College
Distinguished Service Award for Clinical
Science Division, Logan College
Distinguished Service Award for Clinical
Science Division, Logan College
Instructor of the Year, Logan College
Special Recognition Award for
Chiropractic Education and Research
Instructor of the Year, Logan College
Certificate of Appreciation from the
Student Doctors Council, Logan College
Distinguished Service Award for Clinical
Science Division, Logan College'
Fellow International College of
Chiropractors
2.
3.
4,
5.
6,
7.
8.
Academic Appointments:
1. Professor of Clinical Science
Logan College of Chiropractic
September, 1993
2, Instructor
Postgraduate Division
Northwestern College of Chiropractic
March, 1993
3, Instructor
Postgraduate Division
Los Angeles College of Chiropractic
Janual)'. 1993
4, Tenured Faculty Member
Logan College of Chiropractic
1989
5.
Associate Professor of Clinical Science
Logan College of Chiropractic
September. 1987
\' .
6. Chainnan
Department of Radiology
Logan College of Chiropractic
August, 1984
2
1970-1972
1977-1979
1980
1984
1985
1986
1987
1988
1988
1988
1989
1992
,
.,. Director Radiology Residency
L.ogan College of Chiropractic
August, 1984
8. Assistant Professor of Clinical Science
Logan College of Chiropractic
August, 1983
9. Instructor
Department of Basic Science
Logan College of Chiropractic
November 1981
10. Instructor
Postgraduate Division
Logan College ofChiropraclic
November 1981
11. Instructor
Department of Clinical Science
Logan College ofChiropraclic
January 1980
12. Clinic Director
Logan College of Chiropractic
January 1980
Other Professional Appointments:
Editorial Board, In Practice
1995-96
Past President, American Chiropractic
College ofRndiology, 1994-95
Past President, American Chiropractic
College ofRndiology, 1993-94
Editorial Board, Journal of
Neuromusculoskeletal System, 1992
\
Editorial Board, Topics in Dia~nostic
Rndiolo~ and Advanced rmnlJin~, 1992
Proposal Review Team, Consortium for
Chiropractic Research, 1992
President, American Chiropractic College
ofRndiology, 1991
3
5. Tutorial on Vivo Spectrosc"t'Y
April 1991
6. American Chiroprnctic College ofRadiology
Annual Meeting
1993 - Annual Altendance
7: American Chiroprnctic Collegc of Radiology
Annual Meeting
1994 - Annual Attcndancc
8. Rndiologic Society of North Amcrica
Annual Meeting
1995 - Annual Attcndancc
9. American Chiropractic Collegc ofRndiology
Annual Meeting
1995 - Annual Attendance
10. Radiologic Society of North America
Annual Meeting
1995 - Annual Attendence
Orilll"nl Pnpe!'!:
1. Is it platybasia, basilar impression or invagination, NW Kettner. Roentllen Brief
Council on Diagnostic Imaging; March 1982.
2, Calcified aneurysm ofthc internal iliac artery - a case study, NW Kettner, IE
Danz. Journal ofChirQpractic October 1982; 19(10):70.
3. Three diverticular diseases of the abdomen. NW Kettner. Roentllen Brief
Council on Diagnostic Imaging; December 1984.
4. Scaphoid fracture with osteonecrosis. NW Kettner, JH Shorten, Journal of
Chiroprnctic Junc 1987; 24(6):75-77.
5, Acute plastic bowing fractures: a review, NW Kettner. Chiropractic Sports
Medicine October 1987; 1(4):141-143,
6, Prostatic metastasis to the cervical spinc: a case study, JH Shorten, NW
Kettner. Journal of Chiropractic July 1988; 25(7):69.
\7.' Abdominal aortic aneurysm - the total picture. TR Yochum, OM Gucbcrt, NW
Kettner. .Applied Diallnostic Imallinll January/FeblUary 1989; 1(1).
8. Limiting professional liability: improving x-ray quality. OM Ouebert, NW
Kettner, TR Yochum. Applied Dial,mostic Imallinll May/June 1989; 1(3),
7
9. Imervertcbral disc derangement: the MR in,~~ing perspective. NW Kettner,
GM Guebert, TR Yochum. Applied Diallnostic Imallinll May/June 1989, 1(3).
10. The chiropractor's guide to radiographic technology. GM Guebert, NW
Kettner, TR Yochum, Applied DiallnosticImallinll July/August 1~1(4)
II. The radiology of segmental instability, NW Kettner, GM Guebert, TR
Yochum. Applied Diallnostic Ima~nll September/October 1989; 1(5):37-48.
12, The tilt-up view: a closer look at the lumbosacral junction. TR Yochum, GM
Guebert, NW Kettner. Applied Diallnostic Imallinll NovemberlDecember
1989; 1(6):49-60.
13. Supra-hyoid thyroglossal cyst: a case study. NW Kettner. JOllrnal of
Chiropractic October 1989; 26( I 0):81-82.
14, Differential diagnosis: a strategic approach. NW Kettner. D.C Tracts June
1989; 1(3):123-131.
15. Osteoblastic metastases: a case report. DR Hobson, NW Kettner, Roentllen
BrkfCouncil on Diagnostic Imaging; January 1991,
16. The radiology of cervical spine injury, NW Kettner, GM Gucbert. Journal of
Manipulative PhysiolOllical Therapeutics NovemberlDecember 1991; 14(9).
17. Carpal instability: pathomechanics and contemporary imaging. MS Barry, NW
Kettner, C Peirre-Jerome. ~hiropractic Sports Medicine May 1991; 5(2):38-
44. '
18. MRI of the wrist: occult osseous lesions. NW Kettner, C Pierre-Jerome.
Journal of Manipulative Physiolollical Therapeutics December 1992;
15(9):599-603,
19. Hemispherical spondylosclerosis: a case study. NW Kettner, SR Hillis.
Roentllen Brief Council on Diagnostic Imaging, April 1991; 3:7-9.
20. Synovial osteochondromatosis and a solitary osteochondroma effecting the
same hip: a case report. MS Barry, NW Kettner, Roentllen Brief
Council on Diagnostic Imaging, October 1991; F(2):5,
21. Unstable spondylolisthesis in an athlete. mEssman, NW Kettner, Topics in
Diallnostic Radiology 1993; 1:12-14,
\22. Radiology of the stress fracture, IK Roug, NW Kettner, Topics in diallnostic
RadiolollY and Advanced Imallinll1993; 1:12-23.
23. Myositis' ossificans traumatica: a case study with plain film and advanced
imaging. C Pierre-Jerome, NW Kettner. Topics in Dinllnostic RadiolollY and
Advanced Imallinll 1993; 1 :21-23.
8
24. Lllagnostic imaging of athletic injury. NW ..ettner. MS Barry. Conservative
Management of Athletic Injuries, HT Hyde, ed. Williams & Wilkins (In
press). .
25. Stemoclavicular osteoarthrosis simulating an apical lung lesion. MS Barry,
DR Kuhn, NW Kellner. Topics in Diallnostic RndiolollY and Advance Imallinll
1993; 1(2):6-9.
26. Partial sacral agenesis: a case study. II< Roug, NW Kettner. Journal of the
Neuromllsculoskeletal System Fall 1994; 2(3):140-143.
27. Solitary osteochondroma of the cervical spine: a case study. BA Eaton, NW
Kettner, JB Essman. Journal of Manipulative and Physiolollical
Therapeutics. May 1993; 18(4): 250-253,
28. Diagnostic Imaging orupper Extremity Trauma. Nonnwn W. Kettner. Audio
Lecture. DC Tracts. 7(3); 1995.
29. Yochum TR. Rowe U: Skeletal RadiolollY. Chapter 6. Diagnostic Imaging
of the Musculoskeletal System. Williams and Wilkins. Baltimore, MD. 1996.
Contributing Author.
30. Cervical traction device study: a basic evaluation of home-use supine cervical
traction devices. PP Venditti, AL Rosner, NW Kettner, G Sanders.
Journal of the Neuromusculoskeletal System. Summer 1995; 3(2): 82-91.
morla1 Condensations:
1. RadiograjJhically subtle soft-tissue injuries of the cervical spine, Analysis by
NW Kettner. D C.Tracts April 1990; 2(2):70-73.
2. Geriatric assessment in the office setting. Analysis by NW Kettner, C
McInturff. DC Tracts October 1990; 2(5):261-263.
3, DUferential diagnosis of gait disorders in the elderly. Analysis by NW Kettner,
D Kessler. DC Tracts October 1990; 2(5):264-267.
4. Osteoporosis: an updated approach to prevention and management. Analysis
by NW Kettner, SC Ehlennann. D.C. Tracts October 1990; 2(5):275-278.
5. Neck pain in the elderly: common causes and management. Analysis by NW
Kettner, RR Mariner. D.C. Tracts October 1990; 2(5):275.
.6.. The pathophysiology of cervical spondylosis and myelopathy. Analysis by NE
Kettner, P Dougherty. D.C. Tracts October 1990; 2(5):279-284,
7. Peripheral neuropathy: causes and management in the elderly. Analysis by NW
Kettner, RW Gehrs. DeTracts October 1990; 2(5):285-288,
9
8. I.."dease-associated fractures: detection b... management in the elderly,
Analysis by NW Kellner, KE Hansen. D.C. Tracts Octobcr 1990; 2(5):293-
294. .
9. What is thc nutritional status of the eldcrly? Analysis by NW Kettner, B
Fetzer. D C. Tracts October 1990; 2(5):293-294.
10. Prevcntative care: what it's worth in geriatrics. Analysis by NW Kettner, PJ
Keough. 0 C Tracts October 1990; 2(5):295-297.
11. Preventing osteoporosis in post-menopausal women. Analysis by NW Kettner,
J VanTassel. D.C Tracts December 1990; 2(6):352-356.
12, Typical geriatric accidents and how to prevent them. Analysis by NW Kettner,
PJ Wakefield. D.C Tracts December 1990; 2(6);3S2.
13. The behavior of the unfused lumbar curve following selective thoracic fusion
for idiopathic scoliosis. Analysis by NW Kellner. D C. Tracts August 1991;
3(4):271-274.
14. Relationship between vertebral interosseous pressure. pH, p02, pC02, and
magnctic resonance imaging signal inhomogeneity in patients with back pain.
Analysis by NW Kellner, DC. Tracts; 3(6):312.
15. Carpal tuanel changes and median nerve compression during wrist flexion and
extension seen by magnetic resonance imaging. Analysis by NW Kellner. llC.
~; 3(5):254.
\' .
10
PostdoctorAl SeminArs: (1983 - 1986)
Bone Pathology ~ 1
Bone Pathology. 2
Bone Pathology. 3
Skeletal Oncology
The joints, part 1
The joints, part 2
Anomalies
Intro to the Chest - 1
Intro to the Chest - 2
Intro to the Chest - 3
Intro to the Chest - 4
Intro to the Chest - 5
Intro to the Chest - 6
Intro to the Chest - 7
Chiropractic Roentgenology. 4
Chiropractic Roentgenology - 9
Chiropractic Roentgenology - 10
Chiropractic Roentgenology. 11
Chiropractic Roentgenology. 12
Chiropractic Roentgenology - 13
Chiropractic Roentgenology - 14
Chiropractic Roentgenology. 15
Chiropractic Roentgenology - 16
Chiropractic Roentgenology - 17
Chiropractic Roentgenology - 18
Chiropractic Roentgenology - 19
Chiropractic Roentgenology. 20
Chiropractic Roentgenology. 21
Chiropractic Roentgenology. 22
Chiropractic Roentgenology - 23
Chiropractic Roentgenology - 24
Chiropractic Orthopedics
Chiropractic Orthopedics
Chiropractic Orthopedics
Chiropractic Orthopedics
Trauma
The Abdomen GI Tract
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiropractic Examiner
Independent Chiropractic Examiner
GI/GU System
Chiropractic Roentgenology
Chiropractic Roentgenology
Chiropractic Roentgenology
Differential Diagnosis
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
St. Louis, MO
St. Louis, MO
SI. Louis, MO
St, Louis, MO
St. Louis, MO
St. Louis, MO
SI. Louis, MO
St. Louis, MO
SI. Louis, MO
St, Louis, MO
SI. Louis, MO
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
West Palm Beach, FL
SI. Louis, MO
SI. Louis, MO
St, Louis, MO
SI. Louis, MO
SI. Louis, MO
St. Louis, MO
Detroit, MI
St. Louis, MO
Columbia, SC
Detroit, MI
SI. Louis, MO
SI. Louis, MO
St. Louis, MO
SI. Louis, MO
Orlando, FL
West Palm Beach, FL
Jackson, MS
11
12/17/83
01/21/84
02/18/84
04/28/84
09/15/84
10/20/84
11/10/84
01/19/85
02/23/85
03/23/85
04/13/85
o5/04/8S
09/21/85
09/21/85
04/19/85
05/18/85
06/29/85
07/27/85
08/24/85
09/28/85
10/26/85
11/23/85
12/14/85
01/25/86
02/22/86
03/22/86
OS/24/86
06/28/86
07/26/86
08/23/86
09/27/86
10/12/85
11/09/85
o1/1l/86
05/10/86
11/16/85
01/18/86
02/08/86
05/17/86
06/21/86
10/11.12/86
11/1-2/86 '
12/6-7/86
02/15/86
03/15/86
10/25-26/86
12/13-14/86
09/20/86
"1
Po~tdoctoral Semlnan: (1986 - 1990)
Radiological Evaluation of Spinal
and Pelvic Pain .
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Chiropractic Radiology
Advanced Imaging
AI of Spinal Column
AI Chronic Pain Syndromes
AI Chronic Pain Syndromes
Chiropractic Orthopedics
Chiropractic Orthopedics
Chiropractic Orthopedics
DDX: Spinal and Pelvic Pain
Tumor & Tumor-like Lesions
Tumor & Tumor-like Lesions
Tumor Recognition
Trauma of the Axial Skeleton
Infections of Skeleton
Infections of Skeleton
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiolog}<' .
Metabolic Bone Disease
Metabolic Bone Disease
Metabolic Bone Disease
Metabolic Bone Disease
Dysplasias, Anomalies &
Vascular Disorders
Birmingham, AL
SI, Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
St, Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, Mo
SI. Louis, MO
SI, Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
Newark, NJ
Mobile, AL
Jackson, MS
Cape Girardeau, MO
Baton Rouge, LA
Balon Rouge, LA
Baton Rouge, LA
Columbia, MO
SI. Louis, MO
Bloomfield, NJ
Bloomfield, NJ
SI, Louis, MO
Bloomfield, NJ
Miami, FL
SI. Louis, MO
SI, Louis, MO
Columbia, SC
Bloomfield, NJ
Bloomfield, NJ
Miami, FL
Miami, FL
Bloomfield, NJ
12
10/18-19/86
01/17-18/87
02/21-22/87
03/14-15/87
04/25-26/87
06/13-14/87
09/12-13/87
10/10-11187
01116-17/88
01/23-24/88
02/13-14/88
03/12-13/88
03/19-20/88
04/16.17/88
05/14-15/88
09/10-11188
10/08-09/88
11112.13/88
12/10-11188
01121-22/89
02/11-12/89
03/11-12/89
04/08-09/89
OS/20-21189
06/10-1l/89
01/28-89/89
01/24-25/87
08/27.28/88
10/22-23/88
05/16.17/87
06/27-28/87
10/17-18/87
02/20-21188
02/27-28/88
09/16-17/89
10/14-15/89
07/08-09/89
1l/18- 1 9/89
03/10-11/90
12/02.03/89
01/20-21/90
12/01-02190
12/09-10/89
01/13-14/90
04/28-29/90
05/12-13/90
02/17-18/90
Postdoctornl Seminnrs: (1990-1993)
Dysplasias, Anomalies &
Vascular Disorders
Appendicular Skeletal Trauma
Pathomechanlal Syndromes
Skeletal Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
Orthopedic Radiology
D1: Spinal Pathology
Radiology Cervical Spine Trauma
Neuro Diagnostic Imaging
Neuro Diagnostic Imaging
Neuro Diagnostic Imaging
Imaging of Unstable Cervical Sp.
Pathomechanlcs of Upper Extrem.
Pathomechanics of Upper Extrem,
Tllmor & Tumor-like Lesions of Bone
Tumor & Tumor-like Lesions of Bone
Tumor & Tumor-like Lesions of Bone
Tumor & Tumor-like Lesions
Tumor & Tumor-like Lesions
Advanced Imaging of Spinal Pain
Sports 1njuries
Sports Radiology
Sports Radiology
Sports Radiology
Soft Tissue Injury Cervical Spine
Pediatric Sports Injury
Advanced Imaging for Chiropractor
Diagnostic Imaging for Chiro,
Diagnostic Imaging of Sports Inj.
Diagnostic Imaging
Certified Chiro. Sports Phys.
Certified Chiro. Sports Phys.
Skeletal Radiology
Diplomate Chiro. Sports Inj, #13
Diplomate Chiro. Sports Inj.
Diplomate Chiro. Sports Inj, #4
ABCA Practice Guidelines
Degenerative Joint Disease
Degenerative Joint Disease
D1: Destructive Lesions
D1: Destructive Lesions
D1: Soft tissues Injuries
Miami, FL
Bloomfield, NJ
St. Louis, MO
Newark, NJ
Columbia, SC
Wichita, KS
Columbia, SC
Wichita, KS
Wichita, KS
Richmond, VA
Richmond, VA
Richmond, V A
St. Louis, MO
Miami, FL
SI. Louis, MO
St. Louis, MO
SI. Louis, MO
Orlando, FL
Atlantic City, NJ
Atlantic City, NJ
SI. Louis, Mo
SI. Louis, MO
SI. Louis, MO
Tulsa, OK
Tulsa, Ok
SI. Louis, MO
Phoenix, AZ
Pittsburgh, PA
St, Louis, MO
Huntsville, AL
Miami, FL
Minneapolis, MN
SI. Louis, MO
SI. Louis, MO
FI. Lauderdale, FL
SI. Louis, MO
Coraopolis, PA
SI. Louis, MO
SI. Louis, MO
SI. Louis, MO
Minneapolis, MN
Columbia, SC
SI. Louis, MO
Elizabeth, NJ
Elizabeth, NJ
Elizabeth, NJ
St. Louis, MO
Newark, NJ
06/23-24/90
03/17-18/90
06115-16190
11111-12/90
01112-13/91
01119-20/91
02/02-03/91
02/16.17191
03116-17/91
04/06-07/91
05/04-05/91
06/01-02/91
02/09- 1 0/9 1
05/14-15/91
05/18-19/91
09/14-15/91
10/26-27/91
08/23-24/91
09/28-29/91
03/07-08/92
11/23-24191
12/21-22/91
01118-19/92
03/13-14/93
03/20-21193
12/12-13/91
12/14-15/91
04/04-05/92
06/13-14/92
06/20-21/92
02/08-09/92
02/22-23/92
08/18-19/92
09/]9-20/92
10/17-18/92
01/09-10/93
10/3 1-01/92
02/12-14/93
11/14-15192
04/24-25/93
03/27-28/93
09/]8-19/93
08/20-21/93
09/11-12/93
10/]6-17/93
10/23-24/93
11106-07193
11120-21193
13
I
,
Postdoctoral Seminars: (1994- )
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Diagnostic Imagilig
Diagnostic Imaging
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Certifi..d Chiropractic Sports Phy.
Diagnostic Imaging
Sports Radiology
Sports Radiology
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Manipulation under Anesthesia
Diagnostic Imaging
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Diagnostic Imaging for Chiro
Diplomate Chiropractic Orthopedics
Manipulation under Anesthesia
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Diagnostic Imaging
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Fundamentals ofMR Imaging
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Radiography of the CelVical Spine
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
CCSP - Sports Radiology
Differential Diagnosis
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Diplomate Chiropractic Orthopedics
Radiculopathy
CCSP - Sports Radiology
CCSP - Sports Injuries
Diagnostic 1maging
Diplomate Chiropractic Orthopedics
Rheumatology
Rheumatology
Sports Radiology
Imaging of the Upper Extremity
Articular Disorders
Fundamentals ofMRI
Pathomechanics of Spinal Degeneration
CCSP I' .
Family Practice Pediatrics
Diplomate Chiropractic Orthopedics
Imaging of the Upper Extremity
Diagnostic Imaging Articular Disorders
Differential Diagnosis
Diplomate Chiropractic Orthopedics
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05/18-19/96
COLLEEN GREENE, INDMDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
VS.
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
Vd/b/a SMARSH ClUROPRACfiC
DEFENDANTS
AND NOW, this
J-l~
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
: .
NO. 95-1844
CML ACI'ION . LAW
: JURY TRIAL DEMANDED
ORDER
dayof ~.
, 1996, the above-
captioned matter is hereby continued from the November trial list. Counsel is instructed to
relist this matter when trial ready,
BY THE COURT:
J.
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CERTIFICATE OF SERVICE
AND NOW, this 21st of October, 1996, I, Joseph A. Ricci, Esquire, hereby certify
that I served a true and correct copy of the foregoing Motion for Continuance upon all
counsel of record by depositing a copy of same in the United States mall, regular delivery,
postage prepaid at Harrisburg, Pennsylvania, addressed as follows:
Terry S, Hyman, Esquire
ANGINO & ROVNER, P.C,
4503 North Front Street
Harrisburg, PA 17110
(Counsel for Plaintiff)
<: -J
I, Esquire
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COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
: IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
: .
PLAINTIFF
NO. 95.1844
vs.
CIVIL ACTION. LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC
.
.
DEFENDANTS
JURY TRIAL DEMANDED
REPLY OF DEFENDANTS TO PLAINTIFF'S
PETITION FOR STATUS CONFERENCE
AND NOW, comes, Defendant Thomas J. Smarsh, D.C. and Thomas J. Smarsh, D.C"
P.C. tld/b/a Smarsh Chiropractic, by and through its counsel, Marshall & Farrell, P.C., by
Joseph A. lUcci, Esquire, and responds to Plaintiff's Request for Status Conference as follows:
1. Admitted.
2. Denied, It Is denied that faCluul discovery In this case was completed in
January of 1996. To the contmry, Oliglnul x-my films were not obtained from Plalntlffs
counsel until significantly later than January of 1996. Expert review on behalf of the
defendants could not be facllltUled tmt\1 such time as original x-ray films became available,
3, Denied as Sluled. It is admitted that 111Is ease Involves an alleged delay In
diagnosis of Plaintiff's lung cancer. It Is admitted that on April 10, 1996, Plaintiff provided
Defendant with a report and cumculum vlwe from an expert regarding medical causation. It
Is further admitted that on July 25, 1996, Plaintiff provided Defendant with a copy of
Plllimlfrs lIuhlllty expcrt report, II Is furthcr lIdmtucd that on April 29, 1996, Defendant
1
sought copies of Plaintiff's original x-rays which Plaintiff agreed to provide, By way of further
response, It is admitted that Plaintiff requested Defendant to obtain expert reports so that the
case could be tried during the November tenn. It is denied that the Defendant was in a
position to obtain all necessary expert reports at that time since Plaintiff had not provided all
expert reports by that time.
4. Admitted.
NEW MA'ITER OF DEFENDANT
1. Counsel for the Defendants has discussed this matter with counsel for the
Plaintiff. Counsel for the Plaintiff has indicated a wll1Ingness to allow this matter to be llsted
for trial, provided Defendant's expert reports are obtained by October I, 1996.
2. Plaintiff's counsel has Indicated that if there Is difficulty obtaining expert
reports by October 1, 1996, Plaintiff's counsel would be wI\1Ing at that time to entertain a
statuS conference before the Court.
Respectfully submitted,
MARSHALL & FARRELL, P.C.
Date:
SePtemher 3. 1996
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Joseph ,. ticd, E ulre
Pu. 1.0, No, 49803
Kevin C. Cottone, 'squlre
Pa. 1.0, No, 72775
1323 North Front Street
Harrisburg, P A 171 02
Counsel for Defendant
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COLLEEN GREENE, Individually IN THE COURT OF COMMON PLEAS OF
and as Administratrix of the CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF RICHARD GREENE, :
Plaintiff CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PETITION FOR STATUS CONFERENCE
AND NOW, Colleen Greene, by her attorneys, Angino & Rovner,
P.C., hereby petition Your Honorable Court to schedule a Status
Conference in the above-captioned case for the following reasons:
1. Suit was initiated by Complaint in this case over two
years ago on May 25, 1994.
2. The factual discovery in the case was completed in
January 1996.
3. The case involves a delay in diagnosis of Plaintiff's
lung cancer. On April 10, 1996, plaintiff provided Defendant with
a report and c.v. from an expert in medical causation. On July 25,
1996, Plaintiff provided Defendant with a copy of Plaintiff's
liability expert report.
On April 29, 1996, Defendant sought
copies of Plaintiff's original x-rays which, Plaintiff agreed to
provide. At that time Plaintiff requested Defendant obtain an
expert report so the case could be tried in the November term in
Cumberland county.
96527/PJH
4. In June 1996, plaintiff requested a second review of
Dr. Smarsh's records from defense counsel. At that time, counsel
agreed that the case could be reasonably prepared for trial in
November provided Plaintiff's liability experts were given to
Defendant by the end of July.
5. On July 25, 1996, plaintiff did provide Defendant with
his liability report. Plaintiff does wish to list the case for
trial for the November 1996 trial term. Therefore, to avoid any
problems with listing, Plaintiff respectfully requests a status
Conference to determine at this juncture whether the case will be
trial-ready by November or set reasonable deadlines so that it can
be tried without any unnecessary delay.
t
,
ANGINO & ROVNER, P.C.
Terry S. an, E
I.D. No.3 807
4503 North Front street
Harrisburg PA 17110
(717) 238-6791
Counsel for plaintiff
DATED: ~-'\-~l.:.
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
.
.
.
.
JURY TRIAL DEMANDED
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:
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C., :
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
:
.
.
PETITION POR STATUS CONFERENCE
AND NOW, Colleen Greene, by her attorneys, Angino & Rovner,
P.C., hereby petition Your Honorable Court to schedule a status
Conference in the above-captioned case for the following reasons I
1. suit was initiated by complaint in this case over two
years ago on May 25, 1994.
2. The factual discovery in the case was completed in
January 1996.
3. The case involves a delay in diagnosis of plaintiff's
lung cancer. On April 10, 1996, plaintiff provided Defendant with
a report and c.v. from an expert in medical causation. On July 25,
1996, Plaintiff provided Defendant with a copy of plaintiff's
liability expert report.
On April 29, 1996, Defendant sought
copies of plaintiff's original x-rays which, plaintiff agreed to
provide. At that time plaintiff requested Defondant obtain an
expert report so the case could be tried in the Novembor term in
cumberland county.
965271PJH
111"~1 'PU 1.1:-1\1
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MARSHALL, FArm.ELL, lUCCI,
SMITH & IIADDlCK ,
c@
FlW'ICIS Eo ~L\R.~II.ILl.. JR.
oIIICIL\EL A. FARRELL
JOSEPII A. IUCCI
1([IUlY VOSS SMrrll
C':11^n'.r_~ r.I/AnnrC':I\,.m,
LOIU A!/'\.\ICIK KAHI,S
MAIlC T. LE\'C'i .
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I\JIISTES t. DEE<:'11
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11'\IUU.s~~~~~.~~S\'LV'\:'iL\ 11102
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Facsimile (240-6462J and Fi,'st Class Mail
l
Mr. Rick Pierce ,
Court Administrillor's Office
Cumherland Cuwlty Courthousc
One CounhollSc Square
Carlislt, PA ) 7Q13
'\
RE:
Greene v. Sm:m'lh
Our File No. "'R-139
Doc1cel No. 95-1844 (<;umhp.rl:md Co,l
\
Dear Mr, Piercc:
It was a pleasure to spl:ak with you on the telephone callier today concerning the
above.refelenceumattcr. As 1 cxplained tl) yuu dunng our conversation, thir. cuse is not
yet n:ady (or trial. Both Teny Hyman (Coun:;c1 for the Plaintiff) and myself (counsel Cur
DcfcndanL~) art In agreemcnt Lhtlllllis case will nOT h... trial r(,lIlly fo! the November term
of con IT.
Al litis time, 1 <1m still uwuitlng rccelpt of finalized reports (rom my cxperrs,
AdclJtionally, Mr. Hymnn hilS indicated that he will be providing an ec:onomisr expel'l
report. To uale, I hav!! nmyer received Mr. Hyman'S econl'lll1iSl'S repolt. Until :lUch time
as I receive Mr. Hym:lII's dperl report, I will not be in a position to uetennint whethl'r II
counrervailing economic expert will he !'".,ufred on bdmlf of the Uefendal1ls,
Givcn rhe fact thar this mattel Is deull.l' JUI ycr ready for trial, both Mr. l'lyman
and I arc In agreell1CIll that a continuance shbuld be granted. Accordingly, I have
enclosed with this lelter. il proposed Order aud MOlion for Cuntinnance, It is II1Y
undcrslalldin~~ thar YIllI will hI' forwnruin!l thesll dllcllll1ems 10 the appropriale Judge for
considrr:llloll. 1t is furtlwr my undemanding lh;11 it is llotllCCess1llY forllle III wrnplere
a ronnal pn:-lllaIIllClIllltiUlllum pf'ndln~ 1'<1l-l'ipt ...r 1I1uling by thl: COUrt,
111:21:00
1.1:.111
'a'i 1 i
~"150'0
lIAIlS'/'II.1. FMUlEtt
ri7J~I~
,
Mr. Rick Picrc:l!
Ocrober 2), 1996
PngC' Two
Again, thanlt you JC1Y milch for YOllr cooperiltion ill this 1ll1ltt~r, If yon .~ho\lld
have any questiolls, ph!<tsl! feci Ii'PC' to give mr office <t call. I look forward to heming
from you concerning a rulinS from the Court in rcgilrcl to th~ requcst for a contilluance.
.1M/mal
Enclostu'Cs
cc: TCITY Hyrrliln, E5qui~ (w/ene.)
Very tIllly your5,
~~/lCCS6:_~-~ ~
(~J')SePh i\~Cd
'........ ./
-
COLLEEN GREENE, INDMDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
: .
NO. 95.1844
VS.
CML ACI10N - LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
t/dlb/a SMARSH CIDROPRACTlC
DEFENDANTS
: JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 19_, upon consideration of Plaintiff's
Motion to Preclude Defendant from offering expert testimony on liability or causation at
the time of trial, it Is hereby ordered and decreed that said Motion Is Denied.
BY THE COURT:
J.
COLLEEN GREENE, INDMDUALLY
AND AS ADMINISTRATRIX OF mE
ESTATE OF RICHARD GREENE,
PLAINTIFF
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
: .
NO. 95.1844
VS.
CML ACI'ION . LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CIUROPRACIlC
DEFENDANTS
JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 19_, upon consideration of Plaintiffs
Motion to Preclude Defendant from offering expert testimony on liability or causation at
the time of trial, it Is hereby ordered and decreed that said Motion Is Denied. Further, this
case Is continued to the
, 1997, trial tenn of Cumberland County.
BY THE COURT:
J.
COLLEEN GREENE, INDMDUALLY IN THE COURT OF COMMON PLEAS,
AND AS ADMINISTRATRIX OF THE . CUMBERLAND COUNTY, PA
.
ESTATE OF RICHARD GREENE, .
.
.
.
PLAINTIFF NO. 95-1844
VB. . CML AcnON - LAW
.
THOMAS J. SMARSH, D.C. AND .
.
THOMAS J. SMARSH, D.C., P.C.,
Vd/b/a SMARSH CWROPRAcnc .
.
.
.
DEFENDANTS JURY TRIAL DEMANDED
REPLY OF DEFENDANT, THOMAS J. SMARSH, D.C., P.C., TO
PLAINTIFF'S MOTION IN UMlNE TO PRECLUDE EXPERT
TESTIMONY ON LIABILITY AND CAUSATION
AND NOW, comes Defendant Thomas J. Smarsh, D,e" p.e" by and through their
counsel, Marshall, Farrell, Ricci, Smith & Haddick, P.C., by Joseph A. Ricci, Esquire, and
replies to the Plaintiff's Motion as follows:
1. Admitted.
2. Denied as stated. It is admitted only that Plaintiff provided defense counsel
with an expert report of Jeffrey Perrapato dated April 10, 1996.
3. Admitted.
4. Denied as stated. It Is admitted only that Plaintiff provided Defendant with
an expert report of Dr. Nonnan Kettner, D.C. dated July 25, 1996.
5. Admitted in part, denied in part. It Is admitted that on August 8, 1996,
Plaintiff filed a Request for Status Conference with the Court. It Is denied that Defendant
1
stated that he would have his expert reports by October I, 1996. To the contrary,
Defendant indicated that he would attempt to obtain expert reportS by October 1, 1996,
but If there was difficulty, counsel could discuss the status conference at that time.
6, Denied as stated, It Is admitted only that defense counsel indicated that he
would endeavor to have reportS by October 1, 1996. No linn promises were made since
defense counsel was relying upon the selVices of independent third parties.
7. Admitted.
8, Admitted In part, denied In part. It Is admitted that on October 21, 1996,
defense counsel infonned the Court that he was awaiting finalized reports from experts. At
that time, no written reports had been provided by any person retained by the defense to
review this matter. It is admitted only that potential experts for the defense were In the
process of reviewing Infonnation In October of 1996, By way of further response, as of
October 21, 1996, Plaintiffs counsel had not provided any economist's reports, despite his
stated intention to do so; accordingly, this matter was not trial ready.
9. Admitted. By way of further answer, defense counsel still had not received
Plaintiffs economist's report, and despite Plaintiffs stated Intention to provide such a
report by November 30,1996, such a report was not provided until December 19,1996.
10. It is admitted that Plaintiff mailed a trial listing on December 2, 1996, It Is
denied that Plaintiff provided his economist's report on December 17, 1996. To the
contrary, such a report was not received until December 19, 1996. It is admitted that
Defendant did not make a fonnal objection to the listing at the call, which was held on
December 17, 1996 due to an administrative error In that the call of the list was not placed
2
on counsel's calendar, It is denied that such a fallure constitutes an acquiescence In the
listing of this matter. To the contrary, the late providing of Plaintiffs economist's report
has denied Defendant the opportunity to retain an economist to evaluate this matter on
behalf of the defense. Defendant's liability experts have not provided reports to defense
counsel for use at trial. Accordingly, Defendant's counsel believes this matter is not trial
ready.
11. Denied as stated. It is denied that defense counsel has been in a position to
provide all reports responsive in this matter as Plaintiffs counsel has delayed providing
economist's reports until December 19, 1996. Further, Plaintiffs counsel has not provided
the supporting financial documentation which justifies the conclusions expressed in
Plaintiffs economist report, despite the fact that counsel had been seIVed for many, many
months with defense interrogatories and request for production of documents seeking such
Information.
12. Denied. After reasonable Investigation, Answering Defendant is without
knowledge or Information sufficient to form a belief as to the trUth or falsity of the
averments contained In this paragraph and, therefore, denies same and demands strict
proof thereof at time of trial If deemed material. By way of further answer, Plaintiff has
not timely provided economist reports despite the fact that such reports could have been
provided early on In this matter. Plaintiffs delay has denied the defense an opportunity to
properly respond to the damages' side of this case due to the fact that expert reports were
disclosed over two (2) weeks after this case had been listed for trial by Plaintiffs counsel.
Plaintiff, by listing this matter for trial, certified to this Court that discovery was complete
3
CERTIFICATE OF SERVICE
a6f
AND NOW, this ~ day of December, 1996, I, Joseph A. RIcci, Esquire, hereby
certifY that I served a true and cOlTect copy of the foregoing REPLY OF DEFENDANT,
THOMAS J. SMARSH, D.C., P.C., TO PLAINTIFF'S MOTION IN UMINE TO
PRECLUDE EXPERT TESTIMONY ON LlABIUTY AND CAUSATION upon all counsel
of record by depositing a copy of same In the United States mall, regular delivery, postage
prepaid at Harrisburg, Pennsylvania, addressed as follows:
Teny S. Hyman, Esquire
ANGINa & ROVNER, P.C.
4503 North Front Street
Hanisburg, PA 17110
(Counsel for Plain tift)
;'\)'- :J.
'.'
5
.'
'.
COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS,
: CUMBERLAND COUNTY, PA
: NO. 96-1844
VB.
: CIVIL ACTION - LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
tJd/b/n SMARSH CHIROPRACTIC
DEFENDANTS
: JURY TRIAL DEMANDED
PRAECIPE TO WITHDRA WAND ENTER APPEARANCE
TO THE PROTHONOTARY:
Kindly withdrnw our appcnrnncc on bchnlf of Dcfcndnnt, Thomns J. Smorsh, D.C.
nnd Thomlls J. Smnrsh, D.C" P.C. tJd/b/n Smarsh Chiroprnctic, in rcgnrd to thc nbovc-
cnptioncd mnttcr,
Rcspcctfully submittcd,
MARSHALL, FARRELL, RICCI,
SMITH & HADDlCI{, P.C.
Dntc:
JnnUllrv 3. 1997
~
Dnte: Janua1'v 3, 1997
Kcvin C. Cottonc, Esquirc
Pa. LD. No, 72775
CERTIFICATE OF SERVICE
-rJ.
AND NOW. this 1- dllY of Jllnullr)'. l!l07, I, Joseph A. Ricci. Esquire, hereby
certify thllt I served II true IInd correct copy of the foregoing Prllecipe upon 1111 counsel of
record by depositing II copy of slime in the United Stlltes JIlllil, regulllr delivery, postllge
prepllid lit Hllrrisburg, Pennsylvllnin, IIddressed liS follows:
Terry S, Hymnn, Esquire
ANGlNO & ROVNER, P.C,
4503 North Front Street
Hurrisburg, PA 17110
(Counsel for PlllintifO
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Pretrials will be held on Feb. 26, 19~7
(Briefs are due 5 days before pre-
trials. )
(The party listing this case for trial
shall provide forthwith a copy of the
p,raecipe to all counsel, p~suant to
tocal Rule 214-1.)
PRAECIPE FOR LlSTP./G CASE FOR TRI..\L
(~tuil be lYpewrillen 3nd submitredln duplic3le)
TO THE PROTHOi'lOTARY.OF CL'~IBERLA.ND COL'i'lTY
P!em !lll \he lollowins ~3,e:
I.C~eck one)
( X) lor Jt:RY m:ll 31 the ne~l term ~i ~!vU ~our:,
( ) lor tri:ll without 3 Jury.
CAPTION OF CASE
(enlu. c3plion mUll ~e Ilmd In full)
. .
(check one)
COLLEEN GREENE, Indjvldu~lly ~s
Administratrix of the ESTATE OF
RICHARD GREENE,
( AssumpslI
( X) Trespass
Pl~jntl ff
( ) Trespass (~lolor Vehlc!e)
( )
(olhu)
(Plallltifi)
v,.
The trial list will
,February 18 and
be called on
THOMAS J. SMARSH, D.C., and'
TH0I1AS J. Sr.IARSH, D.C., P.C. t/d/b/a
SI.jARS/! eH I ROPRACTI C,
Oefend~nts
Trials commen~e on
I'larch 17, 1997
.
,
(Defendanl)
v,.
Xo.
11144
19 .J!.5...
CIvil
(ndlc3le Ihe morney who "ill Ilj' ~:ue for Ihe p3rty .....ho 111~s this pr3eClpe:
Terry S. Hyman, Esquire, for PI"lntlff
Indlc31e trial counsel for olher partles If known:
Joseph A. Ricci, Esquire, for Dp.fp.nrlants
This ~se Is rndy for lrbl.
Signed: ~ =1
PlInl S~me: /-fe;rye~
Al:orne>' for: PI a i nt iff
Dale:
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' REOUEBT FOR ADMISSIONS TO DEFENDANTS
Plaintiffs request that Defendants admit, pursuant to the
provisions of the Pennsylvania RUles of civil Procedure, the
matters set forth below.
The facts set forth below shall be deemed admitted unless
Defendants serve upon Plaintiffs a sworn answer or objection within
thirty (30) days after Defendants are served with this Request for
Admissions.
If objection is made to any fact whose admission is requested,
the reason for that objection shall be stated.
Each answer shall admit or deny the matter or set forth in
detail the reason(s) why an admission or denial cannot truthfully
be made.
A denial of any matter shall fairly meet the substance of the
requested admission.
When good faith requires Defendants to qualify their answer,
or to deny only a part of the matter of which an admission is
l06244/PJH
ORIGINAL
requested, Defendants shall specify which part of the request
admission is truthful and qualify or deny the remainder.
Defendants may not give lack of knowledge or information as a
reason for failure to admit or deny unless they state that they
have made reasonable inquiry and that the information known or
readily obtained to them is insufficient to enable them to admit or
deny the requested admission.
Defendants may not object to a requested admission on the
grounds that the request presents a genuine issue for trial.
Plaintiffs, by their attorneys, Angino & Rovner, P.c., hereby
request that Defendants admit the fOllowing facts pursuant to
Rule 4014 of the Pennsylvania Rules of civil Procedure:
1. On February 25, 1992, Richard Greene was a patient of
Smarsh chiropractic.
2. On February 25, 1992, a set of x-rays were taken of
Richard Greene by Smarsh chiropractic which included an A-P and
lateral views of both the cervical and lumbar spine.
3. The chiropractic doctors who were involved in Mr.
Greene's care at Smarsh in February 1992 were Richard E. Bashore,
D.C., and Ronald Duriske, D.C. Both were employees of Smarsh
Chiropractic at that time.
4. Neither Richard Bashore nor Ronald Duriske are able to
testify under oath that they actually viewed or interpreted any of
Richard Greene's February 25, 1992 x-ray films at or near the time
2
CERTIFICATE OF SERVICE
AND NOW, this 30th day of January, 1997, I, Pamela J.
McClellan, an employee of Angino & Rovner, p.e., do hereby certify
that I have served a true and correct copy of the PLAINTIFFS'
REQUEST FOR ADMISSIONS TO DEFENDANTS in the United states mail,
postage prepaid at Harrisburg, Pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
2000 Linglestown Road, suite 108
Harrisburg, PA 17110
Attorneys for Defendants
~~G~
Pame '~ J. McClellan
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
RULE TO SHOW CAUSE
Defendants are hereby ruled to show cause why they should not
be precluded from presenting expert testimony regarding liability
at the trial of this case.
RULE RETURNABLE ten (10) days from date of service.
[k ,q, t~f7
BY THE COURT:
J.
ORIGINAL
F:LEtrO;:R,::F.
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-1844
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PL~INTIFF'S PETITION AND RULE TO SHOW C~USE
WHY DEFEND~T SHOULD NOT BE PRECLUDED
FROM OFFERING EXPERT TESTIMONY ON LI~BILITY
1. On December 27, 1996, Plaintiff's counsel filed a Motion
in Limine to preclude Expert Testimony by Defendants on Liability
and Causation.
(plaintiff's December 27, 1996, Motion attached
hereto as Exhibit "A".)
2. The Defendant, in response to the Motion, did not dispute
that Plaintiff's liability and causation reports had been provided
in June 1996, and that the case had been listed for the September,
1996 trial term, and that trial was continued to allow Defendant to
obtain an expert.
3. The case was relisted for the January, 1997 trial term
and a Pretrial Conference was held before the Honorable George E.
l06821/PJII
.
Hoffer on January 2, 1997. It was made known at that time that
Defendant had no expert report as its expert had withdrawn from the
case.
4. Wi th both counsel's agreement, Judge Hoffer issued a
Pretrial Order continuing this case to the March 17, 1997, trial
term, directed Plaintiff's counsel to re-1ist the case for trial,
and gave Defendants until February 6, 1997, to produce their expert
report. (pretrial Order attached hereto as Exhibit "B".)
5. Pursuant to Judge Hoffer's Order, on January 17, 1997,
Plaintiff's counsel filed a praecipe re-listing this case for the
March 17, 1997, trial term.
6. On February 7, 1997, Defense counsel faxed an expert
report to Plaintiff's counsel, which is attached as Exhibit "C".
7 . This case concerns a negligent failure to diagnose
Plaintiff's lung cancer on an x-ray.
8. Defendant's expert report offers opinions only on
causation. The report offers no opinions addressing the standard
of care in any fashion.
9. Having not produced any expert opinion on issues of
liability within the time Ordered by Judge Hoffer, Plaintiff
2
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CERTIFICATE OF SERVICE
I',
AND NOW, this 7th day of February, 1997, I, Pamela J.
McClellan, an employee of Angino & Rovner, P.C., do hereby certify
that I have served a true and correct copy of the PLAINTIFF'S
MOTION FOR RULE TO SHOW CAUSE in the United states mail, postage
prepaid at Harrisburg, Pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
2000 Linglestown Road, suite lOB
Harrisburg, PA 17110
Attorneys for Defendants
~>,S'\\~ ~\;l~
pamela~. McClellan
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COLLEEN GREENE, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE
OF RICHARD GREENE,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
NO. 95-1844
v.
THOMAS SMARSH, D.C. AND THOMAS
SMARSH D.C.,P.C., T/D/B/A
SMARSH CHIROPRACTIC,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
EXPERT TESTIMONY ON LIABILITY AND CAUSATION
AND NOW, the Estate of Richard Greene by its attorneys, Angino and
Rovner P.C., hereby move to preclude Defendants from offering any expert
testimony on liability and causation for the following reasons:
1. Plaintiff's expert interrogatories were served on Defendants
more than 3 years ago, in September 1994.
2. Upon completion of factual discovery, Plaintiff provided
Defense Counsel with the expert report of Dr. Jeffrey Perrapato, M.D.,
on April 10, 1996. Dr. Perrapato is a thoracic surgeon whose opinion
pertained to medical causation, by indicating the delay in diagnosis of
Mr. Greene's cancer substantially reduced his chance of survival.
(Letter of 4/10/96 attached hereto as Exhibit "A".)
3. On April 19, 1996, Defense Counsel requested additional x-rays
indicating that: "As soon as I receive the films, I will be forwarding
them to my expert for comment. Thereafter, upon receipt of our expert' s
report, I wilt provide it to you." Clearly, then, Defendant had already
identified an expert in Aoril, 1996. Plaintiff provided the requested
104407/TSH
x-rays on April 29, 1996,
hereto as Exhibit "B".)
(Letters of 4/19/96 and 4/29/96 attached
4. On July 25, 1996, Plaintiff provided Defendant with the expert
report of Dr. Norman Kettner, D.C., a radiology professor at a major
school of Chiropractic Medicine,
Dr. Kettner described Defendants'
deviations from the standard of care related to Defendants' failure to
discover an abnormality in Mr. Greene's lung.
attached hereto as Exhibit "C".)
(Letter of 7/25/96
5. On August B, 1996, Plaintiff filed a Request for a Status
Conference to have the Court set deadlines for completion of expert
discovery for the November trial term. At that time, the parties agreed
that rather than have a Status Conference, the case should be praecipied
for November and that Defendant would provide his experts by October 1,
1996. (See Defendants' Response to Status Conference Request attached
hereto as Exhibit "D".)
6. On September 4, 1996, Defense counsel, by telephone, indicated
his expert report would be forthcoming on October 1, 1996, or at least
(Letter of 9/4/96 attached hereto as
by the first week of october.
Exhibit "E".)
7. On October 4, 1996, Plaintiff's counsel again wrote to
Detendant asking for the expert reports. Upon receipt of the letter,
and in light of the fact Plaintiff had not yet provided an economist
report relating to the separate issue of wrongful death damages, the
I
parties agreed to continue the case from the November term to the
January term and to exchange expert reports during the next 3 months.
(Letters of 10/4/96 and 10/14/96 attached hereto as Exhibit "F".)
2
, .
,
8. On October 21, 1996, Defense Counsel informed the Court that:
"At this time, I am still awaiting the finalized reports from my
experts." Presumably, then, in October, 1996, Defendant's liability and
causation experts had reviewed the underlying information and had only
to "finalize" their opinions in a formal report. (Letter of 10/21/96
attached hereto as Exh;bit "G".)
9. On November 11, 1996, Plaintiff again reminded Defendant of
the reason for the continuance to January, and specifically requested
the liability expert reports be provided by November 30, 1996. (Letter
of 11/11/96 attached hereto as Exhibit "H".)
10. On December 2, 1996, Plaintiff listed the case for the January
Term as agreed by the parties. On December 17, 1996, Plaintiff provided
his economist's report. Defendant did not object to the listing at the
call of the list held on December 17, 1996.
11. It is now more than 6 months since Defendants received
Plaintiff's liability and causation expert reports. It is also almost
90 days since the parties agreed to continue the case so that expert
discovery could be completed. No factual discovery has taken place in
the case since April, 1996. Yet, Defendants still have not produced a
single report from their experts on the medical issues in the case.
12. This case involves complicated issues of cancer survival
which, by their nature, require extensive research to properly prepare
to cross examine an expert at trial.
Plaintiff has made every
reasonable effort to avoid the prejudice of last minute disclosures of
Defendant's experts. Defendant has implied to Counsel and the Court
3
MARSHALL & FARRELL
. proCesllonal corporaUon
AlTORNEYSATLAW
1323 NORm FRONT S1llEET
HARRISBURG, PENNSYLVANIA 17101
FRANCIS E. MARSHALJ.IR.
MICHAEL A. FARRELL
JOSEPH A. RICCI
KERRY VOSS SM1TIl
CHARLES E. HADDICK. IR.
LORI ADAMCIK KARISS
MARCT.LEVIN'
KEVIN C. COlTONB'
TELEPHONB (717) 136-7300
FAX ('717) 136-5919
CIJ...ElUAHD COlllnY omc~
Anulllol WUTomCIIUKl.
,urn ...
114llLU1<rT mEET
CAMtIUu,'A.ml
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Aprl119,1996
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Terry S. Hyman. Esquire
ANGINO & ROVNER, P.C.
4503 North Front Street
Hanisburg, PA 17110
RE: Greene v. Smarsh
Our PlIe No. PR-139
Docket No. 2063.S.1994 (Dauphin Co.)
Dear Terry:
Thank you for your letter of Aprl110, 1996. Please be advised that we have not yet
received any films from Holy Spirit Hospital despite my previous request. As soon as I
receive the films, I will be forwarding them to my expen for comment. Thereafter, upon
receipt of our expen's report, I will provide it to you.
Very troly yours,
cr:~171. ~iJ
Joseph A. Ricci
JAR/mal
IOSEPII M. MeliLLO
lERRY S.IIYMAN
DAVIDl-LI1TZ
MICIIAEl E. KOSIK
PAMelA G. SIIUMAN
RICHARD A. SAD LOCK
DAVID S. WISNESKI
ANGINO & ROVNER, P.C.
lIUOLE C. OLSON
MICHAEL J. NAVITSKY
LAWRENCE F. BARONE
DAWN l-IENNINOS
SlEPIIEN R. PEDERSEN
SOLOMO~ Z. KREVSKY
IOSEPH M. DORIA
USTEO IN
TIlE BEST LAWYERS
-IN-
AMERlCA
R10IARD C. ANGINO
1<EILl. ROVNER
April 29, 1996
Joseph A. Ricci, Esquire
MARSHALL & FARRELL
1323 North Front street
Harrisburg, PA 17102
RE: Greene v. Smarsh, et ale
Dear Mr. Ricci:
Per our telephone conversation, attached are the original x-
rays from Holy Spirit consisting of:
1. 5/28/92 chest (1) I 9/14/92 portable chest (1) I and
9/16/92 chest (1).
2. 9/12/92 spine (2) and 9/24/92 spine(2).
Please return these original films to us after your expert has
reviewed them. Thank you.
Very truly yours,
~~
Pamela J. Gillespie, secretary'to
Terry S. Hyman, Esquire
/pjg
Enclosures
S1S1e/PJG
4503 NORTH FRONT STREET, HARRISBURG, PA 17\ 10,1708
(717) 238-ll7el .
FAX (717) 238,5810
I
.
CERTIFICATE OF SERVICE
AND NOW, thIs:JrJh day of August, 1996, I, Joseph A. Rled, Esquire, hereby certifY
that I served a ttUe and correct copy of the foregoing REPLY OF ~EFENDANTS TO
PLAINTIFP'S PETITION FOR STATUS CONFERENCE upon all coWlSel of record by
depositing a copy of same In the United States mall, regular dellvel}', postage prepaid at
Harrisburg, Pennsy1van1a, addressed as follows:
Teny S. Hyman, Esquire
ANGINO Be ROVNER, P,C.
4503 North Front Street
Harrisburg, PA 17110
(CoWlSel for Plaintiff)
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TEAAV S.IIYMA/I
DAVID L. urTZ
M10\AEL E. KOSIK
rMIF.I.A o. SIlUMAN
R1C\Wlll A. SADLOCK
DAVID S. W1StruSKI
NII0LE C. OLSr,N
ANGINO & ROVNER, p.e.
MIClIAa I. NAVITS~ y
'L\WREtlCE F, BARONE
DAWN L. /ENNlNOS
SOLOMON z. KREVSKY
IOSErl! M. DORIA
DUANE S. BAlUUCK
IA'IES DrCIh'T1
umolN
TIlE BEST LAWYERS
--IN-
AMERICA
R1C\Wlll C. ANOINO
I/EIL I. ROVNER
September 4, 1996
Joseph A. Ricci, Esquire
MARSHAl.L & FARRELL
1323 North Front Street
Harrisburg, PA 17102
RE: Greene v. smarsh, et ale
Dear Joe:
To confirm our conversation of this date, you indicated I
would be receiving your expert reports by October 1, 1996. We were
in agreement that if I received the reports within the first week
of october, the case could be tried on the November 12th trial
term.
Of course, if there is going to be some problem in getting the
reports to IDe by that date, please let me know so we can arrange a
Status Conference with Judge Bayley. Otherwise, I will assume you
have no objection to the November 12th listing and that a status
Conference is currently unnecessary.
Very truly yours,
TSH/pjm
ec: Honorable Edgar B. Bayley
51S1B/PJH
~!03 NORTH FRONT STREET, HARRISBURG, PA 17110.170B
(717) 23H7Bl .
FAX (717) 238.&el0
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lOSII'Il M. ME1JW)
1EIUlY S,ImWl
DAVID L LI1IZ
IdICIIAEL E. KOSIK
PAMEUO.SI/UIoIAH
1U0WUl It.. SAIlLOCK
DAVID S. W1SNE.SKI
NIl0U; C. OLSON
ANGINO & ROVNER, P.C..
1dI01AEL1. NAVlTSKY
LAWIlENCE F. DARONE
DAWN L Ie/NlN05
SOLOMON Z. JCREVSKY
105EPH M. DORIA
OUANE S. BAlUUCK
IAldLSllICllm
USTED IN
1lIE BFSf LAWYERS
-IN-
AMERICA
JUOWUl C. ANOINO
NEIL I. ROVNER
october 4, 1996
Joseph A. Ricci, Esquire
MARSHALL , FARRELL
1323 North Front street
Harrisburg, PA 17102
SENT VIA FAX
RE: Greene v. Smarsh, et ale
Dear Joe:
Enclosed is a copy of my letter of September 4, 1996
memorializing your agreement to provide an expert report by the
first week of October thereby making a status conference with Judge
Bayley unnecessary.
If I do not receive the report by the close of business on
Monday I will ask Judge Bayley to hold a telephone conference to
Bet deadlines which will st.ill allow us to try the case in
November.
'.
.
Sl51B/PJM
4503 NORTH FRONT STREET, HARRISBURO, PA 17110.1705
(717) 238.e7Vl .
FAX (717) 238-5510
. I I .
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MARSHALL, FARRELL, RIC(;l,
SMITH & HADDICK
. prorrulODa' corporation
AlTORNEVS AT LAW
13%.1 NORTII mol'(\' STREET
IIARRISBURC, PENNSVLVA~~ 17101
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FRANCIS E. ~IARSIIALL, JR.
MIClIAEL A, FARRELL
JOSEPII A. RICCI
KERRV voss SMml
ClIARLES E.IIADDlCK, JR.
LORI ADAMCIK KARlSS
MARCT. LEVIN ,
KEVIN C. COlTONE'
KRISTEN L BEEClI
TELEPIIONE, (717) 136.7300
FAX' (717) %.16.5919
INTERNET. MFRSUI@AOLCOM
cu~[au.HD courtn' O"IC'l1
ItIOIITB U11I nun
CAMP DIIJ... rA ntll
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October 21,1996
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Pacsimile (240-6462) and Pirst Class Mall
Mr. Rick Pierce
Court Administrator's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
RE: Greene v. Smarsb
Our File No. PR-139
Docket No. 95-1844 (Cumberland Co.)
Dear Mr. Pierce:
It was a pleasure to speak with you on the telephone earlier today concerning the
above-referenced matter. As I explained to you during our conversation, this case Is not
yet ready for trial. Both Terry Hyman (Counsel for the Plaintiff) and myself (counsel for
Defendants) are In agreement that this case will not be trial ready for the November tenn
of court.
At this time, I am still awaiting receipt of finalized reports from my experts.
Additionally, Mr. Hyman has indicated that he will be providing an economist expert
report. To date, I have not yet received Mr. Hyman's economist's report. Until such time
as I receive Mr. Hyman's expert report, I will not be in a position to determine whether a
countervailing economic expert will be required on behalf of the Defendants.
Given the fact that this matter Is clearly not yet ready for trial, both Mr. Hyman
and 1 are in agreement that a continuance should be granted. Accordingly, I have
enclosed with this letter, a proposed Order and Motion for Continuance. It Is my
understanding that you will be forwarding these documents to the appropriate Judge for
consideration. It Is further my understanding that It Is not necessary for me to complete
a fonnal pre-trial memorandum pending receipt of a ruling by the Court.
. . , .
CERTIFICATE OF SERVICE
AND NOW, this 27th day of December, I, Betty K. Sheaffer, an
employee of Angino & Rovner, P.C., do hereby certify that I have served
a true and correct copy of PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE
BXPERT TESTIMONY ON LIABILITY AND CAUSATION in the United States mail,
postage prepaid at Harrisburg, Pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
MARSHALL & FARRELL, p.e.
1323 N. Front Street
Harrisburg, PA 17102
Attorney for Defendant
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COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
v.
THOMAS J. SMARSH, D.C., and
THOMAS J. SMARSH, D.C., P.C.,
t/d/b/a SNARSH CHIROPRACTIC,
Defendants
33
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I
I NO. 95-1844 CIVIL TERM
I
I
I
I CIVIL ACTION - LAW
I JURY TRIAL DEMANDED
IN REI PRETRIAL CONFERENCE
At a pretrial conference held Thursday, January 2,
1997, before the Honorable George E. Hoffer, in the medical
malpractice action, present for the Plaintiff was Terry S.
Hyman, Esquire, and present for the Defendants was Joseph A.
Ricci, Esquire.
The Defendant is a chiropractor. His office took
certain x-rays of the decedent. Plaintiff claims that the
x-rays were either misread or not read, and the x-rays all the
while showing a stage of cancer. Plaintiff's claim is if the
proper diagnosis could have been had, decedent's chances of
continued life would have been greatly increased.
Mr. Ricci's expert has withdrawn from the case only
last Friday, and he will need time to obtain a new expert. On
that basis, and because Mr. Ricci's law office is having a
transformation, Mr. Ricci requests a continuance until the next
term of trials, which would be March 17, 1997.
We direct
either counsel to relist the case for trial during that time.
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FEB-07-97 11148 AM
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, 2f ku c'r 01 Defend8J\ta ,
. 131 txPe report or Dr. Jeffrey Pcmparo on ehalf or PlIllnU/f'
4, ~ Uon of CoUeen Oreen
'. . I)' Uon of Dr. Ronald DW1ake
I ,. ,iil. po iuon of cr. Thomas Slllanh
, i ~~0I1 of Dr. ~chard Bashore
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~I ~eo or AndrewI and Patel
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hld.rick M. r , M.D.
AHocl&l .
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'I11omu Jefl'enon n1VG'Jll)/
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PIlIIad.lphll. PA I 10',809:1
VOlte: 216.85 .0030
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Nonlllomay HQfpltaJ
Iulte 806 ,
1330 Powell Slntt
Homo'OWll. PA 1&401
Jl'eb.31997
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FEB-07-97 11:48 AM FARRELL ~ RICCI. P,C,
717 6:52 6202
p.e4
ez..e'H99'I W2W1 I'Ra1 ClWTiRoBIERl1'WLJ'ELLIN.. TO 'L?~76'262(12 1'.02
: '11 I' I
" ~e Inldat X.ray V{IUI done In Feb 1997 and Ihowe<l a 1,5 em nodule In the
',~a l~'were not provided). In late Ma~he was found to ha:vc a lArac man
'er . The ,kull was Involved with a ellllltatlc leolon at that ume. Thus,
Ilt '" en propOled that the dleeaae had greaaed from a theoreUeal St4g111
. is 'IV in a Uttle more UuIn 3 months, has been stated that In Feb. 1992
.' ): 1 n was resectable, The curabWty oHlle lellon In Feb. 1992 In thlll cue
'. Illlie ,aJar ~uelUon. I
, Ithe ~cuum orreal time, a 1.5 an luul dule lllllW'i\caIly resectable,
,se , WIth Intent to cure does nol me that the Iun& CIlr.eer II eumf. In
to OncololY Uterature abounds with ta that demonstrate. that when a
. eel' 18' reiectedfor cure. the dlseae may WIU havc ll1enUy lipread,
ee n carc'tnomu tend to be more like to behave In thlI manner. In this
,have the enure time sequence thatfhOW'l u. that the tumor had
d !.dentJy Ipread In Feb 1997. and th I wu not curable at the ume of
"I 'I : .~leIY.
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II\f. Inton, bC)'Ond a reasonable doubt. Mr. Greene', cancer would not
I ,vc ~_cured If the 1t:a1on were resected i Feb. 1992 pen Ita pattern of
' " i' ,rea IIOD1S 3 short mon..... later.
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CERTIPICATE OF SERVICE
~~
AND NOW, this 30th day of May, 1997, I, Pamela J. MCClellan,
an employee of Angino & Rovner, P,C" do hereby certify that I have
served a true and correct copy of the PRAECIPE POR DISCONTINUANCE
in the United states mail, postage prepaid at Harrisburg,
Pennsylvania, addressed as follows:
Joseph A. Ricci, Esquire
2000 Linglestown Road, suite 108
Harrisburg, PA 17110
Attorneys for Defendants
Pamela J. McClellan
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5, Atthl! tillll! of thl! pl'l!.tl'inl confl!ronco hl!hl on ,Jnnunry 2, 1997, COllllsl!1 for thl!
Dl!fl!ndnnt indicntl!dto tho Courtthnt his trinl OXPl!l't withdrow frolll thl! cnSl! nnd rl!qul!stod
n continunnco,
G, '!'his Honol'nblo COUl't ~l'Ilnted n continunncl! of this mnttm' nnd ordl!rl!dthnt
nil l!Xpl!l'tropOl'ls on bl!hnlf of tho Dl!fendnntlllust bl! pl'ovidl!d by Fl!brual'Y 6, 1997,
7, At tho lillll! of thl! pl'l!.tl'inl confl!l'l!ncl!, Plnintiff rl!qul!stl!d thl! oPPol'tunity to
nllolV n l'esponSl! to thl! Dl!fl!ndnnt's expl!rtroport by his oxisting oxports if deemednl!cessnry,
8, '!'his mntter was re.listed for trial on Janunry 16, 1997,
9. 'I'he Defendunt provided the report of his expert to counsel for the Pluintiff in a
timely mnnner,
10, At the time of the pre-trial conference held on February 26, 1997 the Pluintiff
hud not provided nny supplementnl expert reports nor had counsel indicnted thnt there was
un intent to provided supplemental reports.
11. I'lnintifCs counsel did not indicnted n desire to supply additionnl expert
tl!stimony until aftl!r the pre-trinl conference, (See letter nttached hereto and marked us
"Exhibit A",)
12, Counsel for the I'lnintiIT did not provide un ndditionnl expert report until
March 01, 1997, barely one week before trial.
13, Defendant 'I'homns J. Smarsh , D,C,. P,C, is prejudiced by the late disclosure of
ndditionnl expel'ts us he is precluded from obtuining appropriate countervuiling testimony
due to the l!xtt'l!II1l!ly ahort pl!riml of time to obtnin UI'l!SpOnse,
I,!. 'I'hia Court ia empolVerl!d to preclude till! teatimony of experts who have not
bl!l!n disclosl!d inutiml!ly mUnnl!I',
WI-mHlWOHI~, it is I'l!apl!clfully I'l!qul!atl!d thnt thiB Honornbll! Court either grant n
continunncl! of thia IlInlll!r to nllow DtJfonduntndl!quntl! limo to rl!Bpond to thl! I'l!port of 01',
,)
~
CER1'IFICATE OF SERVICE
AND NOW. thiR 10'" dllY of Mllrch, 1!J!l7, I. ,JoRcph A. Hicci, ESlJuil'c. hcrcby ccrtify
thllt I RCl'vcd II t!'lle IIl1d corrcct copy of thc forcgoing MOTION OF DEFENDANT
TllOMAS J. SMAIlSll, D.C., P.C. TO PIlECLUDE TESTIMONY OF DIl. FONTANA
AND MOTION TO ASSESS COSTS FOIl DEPOSITION BEYOND 100 MILES FIlOM
COUln'llOUSE upon 1111 counRcl of rccol'll by dcpositing II copy of RIIIlIC in thc Unitcd Stlltcs
IlIl1il. rcgulllr dclivcry. postllgc prcpllid lit Hllrrisburg. l'cnnsylvllllill, Ilddrcsscd liS follows:
1'cl'l'y S, HYllllln, ES(IUirc
ANGlNO & ROVNER, P.C,
01503 North Front Strcct
Hllrrisburg, PA 17110
(Counscl for Plllintifi)
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Josetlh A. H i. ESlJuirc
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"EXHIBIT A"
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LISTED IN
MICHAEL J, NAVITSKl'
LAWRENCE F, DARONr.
DAWN L. JENNINOS
SOLOMON Z. KREVSKl'
JOSEPII M, DOR'A
DUANr. S, UARRICK
lAMES DICINTI
10SEPII M, MEI.IWI
TERRl' S, IIl'MAN
DAVID I.. urrz
MICHAEl. r., KOSIK
"M.lm.A o. SlIlJM,\N
RICIIARD A, SADLOCK
DAVID S, WISNrsKI
NUOlr. C, OI.SON
ANGINO & ROVNER, P.C.
TIlE BEST L\\VYERS
-IN-
AMERICA
RICHARD C, ANGINa
NEIl. I, ROVNER
February 27, 1997
Joseph A, Ricci, Esquire
Farrell and Ricci P.C,
2000 Linglestown Road
Harrisburg, PA 17110
RE: Greene v, smarsh, et al,
Dear Joe:
Enclosed please find an Order signed by Judge Hoffer granting
Plaintiffs' Motion to Amend Complaint in the above matter,
Additionally, I did want to advise you that I am likely to
have a rebuttal hematologist report to you within the next week.
I did not mention it at the Pretrial because I was not certain I
could get a report within a reasonable time frame, having only
received your expert report on February 7, If I can get the report
I will have it in your hands March 7 or immediately thereafter,
I anticipate the report will be short, indicating disagreement
with Biermann's conclusion that prompt attention to the lesion in
February would not have had any effect whatsoever on the patient's
survival, I believe the rebuttal expert will indicate that one
cannot, as Biermann has done, draw that conclusion from the
information in Mr. Greene's records, including the course of the
disease following its discovery in May. He will also likely state
that the failure to promptly diagnose the lesion in February
substantially decreased the likelihood of Mr. Greene surviving the
disease and/or the length of his survival period,
These are, of course, the very issues addressed by Biermann,
The expert, if used at trial, will be as rebuttal,
~)y yours,
.. T;~./~
TSH/pjm
Enclosure
51518/PJK
4~03 NORTH FRONT STREET, HARRISDURO, PA 1711001700
(717) 230,0701
FAX (717) 238.~810
IOSEPII M, MElIU.O
TERRY S, IIYMAN
DAVID L. LlJrl
MICIIAEL P. KOSIK
PAMELA 0, SIIUMAN
RICIIARD A, SADLOCK
DAVID S, WISNtSKI
NUOLE c, OLSON
ANGINO & ROVNER, P.C.
MICIIAEL j, NAVITSKY
LAWRr.~CE p, BARONE
DAWN 1_ mNNINOS
SOLOMON 7. KREVSKY
IOSEPII M, DORIA
DUANE S, DARRICK
lAMES Il,CINTI
usmD IN
TIlE BEST LlWYERS
-IN-
AMERICA
RICIIARIl C. ANGlNO
NEIL), ROVNER
February 19, 1997
Joseph A. Ricci, Esquire
Farrell and Ricci P,C.
2000 Linqlestown Road
Harrisburg, PA 17110
RE: Greene v, Smarsh, et al,
Dear Joe:
Enclosed please find a Notice of Videotape Deposition of
Norman Kettner, D, C. This was the only date Dr, Kettner was
available prior to the trial in this case.
Also, please forward Dr. Bierman'S c,v, at your earliest
convenience.
TSH/pjm
Enclosure
yours,
\ ~.. .,
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SlSlB/P.1H
..........
......
,.........
4~03 NOATH FAONT STREET, HARRISBURG, PA 17110.1706
(717) 236,6701
FAX 1717) 236-5610
! '
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CERTIFICATB OF SERVICE
AND NOW, this 19th day of February, 1997, I, Pamela J,
McClellan, an employee of Angino & Rovner, P,C" do hereby certify
that I have served a true and correct copy of the NOTICE OF
VIDBOTAPB DEPOSITION in the United states mail, postage prepaid at
Harrisburg,' Pennsylvania, addressed as follows:
Joseph A, Ricci, Esquire
2000 Linglestown Road, suite 108
Harrisburg, PA 17110
Attorneys for Defendants
~.~.....~~~~
Pamela J, MCC~llan
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COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS,
: CUMBERLAND COUNTY, PA
: NO. 95-18,14
vs,
: CIVIL ACTION - LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
tldfbfa Sl'ilARSH CHIROPRACTIC
DEFENDANTS
: JURY TRIAL DEMANDED
ORDER
AND NOW. this _ day of
, 1997, upon consideration of the foregoing
,\<lOTION OF DEFENDANT THOMAS J. SlvlARSH, D,C.. P.C., it is hereby ORDERED and
DECREED that Plaintiff is precluded from calling Dr. Fontana as a witness at the time of
trial.
IT IS FURTHER ORDERED and DECREED that Plaintiff shall reimburse counsel
for the Defendant in an amount equal to the cost of one nights lodging, air transportation to
and from St. Louis. Missouri and rental car trove I to Charlestown. Missouri for the purpose
of taking the deposition of Dr. Ketner.
BY THE COURT:
J.
COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS,
: CUMBERLAND COUNTY, PA
DEFENDANTS
: NO. 95-18,1.1
, - -,
CIVIL ACTION - LAW ~" .
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. JURY TRIAL DE1\-L\NDED ~ '-I
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VB.
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
lid/bIn SMARSH CHIROPRACTIC
MOTION OF DEFENDANT THOMAS J. SMARSH, D.C., P.C. TO
PRECLUDE TESTIMONY OF DR. FONTANA AND
MOTION TO ASSESS COSTS FOR DEPOSITION
BEYOND 100 MILES FROM COURTHOUSE
AND NOW, comes Defendant, Thomas J. Smarsh, D.C., P.C. and requests that this
Honorable Court preclude Dr. Fontana from providing testimony and requests that this
Hon01'llble Court impose the costs of travel to the Deposition of Dr. Ketner for the following
rellsolls;
I. Motion to Preclude
1. The above captioned mlltter is a chiropractic mlllpractice action which is listed
for tl'illl on march 17, 1997.
2. Due to the nllture of the lIlleglltions it is necessary for the Plllintiff to rely upon
expert testimony lit the time of trial.
a. Plllintiff listed this mlltter for trial on or about December 2. 1996..
4. At the time this matter was listed for trial Plaintiff had not identified Dr.
Fontana liS lIn expert witness.
1
5. At the time of the pre-trial conference held on .January 2, 1997, counsel I'm' the
l
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Defendant indicuted to the Court that his trial expert withdrew from the cuse and requested
a continuunce,
6. This Honorable Court granted a continuance of this mattel' and ordered thut
all expert reports on behalf of the Defendant must be provided by February 6, 19!}7.
7. At the time of the pre-trial conference, Plaintiff requested the opportunity to
allow a response to the Defendant's expert report by his existing expel'ts if deemed necessury,
8. This matter was re-listed for trial on January 16, 1997.
9. The Defendant provided the report of his expert to counsel for the Pluintiff in II
timely manner,
10. At the time of the pre-trial conference held on February 26, 1997 the Pluintil'l'
had not provided any supplemental expert reports nor had counsel indicated thut there wus
an intent to provided supplemental reports.
1 \. Plaintiffs counsel did not indicuted u desire to supply IIdditionul expelt
testimony until after the pre. trial conference. (See letter uttached hereto and mul'lwll us
"Exhibit A" ,)
12, Counsel for the Plaintiff did not provide an udditional expert report IIntil
March oJ, 1997, barely one week before trial.
13. Defendant Thonas J. Smarsh , D.C" P.C. is Pl'ejudiced by the lilt!) discloSIlI'1l of
additioOl'.1 experts as he is precluded from obtaining appropriate countorvllilinll testimony
due to the extremely short period of time to obtain a response.
1.1. This Court is empowered to preclude the testimony of experts who hlll'o lIlll
been disclosed in a timely manner,
WHEREFORE, it is respectfully requested that this Honorllble Court eithor Ilrunt II
continuunce of this matter to allow Defendant adequato time to respond tll tho ropol't of Ill-.
2
10SEP/I M. MEliLLO
TERRY S,/lYMAN
DAVID L, LIm
MICHAEL E. KOSIK
PAMELA 0, SIMIAN
RICHARD A, SADI.OCK
DAVID S, WISNESKI
SUOLE C, OLSON
ANGINa & ROVNER, P,C,
MIC/lAEL J, SAVITSKY
l.AlVREI<CE F, DARONE
DAWN L, lENNINOS
SOLOMON Z. KREVSKY
IOSEPII M, DORIA
DUANE S, DARRICK
JAMES DlCIN]",
LISTED IN
TIlE BEST L~\VYERS
-IN-
AMERICA
RICHARD C, ANOINO
NEIL J, ROVNER
February 27, 1997
Joseph A, Ricci, Esquire
Farrell and Ricci P.C,
2000 Linglestown Road
Harrisburg, PA 17110
RE: Greene v, Smarsh, et al.
Dear Joe:
Enclosed please find an Order signed by Judge Hoffer granting
Plaintiffs' Motion to Amend Complaint in the above matter,
Additionally, I did want to advise you that I am likely to
have a rebuttal hematologist report to you within the next week,
I did not mention it at the Pretrial because I was not certain I
could get a report within a reasonable time frame, having only
received your expert report on February 7. If I can get the report
I will have it in your hands March 7 or immediately thereafter,
I anticipate the report will be short, indicating disagreement
with Biermann's conclusion that prompt attention to the lesion in
February would not have had any effect whatsoever on the patient's
survival, I believe the rebuttal expert will indicate that one
cannot, as Biermann has done, draw that conclusion from the
information in Mr, Greene's records, including the course of the
disease following its discovery in May. He will also likely state
that the failure to promptly diagnose the lesion in February
substantially decreased the likelihood of Mr, Greene surviving the
disease and/or the length of his survival period,
These are, of course, the very issues addressed by Biermann,
The expert, if used at trial, will be as rebuttal.
yours,
TSH/pjm
Enclosure
51518/PJll
41D3 NORTH FRONT STREET, HARRISBURG, PA 17110.1708
1717) 238,8701
FAX 1717) 230.1810
"EXHIBIT B"
/)
JOSEPH M, MELILLO
lORRY S,HYMAN
OAVID L. LlITZ
MICHAEL I!. KOSIK
PAMELA 0, SHUMAN
RICHARD ~, SADLOCK
DAVID s, WISNESKI
NIJDLE C, OLSON
ANGINa & ROVNER, P,C,
LlsnD IN
MiCHAEL J, SAVITSKY
LAWRI!.~CE F, DARONE
DAWN L, JENNINQS
SOLOMON Z. KREVSKY
JOSEPH ~t. DORIA
DUANE S, DARRICK
JAMES D.CINTI
..
TIlE BEST L\IVYERS
-IN-
AMERICA
RICHARD C, ANGINa
NEIL J. ROVNER
February 19, 1997
Joseph A. Ricci, Esquire
Farrell and Ricci P.c.
2000 Linglestown Road
Harrisburg, PA 17110
RE: Greene v, Smarsh, et al,
Dear Joe:
Enclosed please find a Notice of Videotape Deposition of
Norman Kettner, D.C, This was the only date Dr, Kettner was
'available prior to the trial in this case,
Also, please forward Dr, Bierman's c.v, at your earliest
convenience.
Very truly yours,
Z
,//Te7 '
TSH/pjm
Enclosure
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SlSlB/PJM
.._.4_....-.~~...
............
4503 NORTH FRONT STREET, HARRISDURO, PA 17110,1700
(717) 230,6701
FAX (717) 238-5810
COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
: NO. 95-1844
THOMAS J, SKARSH, D,C" and
THOMAS J, SKARSH, D.C., P,C"
t/d/b/a SMARSH CHIROPRACTIC, JURY TRIAL DEMANDED
Defendants
NOTICE OF VIDEOTAPE DEPOSITION
TO: Joseph A, Ricci, Esquire
PLEASE TAKE NOTICE that pursuant to Rules of Civil Procedure,
the Plaintiffs in the above matter will take the videotape
deposition of Norman Kettner, D.C. The individual shall appear for
oral examination for the purpose of discovery and/or for use at
trial, at the Ergonomics Conference Room, Legan College, 1851
Schoettler Road, Chesterfield, Missouri, on March 13, 1997,
beginning at 10:30 a,m, The Court Reporter/Notary Public will be
an employee of Taylor & Associates Reporting, Inc, The
videographer will be an employee of Avision Video.
ANGINO & ROVNER, P,C.
DATED: 2/19/97
l07558/PJH
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CERTIFICATE OF SERVICE
AND NOW, this 19th day of February, 1997, I, Pamela J.
McClellan, an employee of Angino & Rovner, P,C" do hereby certify
that I have served a true and correct copy of the NOTICE OF
VIDEOTAPE DEPOSITION in the United states mail, postage prepaid at
Harrisburg,. Pennsylvania, addressed as follows:
Joseph A, Ricci, Esquire
2000 Linglestown Road, suite 108
Harrisburg, PA 17110
Attorneys for Defendants
~. \J<>_~ ~~~~
Pamela J. MCC~llan
r. o.
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Farrell & RiccI. P.C.
2000 lingle'low'n Rd,
Sulle 108
Ifarrl,burg, l'A 17110
(717) 652.6101
.
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Ii, At the time of the Pl'e.trial conference held on ,Juuuury 2, !!J!J7, counsel fOI' the
Defendunt indicated to the Court thut his trinl expert withdrew li'om the clIse IInd requested
II continullnce,
6, This Honoruble Court granted II continunnce of this mutter und QI'dered thut
all expert reports on behalf of the Defendant must be provided by Febl'ulu'y 6, 1!J!J7,
7, At the time of the pre.trial conference, Plaintiff requested the opportunity to
allow n response to the Defendant's expert report by his existing experts if deemed necessary,
8, This matter was re.\isted for trial on January 16, 19!J7.
9, The Defendant provided the report of his expert to counsel for the Plaintiff in u
timely mUnner,
10, At the time of the pre.trial conference held on Februnry 26, 1997 the Pluintiff
had not provided any supplemental expert reports nor had counsel indicated thut there was
un intent to provided supplemental reports,
11. Plaintiffs counsel did not indicated a desire to supply additional expert
testimony until after the pre.triul conference, (See letter uttuched hereto and murked us
"Exhibit A",)
12, Counsel fQl' the Pluintiff did not provide un additional expert report until
Murch 4, 1997, burely one week before trial.
13, Defendunt Thomus .J, Smursh , D.C" P,C, is prejudiced by the lute disclosure of
additionul experts us he is precluded from obtuiniug appropriute countervuiling testimony
due to the extremely short period of time to obtuin u response.
1,1. This Court is empowered to preclude the testimony of expel'ts who hnve not
been disclosed in u timely munnel',
WHEREFORE, it is respectfully requested thllt this Honoruble Court either grunt II
cOlltinullllce of this muttel' to ullow Defendllnt udequllte tjme to ,'espond to the l'OlllJl'( of lk
"
-
CERTIFICATE OF SERVICE
AND NOW, this 10'" duy of Murch, 1!lD7, I, .Joscph A. Ricci, Esquirc, hcrcby ccrtify
thut I scrvcd u truc und corrcct copy of thc forcgoing MOTION OF DEFENDANT
THOMAS J. SMARSH, D.C., P.C. TO PRECLUDE TESTIMONY OF DR. FONTANJl
AND MOTION TO ASSESS COSTS FOR DEPOSITION BEYOND 100 MILES FROM
COURTHOUSE upon ull counscl of rccord by dcpositing a copy of sume in thc Unitcd Stutcs
mail, rcgular dclivcry, postagc prcpaid lit Harrisburg, Pcnnsylvania, addrcsscd liS follows:
Tcrry S. Hyman, Esquirc
ANGINa & ROVNER, P,C.
4503 North Front Strcct
Harrisburg, PA 17110
(Counscl for Plain tift)
/~-\{';;/ 75 --::.
JOSep11 A. Rkci, Esquirc
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"EXHIBIT A"
Ii
lllSEPII M, MELILLO
rtRRY S,IIYMAS
DAVID L L1rn:
~IICIIAEl E KOSIK
PAMELA 0, SIIUMA.~
RICIIARD A, SADlOCK
DAVID S, WISNESKI
SlJolE C, OLSON
ANGINa & ROVNER, P,C,
MICIIAEL J, NAVITSKY
LAWRESCE F, DARONE
DAWN L, JENNINGS
SOLOMOS Z. KREVSKY
IOSEPII M. DORIA
DUANE S, DARRICK
JAMES D.Clml
LISTED IS
TIlE BEST LlwYERS
-IN-
A.\IERJCA
RICIIARD C, ANOINO
SElL l. ROVNER
February 27, 1997
Joseph A, Ricci, Esquire
Farrell and Ricci p,e,
2000 Linglestown Road
Harrisburg, PA 17110
RE: Greene v, Smarsh, et al.
Dear Joe:
Enclosed please find an order signed by Judge Hoffer granting
Plaintiffs' Motion to Amend Complaint in the above matter.
Additionally, I did want to advise you that I am likely to
have a rebuttal hematologist report to you within the next week,
I did not mention it at the Pretrial because I was not certain I
could get a report within a reasonable time frame, having only
received your expert report on February 7, If I can get the report
I will have it in your hands March 7 or immediately thereafter,
I anticipate the report will be short, indicating disagreement
with Biermann's conclusion that prompt attention to the lesion in
February would not have had any effect whatsoever on the patient's
survival. I believe the rebuttal expert will indicate that one
cannot, as Biermann has done, draw that conclusion from the
information in Mr, Greene's records, including the course of the
disease fOllowing its discovery in May. He will also likely state
that the failure to promptly diagnose the lesion in February
substantially decreased the likelihood of Mr. Greene surviving the
disease and/or the length of his survival period.
These are, of course, the very issues addressed by Biermann,
The expert, if used at trial, will be as rebuttal,
yours,
TSH/pjm
Enclosure
5151B/PJM
4e03 NORTH FRONT STREET, HARRISDURO, PA 17110>1 70D
(717) 2~8'6701
FAX (7171 230.e610
JOSEPH M, MELILLO
lCRR Y S, HYMAN
DAVID L L1Irz
MICHAEL E, KOSIK
PAMEL.\ O. SHUMAN
RICHARD A, SADLOCK
DAVID S, WISNESKJ
NIIOLE C, OLSDN
ANGINO & ROVNER, P,C,
L1SlCDIN
MICHAEL /, NAVrTSKY
t..,.\WRENCt! F. DARONr:
DAWN L IENNINOS
SOLOMON Z. KREVSKY
JOSEPH M, DORIA
DUANE S, DARRICK
lAMES DICII<TI
TIlE BEST LlWYERS
-IN-
A.\IERlCA
RICHARD C, ANGINa
NEIL J, ROVNER
February 19, 1997
Joseph A. Ricci, Esquire
Farrell and Ricci P.C,
2000 Linglestown Road
Harrisburg, PA 17110
RE: Greene v, Smarsh, et al,
Dear Joe:
Enclosed please find a Notice of Videotape Deposition of
Norman Kettner, D,C, This was the only date Dr, Kettner was
'available prior to the trial in this case.
Also, please forward Dr. Bierman's c.v. at your earliest
convenience,
TSH/pjm
Enclosure
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I..
SlSlB/PJH
.......
........
..................
.~03 NORTH FRONT STREET, HARRISBURG, PA 17110.1706
1717)236,6791
FAX 1717) 236,1610
COLLEEN GREENE, Individually
and as Administratrix of the
ESTATE OF RICHARD GREENE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v,
: NO, 95-1844
THOMAS J. SHARSH, D.C., and
THOMAS J, SHARSH, D,C., p,C"
t/d/b/a SNARSH CHIROPRACTIC, JURY TRIAL DEMANDED
Defendants
NOTICE OP VIDEOTAPB DEPOSITION
TO: Joseph A, Ricci, Esquire
PLEASE TAKE NOTICE that pursuant to RUles of Civil procedure,
the Plaintiffs in the above matter will take the videotape
deposition of Norman Xettnor, D.C. The individual shall appear for
oral examination for the purpose of discovery and/or for use at
trial, at the Ergonomics Conference Room, Logan COllege, 1851
Schoettler Road, Chesterfield, Missouri, on March 13, 1997,
beginning at 10:30 a,m, The Court Reporter/Notary public will be
an employee of Taylor & Associates Reporting, Inc, The
videographer will be an employee of Avision Video.
ANGINO & ROVNER, P,C.
DATED: 2/19/97
l07SS8/PJK
A/l,/'I",' I /
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COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS,
: CUMBERLAND COUNTY, PA
: NO. 95-1844
VB.
: CIVIL ACTION - LAW
THOMAS J. SMARSH, D.C. AND
THOMAS J. SMARSH, D.C., P.C.,
Udlb/n SMARSH CHIROPRACTIC
DEFENDANTS
: JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
. 1997, upon consideration of the foregoing
MOTION OF DEFENDANT THOMAS J. SMARSH. D.C., P.C., it is hereby ORDERED nnd
DECREED thnt Plnintiff is precluded from calling Dr. Fontann as n witness nt the time of
trial.
IT IS FURTHER ORDERED nnd DECREED thnt Plaintiff shall reimburse counsel
for the Defendnnt in an amount equal to the cost of one nights lodging, air transportation to
nnd from St. Louis, Missouri and rentnl cnr travel to Chnrlestown, Missouri for the purpose
of tnking the deposition of Dr, Ketner.
BY THE COURT:
J.
t\RRELL & lUCCI, I'.C.
lJlTE 108
lOO LINGELSTOWN ROAD
t\RRISBURG, PA 17110
1,,,111,,,1,,,11,,,1111,,,11,,,1
JOSEPH A RICCI ESQUIRE
FARRELL & RICCI PC
SUITE 108
2000 L1NGLESTOWN ROAD
HARRISBURG PA 17110
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.......
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FARRELL & RICCI, P,C,
SUITE 108
2000 LlNGELSTOWN ROAD
HARRISBURG, PA 17110
"
,
1000111"0100011"01111,,,11,,,1
TERRY S HYMAN ESQUIRE
ANGINO & ROVNER PC
4503 NORTH FRONT STREET
HARRISBURG PA 17110
o;.._~.._.....
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COLLEEN GREENE, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF RICHARD GREENE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS,
: CUMBERLAND COUNTY, PA
: NO. 95-1844
VB.
: CIVIL ACTION - LAW
THOMAS J. Sl\'IARSH, D.C. AND
THOMAS J. Sl\'IARSH, D.C., P.C.,
tJdlb/n SMARSH CHIROPRACTIC
DEFENDANTS
: JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 1997, upon consideration of the foregoing
lv/OTION OF DEFENDANT THOMAS J. SlvIARSlJ. D.C., P.C., it is hereby ORDERED and
DECREED that Plaintiff is precluded from calling Dr. Fontana as a witness at the time of
trial.
IT IS FURTHER ORDERED and DECREED that Plaintiff shall reimburse counsel
for the Defendant in an amount equal to the cost of one nights lodging, air transportation to
and from St. Louis, Missouri and rental car travel to Charlestown, Missouri for the purpose
of taking the deJlosition of Dr. Ketner.
BY THE COUR'l':
J.