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'''(AllYl COlO" O~t1C., IN(
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Hearing Aid centers, and/or Boscov's optical ana Hearing Aid
Centers, and/or Boscov's optical Center ("BoscoV's Vision center"),
is a corporation registered under the laws of the Commonwealth of
Pennsylvania, with its registered office at 4500 perkiomen Ave.,
Reading, Berks county, pennsylvania 19606, and with a place of
business at the camp Hill Mall, camp Hill, Cumberland county,
Pennsylvania 17011.
5. At all relevant times, Defendant, Boscov's Vision Center,
was doing business as and portrayed itself as an expert in testing
for hearing loss and the fitting hearing aids.
6. At all relevant times, Defendant, Boscov's Vision center,
acted through its duly authorized agents, servants, and employees,
who acted within the scope of their employment and in furtherance
of the business of the Defendant, Boscov's Vision Center.
7. On or about september 21, 1991, Plaintiff, Eileen C.
McMullen, entered the Defendant, Boscov's Vision Center, in Camp
Hill, cumberland county, Pennsylvania, to be evaluated for a
hearing aid.
8. On or about September 21, 1991, a technician for
Defendant, Boscov's Vision center, evaluated Plaintiff, Eileen C.
McMulllen and determined that she required a hearing aid in her
2
at Defendant, Boscov's Vision Center, Plaintiff, Eileen C.
McMullen, went to pick up her hearing aid at Defendant, Boscov's
Vision Center, but the hearing aid did not fit properly and kept
falling out of her ear.
15. On this occasion, Plaintiff, Eileen C. McMUllen, refused
to Undergo the process of getting another mold taken of her right
ear due to the continued soreness from the initial fitting.
16. Several months after Plaintiff, Eileen C. McMullen, had
the mold of her right ear taken at Defendant, Boscov's Vision
Center, she began to experience severe pain and drainage in her
right ear.
17. On or about May 20, 1993, Plaintiff, Eileen C. McMUllen,
treated with a physician who immediately noticed a severe infection
of Plaintiff's right middle ear and mastoid, which the physician
determined was the result of the ear mold material that had been
left in Plaintiff's ear when she was fitted for the hearing aid.
18. On or about May 20, 1993, Plaintiff, Eileen C. McMUllen,
was admitted for emergency surgery where a radical mastoidectomy
was performed in order effect removal of the foreign body.
4
COUNT I
EILEEN C. MCMULLEN v. BOSCOV'S VISION CENTER. INC.
19. Plaintiff, Eileen c. McMullen, incorporates and make part
of this Count Paragraphs 1 through 18 of the within Complaint as if
fully set forth.
20. Defendant, Boscov's Vision Center, was negligent and/or
careless in some or all of the following particulars:
(a) In failing to conduct its services in a responsible
and professional manner in that Plaintiff, Eileen
C. McMullen, was caused to have a piece of ear
molding lodged deep within her right ear canal;
(b) In failing to remove the mold of Plaintiff, Eileen
C. McMullen's right ear properly such that a piece
of the molding was caused to lodge deep within her
right ear canal;
(c) In failing to notice that a piece of the ear
molding was missing after the mold was removed from
Plaintiff, Eileen C. McMullen's right ear;
(d) In failing to suspect a problem with Plaintiff,
Eileen c. McMullen's ear when her hearing aid did
not fit properly and when she was experiencing pain
from her initial visit;
(e) In breaching its duty of care to exercise all
6
reasonably necessary precautions to maintain
Plaintiff's safety while Plaintiff, Eileen C.
McMullen, was relying on Defendant's alleged
expertise in fitting hearing aids;
(f) In breaching its duty to formulate, adopt, and
enforce adequate rules and policies to ensure
quality care for Plaintiff, Eileen C. McMullen; and
(g) In failing to employ experienced employees and/or
in failing to adequately train employees in the
proper methods of fitting hearing aids.
21. As a result of the negligence of the Defendant, Boscov's
Vision center, Plaintiff, Eileen C. McMullen, has sustained severe
injuries, including, but not limited to a severe infection of the
middle ear, erosion of portions of the middle ear, severe pain in
her shoulder, colitis, a rash due to medication that Plaintiff was
taking, additional infection after the surgery, inability to taste
food, numbness in her right ear, severe pain, humiliation,
embarrassment, and as a result thereof, she has suffered and
probably will in the future continue to suffer pain and agony, to
her great detriment and loss.
22. As a result of the negligence of the Defendant, Boscov's
Vision Center, plaintiff, Eileen C. McMullen, has been and probably
will be in the future hindered from attending to her daily duties,
7
to her great detriment, loss, humiliation, and embarrassment.
23. As a result of the negligence of the Defendant, Boscov's
Vision center, Plaintiff, Eileen C. McMullen, has suffered a loss
of life's pleasures, and she will probably continue to suffer the
same in the future to her great detriment and loss.
24. As a result of the negligence of the Defendant, Boscov'e
Vision center, Plaintiff, Eileen c. McMullen, has undergone great
physical pain, discomfort, and mental anguish, and she will
continue to endure the same for an indefinite period of time in the
future, causing her great physical and emotional detriment and
loss.
25. Plaintiff, Eileen C. McMullen, believes, and therefore
avers that her injuries are permanent in nature. Plaintiff will
continue to develop infections in her ear despite routine care due
to the nature of the extensive surgery she required. Plaintiff
must, therefore, continue to live in chronic pain as a result of
the negligence of Defendant, Boscov's Vision Center.
26. As a result of the negligence of Defendant, Boscov's
Vision center, Plaintiff, Eileen C. McMullen, has been forced to
incur $10,190.17 in medical expenses. Further, Plaintiff, Eileen
C. McMullen, will be forced to incur future medical expenses
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EILEEN C, McMULLEN and
JOHN R, McMULLEN.
Plaintiffs
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
v,
CIVIL ACTlON- LAW
NO, 95-2320
BOSCOV'S VISION CENTER, INC..
t/d/b/a BOSCO V'S HEARING AID
CENTERS, and BOSCOV'S OPTICAL
AND HEARING AID CENTERS AND
BOSCOV'S OPTICAL CENTER.
Defendants
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT
TO: EILEEN C, McMULLEN and JOHN R, MCMULLEN. Plaintiffs. and their attorney,
ERIC J. WIENER. ESQUIRE
YOU ARE HEREBY NOTIFIED TO FILE A WHITTEN RESPONSE TO THE
ENCLOSED NEW MATI'ER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR
A JUDGMENT MAY BE ENTERED AGAINST YOU,
AND NOW. comes Defendants by their attorneys. MARTSON, DEARDORFF, WILLIAMS
& OTTO, and answers Plaintiffs' Complaint as set forth below:
1-10, Admitted,
11, Denied, After reasonable invcstigation. the answering Defendant is without
knowledge or infonnation sufficient to form a belief as to the averments contained in this paragraph,
Proofthereofis demanded,
12, It is denicd that a piece of car mold in Plaintifl's ear broke off and lodged deep in
Plaintiffs ear canal, To the contrary, Detendant observed Plaintiffs ear after the mold was removed
and no piece was seen to bc lodged in Plaintill's ear,
13, Denied, Aller reasonable invcstigation, the answering Defendant is without
knowledge or infonnation slltlicient to form a belicf as to thc avermcnts conlained inlhis paragraph,
Proofthereofis demanded,
14, Admitted in part, denicd in part, II is ndmilled thalPlaintill'wcnt to pick up a hearing
aid at Boscov's Vision Ccntcr It is denicd thalthc hcnring aid did not fit propcrly and kept falling
out ofhcr car, To the contrary. I'laimiffwollld nOlnllow thc hcaring aid to bc placed in her car,
15, Admitted in part. denied in part, It is admitted that PlaintitT refused to have another
mold of her ear taken, but it is denied that the refusal was because her ear had soreness from the
initial fitting, Proof thereof is demanded,
16, After reasonable investigation. the answering Defendant is without knowledge or
infunnation sufficient to form a belief as to the tMh or falsity of the averment contained in this
paragraph, The averment is therefore deemed denied and proofis demanded,
17, Admitted in part. denied in part, It is admitted that Plaintifl' was treated for an
infection of her right middle ear and mastoid. but it is denied that it was the result of ear mold
material left in her ear, Proof is demanded,
18, Admitted that PlaintitT had a radical mastoidectomy, It is denied that the purpose of
said surgery was to remove a foreign body,
COUNT I
EII.EEN C McMIILI.EN v BOSCOV'S VISION CENTER INC,
19, The avennents ofparngraphs I through 18 of this Answer are incorporated herein by
reference,
20, The answering Defendant denies the following avennents of this paragraph as
follows:
(a) It is denied that Defendant did not conduct its services in a responsible and
professional manner and caused PlaintitT to have a piece of ear molding left in her ear, To
the contrary. Defendant at all times hereto acted in a professional and responsible manner
and did not cause a piece of ear molding to be left in Plaintiffs ear,
(b) It is denied that Defendant failed to remove a piece of ear mold from Plaintiffs ear,
To the contrary. Defendant observed Plainlill's ear and no piece of the ear mold was seen
in Plaintiffs ear,
(c) It is denied that Defendant failed to notice a piece of the ear mold was missing after
the mold was taken from Plainlill's ear, To the contrary. the mold was examined and no
piece was observed to be missing,
(d) It is denied that Defendant failed to suspect a problem with Plaintilrs ear when her
hearing aid did not fit properly because Plaintitrwlluld not allow the hearing aid to be placed
in her ear,
(e) It is denied that Defendant breached its duty to care and to exercise necessary
precautions, To the contrary. Defendant acted in a caring and professional manner at all
times relevant hereto,
(I) It is denied that Defendant breached its duty to fonnulate, adopt and enforce adequate
rules to ensure quality care for Plaintiff. To the contrary. Defendant follows a specific set
of rules to ensure quality care for all of its clients,
(g) It is denied that Defendant failed to employ experienced employees, To the contrary,
employees of Defendant need to pass a state exam before they may become apprentices in
fitting hearing aids,
21. Denied, Defendant is without knowledge or information sufficient to fonn a belief
as to pain and suffering of Plain tilT. Proof thereof is demanded,
22, Denied, Defendant is without knowledge or infonnation sufficient to fonn a belief
as to whether Plaintiff is hindered from attending her daily duties, Proof thereof is demanded,
23, Denied, Defendant is without knowledge or infonnlltion sufficient to fonn a belief
as to Plaintill's loss of life's pleasures, Proof thereof is demanded,
24, Denied, Defimdant is without knowledge or information sufficient to fonn a belief
as to Plaintill's physical pain, discomfort, and mental anguish, Proofthereofis demanded,
25, Denied, Defendant is without knowledge or infonnation sufficient to fonn a belief
that Plaintill's alleged injuries are permanent in nature, It is also denied that her alleged injuries
were the result of the negligence of Defendant,
26, Denied, Defendant is without knowledge or information sufficient to fonn a belief
as to Plaintill's medical expenses,
WHEREFORE, Defcndant demands judgment in its lavor, together with intercst, court costs,
attorneys' fees and such other relief as the Court deems just and proper,
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EILEEN C. McMULLEN lInd
JOHN It McMULLEN,
l'lainlill"s
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION . LAW
NO, 29119 CIVIL 1993
BOSCOV'S DEPARTMENT STORES.
INC, l/d/b/a DOSCOV'S OPTICAL
AND HEARING AID CENTER. and/or
BOSCOV'S IlEARING AID CENTERS
Defendllnls
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JURY TRIAL DEMANDED
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EILEEN C. McMULLEN and
JOHN R McMULLEN.
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION - LAW ,/
NO. 95-2320
BOSCOV'S VISION CENTER, INC"
l/dlb/a BOSCOV'S HEARING AID
CENTERS. and BOSCOV'S OPTICAL
AND HEARING AID CENTERS AND
BOSCOV'S OPTICAL CENTER,
Defendllnls
JURY TRIAL DEMANDED
r- ORD~~" .J-I
AND NOW, this ")..) day of "I W'~ ' 1995, upon
considerntion of the Slipullllion for consolidlltion, it is hereby ordered liS follows:
1_ The above cases arc consolidated for trilll,
2, It is ordered that the Stipullltion be incorporllled herein and that uny defense as 10
joinder of the proper party is waived by Defendants,
,///
I
BY THE COUln',
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LAW O,.,ICEII
HANDLER AND WIENER
31Q MARKET 5TAEtT
PO, Box 1111
H"RAI..URO. PA I? I 08
17171 2315'2000
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ORIGINAL 1
EII,EEN MCMUI,I,EN AND IN THE COURT OF COMMON PLEAS
,JOliN R. MCMULLEN,
PLAINTIFFS CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVI L ACTION - I,AW
BOSCOV'S DEPARTMENT STORES,: NO. 2989 CIVIL 1993
INC., T/D/B/A BOSCOV'S
OPTICAL AND IIEARING AID .JURY TRIAL DEMANDED
CENTER AND/OR BOSCOV'S
HEARING AID CENTERS,
DEFENDANTS
EILEEN MCMULLEN AND IN THE COURT OF COMMON PLEAS
JOHN R. MCMULLEN,
PLAINTIFFS CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
BOSCOV'S VISION CENTER, NO. 95-2320 CIVIL TERM
INC. AND TIDIBIA BOSCOV'S
HEARING AID CENTERS AND JURY TRIAL DEMANDED
BOSCOV'S OPTICAL AND
HEARING AID CENTERS AND
BOSCOV'S OPTICAL CENTER,
DEFENDANTS
DEPOSITION OF: JANET E. GIBA
TAKEN BY: PLAINTIFFS
BEFORE: KIMBERLY L. INTRIERI
REPORTER-NOTARY PUBLIC
DATE: JULY 25, 1995, 9:03 A.M.
PLACE: MARTSON, DEARDORFF, WII,LIAMS & OTTO
TEN EAST HIGH STREET
CARLISLE, PENNSYLVANIA
CENTRAL. IlEPORTING SERVICE
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MR, WI LLIAMS: You mean today'?
MR. WIENER: No.
BY MH. WIENER:
Q Can you supply YOUl' ilttorney with the address of
that?
MR. WILLIAMS: Sure.
THE WITNESS: Sure.
BY MR. WIENER:
Q Does that society put out any type or publish any
standards for fitting hearing aids, taking impressions?
A You can't join the society without meeting
standards. It can be your state licensing exam. It can be
the national board certification exam. It can be an exam
administered by the society.
Q Maybe I'm not being clear, Do they publish
anything that tells you how to take an impression?
A Yeah. They have a manual for training.
Q Okay. That's what I meant. And do you have such
a manual?
A Yes.
Q Are you licensed?
A I'm registered in the state of Pennsylvania. I'm
licensed in the state of Delawal'e. I have an inilctive
license in the stilte oE Maryland.
Q Are you licensed in any other statcs?
CENTRAL r,r;POR'l'lNG SERVICE
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done?
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[nserting the what?
The otoblock.
Are you talking about the foam?
The foam, yes, sir.
Is that something Mrs. Giba told you that she had
Yes, sir.
Did you inspect the hearing aid?
When it came in?
Yes.
Yes, sir. We always check them out before it
12 comes -- before we deliver it.
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Q Was there anything unusual about this particular
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hearing aid that you noted?
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No, sir. It was a canal aid.
I understand that.
Tha t 's a 11
The length of it or anything unusual?
Just normal length that a canal aid would be.
20 There is a bend that you always have with your hearing aids
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21 to conform with the configuration of the ear canal.
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Was that bend present?
Yes.
Do you recall that or are you assuming it?
No. fl i r . I wea l- one.
CENTRAl. REPORTING SERVICE
(717) 564-6969
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Q Okay.
A 1~ey all have them.
Q I understand. I wear one too. See, But the
question is, do you recall that? On this particular hearing
aid
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of the
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Yes. I t has a bend.
-- do you recall inspecting the length of this?
Yes.
They do vary from ear to ear, is that correct?
Yes, sir, according to the loss.
According to the loss and according to the size
Size of the ear.
-- ear?
Right.
You say that you fit as many as 250 a year?
Yes, sir.
Of those how many result in someone not taking
the hearing aid?
A I would say 10 percent is returned.
Q Returned?
A Yes, sir.
Q
store?
Now, of those how many don't even go out the
.-
^ If it's 1 or :~ p.'rccnt, that would be about it.
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