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BENJAMIN J. PARISER,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
. NO. 95-3703 CIVIL TERM
FAY INEZ HOCK,
Defendant
~~ DEFENDANT S PROPOSED JURY INSTRUCTIONS
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~ his testimony on a significant point, you should take this into
consideration in deciding whether or not to believe the rest of his
testimony; and you may refuse to believe the rest of his testimony,
but you are not required to do so. Pa. SSJI rciv} 5.05.
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~~ 2 We instruct you that a pedestrian crossing a roadway at a
~ace ~ther than at an inter,ection cr crc".alk i, under a duty tc
continue to look as he proceeds across the highway, even if there
was no approaching traffic visible to him before he undertook to
cross. The failure to continue to look as he crossed the highway
would be negligence as a matter of law. Parker v. Jones, 423 Pa.
15, 223 A.2d 229.
Every pedestrian crossing a roadway at any point other
than within a crosswalk, shall yield the right of way to all
vehicles upon the roadway. 75 Fa.C.B.A. ~ 3543(a\.
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4. Between adjacent intersections in urban districts at
which traffic control signals are in operation, pedestrians shall
not cross at an place except in a marked crosswalk. 75 Pa.C.S.A.
Iii 3543(c).
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5. Fay Inez Hock contends that Benj amin J. Par iser was
comparatively negligent and that his negligence was a substantial
factor in bringing about his own harm. If you find that Benjamin
J. pariser was negligent and that his negligence was a substantial
factor in bringing about his own harm, then you are instructed to
apply the Comparative Negligence Act which provides:
The fact that a plaintiff may have been guilty of contributory
negligence shall not bar a recovery by the plaintiff where
such negligence was not greater than the causal negligence of
the defendant, but any damages sustained by the plaintiff
shall be diminished in proportion to the amount of negligence
attributed to the plaintiff.
Under this Act, if you find that Fay Inez Hock was causally
negligent and you find that Benjamin J. pariser was also causally
negligent, it is your duty to apportion the relative degree of
causal negligence between the defendant and the plaintiff. In
apportioning the causal negligence, you should use your common
sense and experience to arrive at a result that is fair and
reasonable under the facts of this accident as you have determined
them from the evidence.
If you find that the plaintiff's causal negligence was greater
than the causal negligence of the defendant, then the plaintiff is
barred from recovery and you need not consider what damages should
be awarded.
If you find that the plaintiff's causal negligence was equal
to or less than the causal negligence of Defendant Hock, then you
must set forth the percentages of. causal negligence attributable to
Mr. pariser and the percentage of causal negligence attributable to
Ms. Hock. The total of these percentages must be 100 percent. You
will then determine the amount of damages to which the plaintiff
would be entitled if she had not been contributorily negligent; in
other words, in finding the amount of damages, you should not
consider the degree, if any, of the plaintiff's fault. After you
return your verdict, the Court will reduce the amount of damages
you have found in proportion to the amount of causal negligence
which you have attributed to the plaintiff. Pa. SSJI Icivl 3.03A.
6. We instruct you that a pedestrian must not only look
before crossing, but must continue to look as he crosses the
street, otherwise he will be chargeable with negligence. Sweicert
v. Mazer, 410 Pa. 71, 188 A.2d 472 (1963); Hand v. Hazzard, 95
Dauph. 200 (1972).
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7. We instruct you that a motorist is not bound to anticipate
that a person in a place of safety on a sidewalk will suddenly dart
from the side of the street and run across the street immediately
in front of or into the side of the vehicle. Hand v. Hazzard, 95
Dauph. 200 (1972).
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8. The Defendant claims that the Plaintiff assumed the risk
of injury and the Defendant has the burden of proving that this was
so. You must therefore determine whether the Plaintiff was aware
of the specific factors which created the danger, appreciated its
nature and extent and voluntarily encountered it under
circumstances that the Plaintiff waived his right to complain about
a breach of duty owed to him by the Defendant. If you find that
the plaintiff voluntarily assumed the risk of a known danger, your
verdict must be for the Defendant. Pa. SSJI Icivl 3.04.
Respectfully submitted,
WIX, WENGER & WEIDNER
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~chard H. Wix, I.D. #07274
Attorneys for Defendant
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
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BENJAMIN J. PARISER,
Plaintiff
v,
FAY INEZ HOCK,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIPP'S POINTS POR CHARGE
TO: Richard H. Wix, Esquire
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109
(Counsel for Defendant)
Dated:-11 / /2 /Cf {"
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l02287/DMR
ichael E, Kosik,
I. D. No. 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
.
1, Based on the evidence and applicable law in this case, I
hereby direct you to return a verdict finding Defendant Faye Inez
Hock negligent, and thus, liable to the Plaintiff Benjamin pariser
for his injuries in an amount of monetary damages which you will
determine by applying the law of monetary damages, which I will
explain to you in detail, to the evidence which you have heard.
2.
The legal
term negligence,
otherwise known as
carelessness, is the absence of ordinary care which a reasonably
prudent person would exercise in the circumstances here presented.
Negligent conduct may consist either of an act or an omission to
act when there is a duty to do so. In other words, negligence is
the failure to do something which a reasonably careful person would
do, or the doing of something which a reasonably careful person
would not do, in light of all the surrounding circumstances
established by the evidence in this case.
It is for you to
determine how a reasonably careful person would act in those
circumstances,
Pa. SSJI (Civ) 3.01; Archer v. pennsvlvania R.R. Co., 166 Pa,
Super. 538, 72 A,2d 609 (1950); Fisher v. Strader, 399 Pa. 222, 160
A,2d 203 (1960); Vauchn v. Philade19hia TransD. Co., 417 Pa. 464,
209 A,2d 279 (1965).
.
3. Ordinary care is the care a reasonably careful person
would use under the circumstances presented in this case, It is
the duty of every person to use ordinary care not only for his own
safety and the protection of his property, but also to avoid injury
to others, What constitutes ordinary care varies according to the
particular circumstances and conditions existing then and there.
The amount of care required by the law must be in keeping with the
degree of danger involved,
Pa. SSJI (Civ) 3.02; Maternia v. Pennsvlvania R.R. Co., 358 Pa.
149, 56 A,2d 233 (1948); Potere v. PhiladelDhia, 380 Pa. 581, 112
A,2d 100 (1955).
.
4. Even where a motorist has a right-of-way through an
intersection, she must take such precautions in regard to the
control and speed of her vehicle and keep an alert lookout for cars
approaching the intersection as a reasonably prudent person
solicitous of her own safety would take.
Lind v. Thomas, 265 Pa, super, 121, 401 A.2d 830, 833 (1979),
5. A driver has a duty to maintain a proper lookout and to
observe what is occurring in front of his/her vehicle,
Lavely v, Wolota, 253 Pa, Super, 196, 384 A.2d 1298 (1978).
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6, It goes without saying that a motorist has a duty to look
where she is driving. The duty to exerciser ordinary care and to
keep a proper lookout involves not only the duty to look, but also
the duty to see what an ordinary, prudent person, exercising
ordinary care, would have seen under the circumstances then and
there existing
if a person who keeps a lookout fails to take
advantage of what should be seen, she is as negligent as the one
who fails to keep a lookout.
Joannides v. Norris, 146 Pa. Super, 488, 23 A,2d 53 (1941); Kmetz
v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966); Frisina v. Dailev,
395 Pa, 280, 150 A.2d 348 (1959); and Meyer, Law of Vehicle
Neclicence in Pennsvlvania, ~146, pps, 66-68 (1970).
7. As a general proposition, an operator of a motor vehicle
must see what she should have seen, and her failure to do so with
not excuse her from liability.
Frisina v. Dailev, 395 Pa. 280, 282, 158 A,2d 348 (1959).
8, Under the Assured Clear Distance Ahead Rule, a driver
must keep her vehicle under such control that she can always stop
within the distance that she can clearly see, At night, the driver
must be able to stop within the range of her headlights,
Fish v. Gosnell, 316 Pa. Super. 565, 463 A.2d 1042 (1983),
Enfield v. Stout, 400 Pa, 6, 161
301 Pa. 461, 152 A, 567 (1930);
565, 463 A.2d 1042, 1050 (1983),
A,2d 22 (1960); Filer v. Filer,
Fish v. Gosnell, 316 Pa, Super.
9, The Assured Clear Distance Rule provides that it is the
Defendant's duty to operate her vehicle in such a manner that she
can always stop within the distance she can clearly see, The
Defendant must always control her vehicle so as to be able to stop
and avoid striking a person within her vision.
10. If there is a pedestrian within that distance, the
assured clear distance rule requires that the driver exercise
enough control over her vehicle to be able to stop before colliding
with the pedestrian, That is what the law requires, If Defendant
Faye Inez Hock did not do so, she is negligent.
Enfield v. Stout, 400 Pa, 6, 161 A.2d 22 (1960); Farley y.
Ventresco, 307 Pa, 441, 445, 161 A.534 (1932),
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11. A driver must observe pedestrians in her line of vision
and take precautions not to injure them,
Lavely v. Wolota, 253 Pa. Super. 196, 384 A.2d 1298, 1301 (1978).
12, If a pedestrian, before being hit, has been on the
highway for a sufficient period of time so that a careful driver
could see him and avoid the accident, and if the pedestrian is then
hit, you may conclude that negligence has then been established on
the part of the driver. Whether or not that took place in this
case will, like all of the other facts, will be for you to
determine.
The operator of a vehicle is under a duty to be
attentive, to discover the presence of a pedestrian in the highway
ahead of her. She has an affirmative duty to observe pedestrians
in her range of vision and to take precautions not to injure them.
The Defendant's failure to see a pedestrian in her lane just before
striking him is evidence of negligence.
McNett v. Briccs, 217 Pa. Super. 322, 272 A.2d 202 (1970); Berrv v.
Lintner, 226 Pa, Super. 562, 323 A,2d 253 (1974).
13, Even if you find that Plaintiff was crossing between
intersections, this in and of itself is not contributory
negligence,
Grecorich v. PeDsi-Cola MetrODolitan Bottlinc Co., Inc., 230 Pa.
Super. 144, 327 A,2d 171 (1974); Lavelv v. Wolota, 253 Pa. Super.
196, 384 A,2d 1298 (1978).
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14. A pedestrian has a perfect right to rely on the exercise
of reasonable care by the drivers of automobiles on the highways.
Lavely v. Wolota, 253 Pa. Super, 196, 384 A.2d 1298, 1302 (1978),
15. The testimony in this case by Plaintiff indicates that he
is unable to recall the details of the accident. Under the law of
the Commonwealth of Pennsylvania, an individual who is injured by
a motor vehicle and who is unable to recall the accident is
entitled to a presumption of due care at the time of the accident,
Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986); Vihlidal v.
Braun, 371 Pa, Super. 565, 538 A.2d 881 (1988), alloc. cranted, 520
Pa. 619, 554 A.2d 510 (1989), aDpeal dismissed, 524 Pa. 251, 570
A.2d 1321 (1990).
Waddle, Administratrix v. Nelkin, 551 Pa. 641, 515 A.2d 909 (1986);
Vihlidal v. Braun, 371 Pa. Super, 565, 538 A.2d 881 (1988).
matter of law.
However, before you answer the questions of
16, The Pennsylvania Vehicle Code provides:
No person shall drive a vehicle at a
speed greater than is reasonable and prudent
under the conditions and having regard to the
actual and potential hazards then existing,
nor at a speed greater than will permit the
driver to bring his vehicle to a stop within
the assured clear distance ahead. Consistent
with the foregoing, every person shall drive
at a safe and appropriate speed when
approaching and crossing an intersection . . ,
and when special hazards exist with respect to
pedestrians or other traffic or by reason of
weather or highway conditions.
This Act dictates the duty of care required of someone in the
same situation as Defendant Faye Inez Hock. If you find that there
was a violation of this Act, you must find her negligent as a
Defendant Hock's liability, you must determine whether her
negligence was a substantial factor in bringing about Plaintiff
Benjamin pariser's injury,
Pa. SSJI (Civ.) ~3.30; 75 Pa,C.S.A. ~3361,
17. You may find inconsistencies in the evidence, Even
actual contradictions in the testimony of witnesses do not
necessarily mean that any witness has been wilfully false. Poor
memory is not uncommon. Sometimes a witness forgets; sometimes
he/she remembers incorrectly. It is also true that two persons
witnessing an incident may see or hear it differently.
If different parts of the testimony of any witness or
witnesses appear to be inconsistent, you the jury should try to
reconcile the conflicting statements, whether of the same or of
different witnesses, and you should do so if it can be done fairly
and satisfactorily.
If, however, you decide that there is a genuine and
irreconcilable conflict of testimony, it is your function and duty
to determine which, if any, of the contradictory statements you
will believe,
Pa. SSJI (Civ) 5.04.
Gross v. Smith, 388 Pa. 92, 130 A,2d 90 (1957).
18. A person need not anticipate that another will act
negligently.
19. If you find that Defendant Faye Inez Hock is liable to
Plaintiff Benjamin pariser, you must then find an amount of money
damages which you believe will fairly and adequately compensate the
Plaintiff for all the physical and financial injury he has
sustained as a result of the accident, The amount which you award
today must compensate the Plaintiff completely for damage sustained
in the past, as well as damage the Plaintiff will sustain in the
future.
Pa, SSJI (Civ) 6.00; Miller v. Weller, 288 F.2d 438 (3d Cir. 1961);
Frankel v. United States, 321 F, Supp. 1331 (E.D. Pa. 1970), aff'd,
466 F.2d 1226 (3d Cir. 1972).
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20. The damages recoverable by the Plaintiff in this case and
the items that go to make them up, each of which I will discuss
separately, are as follows:
(a) Past and future pain and suffering;
(b) Loss of enjoyment of life;
(c) Inconvenience in carrying out one's daily activities; and
(d) Embarrassment and humiliation.
In the event that you find in favor of the Plaintiff, you will
add these sums of damage together and return your verdict in a
single, lump sum.
Pa. SSJI (Civ) 6.01; Schwecel v. Goldberc, 209 Pa. Super. 280, 228
A.2d 405 (1967); Mack v. Johnson, 430 F. Supp. 1139 (E.D. Pa.
1977), aff'd, 582 F.2d 1275 (3d Cir. 1978); Reist v. Manwiller, 231
Pa. Super. 444, 332 A.2d 518 (1974).
21, The broad term "pain and suffering" includes a wide range
of not only physical, but also emotional reactions to injuries and
their consequences. In calculating damage for pain and suffering,
you may place a value on the following:
(a) Mental pain and distress;
(b) Fear;
(c) Shock;
(d) Emotional suffering;
(e) Anxiety;
(f) Frustration;
(g) Degradation;
(h) Loss of the feeling of well-being; and
(i) Limitation on activities,
Niederman v. Brodskv, 436 Pa, 401, 261 A.2d 84 (1970); Walsh v.
Brodv, 220 Pa. Super, 293, 286 A.2d 666 (1971); Corcoran v. McNeal,
400 Pa. 14, 161 A,2d 367 (1960),
22. Under Pennsylvania law, the negligent party is liable for
all damages which ordinarily and int he natural course of things
have resulted from the commission of the original negligent act.
Frank v. Volkswacenwerk, A.G. of West Germanv, 522 f.2d 321, 323
(3d Cir, 1975),
23, The word "compensation" is a keynote as it relates to
damages because "compensation" is the true purpose of the law of
damages and the general principle in which the law awards damages
is compensation for the loss suffered. An injured person should be
fully compensated for all injuries sustained.
Incollinao v. Ewina, 444 Pa. 299, 282 A,2d 206 (1971),
24. The damages which you award are to be compensatory to the
full extent of the injuries sustained, but the award should be
limited to the compensation and to compensation alone.
Incollinao v. Ewina, 444 Pa, 299, 282 A,2d 206 (1971),
25. The object of a negligence action, involving the personal
injuries which Plaintiff Benjamin pariser has alleged in this case,
is to compensate him for what he has lost as a result of the
Defendant's negligence. The loss of well-being is as much a loss
as an amputation. The inability to enjoy what one has theretofore
keenly appreciated is a pain which can be equated with the
infliction of a positive hurt.
Thus, Plaintiff may recover an
amount which will adequately compensate her for past, present, and
future losses of his ability to enjoy the pleasure of life as a
result of his injuries.
Corcoran v. McNeal, 400 Pa. 14, 161 A,2d 367 (1960); Lebesco v.
Southeastern pennsvlvania TransDortation Authority, 251 Pa, Super.
415, 380 A.2d 848 (1977); Pa. SSJI (Civ) 6.011,
26, plaintiff Benjamin pariser is entitled to be fairly and
adequately compensated for such physical pain, mental anguish,
discomfort, inconvenience, and distress as you find he has endured,
from the time of the accident until today.
Pa. SSJI (Civ) 6.01E.
27, You should include in any award for Plaintiff Benjamin
pariser reasonable compensation for pain and suffering which you
find that he has undergone and in the future may undergo as aresult
of the injuries sustained in this accident.
In evaluating the
amount to be awarded for pain and suffering, you should consider
that the infliction of pain means taking from a person that which
is his own to possess and retain -- namely health and well-being --
and that the law allows for compensation of this loss to the extent
that the loss may be calculated in monetary damages, In arriving
at any award for pain and suffering which Plaintiff Benjamin
pariser has undergone, you should consider not only the physical
pain and suffering which the Plaintiff has undergone, but also the
extent to which his injuries have resulted in a loss or lessening
of the ability to enjoy life and life's pleasures and the ability
to engage in various other activities which he enjoyed prior to the
accident.
DiChiacchio v. Rockcraft Stone Products Co., 424 Pa. 77, 85, 225
A.2d 913 (1967); Corcoran v. McNeal, 400 Pa. 14, 26, 161 A.2d 367
(1960); Carminati v. PhiladelDhia TransDortation Co., 405 Pa, 500,
176 A.2d 440 (1962).
28. Fear for one's future, emotional and physical well-being,
financial well-being, and that of one's family and loved ones is
another element of pain and suffering. This is true of the
emotional reaction in the past, as well as worry, apprehension or
concern for the future.
Walsh v. BrodY, 220 Pa. Super. 293, 286 A,2d 666 (1971),
.
29. Pain and sUffering also includes both mental pain and
suffering, Plaintiff Benjamin pariser is entitled to recover for
the mental pain and suffering and emotional upset which accompanies
the inability to attend to his normal occupation and
responsibilities.
Thom9son v. Iannuzzi, 403 Pa. 329, 169 A,2d 777 (1961).
30. Plaintiff Benjamin pariser is entitled to be fairly and
adequately compensated for such physical pain, mental anguish,
discomfort, inconvenience and distress as you believe he will
endure in the future as a result of his injuries,
Pa. SSJI (Civ) 6.01F,
.
31. Plaintiff Benjamin pariser is entitled to be fairly and
adequately compensated for past, present and future loss of his
ability to enjoy any of the pleasures of life as a result of his
injuries.
Pa. SSJI (Civ) 6,011,
32. If you find that Plaintiff Benjamin pariser's injuries
will continue beyond today, you must determine the life expectancy
of the Plaintiff. According to statistics compiled by the United
States Department of Health, Education, and Welfare, the average
life expectancy of all persons of the Plaintiff's age at the time
of the accident, sex, and race was
years. This figure is
offered to you only as a guide, and you are not bound to accept it
if you believe that the Plaintiff would have lived longer or less
than the average individual in her category.
In reaching this
decision, you are to consider the Plaintiff's health prior to the
accident, his manner of living, his personal habits, and other
factors that may have affected the duration of his life.
Pa. SSJI (Civ) 6.21; Rosche v. McCov, 397 Pa. 615, 156 A,2d 307
(1959); Messer v. Beiahley, 409 Pa. 551, 187 A.2d 168 (1963); ~,
Life Expectancy, Vital Statistics of the United States, (1988) Life
Tables.
.
33. Ladies and gentlemen of the jury, you have heard
testimony that Plaintiff Benjamin Pariser injured his left knee in
mid-February, 1994, when he slipped and fell on his property while
retrieving a garbage can.
It is Plaintiff Benjamin Pariser's
contention that he fell as a result of the weakened condition of
his right leg, directly resulting from the original accident on
December 7, 1993.
The law of Pennsylvania provides that if you find that the
second incident was caused by the weakened condition of the right
leg due to the original accident and injuries, the second injury
may properly be referred back to the original injury. Thus, if you
find that the subsequent injury was directly caused by the effects
of the original accident and injury, Plaintiff Benjamin pariser may
recover for this subsequent injury to whatever extent you feel the
subsequent accident has caused him additional pain and suffering,
loss of enjoyment of life, inconvenience in carrying out his daily
activities, and embarrassment and humiliation.
Nikisher v. Benninaer, 377
Restatement of Torts 2d ~460;
Pa, 419, 130 A.2d 445 (1957).
Pa. 564, 105 A.2d 281 (1942);
Floria v. Sears, Roebuck & Co., 388
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BENJAMIN J. PARISER,
Plaintiff
#29
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL ACTION - LAW
V.
FAY INEZ HOCK,
Defendant
NO. 95-3703 CIVIL TERM
PRETRIAL CONFERENCE
At a pretrial conference held October 23, 1996, before
Edgar B. Bayley. Judge, present for the plaintiff was Michael E.
Kosik, Esquire, and for the defendant, Girard E, Rickards.
Esquire.
On December 7, 1993, plaintiff. while a pedestrian.
was struck by defendant's vehicle, Plaintiff had parked his car
on the west side of South West Street in Carlisle, gotten out.
and was intending to cross over the street to a YMCA. Liability
is denied, and defendant maintains that plaintiff is
contributorilY negligent. Plaintiff incurred a fracture of the
right fibula below the knee. He also incurred some head
injuries that were noneventful. Plaintiff seeks general
damages. not lost wages or earning capacity.
On February 15, 1994, plaintiff fell in his driveway,
He injured his left knee which required arthroscoPic surgery,
Plaintiff maintains that Defendant Hock is responsible for his
general damages arising out of this injury because the fall was
caused by his weakened condition resulting from the injuries
sustained in the accident of December 7, 1993. Defendant denies
liability, and in the alternative maintains that an issue of
whether defendant was contributorily negligent with respect to
this fall must be presented to the Jury. Counsel are directed
to file a memorandum with the trial judge addreSSing the legal
issues that are applicable to this second fall.
Estimated time of trial,
Michael E, Kosik, Esquire
For Plaint! ff
Girard E. Rickards, Esquire
For Defendant
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Plaintiff
8
I IN THE COURT OP COMMON PLEAS OP
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
I
I
I NO. 95-3703 CIVIL TERM
v.
PAY INEZ HOCK,
Defendant
IN RE I PRETRIAL CONFERENCE
At a pretrial conference held Thursday, January 2,
1997, before the Honorable George E. Hoffer, present for the
Plaintiff was Michael E. Kosik, Esquire, and present for the
Defendant was Girard E. Rickards. Esquire.
This case was pre tried on October 23, 1996, and
started to trial in the November term. See our Order of
November 14. 1996, directing that the case be put at the top of
the list. It's a two-day auto negligence case, and everything
is ready to go.
By the Court,
Michael E. Kosik, Esquire
Counsel for Plaintiff
Girard E. Rickards, Esquire
Counsel for Defendant
Court Administrator
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29.
BENJAMIN J. PARISER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V
: NO. 95-3703 CIVIL TERM
FAY INEZ HOCK
ORDER OF COURT
AND NOW this 14th day of November, 1996, a mistrial having been
declared in this case, it is HEREBY ORDERED AND DIRECTED that the Prothonotary
relist this case for the January 1997 trial term. This case shall be given preference in
front of Judge Hoffer or Judge Bayley and shall commence January 27, 1997. All
counsel in this case should consider themselves attached in Cumberland County for the
duration of this trial. Counsel will be required to attend the Call of the List for the
January trial term and the Pretrial Conference as scheduled by the Court Administrator.
By the Court,
Michael E. Kosik, Esquire
For the Plaintiff
Girard E. Rickards, Esquire
For the Defendant
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.
BENJAMIN J. PARISER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
v.
FAY INEZ HOCK,
Defendant
PLAINTIPP'S MEMORANDUM OP LAW
I, ISSUE
May a lay factual witness render opJ.n~ons
concerning fault and whether the Defendant
could have done anything to avoid the
accident?
Suggested Answer: No.
In almost all of the depositions of the factual witnesses, the
witnesses either volunteered their opinions that the incident
involving Plaintiff Benjamin pariser was an accident, and that the
Defendant was not at fault or that she could not avoid the
accident.
In some cases, these opinions were solicited by
questions from defense counsel.
Plaintiff Benjamin pariser
maintains that opinions of lay witnesses with respect to fault and
whether the accident was avoidable or Defendant Hock could have
taken any action to avoid striking Plaintiff are all improper lay
opinions, which call for speculation and conjecture, which should
not be permitted by the Court.
Pennsylvania has historically been reluctant to allow any
witness to express an opinion on the ultimate issue involved in the
l02297/DMR
case based upon the premise that it improperly invades the province
of the fact finder, Although in recent years, this rule has been
somewhat
relaxed,
continue to closely scrutinize
Courts
circumstances where a lay witness is allowed to express an opinion
on the ultimate issue, especially where the opinion is a pe~sonal
opinion, which was based upon speculation, assumption or conjecture
of the witness, This rule is well illustrated by the seminal case
of Graham v. Pennsylvania Co., 139 Pa. 149, 21 A. 151 (1891). In
Graham, the plaintiff broke her leg while getting off a train. She
maintained that her injury was caused by a defect in the design of
the platform. At trial, numerous witnesses testified about the
condition of the platform, concluding that, in their opinions, the
platform was dangerous. The Pennsylvania Supreme Court held that
this opinion testimony was inadmissible and established a rule
that:
[Wlhenever circumstances can be fully and
adequately described to the jury, and are such that
they are bearing on the issue can be estimated by
all men, without special knowledge or training,
opinions of witnesses, experts or others, are not
admissible.
21 A. at 152.
This decision illustrates what is commonly accepted as a rule
that witnesses must testify to the facts, not opinions, It is for
2
-
the jury to draw its own inferences or opinions as to the facts in
issue based upon the witnesses' testimony,
In Tavlor v. Fardink, 231 Pa. Super. 259, 331 A.2d 797 (1974),
the Superior Court held that it was improper for a witness to give
an opinion that the defendant, after applying her brakes and
swerving, could have done nothing else to avoid an accident. The
court clearly indicated that this opinion or inference was for the
jury, not for the witness.
Plaintiff maintains that any of the witnesses' conjecture as
to why the Defendant did not see Plaintiff Benjamin pariser or
whether she could have avoided impacting Dr. pariser or whether the
accident was avoidable are improper opinions for a lay witness and
should be precluded by the Court,
Of particular concern is the eyewitness testimony of Dorenia
Welsh, Ms, Welsh was a pedestrian walking up the west side of
South West Street, heading north towards the area where the
accident occurred. Upon being questioned by the Police Officer
shortly after the accident, she indicated that she observed Dr,
pariser stop his car abruptly approximately two feet from the curb,
get out quickly and walk rapidly across the street. However, at
that time, she further indicated that she did not see the impact,
At the time of her deposition, almost three years later, Ms,
Welsh provided an extremely detailed account of how Dr, pariser
3
walked across the street between two parked cars and then turned
around and walked into thE' side of the Hock vehicle, She
speculated that Dr. pariser had forgotten something and after
walking between the cars, turned around to return to his car, and
that was the cause for the accident. When confronted with the
Police Report, Ms. Welsh indicated that all of her previous
testimony was an assumption, and that she did not actually observe
the accident nor did she observe Dr. pariser turn around, and that
her view of the impact was blocked by Defendant Hock's vehicle,
which was between her and Dr. pariser. All she saw was a dark form
where Dr. pariser was located, It should go without saying that
this eyewitness, as with the other witnesses, should be restricted
to factual testimony based upon their recollection.
All of the eyewitnesses are expected to testify that they were
able to see Dr. pariser, and therefore, any statements by them as
to why the Defendant Fay Inez Hock could not see Plaintiff Benjamin
pariser would be merely conjecture or speculation on their parts.
Furthermore, since none of the witnesses were in the car with
Defendant Fay Inez Hock or were aware of what she was doing at the
time of the accident, any statements as to what she could or should
4
have done to avoid the accident again would be conjecture and
speculation, which would be improper:
Where the question at issue or the ultimate
facts for the jury is as to the careful
conduct of a person, or the exercise of due
care, or where the issue relates to the
prudent conduct of a person or whether the
conduct of a person was cautious, reasonable,
safe, careless, reckless, or dangerous, it is
not competent for a witness to express
directly an opinion or conclusion thereon.
Kleiner & Rome, Trial Handbook for Pennsvlvania Lawyers,
Opinions on the Ultimate Issue in Nealiaence Cases, 300
(Citations omitted) .
~276,
(1980)
ictl el E. Kosik, Esquire
I. D, No. 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated: I I /, ") /17/ <I
V I' - I ":f-
.
v,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BENJAMIN J. PARISER,
Plaintiff
FAY INEZ HOCK,
Defendant
NO, 95-3703 CIVIL TERM,
JURY TRIAL DEMANDED
PLAINTIFP'S MEMORANDUM OP LAW
I, ISSUE
May a lay factual witness render opinions
concerning fault and whether the Defendant
could have done anything to avoid the
accident?
Suggested Answer: No,
In almost all of the depositions of the factual witnesses. the
witnesses either volunteered their opinions that the incident
involving Plaintiff Benjamin Pariser,was an accident, and that the
Defendant was not at fault or that she could not avoid the
accident.
In some cases, these opinions were solicited by
questions from defense counsel.
Plaintiff Benjamin pariser
maintains that opinions of lay witnesses with respect to fault and
whether the accident was avoidable or Defendant Hock could have
taken any action to avoid striking Plaintiff are all improper lay
opinions, which call for speculation and conjecture, which should
not be permitted by the Court.
Pennsylvania has historically been reluctant to allow any
witness to express an opinion on the ultimate issue involved in the
l02297/DMR
--..-.. w_o _..__"1'. -.....,.
case based upon the premise that it improperly invades the proYince
of the fact finder. Although in recent years, this rule has been
somewhat relaxed,
Courts
continue
to closely scrutinize
circumstances where a lay witness is allowed to express an opinion
on the ultimate issue, especially where the opinion is a personal
opinion, which was based upon speculation, assumption or conjecture
of the witness. This rule is well illustrated by the seminal case
of Graham v. pennsvlvania Co., 139 Pa, 149, 21 A, 151 (1891), In
Graham, the plaintiff broke her leg while getting off a train. She
maintained that her injury was caused by a defect in the design of
the platform. At trial, numerous witnesses testified about the
condition of the platform, concluding that, in their opinions, the
platform was dangerous, The Pennsylvania Supreme Court held that
this opinion testimony was inadmissible and established a rule
that:
[W]henever circumstances can be fully and
adequately described to the jury, and are such that
they are bearing on the issue can be estimated by
all men, without special knowledge or training,
opinions of witnesses, experts or others, are not
admissible.
21 A. at 152.
This decision illustrates what is commonly accepted as a rule
that witnesses must testify to the facts, not opinions. It is for
2
the jury to draw its own inferences or opinions as to the facts in
issue based upon the witnesses' testimony,
In Taylor v. Fardink, 231 Pa. Super, 259, 331 A.2d 797 (1974),
the Superior Court held that it was improper for a witness to give
an opinion that the defendant, after applying her brakes and
swerving, could have done nothing else to avoid an accident. The
court clearly indicated that this opinion or inference was for the
jury, not for the witness,
Plaintiff maintains that any of the witnesses' conjecture as
to why the Defendant did not see Plaintiff Benjamin pariser or
whether she could have avoided impacting Dr. pariser or whether the
accident was avoidabie are improper opinions for a lay witness and
should be precluded by the Court,
Of particular concern is the eyewitness testimony of Dorenia
Welsh. Ms, Welsh was a pedestrian walking up the west side of
South West Street, heading north towards the area where the
accident occurred. Upon being questioned by the Police Officer
shortly after the accident, she indicated that she observed Dr.
pariser stop his car abruptly approximately two feet from the curb,
get out quickly and walk rapidly across the street, However, at
that time, she further indicated that she did not see the impact.
At the time of her deposition, almost three years later, Ms.
Welsh provided an extremely detailed account of how Dr. pariser
3
walked across the street between two parked cars and then turned
around and walked into the side of the Hock vehicle. She
speculated that Dr, pariser had forgotten something and after
walking between the cars, turned around to return to his car, and
that was the cause for the accident. When confronted with the
Police Report, Ms. Welsh indicated that all of her previous
testimony was an assumption, and that she did not actually observe
the accident nor did she observe Dr, pariser turn around, and that
her view of the impact was blocked by Defendant Hock's vehicle,
which was between her and Dr, Pariser, All she saw was a dark form
where Dr. pariser was located. It should go without saying that
this eyewitness, as with the other witnesses, should be restricted
to factual testimony based upon their recollection.
All of the eyewitnesses are expected to testify that they were
able to see Dr. Pariser, and therefore, any statements by them as
to why the Defendant Fay Inez Hock could not see Plaintiff Benjamin
pariser would be merely conjecture or speculation on their parts,
Furthermore, since none of the witnesses were in the car with
Defendant Fay Inez Hock or were aware of what she was doing at the
time of the accident, any statements as to what she could or should
4
Klei~er & Rome, ~r~~; :eandbook
Ooin1.ons on the 1 a Issue
(Citations omitted) ,
for Pennsvlvania Lawvers, ~276,
in Nealiaence Cases, 300 (1980)
have done to avoid the accident again would be conjecture and
speculation, which would be improper:
Where the question at issue or the ultimate
facts for the jury is as to the careful
conduct of a person, ~r the exercise of due
care, or where the ~ssue relates to the
prudent conduct of a person or whether the
conduct of a person was cautious, reasonable,
safe, careless, reckless, or dangerous, it is
not competent for a witness to express
directly an opinion or conclusion thereon.
icti el E. Kosi, Esquire
I. D. No. 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated:
{I//l/ql"
I' I
.
BENJAMIN J, PARISER,
Plaint if f
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
FAY INEZ HOCK,
Defendant
NO. 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIPP'S JURY INTERROGATORIES
TO: Richard H, Wix, Esquire
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109
(Counsel for Defendant)
ichael E. Kos' , Esquire
1. D. No. 3651
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated: 111/2 hi/)
I I
l02283/DMR
,
1. Do you find that the Defendant Fay Inez Hock was
negligent?
Yes No
If your answer is "No", please notify the clerk or bailiff and
you will have reached a verdict and you will be returned to the
court room.
If yo\.: answer "Yes", proceed to question 2.
2, Was the negligence of the Defendant a substantial factor
in causing the injuries to plaintiff Benjamin pariser?
Yes __ No
If your answer is "No", please notify the clerk or bailiff and
you will have reached a verdict and you will be returned to the
court room.
If you answer "Yes", proceed to question 3.
3, Was Plaintiff Benjamin pariser comparatively negligent?
Yes No
If your answer is "No", please to on to Question 6.
If you answer "Yes", proceed to question 4,
4, Was Plaintiff Benjamin pariser' s negligence a substantial
factor in causing his injuries?
Yes
No
If your answer is "No", please go on to Question 6,
If you answer "Yes", proceed to question 5.
5, Taking the combined negligence that was a substantial
factor in bringing about the Plaintiff's harm as lOO%-, what
percentage of causal negligence was attributable to the Defendant,
and what percentage was attributable to the Plaintiff Benjamin
pariser?
(a) The percentage of causal negligence
attributable to Defendant Fay Inez Hock
(answer only if you have answered both
questions 1 and 2 "Yes") . . . %-
(b) The percentage of causal negligence
attributable to Plaintiff Benjamin pariser
(answer only if you have answered both
questions 3 and 4 "Yes") . . . %-
TOTAL:
lOO%-
If you have found that the Plaintiff's causal negligence to be
greater than 50%-, then Plaintiff Benjamin pariser cannot recover,
and you should not answer questions 6 and 7 and should return to
the courtroom,
I
: I
I
,
6. State the amount of damages, if any, sustained by
plaintiff Benjamin pariser.
You should award one lump sum and
enter your award in the space provided.
Plaintiff Ben;amin pariser
(a) Pain and Suffering - Past and Future
(b) Loss of enjoyment of life
(c) Inconvenience in carrying out one's daily
activities
(d) Embarrassment and humiliation
TOTAL $
Foreman
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
.
BENJAMIN J. PARISER,
Plaintiff
FAY INEZ HOCK,
Defendant
PLAINTIFP'S MEMORANDUM OP LAW
I. ISSUE
Whether Plaintiff Benjamin pariser is entitled
to recover for the subsequent injury to his
left knee, which was caused by the weakened
condition of his right leg injured directly as
a result of the original accident?
Suggested Answer: Yes.
Plaintiff Benjamin pariser maintains that he is entitled to
recover for the subsequent slip and fall resulting in an injury to
his left knee, which occurred in February, 1994, because this
subsequent injury occurred directly as a result of the weakened
condition of his right leg, which was attributable to the injury
sustained in the original accident,
plaintiff Benjamin Pariser
sustained a fractured fibular head in the original impact on
December 7, 1993, During his initial hospitalization at Hershey
Medical Center, and subsequent evaluations by both Dr. David Murphy
and Dr. Mark Holencik, the weakened condition of his right lower
extremity was noted. In fact, Dr. Holencik had diagnosed an injury
l0230~/DMR
to the common peroneal nerve of the right lower extremity on,the
appointment on January 24, 1994.
On or about February 15, 1994, Plaintiff Benjamin Pariser was
returning to his home after having picked up his morning paper in
his driveway when he noticed that a trash can was away from his
home. He walked through snow on his lawn in an effort to retrieve
the can and place it in its proper position, plaintiff Benjamin
pariser described his right foot beginning to slip. He was unable
to use his toes to grip, as he normally would, because of the
weakened condition of the right leg, Plaintiff has also taken the
deposition of Dr. Mark Holencik, Plaintiff's treating orthopedic
physician, who has rendered the opinion that the subsequent injury
to Dr. pariser's left knee was a direct and proximate result of the
weakened condition of his right leg.
The Pennsylvania Supreme Court has adopted the Restatement
(Second) of Torts ~460, Subseauent Accidents Due to Imoaired
physical Condition Caused bv Nealiaence in the case of Nikisher v.
Benninaer, 377 Pa. 564, 105 A.2d 281 (1954), The facts in Nikisher
are substantially similar to those involved in the present case,
In that case, plaintiff suffered injury from an automobile
accident, During recovery, he reinjured his leg while going to the
2
-
.'-~:_-1.
_.
--",......... '\..
to the common peroneal nerve of the right lower extremity on the
appointment on January 24, 1994.
On or about February 15, 1994, Plaintiff Benjamin pariser was
returning to his home after having picked up his morning paper in
his driveway when he noticed that a trash can was away from his
home. He walked through snow on his lawn in an effort to retrieve
the can and place it in its proper position. Plaintiff Benjamin
pariser described his right foot beginning to slip. He was unable
to use his toes to grip, as he normally would, because of the
weakened condition of the right leg. Plaintiff has also taken the
deposition of Dr. Mark Holencik, Plaintiff's treating orthopedic
physician, who has rendeled the opinion that the subsequent injury
to Dr. Pa~iser's left knee was a direct and proximate result of the
weakened condition of his right leg,
The Pennsylvania Supreme Court has adopted the Restatement
(Second) of Torts ~460, Subsecuent Accidents Due to ImDaired
Phvsical Condition Caused bv Nealiaence in the case of Nikisher v.
Benninaer, 377 Pa, 564, 105 A.2d 281 (1954). The facts in Nikisher
are substantially similar to those involved in the present case.
In that case, plaintiff suffered injury from an automobile
accident. During recovery, he reinjured his leg while going to the
2
bathroom, The court, in citing both the Restatement (Second) of
Torts ~460 and two prior cases, stated:
[ilf in truth and in fact the second accident
was caused by the weakened condition of the
leg due to the original accident, the second
injury may properly be referred back to the
original injury.
377 Pa, at 570,
The Restatement (Second) of Torts ~460 provides:
If the negligent actor is liable for an ~nJury
which impairs the physical cond~tion of
another's body, the actor is also liable for
harm sustained in a subsequent accident, which
would not have occurred had the other's
condition not been impaired, and which is a
normal consequence of such impairment,
Restatement (Second) of Torts ~460,
In a subsequent decision, the Pennsylvania Supreme Court again
reaffirmed the principle that a plaintiff may recover where a
subsequent injury is directly caused by the effects of the original
injury in Floria v. Sears. Roebuck & Co., 388 Pa. 419, 130 A,2d 445
(1957). In Floria, the plaintiff initially injured his wrist after
slipping and falling into a hole in the defendant's warehouse.
Approximately 15 months later, the plaintiff was painting his
neighbor's home, and his wrist gave way, resulting in a fall onto
a concrete floor, and this resulted in a broken heel and
contusions. The Supreme Court formulated a rule, since in that
3
case, there was no obvious causal relationship between the two
injuries. The rule provides:
If [al plaintiff wishe[s] to recover for
injuries resulting from the second accident,
it was incumbent on him - under the facts of
this case - to prove by competent and definite
medical testimony that there was a causal
relationship between the two accidents.
Courts have found it difficult to lay down a
precise standard which can fit every case on
the question of whether medical testimony is
necessary to prove causal connection between
the latest injury and a prior injury, The
necessity of medical testimony will depend in
each case upon the particular facts of that
case, including, inter alia, the kind of
injury which occurred in each accident, the
time interval between the accidents, and the
exact manner in which the accident occurred.
388 Pa, at 423. ~ al.ll.Q, Parr v. Osterlan Truckina Co., 96
Dauphin 102 (1973).
Plaintiff Benjamin pariser maintains that given his testimony
and that of his expert witness, Dr, Holencik, there is no question
that a jury issue exists as to whether the subsequent injury was a
direct result of the original accident.
At Pre-Trial, counsel for the Defendant raised the issue of
whether they would be able to prove comparative negligence on the
part of Plaintiff Benjamin pariser with respect to the second
accident. Plaintiff maintains it would be improper for the Court
to create a second allocation of comparative negligence between
Plaintiff Benjamin pariser and Defendant Fay Inez Hock for the
subsequent injury. Plaintiff Benjamin pariser maintains that the
4
proper inquiry for the jury would be whether they find that the
subsequent injury was directly caused by a weakened condition from
the original injury,
Plaintiff Benjamin pariser would point the Court to the
discussion of this issue in Nikisher v. Benninaer, where, in that
case, the defendant argued in the lower court that the issue should
consider the contributory negligence of the plaintiff in causing
the second accident,
The Pennsylvania supreme Court stated in
finding that it was error for the court to instruct the court on
the issue of comparative negligence that:
The correct question was not negligence, but
whether the injured leg gave way from weakness
and not from an independent accident, In
other words, if the injured leg had been sound
and well, would it have given way when
plaintiff's hand slipped? There was no
evidence of negligence before the jury in
relation to slipping, The charge as given
appears to be accurate, but the answer to
defendant's point for charge confused the
issue where the court said the defendant would
not be liable: n[i]f [the jury] feel[s] that
the slipping of the hand was a separate act of
negligence on the part of the Plaintiff, , . ,'I
Nikisher, 377 Pa. at 570,
Plaintiff maintains that it is appropriate for the Court to
instruct the jury that they must determine whether the second
accident was as a direct result of the weakened condition of the
right leg, resulting from the original accident. Plaintiff does
not believe that this involves a second issue of comparative
5
conduct, If the jury finds that Plaintiff Benjamin pariser was
doing something which he should not have been doing at the time or
the fall did not result from the weakened of the right leg, then he
would not be able to recover for these injuries.
ichael E, Kosik, Esqu re
I, D, No. 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated:
/1 J J'). J tit.
I' I
.
.
BENJAMIN J. PARISER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
v.
FAY INEZ HOCK,
Defendant
PLAINTIPP' S MEMORANDUM OP LAW
I, ISSUE
May a lay factual witness render opinions
concerning fault and whether the Defendant
could have done anything to avoid the
accident?
Suggested Answer: No,
In almost all of the depositions of the factual witnesses, the
witnesses either volunteered their opinions that the incident
involving plaintiff Benjamin pariser,was an accident, and that the
Defendant was not at fault or that she could not avoid the
accident.
In some cases, these opinions were solicited by
questions from defense counsel.
plaintiff Benjamin pariser
maintains that opinions of lay witnesses with respect to fault and
whether the accident was avoidable or Defendant Hock could have
taken any action to avoid striking plaintiff are all improper lay
opinions, which call for speculation and conjecture, which should
not be permitted by the Court,
Pennsylvania has historically been reluctant to allow any
witness to express an opinion on the ultimate issue involved in the
l02297/DMR
.,.:-
.
case based upon the premise that it improperly invades the province
of the fact finder. Although in recent years, this rule has been
somewhat
relaxed,
continue to closely scrutinize
Courts
circumstances where a lay witness is allowed to express an opinion
on the ultimate issue, especially where the opinion is a personal
opinion, which was based upon speculation, assumption or conjecture
of the witness, This rule is well illustrated by the seminal case
of Graham v. pennsvlvania Co., 139 Pa. 149, 21 A, 151 (1891), In
Graham, the plaintiff broke her leg while getting off a train. She
maintained that her injury was caused by a defect in the design of
the platform. At trial, numerous witnesses testified about the
condition of the platform, concluding that, in their opinions, the
platform was dangerous. The Pennsylvania Supreme Court held that
this opinion testimony was inadmissible and established a rule
that:
(Wlhenever circumstances can be fully and
adequately described to the jury, and are such that
they are bearing on the issue can be estimated by
all men, without special knowledge or training,
opinions of witnesses, experts or others, are not
admissible.
21 A. at 152.
This decision illustrates what is commonly accepted as a rule
that witnesses must testify to the facts, not opinions. It is for
2
the jury to draw its own inferences or opinions as to the facts in
issue based upon the witnesses' testimony.
In Taylor v. Fardink, 231 Pa, Super, 259, 331 A,2d 797 (1974),
the Superior Court held that it was improper for a witness to give
an opinion that the defendant, after applying her brakes and
swerving, could have done nothing else to avoid an accident. The
court clearly indicated that this opinion or inference was for the
jury, not for the witness.
Plaintiff maintains that any of the witnesses' conjecture as
to why the Defendant did not see Plaintiff Benjamin pariser or
whether she could have avoided impacting Dr, pariser or whether the
accident was avoidable are improper opinions for a lay witness and
should be precluded by the Court,
Of particular concern is the eyewitness testimony of Dorenia
Welsh. Ms. Welsh was a pedestrian walking up the west side of
South West Street, heading north towards the area where the
accident occurred. Upon being questioned by the Police Officer
shortly after the accident, she indicated that she observed Dr,
pariser stop his car abruptly approximately two feet from the curb,
get out quickly and walk rapidly across the street. However, at
that time, she further indicated that she did not see the impact.
At the time of her deposition, almost three years later, Ms,
Welsh provided an extremely detailed account of how Dr. pariser
3
walked across the street between two parked cars and then turned
around and walked into the side of the Hock vehicle. She
speculated that Dr. pariser had forgotten something and after
walking between the cars, turned around to return to his car, and
that was the cause for the accident, When confronted with the
Police Report, Ms. Welsh indicated that all of her previous
testimony was an assumption, and that she did not actually observe
the accident nor did she observe Dr. pariser turn around, and that
her view of the impact was blocked by Defendant Hock's vehicle,
which was between her and Dr, pariser. All she saw was a dark form
where Dr, pariser was located, It should go without saying that
this eyewitness, as with the other witnesses, should be restricted
to factual testimony based upon their recollection,
All of the eyewitnesses are expected to testify that they were
able to see Dr. Pariser, and therefore, any statements by them as
to why the Defendant Fay Inez Hock could not see Plaintiff Benjamin
pariser would be merely conjecture or speculation on their parts.
Furthermore, since none of the witnesses were in the car with
Defendant Fay Inez Hock or were aware of what she was doing at the
time of the accident, any statements as to what she could or should
4
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have done to avoid the accident again would be conj ecture and
speculation, which would be improper:
Where the question at issue or the ultimate
facts for the jury is as to the careful
conduct of a person, or the exercise of due
care, or where the issue relates to the
prudent conduct of a person or whether the
conduct of a person was cautious, reasonable,
safe, careless, reckless, or dangerous, it is
not competent for a witness to express
directly an opinion or conclusion thereon.
Kleiner I< Rome, Trial Handbook for pennsvlvania Lawvers, ~276,
ODinions on the Ultimate Issue in Nealiaence Cases, 300 (1980)
(Citations omitted) ,
icn el E. Kosi . Esquire
I. D, No, 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for plaintiff
Dated:
(1/1)/ql!J
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
BENJAMIN J. PARISER,
Plaintif f
FAY INEZ HOCK,
Defendant
PLAINTIPP'S JURY INTERROGATORIES
TO: Richard H. Wix, Esquire
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109
(Counsel for Defendant)
ichael E, Kos' , Esqu~re
I. D. No. 3651
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated: 1I/t'1 /qlo
I I
l02283/DMR
1, Do you find that the Defendant Fay Inez Hock walil
negligent?
Yes No
If your answer is "No", please notify the clerk or bailiff and
you will have reached a verdict and you will be returned to the
court room.
If you answer "Yes", proceed to question 2.
2, Was the negligence of the Defendant a substantial factor
in causing the injuries to Plaintiff Benjamin pariser?
Yes No
If your answer is "No", please notify the clerk or bailiff and
you will have reached a verdict and you will be returned to the
court room.
If you answer "Yes", proceed to question 3.
3. Was Plaintiff Benjamin pariser comparatively negligent?
Yes No
If your answer is "No", please to on to Question 6.
If you answer "Yes", proceed to question 4.
(a)
The percentage of causal negligence
attributable to Defendant Fay Inez Hock
(answer only if you have answered both
questions 1 and 2 "Yes"). " .
\
4. Was Plaintiff Benjamin pariser' s negligence a substantial
factor in causing his injuries?
Yes
No
If your answer is "No", please go on to Question 6,
If you answer "Yes", proceed to question 5.
5, Taking the combined negligence that was a substantial
factor in bringing about the Plaintiff's harm as 100\, what
percentage of causal negligence was attributable to the Defendant,
and what percentage was attributable to the Plaintiff Benjamin
pariser?
(b)
The percentage of causal negligence
attributable to Plaintiff Benjamin pariser
(answer only if you have answered both
questions 3 and 4 "Yes") ..,....,.
\
TOTAL: 100\
If you have found that the Plaintiff's causal negligence to be
greater than 50\, then Plaintiff Benjamin pariser cannot recover,
and you should not answer questions 6 and 7 and should return to
the courtroom.
6, State the amount of damages, if any, sustained by
Plaintiff Benjamin pariser.
You should award one lump sum and
enter your award in the space provided.
Plaintiff Beniamin pariser
(a) Pain and Suffering - Past and Future
(b) Loss of enjoyment of life
(c) Inconvenience in carrying out one's daily
activities
(d) Embarrassment and humiliation
TOTAL $
Foreman
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BENJAMIN J, PARISER,
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
FAY INEZ HOCK,
Defendant
NO, 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIPP'S PRE-TRIAL MEMORANDUM
I, Statement of Facts
This case arises out of a pedestrian/automobile accident,
which occurred on December 7, 1993, at approximately 6:20 p,m" as
Plaintiff Benjamin J. pariser was crossing South West Street in the
area of West Baltimore Avenue, heading towards the Carlisle YMCA,
Cumberland County, PA, At that time Defendant Fay Inez Hock was
traveling north on South West Street, having just started from a
red light at its intersection with Willow Street.
Plaintiff
Benjamin J. pariser had parked his car on the west side of the
street intending to cross over to the YMCA, whose parking lot was
full, to register his son for a winter league.
At the time of the accident, it was relatively dark with
street lights operating. Plaintiff Benjamin J, pariser crossed the
southbound lane and was approximately two feet from completing
crossing the northbound lane when he was struck in the right lower
leg by the Defendant. Defendant Fay Inez Hock indicated that she
never saw Dr, pariser until just prior to striking him.
lOl060/DMR
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II, Damaaes
Plaintiff Benjamin J. pariser suffered a classic bumper injury
as a result of being impacted by the Hock vehicle. He was
diagnosed as having suffered a fracture to the right fibula just
below the knee. As a result of being struck and either striking
the car or the pavement, Dr. Pariser was knocked unconscious,
suffering two abrasions to his forehead, a concussion, and
fractures to the lateral wall of the right ethmoid sinus and the
orbital wall on the right side of his face, Dr. pariser also
suffered injuries to his ribs, abdomen, and trauma to his mouth,
He was initially taken to Carlisle Hospital, but upon being
diagnosed with the head injury and fractures to the skull, he was
immediately transferred to Hershey Medical Center for further
evaluation. No additional injuries were diagnosed at Hershey
Medical Center, however, at that time, he was trying to ambulate
and noted weakness in his right lower extremity area, Dr. Pariser
was admitted for a neurological followup and multiple consults and
eventually was discharged within approximately one day after being
given training for walking with crutches,
Dr, pariser followed up with his dentist for some of the
dental injuries and pain in his jaw. He followed up with Dr, David
Murphy with respect to his physical injuries before being seen by
Dr. Mark Holencik on January 24, 1994. Dr. Holencik noted the
2
multiple soft tissue injuries, the fracture of the fibula, and also
diagnosed a contusion to the common peroneal nerve in the area of
the fracture site,
Dr. pariser was next followed up by Dr. Holencik on March 9,
1994, at which time Dr, pariser had complaints of left knee pain,
which he described as occurring following an incident on
approximately February 15, 1994. Dr. pariser indicated that he was
coming back up his driveway after having picked up his newspaper
when he noticed a garbage can away from the side of his house. As
he proceeded to walk towards the garbage can, he felt his right
foot begin to slip, and when he attempted to grip with his right
foot because of the weakness in the right lower extremity, he was
unable to hold himself, causing a twisting injury to the left knee,
Dr. Holencik diagnosed internal derangement of the left knee and
suspected a meniscus tear, and after an MRI scan, proceeded to do
an arthroscopic procedure to repair a torn meniscus on April 1,
1994,
Dr. Holencik has testified, to a reasonable degree of medical
certainty, that Dr. pariser's left knee injury occurred as a result
of the weakened condition of his right lower extremities, which was
directly related to the automobile accident, Dr. Holencik
indicated that the injury to the left knee was directly, causally
related to injuries sustained by Dr, pariser in the accident.
3
4
Over the next six to twelve (12) months, Dr. Pariser recovered
from most of the initial injuries sustained in the accident,
although he is currently complaining of fatigue, especially at the
end of the day, and some pain in the right leg on changes of
weather and after extended standing. The maj ority of Dr. Pariser's
continuing problems are as a result of the left knee injury, which
has also led to an injury of bursitis in the left hip, which Dr.
Holencik has also directly related to the injuries sustained in the
accident.
Plaintiff's counsel has taken the deposition of Dr. Mark
Holencik for use at trial and have scheduled the deposition of Dr,
Robert Page at Hershey Medical Center.
Plaintiff Benjamin J, pariser seeks to recover for pain and
suffering, loss of enjoyment of life, inconvenience in carrying out
his daily activities, and non-economic damages which are normally
recoverable in a negligence claim. Dr. pariser is. not asserting a
claim for past lost earnings, but pending review of Dr. Holencik's
deposition, he may assert a claim for loss of earning capacity in
light of his permanent injuries.
III, Statement of PrinciDal Issues of Liability and Damaaes
1. Was Defendant Fay Inez Hock negligent in
striking Dr. pariser?
2. Was Defendant Fay Inez Hock's negligence
a substantial factor in causing Dr,
Benjamin J. pariser's injuries?
3, The amount of damages which are
recoverable by Dr. pariser as a result of
his injuries?
4. It is anticipated that the Defendant will
claim that Dr. pariser was comparatively
negligent in crossing the street.
IV, Summary of Leaal Issues
Other than the standard legal issues, which are identified
above involving negligence principles, Plaintiff anticipates that
the Defendant will dispute whether Plaintiff Benjamin J, pariser
may recover for the injury to the left leg as being directly
related to the automobile accident. Plaintiff Benjamin J, pariser
maintains that he is entitled to recover for the subsequent injury
because it occurred as a result of the weakened condition directly
as a result of injuries sustained in the initial accident with
Defendant Fay Inez Hock,
Plaintiff will prepare an more extensive Memorandum of Law
with respect to the issue, however, it is believed that the
Restatement (Second) of Torts ~460, Subseouent Accidents Due to
ImDaired physical Condition Caused bv Nealiaence, is applicable.
5
This section of the Restatement was adopted by the Pennsylvania
Supreme Court in the case of Nikisher v. Benninger, 377 Pa. 564,
105 A,2d 281 (1942) and was subsequently followed in Floria v.
Sears, Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957). ~~,
Parr v. Asterland Truckina Co., 96 Dauphin 102 (1973).
V. Witnesses
A. Plaintiff Benjamin J, pariser - Liability and Damages;
B. Defendant Fay Inez Hock (as on cross) - Liability;
C. Corporal B, R. Greist - Liability;
D. Ms, Bonita Rowe - Liability;
E. Mr. Thomas J. Maloney - Liability;
F. Dr, Mark p, Holencik (via deposition) - Damages;
G. Dr, Robert Page (via videotape deposition) - Damages;
H. Ms, Barbara Kautz - Damages,
VI. List of Exhibits
A, Plaintiff Benjamin J. pariser's medical records;
B, Diagram prepared by Corporal Greist as part of his Police
Report;
C. Diagram prepared by Thomas J. Maloney;
D, Photographs taken of the accident site by Dr, Benjamin
pariser on December 10, 1993;
6
E, Photographs of injuries sustained by Plaintiff Benjamin
J, pariser, taken within the month following the
accident;
F. Medical diagrams identified in Dr, Mark Holencik's
deposition,
VII. Settlement Neaotiations
Plaintiff's current counsel, Angino & Rovner, P.C., undertook
representation of Dr, pariser in September, 1995, after the
Complaint had been filed, It is believed that prior to Plaintiff's
current counsel's representation, no settlement negotiations had
occurred because State Farm, on behalf of Defendant Fay Inez Hock
had denied liability, which position has continued to be maintained
by State Farm. It is believed that the Defendant has a $100,000.00
policy limit. Although it is believed that the case potentially
has a value in excess of the policy limits, Plaintiff would
consider settling within the Defendant's policy limits, if a
reasonable settlement offer was extended prior to trial,
Dated: /;;/)7/%
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~Chael E. Kosik, Esquire
I, D. No, 36513
4503 North Front Street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
CERTIPICATE OP SERVICE
I, Marcy L, Moyer, an employee of the law firm of Angino &
Rovner, P.C" do hereby certify that I am this day serving a true
and correct copy of the foregoing PLAINTIPP'S PRE-TRIAL MEMORANDUM
upon all counsel of record via postage prepaid first-class United
States mail addressed as follows:
Richard H, Wix, Esquire
Wix, Wenger & Weidner
4705 Duke Street
Harrisburg, PA 17109
Dated: December 27, 1996
~~~
29,
BENJAMIN J. PARISER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V
: NO. 95-3703 CIVIL TERM
FAY INEZ HOCK
ORDER OF COURT
AND NOW this 14th day of November, 1996, a mistrial having been
declared In this case, it is HEREBY ORDERED AND DIRECTED that the Prothonotary
rellst this case for the January 1997 trial term. This case shall be given preference in
front of Judge Hoffer or Judge Bayley and shall commence January 27, 1997. All
counsel In this case should consider themselves attached in Cumberland County for the
duration of this trial. Counsel will be required to attend the Call of the List for the
January trial term and the Pretrial Conference as scheduled by the Court Administrator.
By the Court,
Michael E, Kosik, Esquire
For the Plaintiff
Richard H. W1x, Esquire
For the Defendant
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I IN THE COURT OP COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I 95-3703 CIVIL TERM
I
I
I CIVIL ACTION - LAW
BENJAMIN J. PARISER,
Plaintiff
PAY INEZ HOCK,
Defendant
IN REI MISTRIAL DECLARED
ORDER OP COURT
AND NOW, this 14th day of November, 1996, in
response to the request of defense counsel to declare a
mistrial, we do declare a mistrial. We note that the motion has
not met with any opposition of Plaintiff's counsel.
By the Court,
Michael E. Kosik, Esquire
Counsel for Plaintiff
Richard H. Wix, Esquire
Counsel for Defendant
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BENJAMIN J. PARISER,
plaintiff
IN THE COURT OP COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
JURY TRIAL DEMANDED
v.
FAY INEZ HOCK,
Defendant
BNTRY O. APPEaRANCE
TO: Prothonotary of Cumberland county
Please enter the appearance of Michael E. Kosik, Esquire of
Angino & Rovner, P.C. as counsel for the Plaintiff Benjamin J.
pariser in the above-captioned action.
M chael E. Kos k, Esqu re
I. D. No. 36513
4503 North Front street
Harrisburg, PA 17110-1799
(717) 238-6791
Counsel for Plaintiff
Dated: I) 3 ) Cjr.,
, ,
83260/DHR
,
CERTIFICATE OF SERVICE
I, Donna M. Rineer, an employee of the law firm of Anqino ,
Rovner, P.c., do hereby certify that I am this day servinq a true
and correct copy of the foregoing ENTRY OJ' APPEARANCB upon all
counsel of record via postage prepaid first-class united States
mail addressed as follows:
Richard H. Wix, Esquire
WIX, WENGER , WEIDNER
4705 Duke street
Harrisburg, PA 17109
(Counsel for Defendant)
FJtfh/na m 'i0~ Ph}
Donna M. Rineer
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BENJAMIN J. PARISER,
Plaintiff
V8.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
NO. 95.3703 CIVIL TERM
FAY INEZ HOCK,
Defendant
NOW COMES Benjamin J. Pariser, by and through his counsel, FLOWER, MORGENTHAL,
FLOWER & LINDSAY, P.C., and replies to New Matter as follows:
B. Denied that Plaintiff was negligent in any manner, and that his negligence caused the
accident. Denied that any act of Plaintiff bars his claim in whole or in part. By way of further
answer, at all relevant times Plaintiff acted in a responsible and careful manner.
9. The assertions in Paragraph 9 are conclusions of law to which no answer is required.
By way of further answer, Plaintiff denies that his claim is barred.
10. Denied that Plaintiff was negligent in any manner. In particular:
(a) Denied that Plaintiff failed to yield the right of way to Defendant's
vehicle;
(b) Denied that Plaintiff failed to keep a proper lookout for motQr-,
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(c) Admitted that Plaintiff crossed the roadway at a place other than
a designated crosswalk.
WHEREFORE, Plaintiff prays this Honor8ble Court for judgment for Plaintiff and against
Defendant.
FLOWER, MORGENTHAL FLOWER & LINDSAY, P.C.
Attorneys for Plaintiff
By:
2
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I, the undersigned, hereby verify that the statements made herein are true and correct.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~
4904, relating to unsworn falsification to authorities.
Benjami
ariser (
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Date:
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BENJAMIN J. PARISER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
NO. 95.3703 CIVIL TERM
VS.
FAY INEZ HOCK,
Defendant
AND now, this /9 day of_~-t~It{IJ?v ,1995, I, Carol J. Undsay,
Esquire, of the law firm of FLOWER, MORGENTHAL, FLOWER & LINDSAY Attorneys, hereby
certify that I served the within REPL Y TO NEW MA TTER this day by depositing same in the United
States Mall, First Class, Postage Prepaid, in Carlisle, Pennsylvania, addressed to:
Richard H . Wix, Esquire
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109
FLOWER, MORGENTHAL FLOWER & LINDSAY
Attorneys for Plaintiff
By:
Carol J. U dsay, Esquire
ID# 44693
11 East High Street
Carlisle, PA 17013
(717) 243-5513
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-.J 'IV] CIVIL TERM
BENJAMIN J. PARISER.
va.
FAY INEZ HOCK.
Defendant
IN TRESPASS
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 Compla,nt and notice
are served by entering a written appearance personally or by attorney and filing in writlnR 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 LAWVER AT ONCE. IF YOU DO NOT HAVE
A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Court Administrator. Fourth Floor
Cumberland County Court House
One Courthouse Square
Carlisle. Pennsylvania 17013
(717) 240-6200
FLOWER. MORGENTHAL. FLOWER & LINDSAY. P.C.
Attorneys for the Plaintiff
By
Date:~ / tJ. (q~l-
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VI.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95- .-J 703 CIVIL TERM
BENJAMIN J. PARISER,
Plaintiff
FAY INEZ HOCK,
Defendant
IN TRESPASS
COMPLAINT
NOW comes Benjamin J. Parlser by and through his counsel. FLOWER, MORGENTHAL.
FLOWER & LINDSAY. P.C.. and states as follows:
1. Plaintiff is Benjamin J. Parlser. an adult Individual who resides at 625 West Old York
Road. Carlisle. Cumberland County. Pennsylvania.
2. Defendant is Fay Inez Hock. an adult Individual who resides at 1919 Steretts Gap
Avenue. Carlisle. Cumberland County, Pennsylvania.
3. On or about December 7. 1993. at approximately 6:20 p.m.. the vehicle operated
by the Defendant struck the Plaintiff. a pedestrian. as he was crossing South West Street near
West Baltimore Avenue In the Borough of Carlisle. Cumberland County. Pennsylvania.
4, Defendant operated her motor vehicle in a negligent, wanton and careless manner
in that:
A. She exceeded the posted speed limit of 35 mph;
B. She operated her motor vehicle in a manner unsafe for
conditions;
C. She failed to pay the attention necessary to safely operate her
vehicle;
D. She neglected to apply her brakes to avoid striking Plaintiff; and
E. She failed to operate her motor vehicle with due care.
.:\complalnl
5. As a direct and proximate consequence of Defendant's negligence. Plaintiff suffered
a fracture to the right fibula at the knee. a fracture to the lateral wall of the right ethmoid sinus
on his face. a fracture to the orbital wall on the right side of his face. lacerations and contusions
to his face. ribs and abdomen. and trauma to his mouth.
6. As a direct and proximate result of the injuries inflicted on Plaintiff by Defendant's
negligence. specifically the fracture to Plaintiff's right fibula. on or about February 15. 1994.
Plaintiff's right knee failed. causing Plaintiff to fall. The fall resulted In a displaced medial meniscal
tear to the left knee. As a result of that injury and the hobbling which resulted. Defendant has
pain in his left hip.
7. As a direct and proximate result of Defendant's negligence. Plaintiff has endured pain
and suffering. loss of income and loss of future income. and medical expenses.
WHEREFORE, Plaintiff prays this Honorable Court to enter a judgment against the Defendant
and for the Plaintiff in an amount exceeding $25.000.00.
FLOWER, MORGENTHAL FLOWER & LINDSAY, P.C.
Attorneys for Plaintiff
By:
Carol J. Lind ay, Esquire
ID # 44693
11 East High Street
Carlisle, PA 17013
(717) 243-5513
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I, the undersigned, hereby verify that the statements made herein are true and correct.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~
4904, relating to unsworn falsification to authorities.
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Benjamin J. Pariser
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
BENJAMIN J. PARISER,
Plaintiff
FAY INEZ HOCK,
Defendant
TO THE PROTHONOTARY:
Please withdraw my appearance for the Plaintiff in the captioned matter.
FLOWER, MORGENTHAL FLOWER & LINDSAY, P.C.
By:
Carol J. U dsay, Esquire
ID /I 446
11 East High Street
Carlisle, PA 17013
(717) 243-5513
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SHERIFF'S RETURN
CASE NOI 199~-03703 P
COnnONWEALTH OF PENNSYLVANIA I
COUNTY OF CUnBERLAND
PARISER BENJAnIN J
VS.
HOCK FAY INEZ
nICHAEL BARRICK . Sheriff or Deputy Sheriff of
CUnBERLAND County, Pennsylvania, who being duly sworn according
to law, says, that he served the within conPLAINT IN TRESPASS & NOTICE
upon HOCK FAY INEZ the
defendant, at 910100 HOURS, on the 17th day of July
1995 at 1919 STERRETTS GAP AVE.
CARLISLE. PA 17013 . CUnBERLAND
County, Pennsylvania, by handing to FAY INEZ HOCK
a true and attested copy of the conPLAINT IN TRESPASS & NOTICE
and at the same time directing ~ attention to the contents thereof.
Sheriff's COStSI
Docketing
Service
Affidavit
Surcharge
18.00
2.80
.00
2.00
So answers I
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H. Thomas K~~ne, ~her1~%
622.810
CAROL LINOSAY ~i;;::!
08/02/~:95 ~.
~u en
Sworn and subscribed to before me
this /q~ day of n '3'ur
19 q, A. D.
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SHERIFF'S RETURN
CASE NO. 199~-03703 P
COMMONWEALTH OF PENNSYLVANIA.
COUNTY OF CUMBERLAND
PARISER BENJAMIN J
VS.
HOCK FAY INEZ
PHILIP BAUGHMAN
CUMBERLAND County,
to law, says, that
upon HOCK FAY INEZ
dRfvndant, at 930100 HOURS, on thv 31st day of July
1995 at 1919 STERRETTS GAP AVE.
CARLISLE. PA 17013
County, Pvnnsylvania, by handing to FAY I. HOCK
a truv and attvstvd copy of thv REQUEST FOR PRODUCTION OF
togvthvr with DOCUMENTS AND LETTER
and at thv samv timv dirvcting Hvr attvntion to the contvnts thvrvof.
. Sheriff or Deputy Sheriff of
Pennsylvania, who being duly sworn according
he svrvvd the within REQUEST FOR PRODUCTION OF
the
. CUMBERLAND
Sheriff's Costs I
Dockvting
Service
Affidavit
Surcharge
.00
.00
.00
.'lJ0
So answvrs;"A; ~:""
~~Aoi!~A~-""f'
H. Thomas K~ine, Shvri~~
s.l/ll/l
ell~s~
00/00/0000
by
Sworn and subscribvd to before me
this q~ day of ~..J-
19 ,,0{ A. D.
nt.A.-Q.~~I=
'-1'1 Prothonotary< J
BENJAMIN J. PARISER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
v.
FAY INEZ HOCK,
Defendant
PRAECIPE FOR APPEARANCE
TO: Lawrence E. Welker, Prothonotary
Please enter the appearance of Richard H. Wix, Esquire,
of the firm of Wix, Wenger & Weidner, on behalf of Defendant Fay
Inez Hock in the above-captioned matter.
WIX, WENGER & WEIDNER
/-;;:.-. 2
t/ ___--r ... I ..1/ t.. '
By c- '--.-: .~-- _,I>. '1', , ..,-
RiChard H. Wix, 1.0. #07274
Attorneys for Defendant
4705 Duke Street
HarriSburg, PA 17109-3099
(717) 652-8455
Dated: July 27, 1995
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BENJAMIN J. PARISER,
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND CO., PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-3703 CIVIL TERM
.
.
v.
.
.
.
.
FAY INEZ HOCK,
Defendant
.
.
DEFENDANT'S ANSWER WITH NEW MATTER
1. Admitted.
:I. Admitted.
3. Admitted.
4. The allegations of paragraph 4 of Plaintiff's Complaint
are denied. specificallY, it is denied that Defendant exceeded the
posted speed limit or that she operated her motor vehicle in a
manner unsafe for conditions or that she failed to pay attention or
that she was negligent in applying her brakes or that she operated
her motor vehicle without due care and proof to the contrary is
demanded at the time of trial.
5. It is denied that Defendant was in any way negligent or
that Defendant caused the plaintiff to sustain any injuries and
proof to the contrary is demanded at the time of trial.
6. It is denied that the Defendant caused any injuries to
the Plaintiff by her negligence and proof to the contrary is
demanded at the time of trial.
7. The allegations of paragraph 7 of Plaintiff's Complaint
are specifically denied and proof to the contrary is demanded at
the time of trial.
.-
,
New Matter
8. The Plaintiff was negligent in causing the accident
referred to in his Complaint, and his negligence bars his claim in
whole or in part by virtue of the Pennsylvania Comparative
Negligence Act.
9. Plaintiff's claims are barred in whole or in part by the
provisions
Financial
Pennsylvania Motor
Vehicle
of
the
Responsibility Law.
10. The accident referred to in Plaintiff's Complaint was
caused by the negligence of the Plaintiff in that he:
(a) failed to yield the right of way to Defendant's vehicle;
(b) failed to keep a proper lookout for motor vehicles;
(c) crossed the roadway at a place other than within the
designated crosswalk.
WHEREFORE, Defendant demands judgment against the Plaintiff
together with costs of this action.
WIX, WENGER & WEIDNER
B~_O ~-4 )J /'
.y l~hard H. Wix, Esquire
Attorney I.D. 107274
4705 Duke street
Harrisburg, PA 17109
Attorneys for Defendant
..
A
VBRII'ICATIOH
I, Fay Inez Hock, am the Defendant in this action, and I
verify that the facts contained in the foregoing Answer are true
and correct to the best of my knowledge, information and belief.
The undersigned understands that her statements therein are made
subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn
falsification to authorities.
FA:I'% ~6P~<
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted In duplicate)
TO THE PROTHONOTARY OF CUMBERLANO COUNTY
(Check one)
Please list the following case:
( XX) for JURY trial at the next term of civil court.
) for trial without a Jury,
.
-..------....-----.-.....-----..--...
CAPTION OF CASE
(entire cap lion must be stated In fUll)
(check one)
Assumpsit
BENJAMIN J. PARISER.
Trespass
( XX
( )
Trespalls (Motor Vehicle)
(olher)
(Plaintiff)
vs.
"
The lrlalllst will be called on October 15. 1996
FAY INEZ HOCK
and
Trials commence on November 12 19qfi
Prelrlals will be held on October 23. 1996
(BriefS are due 5 days before prelrlals.)
(The party IIstlr,g this case for trial shall provide
forlhwlth a copy 01 the praecipe to all counsel,
pursuanllo local Rule 214.1.)
(Defendanl)
vs.
3703
No, q5-~ Civil
Indlcale the attorney who wllllry case for the parly who files this praecipe:
Michael E. Kosik, Esquire - ANGHtl & ROVNER, PC, 4503 N, Front St.. I1BG. PA 17110
Indlcale trial counsel for olher parties If known:
Richard H. Wix, Esquire- \/IX, IIENGER & IIEIDNER, 47(1:; Duke St.. HBG, PA 17109
This case Is ready for trial.
SI,,&f1!J2
Print Name: Mi~R~gl ~sik. Esqyirg
Oale:
0/30/96
Allorney for: --Jl.l+i-At-i..f~..--._----'
19~_
,
CERTIFICATE OF SERVICE
I, Donna M. Rineer, an employee of the law firm of Angino ,
Rovner, P.C., do hereby certify that I am this day serving a true
and correct copy of the foregoing PRAECIPE FOR LISTING CASB FOR
TRIAL upon all counsel of record via postage prepaid first-class
United states mail addressed as follows:
Richard H. wix, Esquire
WIX, WENGER , WEIDNER
4705 Duke Street
Harrisburg, PA 17109
(Counsel for Defendant)
.
[) (JyJ /n aJ?--; 'i2J/'n I h
Donna M. Rineer
Dated:~ f+ 3tJ"lqC((~
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v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNlY, PENNSYLVANIA
NO. 95.3703 CIVIL TERM
BENJAMIN J. PARISER,
Plaintiff
FAY INEZ HOCK,
Defendant
VERDICT SLIP
1. Do you find that the defendant, Fay Inez Hock, was negligent?
If you answer Question 1 NO, the plaintiff cannot recover and you should
retum to the courtroom. If you answer YES, go to Question 2.
2. Was the defendant's negligence a substantial factor in bringing about the
plaintiffs harm?
YES
NO
If you answer Question 2 NO, the plaintiff cannot recover and you should
retum to the courtroom. If you answer YES, go to Question 3.
3. Do you find that the plaintiff was contributorily negligent?
YES
NO
If you answer YES, go to Question 4. If you answer NO, go to Question 6.
4. If so, was plaintiffs contributory negligence a substantial factor in causing him
harm?
YES
NO
If you answer YES, go to Question 5. If you answer NO, go to Question 6.
.,,.....
,
5. Taking the combined negligence that was a substantial factor In bringing about
plaintiff's harm as 100 percent (100%), what percentage of the causal negligence
was attributable to defendant and what percentage was attributable to the plaintiff?
Defendant Fay Inez Hock
Plaintiff Benjamin J. Pariser
Total:
%
%
_100
%
Go to Question 6.
6. Do you find that the defendant's negligence was the legal cause of the
February 15, 1994, fall?
YES
NO
If you answer YES, go to Question 7. If you answer NO, go to Question 8.
7. State the amount of total damages, If any, sustained by plaintiff, related to the
Initial accident on December 7, 1993, and the subsequent fall on February 15,
1994, without regard to and without any reduction by the percentage of contributory
negligence, If any, that you have attributed to the plaintiff.
$
If you answer Question 7, do not answer Question 8, and you should retum
to the courtroom.
8. State the amount of damages, If any, sustained by plaintiff related only to the
Initial accident on December 7. 1993, without regard to and without any reduction
by the percentage of contributory negligence, If any, that you have attributed to the
plaintiff.
$
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ORIGINAL
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BENJAMIN PARISER,
PLAINTIFF
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
FAYE INEZ HOCK,
DEFENDANT
No. 95-3703, Civil Term
JURY TRIAL DEMANDED
VIDEOTAPE
DEPOSITION OF:
TAKEN BY:
PERRY A. EAGLE. M.D.
BEFORE:
DEFENDANT
TAMMY J. BAKER. REPORTER
NOTARY PUBLIC
DATE:
OCTOBER lB. 1996. 1:15 P.M.
-, I'
PLACE:
191 LEADER HEIGHTS ROAD
YORK, PENNSYLVANIA
-.
WIX. WENGER & WEIDNER
BY: RICHARD H. WIX. ESQUIRE
FOR - DEFENDANT
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APPEARANCES:
ANGINO & ROVNER
BY: MICHAEL E. KOSIK, ESQUIRE
FOR - PLAINTIFF
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Hughes, 7llbrislrf, 'Fillh lr JVatde :Reporting &rlice, 8nc.
115 PINE STREET' HARRISeURG, PA 17101
Harrisburg 717.232.5644 F.. 717.232.9637 Lnnca".r 717.393.5101
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STIPULATION
2 It is hereby stipulated by and between counsel for
3 the respective parties that reading, signing, sealing,
4 certification and filing are hereby waived.
5 PERRY A. EAGLE, M.D., called as a witness, being
6 duly sworn, testified as follows:
7 DIRECT EXAMINATION
8 BY MR. WIX:
9 Q Good afternoon, Doctor, would you state your name
10 for the record, please?
11 A Perry A. Eagle, M,D.
12 Q And your office address?
13 A 191 Leader Heights Road, York, pennsylvania.
14 Q And what is your particular medical specialty?
15 A I'm an orthopedic surgeon.
16 Q Doctor, will you give the ladies and gentlemen of
17 the jury a background on your education that led to you
18 becoming an orthopedic surgeon?
19 A I attended undergraduate school at the University of
W Maryland and then attended the University of Maryland School
21 of Medicine, graduating with an M.D. Degree in 1967.
22 I then had one year of internship at the York
~ Hospital followed by one year of general surgery residency
24 also at the York Hospital.
~ I then had one year in fellowship of surgery of the
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1 hand at the Grace Hospital in Detroit, Michigan.
2 I then had my orthopedic residency training program
3 at the Allegheny General Hospital in Pittsburgh, completing
4 that program in 1972.
5 Q And, Doctor, the field of orthopedics, could you
6 explain to us what that entails?
7 A Orthopedics is a surgical subspecialty which deals
8 with the diagnosis and treatment -- and by treatment I mean
9 with and without surgery -- of problems with bones, joints,
10 their related structures and problems with the spine.
11 Q And do you regularly see in your practice
12 individuals who have sustained injuries as the result of
13 automobile accidents and other trauma?
14 A Yes,
15 Q Doctor, are you board certified in your specialty?
16 A Yes, I am.
17 Q And what is involved in board certification?
18 A Well, classically each M.D, specialty, each
19 specialty has an organization that oversees to the educational
20 requirements of those physicians who wish to practice that
21 particular specialty.
22 The grouping of the organization is the American
23 Board. There's an American Board of Orthopedic Surgery,
24 there's an American Board of Internal Medicine, et cetera.
~ In order to receive the certification of the
.~
5
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1 American Board of Orthopedic Surgery, the physician must
2 successfully complete a residency training program in
3 orthopedic surgery, a residency training program that has been
4 reviewed and approved by the board.
5 Then the physician must be in the private practice
6 of orthopedic surgery for a specified period of time, then the
7 physician takes oral and written examinations given by the
8 board and upon successful completion of all of these criteria
9 the physician is said to be board certified.
10 Q Doctor, are you on the staffs of any hospital?
11 A Yes.
12 Q And what are they?
13 A I hold privileges at the York Hospital. I hold an
.,.,.".
14 appointment at the Apple Hill Surgical Center. I hold an
15 appointment at HealthSouth, which is the Rehabilitation
16 Hospital of York and I hold an appointment as an assistant
17 clinical professor of orthopedic surgery from the Pennsylvania
18 State College of Medicine at Hershey,
19 Q And do you do some teaching, Doctor?
20 A Yes.
21 Q And would that be of residents from Milton Hershey
22 Medical Center?
23 A Correct, That would be orthopedic residents who
~ rotate through our hospital.
~~ MR. WIX: We would offer Dr. Eagle as an expert in
,-",'
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orthopedics. Any questions on qualifications?
2 MR. KOSIK: I have no questions concerning the
3 Doctor's qualifications in orthopedics.
4 BY MR. WIX:
5 Q Dr. Eagle, at my request did you perform an
6 independent medical evaluation of the plaintiff in this case?
7 A Yes, I did.
8 Q And what was the date of your evaluation?
9 A July the 15th of 1996.
10 Q And would you briefly explain what it is when you're
II asked to do an evaluation of someone who's not your patient,
12 what's involved in that?
13 A Well, basically it usually involves a problem that
14 has been ongoing and my purpose is to make an assessment of
15 what has happened in the past, take a history from the
\6 patient, examine the patient and go over any tests such as
\7 x-rays, et cetera, that may be available and formulate some
18 diagnoses and render some conclusions based on putting it all
19 together, if you will.
20 Q And in this particular case did you, in fact, take
2\ a history from the plaintiff?
22 A Yes, I did.
~ Q And what was the history that he related to you?
24 A He reported to me that his history dated back to
~ December 7th of 1993. At that time the patient reported that
"'-..
7
~
he parked his car and was walking across the street when he
2 was quotes, run down, closed quotes.
3 The patient's right side was struck, causing him to
4 fall and bump his head on the pavement. He reported he was
5 taken to the Carlisle Hospital where a CT scan of his head was
6 performed.
7 He was transferred to Hershey via ambulance because
8 of his head injury. He reported that he was kept overnight
9 for observation. At that time he had pain in his right leg.
10 His left leg was fine at that time.
\1 He was instructed to walk with a walker because of
12 his injury to his right leg and then he graduated to a cane.
13 He did not have a cast for the reported fracture of his right
14 fibula,
15 The fibula is the small bone in the leg. That bone
16 runs from the knee area to the ankle area on the outside.
17 He complained of weakness, pain and swelling at the
18 time of the injury in his right lower leg, He was followed by
19 his orthopedic doctor for his right leg problem.
20 He used a walker, as stated before, for several days
21 and then graduated to a cane, which he stated he used for
22 months.
~ He reported that his right leg improved very slowly
24 and reached maximal improvement approximately six to 12 months
~ after his accident.
......,J
Currently; that is, in July of 1996, he complains of
2 right lateral leg pain with weather changes; that is, pain on
3 the outside of his leg.
4 He takes an occasional Tylenol for discomfort. The
5 patient reported that he could not state if his activities are
6 limited with his right leg because of his left leg problems.
7 He denied any previous right leg problems.
S Q Doctor, did that cover the injuries that he
9 sustained in the automobile accident of December 7th?
10 A Yes, it did.
11 Q Then did he give you a history of another injury
12 that he sustained sometime after the automobile accident?
13 A Yes.
,-'
14 Q Okay. And what was that history that he gave to
15 you?
16 A He reported that his left leg became symptomatic in
17 late January of 1994 or early February of 1994.
18 He stated that his right knee gave out causing him
19 to fall striking his left knee on snow and ice. He stated his
20 left knee became painful. He cannot recall any swelling or
21 black and blue marks developing in the left knee,
22 He saw his orthopedic doctor for his left knee
2.1 complaints. An MRI test was ordered. He was unable to recall
24 any treatment prior to out-patient arthroscopic surgery which
2.~ was performed in April of 1994,
8
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Following surgery and up to the current time; that
2 is, in July of 1996, he reported that he began swimming and
3 has continued to do so as rehabilitation. He feels his left
4 knee, quotes, never got better, closed quotes, and his
5 progress plateaued four to six months after surgery.
6 He complains of left knee pain on a daily basis. He
7 states his pain increases at the end of the day. He stated
8 that his left knee swells on occasion and that this swelling
9 is related to his level of activity,
10 He states that swimming improves his symptoms. He
11 denies buckling or giving way of his left knee, He does not
12 note any cracking in his knee.
13 He currently takes Naprosen, which is a pain pill
14 and an anti-inflammatory pill and Lorcet, which is a pain pill
15 as needed at nighttime.
16 He states he limps because of his knee pain. He
17 reports that he has developed some hip pain as a result of his
18 knee injury.
19 He stated that he has had injections into his left
20 knee following the surgery which did give him some symptomatic
21 relief.
22 He reports that his left hip pain developed about
2..1 six months after surgery, He sleeps on his right side because
~ of his left hip pain, His hip pain is not as frequent as his
25 knee pain.
J
10
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After the accident the patient reported that he
2 missed very little time off of work. He felt that on the date
3 of examination he was experiencing a quotes, medium day,
4 referring to his pain index.
5 0 Okay. And did that complete the history of the two
6 events in which he sustained injuries?
7 A Yes.
8 0 Following the taking of the history, did you perform
9 an examination of him?
10 A Yes.
11 0 And, Doctor, would you explain to the jury what you
12 did and what the significance was of your findings or absence
13 of findings and if you would, let's separate the two injuries,
14 the --
Hi Address the first one, the right leg which was
16 injured in the auto accident and then I'll have you comment on
17 your examination of the left knee.
18 A The examination first proceeded with observing his
19 gait or how he walked, This was normal. He did not limp, He
20 was able to walk upon his heels and walk upon his tiptoes.
21 These are observations, they're normal. Obviously it's normal
22 to be able to walk on your tiptoes and normal to be able to
~ walk on your heels and it is normal not to limp.
24 Examination of his right leg revealed no evidence of
21 muscle weakness or atrophy as we call it. The maximal girth
.-./
11
~
of the right calf measured 41 centimeters compared to 41 on
2 the opposite side; in other words, there was no evidence of
3 muscle wasting.
4
There was no tenderness over the peroneal nerve on
5 the right. The peroneal nerve is a nerve which comes down and
6 wraps around the outside bone, the fibula bone. Sometimes
7 this nerve in an injury or fracture in this area can be
8 bruised. There was no evidence of the nerve being bruised.
9
There was no weakness of the muscle that that nerve
10 works. If, for example, a nerve is bruised there can be some
11 muscle weakness in the muscles that the nerve works and we
12 check that out and everything seemed fine.
-",.,
I 13 The examination of his right knee revealed no fluid
,
14 to be present. This is a normal finding. Fluid -- commonly
15 known as water on the knee -- occurs when anything severely
16 irritates the inside of the knee. If you have a torn
17 cartilage, if you have a torn ligament, if you have a severe
18 injury to the gristle in the knee, that knee can have water or
19 fluid on it.
W There was a full range of motion of the knee. He
21 complained of some mild discomfort to palpation over the
22 medial joint line. That's the inside of the knee.
~ This is a non-specific finding when the tenderness
24 is mild, For example, arthritic change in the knee can be
~ accompanied by a feeling of some discomfort when the inside of
...-1
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12
the knee is pushed upon.
2 The right knee fully extended and flexed to 135
3 degrees. There was no crepitus or creaking. This essentially
4 is a normal range of motion and basically the examination of
5 his knee was normal except for that slight tenderness on the
6 inside of the knee,
7 A weight-bearing view of both knees was taken in my
8 office, a weight-bearing x-ray view, and showed some what we
9 call narrowing of the -- each medial side or the inside of
10 each knee joint, consistent with what we call a mild varus
11 deformity.
12 What does all that mean? It means that when the
13 patient stands up the x-rays of his knee -- which see through
14 the skin, et cetera show that the bones are slightly
15 bowlegged. You may have known people who as they get older
16 have a bowleggedness develop. This simply means that the
17 gristle on the inside bones of each knee wears down and,
18 therefore, the knee becomes a little bit crooked, if you will.
19 It's sort of the opposite of knockneed. And this
20 occurs with aging. This is the most common form of wear and
21 tear in the knee, to have narrowing of each medial joint space
22 and a varus deformity or a bowlegged type deformity.
~ In everybody -- in everybody on the inside of each
~ knee and on the outside of each knee there is what we call a
~ cartilage, a meniscus. It is a firm piece of gristle that
13
~
1 actually separates the two bones, it's sort of like the shock
2 absorber between the two bones.
3 We know that as the knee wears the gristle wears
4 down and can become frayed, just like we knol'l that with
5 mileage your tire wears down and can become a little bit
6 frayed and this is certainly compatible with his finding of
7 some tenderness along the medial joint line and with the x-ray
8 picture.
9 So the x-rays confirmed in each knee that he had a
10 little bit of arthritis starting on the inside. On the right
11 knee there was also some new bone formation involving the neck
12 or the top part of the right fibula consistent with a healed
13 fracture.
14 The fibula bone is on the outside of your knee
15 extending down to the outside of your ankle. It is not a
16 weight-bearing bone. You don't -- when you walk, you walk on
17 the tibia bone, it takes all the weight, and not on the fibula
18 bone.
19 This is the bone that was cracked or fractured or
20 broken, all the same thing. It was not out of place. Nature
21 heals bone by adding some additional bone to it; nature's
22 glue, if you will, and this is the new bone, the healing bone
~ that I was able to identify on the x-ray; all consistent with
~ his fracture of the fibula bone,
2.~
This bone, as I mentioned before, is not weight
....J
~
,_.
I bearing and healB uBually pretty well and becaUBe it' B not
2 weight bearing and becauBe it healB rather rapidly, you don't
3 need to put it in a caBt and that' B why thiB patient waB
4 treated at firBt with a walker.
5 I'm certainly Bure that it hurt, aB any broken bone
6 would hurt, a little Bwollen, and then the general way thiB iB
7 handled -- and appearB to be handled in thiB way -- waB that
8 aB he'B able to tolerate it, to go with a cane and then aB
9 you're able to tolerate it at your own Bpeed, you go with
10 nothing and that, indeed, iB what happened with thiB patient.
\I Q And inBofar aB hiB right leg and right knee ie
12 concerned, aB it relateB to the automobile accident of
13 December 7th, did you find any reBidual problemB to that right
14 leg?
15 A No. ObviouBly -- let me JUBt qualify that a little
16 bit. If you WiBh to call thiB a problem, we Bee the healed
17 bone. That'B not a problem, that'e a wonder of nature, BO
18 that'B good, but that waB Bomething that actually was
19 definable on his examination; but other than that, the knee
20 was essentially, quotes, normal.
21 I say quotes because he did have some arthritic
22 change in the knee.
23 Q WaB that in any way related to the automobile
24 accident, the arthritic change?
25 A No. That is a wear and tear phenomenon that, for
--'
14
15
~
example, on hie x-ray was evident in both knees and you would
2 expect it to be in both knees.
3
Q
Now, Doctor, with regard to the left knee that he
4 injured in the fall in February of 1994, did you examine that
5 knee?
6
7
Q
Yes, I did.
And will you tell the jury what your findings were
A
8 with regard to the left knee?
9
A
Evaluation of his left knee revealed again, no
10 effusion or water on the knee to be present. Obviously you'll
11 recall that I stated that his gait or his walk was normal and
12 he didn't limp and he was able to heel walk and toe walk.
) 13 This all needs to be repeated for his left knee.
I
14
The left knee fully extended, straightened up and
15 flexed or bent to 135 degrees, the same as the opposite knee.
16
with flexion and extension there was no creaking or
17 crepitus present. Creaking can be a sign of inflammation on
18 the inside of the knee, for example.
19
He complains of some mild pain to deep palpation
20 over the medial and lateral joint lines and the patellar
21 tendon.
22
Again, the medial joint line is the inside of the
~ knee, the lateral joint line is the outside of the knee and
24 the patellar tendon is where your kneecap, the interval
~ between your kneecap and the leg where your tendon hooks onto
J
~
,.'
the bone. ThiB waB his reBponBe to preBsure over theBe areaB.
2 The McMurray teBt waB negative. The McMurray teBt
3 iB a teBt where the knee iB flexed or bent up all the way and
4 twiBted and Btraightened to see if there' B any catching in
5 there such aB a piece of cartilage catching between the two
6 boneB. ThiB was negative.
7 There waB no maBB or CYBt in the back of the knee.
8 It' B mentioned aB a pertinent negative. ObviouBly it's normal
9 not to have any maBBes or CYBtB in the back of the knee.
10 The x-raYB of hiB left knee, the Btanding viewB
11 again revealed the mild bowlegged deformity and Borne narrowing
12 of the medial joint line JUBt aB the right knee did,
13 conBistent with wear and tear arthritiB on the inBide of the
14 knee.
15 In addition, regular x-raYB of the left knee not
16 Btanding up, not weight bearing, revealed some mild -- what we
17 call hypertrophic changeB about the tibial spine. ThiB Bimply
18 meanB there' B Borne bone Bpurring starting to form on the
19 inside of the knee; again, conBiBtent with the mild medial
20 degenerative arthritiB in the knee,
21 Q Okay. Doctor, I believe you alBo mentioned that he
22 had Borne complaintB about hip pain that had Btarted to develop
~ about six months after hiB left knee Burgery?
24 A YeB.
~ Q And did you, in fact, examine his left hip?
--'
16
17
~
A
Yes, I did.
And what were your findings as it relates to his
".~
2 Q
3 left hip?
4 A Basically there was a full range of motion of his
5 left hip compared to his right hip, bending the hip up and
6 straightening it back down.
7 There is a test called the Patrick test where, with
8 the patient laying down, the examiner bends the hip up and
9 twists it, twists the leg, the thigh, and what this does is it
10 turns the ball in the socket of the hip and if the hip is
11 irritated in any way, that test can cause some pain.
12 The - - with the Patrick test on the left he did
13 complain of some hip discomfort with internal rotation. There
14 was no limitation, however, of rotation when compared to the
15 opposite side.
16 He complained of some tenderness to pressure over
17 the flare of the left hip, the area that we call your greater
18 trochanter. If you put your hand in your pocket, that hip
19 bone that sticks out to the side is the greater trochanter,
20 That's where the muscles, through tendons, attach to the bones
21 so you can move your hip outward and forward.
22 He reported that pressure upon this trochanteric
~ area reproduces the same as his quotes, hip pain, so in other
24 words we found something that on his examination that would
25 reproduce or cause the type of discomfort of which he was
J
18
~
complaining.
2 This is the physical examination of his hip. The
3 x-ray examination of his hip was, in one word, normal.
4 Q Dr. Eagle, can you tell us from an orthopedic
5 standpoint what orthopedic injuries you were able to attribute
6 to the automobile accident of December 7, 1993?
7 A He sustained a fracture of the proximal fibula, a
8 broken bone on the outside of the area below the right knee.
9 This, as I mentioned before, was treated without a
10 cast -- as is appropriate -- with gradual walking and weight
11 bearing as tolerated with the use of first a walker and then
12 a cane and then nothing.
) 13 Q Now, what about the injury to the left knee, are you
14 well, what is your opinion about that particular injury?
15 MR. KOSIK: Dick, let me put an objection off the
16 record.
17 THE CAMERA MAN: Going off video at 1:40.
18 (The following discussion occurred off camera:)
19 MR. KOSIK: Obviously I don't know what the Doctor
20 is going to say, but in his report as I read it, I believe he
21 indicates that he was unable to render an opinion with respect
22 to the left knee and if that's going to be his testimony I
~ have no objection to it.
~ MR. WIX: Well, that is going to be his testimony.
~ MR. KOSIK: If he runs into opinion beyond that,
..;
-"-"--'" ..:..~
19
~
then I'm going to object as being beyond the scope of the
2 report.
Ii
MR. WIX: Okay.
(End of discussion held off video,)
THE CAMERA MAN: Back on video at 1:41.
3
4
II BY MR. WIX:
7
Q
Doctor, I think the question I was asking you was
8 with regard to the injury to his left knee, do you have an
9 opinion as to whether or not that was related to the accident
\0 of December 7, 1993?
11
A
Yes.
12
Q
And what is your opinion, Doctor?
I am unable to give the opinion that this problem
~')
13
A
14 was related to the incident of December 7th of 1993,
Iii
Q
And will you explain that opinion or why you're
16 unable to relate it?
17
A
First of all, the knee was not injured, the left
18 lower extremity was not injured in the mishap of 1993 and I do
19 not have any reason to implicate the right leg injury as the
20 cause of his injury in January or February of 1994.
21
Q
Now, Doctor, there's been some testimony from the
22 plaintiff and I believe from Dr. Holencik that as it relates
~ to the incident in 1994, that his right knee may have given
24 out.
2.'i
First of all, from an orthopedic standpoint, when
-.J
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.- \
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20
~
the term knee giving out is used, what does that mean? Could
2 you explain that to the jury?
3 A That is a common complaint that says basically what
4 the words say. If your knee gives out, it's not there for
5 you.
6 One can have this, for example, if one has something
7 wrong on the inside of the knee such as arthritis. One can
8 have this as a result of, for example, a torn cartilage that
9 flops in between the bones. One can have this as a result of
10 torn ligaments, the ligaments that hold the knee together.
11
If one has a torn cartilage or a torn ligament, it
12 is certainly reasonable to have a symptom of buckling or
.""".
,.) 13 giving out of the knee, but that symptom occurs all the time.
14 You don't injure a cartilage and then a year later have it
15 give out. It's an ongoing problem that kind of grabs your
16 attention.
17
As I said before, arthritis in the knee can be a
18 cause of quotes, giving out. I see patients all the time who
19 have no prior problems, say my leg just gave out on me. It
20 can be being put in an abnormal position, for example, being
21 in a field walking on uneven ground, something that you're not
22 accustomed to or being on ice or snow, it happens,
2.1
Q
Okay. And in terms of your examination of him in
~ 1996, did you find any evidence with regard to his right knee
2.; that he had any such torn cartilage or the other reasons that
......)
21
~
I a knee can give out?
2 A No and yes. Not on a traumatic basis, but a knee
3 with medial compartment arthritis and fraying of the cartilage
4 on the inside as I tried to describe before, can -- not always
5 and not as a matter of routine -- but can give way, especially
6 if put in a compromising situation.
7 Q Dr. Eagle, the plaintiff is a family physician. Do
8 you see anything about his current physical condition that
9 would indicate that he couldn't perform his duties as a family
\0 physician?
II A As far as his knees are concerned, no.
12 Q I've asked you for a number of opinions here today.
....~.
) 13 Have all of your opinions been based upon reasonable medical
, ,.~"~
14 certainty?
15 A Yes.
16 MR. WIX: Cross-examine.
17 CROSS-EXAMINATION
18 BY MR. KOSIK:
19 Q Good afternoon, Dr. Eagle.
20 A Hi.
21 Q I just want to make clear for the jury, you were
22 asked to see Dr, pariser at the request of Attorney wix for
~ the purposes of rendering an opinion in this case, is that not
24 correct?
25
A
That is correct.
.....J
22
~
I Q And you examined Dr. pariser only on one occasion
2 and that was on July 16th of this past summer, 1996?
3 A Is that date correct? Yes,
4 Q So that would be about two and a half years
5 following the actual accident in December of 1993?
6 A If your math is correct, yes.
7 Q Okay. At that time did you also have the benefit of
8 having copies of all Dr. Pariser's medical records?
9 A I had this stack of records, yes.
10 Q But your physical examination which you related to
II the jury already, that was based upon his condition at the
12 time you examined him in July of 1996?
) 13 A Yes.
14 Q So essentially that was just a snapshot of his
15 condition at this point?
16 A Correct.
17 Q You did not and you were not asked to recommend or
18 provide any treatment to Dr. pariser with respect to injuries
19 he may have sustained?
20 A That is correct,
21 Q Doctor, I think you indicated before that the
22 initial injury which Dr. pariser sustained was a fracture to
~1 the head of the fibula on the right-hand leg, which is on the
24 outside of the leg, also?
25 A Yes.
.....;
~
-.
-.../
23
Q And that with this type of injury -- as a matter of
2 fact, I think it's considered a bumper injury as far as
3 orthopedic texts are concerned, when someone is struck
4 directly with a bumper of a car or something like that?
5 A That is an acceptable slang, if you will. Of
6 course, there can be many types of bumper injuries, but it is
7 usually a result of a direct blow or of some twisting type of
8 injury.
9 Q At that time -- and I think you indicated that the
10 peroneal nerve wraps around the head of the fibula in the area
11 where this fracture had occurred?
12 A Around the neck and it's usually - - that is the
13 place it belongs. I know you said at that time, but it
14 belongs there normally,
15 Q Okay.
16 A And we -- it is always of concern when this area is
17 injured if that nerve, for example, is bruised by being struck
18 head on, if you will, because a nerve does not like being
19 struck, just as your crazy bone -- which is a nerve -- does
20 not like being struck.
21 Q From that do I take it that that is a common side
22 occurrence of the fracture of the fibula in that area where
~1 there is a trauma, direct trauma to that area?
~ A It is not common. It is fortunately uncommon, but
~5 it's something that we look for because it's not nice to have.
.
24
~
o Okay. And I think you indicated that when you
2 examined him again in July of 1996 there was no evidence of a
3 peroneal nerve injury at that time?
4 A Yes.
5 0 Had you examined the records going back to Hershey
6 Medical Center, Dr. David Murphy and Dr. Holencik to determine
7 whether there was any evidence of peroneal nerve injury back
8 at that time?
9 A I don't recall.
10 0 The other thing I think when you went over the
11 history and also when Mr. wix asked you about your
12 examination - - you limited your examination essentially to the
..,) 13 lower extremities and the injuries he suffered down there, is
,
14 that not accurate?
11; A That is accurate,
16 0 And although they may be considered orthopedic
17 injuries or at least fractures of bones, you weren't involved
18 in evaluating any sequelae or consequences of the skull
19 fractures that Dr. pariser had received in this accident?
20 A That statement is correct, yes.
21 0 I think in your records you indicated I'm not
22 sure if this is your opinion from your review of the records
~ or what Dr, pariser told you -- that you noted that he had a
~ normal course of recovery and that he felt that he was healed
21 as far as the right fibular fracture within a six to 12-month
.J
~.;.....~~ -~.- ...-:.. ~=-=-.'::-,!"._'
,
25
~
1 period of time?
2
A
That was his response to my question.
And would that be a normal period of time that you
3
Q
4 would expect someone to recover from that type of injury?
5
A
That is perhaps a little protracted. I would say
6 three to six months would be your average, but then with
7 recovery from something like this isn't you hurt today and you
8 wake up tomorrow and it's gone.
You kind of realize it
9 doesn't hurt anymore after a period of time.
10
The majority of the healing occurs early and then
11 the fine tuning, nature takes some time.
12
Q
So the initial healing period would typically be
<) 13 about three to four months?
14
A
I think that's probably reasonable. Three to six I
15 think I said.
16
Q
Okay. Three to six. I'm sorry,
Now, in Dr. Holencik's deposition -- I know Mr. Wix
17
18 asked a number of questions of the doctor concerning referrals
19 that had been made to him by Dr. pariser in his practice
W unrelated to this accident,
21
In cases like this where Mr. wix had asked you to
22 examine Dr. pariser, have you done that on other occasions for
~ Mr, wix or his office?
24
A
Yes, I have.
25
Q
With what frequency do you conduct these types of
.J
~~'~'-"",,:,-_.,..:..,t-~~....
".
26
~
I examinations?
2 A I can't tell you exactly. There's a period of
3 several, two to three months, where I don't see anyone and
4 then I may see two people in one week,
5 If I had to guess, I would say maybe 12 a year,
6 maybe 20. I just don't know.
7 Q I have been provided documents in which I think you
8 were or Attorney Wix's office was asked to supply the number
9 of examinations that had taken place in your office at the
\0 request of his office and this was as of April of 1996.
\I I'll show you a copy
12 MR. WIX: You are referring now to a different
13 question.
.,
14 MR, KOSIK: Examinations that took place --
15 MR. WIX: I think you asked the Doctor how many
16 examinations he did for me and now you're - - just so I
17 understand, now you're asking how many times he had done for
18 all the offices of Wix, Wenger and Weidner?
19 MR. KOSIK: I think my initial question was directed
W to you or your office and if that was misunderstood by you,
21 I'm sorry if that changes the number.
22 THE WITNESS: It doesn't make any difference because
~ I don't have any, obviously, direct recollection of how many
24 I've done,
25
.J
- -----. ~--.'.......'
J
BY MR. KOSIKI
2 0 At that time I think Attorney Wix had represented
:I that over a period of 28 months beginning in January of 1994
'. up until the time of this letter in April of 1996, your office
fi had, in fact, conducted 44 of these examinations. That was a
II 28 months period.
7 A I have no problem with that. I would ask him, did
K I supply that information or did he supply that? But 28
II months, 44 is 20 a year.
lU 0 About that.
1\ A About that. I have no problem with that.
12 0 Okay. Typically what do you charge for an
1:1 examination like this?
1.\ A It depends, first of all, on the body parts involved
Ir, whether, for example, it's a neck and a back, a neck or a back
\II or a leg. et cetera.
17 In this instance the patient's x-rays, if I can read
IK these codes --
III 0 If I'm correct. I think you did one of the left hip.
~l one of both knees, then I think there was a weight-bearing
21 x-ray?
22 A The weight-bearing x-ray of both knees and the right
~I fibula was $74. The x-ray of the left knee was 88 and che hip
2~ was 112,
27
~
w,
I think that's right. There are three separate
J
28
~
x-rays and three different charges.
I don't know who goes
2 with what, but the x-ray charges were 112, 88 and 74,
3
The fee for everything else, the review of the
4 records, the performance or taking of the history, the
5 performance of the examination, the reading of the x-rays, the
6 formulation of opinions, the generation of the report, et
7 cetera, was $625 for a total of $899.
8
Q
Okay. And in this case this would be considered
9 involving one area of the body as opposed --
10
A
But I stretched it a little bit, yes.
Okay. In addition to Attorney wix's office, do you
11
Q
12 do these examinations for other attorneys as well?
..""') 13 A Certainly, yes.
,...f
14 Q On a weekly basis with what type of frequency do you
15 do these type of examinations?
16 A Currently it's running about five a week I would
17 say.
18
Q
And as in this case --
19
A
And that really is -- I didn't answer that question
20 correctly. About five a week, but that's not for attorneys.
21 I do five independent medical evaluations in the
22 past few months per week and that's at anyone's request, be it
23 plaintiff's attorney, a defense attorney, a rehabilitation
24 concern whose object is to find out what an injured worker can
25 and cannot do in the work place; so that's - - my doing
...J
29
~
independent medical evaluations encompasses more than just
2 doing an evaluation for an attorney such as Attorney Wix,
a 0 Okay. And as in this case, I'm sure many times
.1 those evaluations turn into depositions
Ii A Sometimes.
II 0 - - like we're taking today?
7 A Certainly.
8 0 And I think last time you were deposed, at least,
o you were averaging approximately two depositions a week?
to A A little less than that, but that's a ballpark
II figure. One and a half, maybe, if you have a half a
12 deposition.
H ) 1:1 0 Okay. And how much do you charge for your
"
14 depositions?
Iii A It depends whether they're video depositions. For
III this and I cannot recall a figure - - I think it's about
17 $l,375 per hour.
18 0 When you receive a request by Attorney Wix to
10 evaluate patients, do you ask him whether you are seeing this
20 person to render an evaluation for the defense or in Mr. Wix' s
21 practice as a plaintiff's attorney?
22 A First of all, let me answer that in two separate
~1 ways, that when an IME is scheduled I don't communicate with
24 the referring party, it's done through my desk, my reception
25 desk.
......J
30
~
There usually is what we call a cover letter or some
2 information that is requested, I have seen patients at the
3 request of Attorney Wix for opinions when he was both
4 either the defense attorney or the plaintiff's attorney.
5 The gist of the matter is when I see a patient I
6 render an opinion trying to be an honest opinion and it really
7 doesn't matter which side of the fence he's on.
8 Q Would it be fair to say the vast majority of the
9 examinations which you do for Attorney Wix are defense
10 examinations, though?
11 A Yes, it would be fair to say that,
12 MR. KOSIK: Thank you very much,
-~) 13 THE WITNESS: You're quite welcome.
...
14 RE-DIRECT EXAMINATION
15 BY MR. WIX:
16 Q Dr. Eagle, with regard to opinions that you have
17 rendered when you did independent medical examinations for me,
18 have some of those opinions that you've rendered relating to
19 patients that I had sent for your evaluation been what you
20 would legally term to be unfavorable to me; in other words,
21 were all of your opinions always in support of whatever
~ position that I might have had in that particular case?
~ A The answer is no. Sometimes my opinions, quotes,
24 hurts you or hurt your position.
25 Q In the past has Dr. Holencik ever retained your
-..J
31
~
2 A
3
4
5
6 p.m.)
7
8
9
10
11
12
') 13
14
15
16
17
18
19
20
21
22
23
24
25
~
services to act as an expert witness on his behalf?
Yes.
MR. WIX: That's all.
MR. KOSIK: I don't have any further questions.
(Whereupon, the deposition was concluded at 1: 59
32
~
COUNTY OF DAUPHIN
S8
2 COMMONWEALTH OF PENNSYLVANIA
3
I, Tammy J. Baker, a Notary Public, authorized to
4 administer oaths within and for the Commonwealth of
5 Pennsylvania, do hereby certify that the foregoing is the
6 testimony of PERRY A. EAGLE, M.D.
7
I further certify that before the taking of said
8 deposition, the witness was duly sworn; that the questions and
9 answers were taken down stenographically by the said Reporter-
10 Notary Public, and afterwards reduced to typewriting under the
11 direction of the said Reporter.
12
I further certify that the said deposition was taken
~. ") 13 at the time and place specified in the caption sheet hereof.
14
I further certify that I am not a relative or
15 employee or attorney or counsel to any of the parties, or a
16 relative or employee of such attorney or counsel, or
17 financially interested directly or indirectly in this action.
18
I further certify that the said deposition
19 constitutes a true record of the testimony given by the said
20 witness.
21
IN WITNESS WHEREOF, I have hereunto set my hand this
22 24th day of October, 1996,
2.1
i
I~
I
24 NOTARIAL SEAl. '''",
TAMMY J, SPOTTS, Nil", f\~ 'C
25 ltwer Sularl lop.. Omn" c",!. .',
My C,mmJlli,n ['l""~" , 11" i
'__._.. t
/
,,_i}~~
Tammy J, 13 er, Reporter
Notary Public
--
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.
.
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I
PLAINT1FF'S
EXHIBIT
(
.';':;~'-:---- . -.
..
ORIGINAL
.. ~
DEPOSITION OF: MARK P. HOLENCIK, D.O.
TAKEN BY: PLAINTIFF
BEFORE: TAMMY J, BAKER, REPORTER
NOTARY PUBLIC
DATE: OCTOBER 10, 1996, 4:05 P.M.
PLACE:
ARLINGTON ORTHOPEDIC CLINIC
B05 SIR THOMAS COURT
HARRISBURG, PENNSYLVANIA
, ."
~ ...'"
,n
APPEARANCES:
FOR - DEFENDANT
n \0 ('")
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ANGINO & ROVNER
BY: MICHAEL E. KOSIK, ESQUIRE
FOR - PLAINTIFF
WIX, WENGER & WEIDNER
BY: RICHARD H. WIX, ESQUIRE
~. .::'
v
Husltes, 7llbright, 'Folk !r Jlatde J?eportino Serlice, 8nc.
115 PINE STREET. HARRISBURG, PA 17101
Harrisburg 717,232,5644 Fax 717-232,9637 Lancasler 717-393-5101
"
-'_r_-~,--.._"t.;_~~,_~
2
1
2 NAME
3 MARK P. HOLENCIK
WITNESS
DIRECT
CROSS
4 BY: MR. KOSIK
5 BY: MR. WIX
6
7
8
9
10
11
12
3,9
9,34
EXHIBITS
'~'l
j
13
14 HOLENCIK DEPOSITION EXHIBIT
15 A. DIAGRAM
16 B. DIAGRAM
17 C. DIAGRAM
18
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PRODUCED AND MARKED
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1 STIPULATION
2 It is hereby stipulated by and between counsel
3 for the respective parties that reading, signing, sealing,
4 certification and filing are hereby waived.
5
6 MARK P. HOLENCIK, D.O., called as a witness,
7 being duly sworn, testified as follows:
8 MR. KOSIK: Before we begin the Doctor's
9 deposition, Dick, I'm going to assume that you're going to
10 object to his testimony concerning the left leg injury, is
11 that accurate or do you want to see what he has to say
12 first?
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MR. WIX: You mean you want to put it on now?
14
MR. KOSIK: If you want to put it on now at the
15 beginning of the record, that way we don't have a continuing
16 interruption for your objection.
17
MR. WIX: Sure. Fine. I would object to any
18 testimony other than that which was directly related to the
19 automobile accident which as I understand the plaintiff's
20 claim to be injury to his right leg, at least as treated by
21 this doctor.
22
MR. KOSIK: Okay.
23 DIRECT EXAMINATION ON QUALIFICATIONS
24 BY MR. KOSIK:
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Q
Doctor, could you state your full name for the
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jury, please?
A Mark Paul Holencik.
Q And, Doctor, where are your professional offices
located?
805 Sir Thomas Court, Harrisburg, Pennsylvania
A
17109.
Q
And do you practice in association with any other
8 doctors?
9 A There are several in my group.
10 Q What's the name of your group?
11 A The Arlington Orthopedic Clinic.
12 Q Can you explain to the jury the type of medicine
13 that you practice, Doctor?
14 A I'm an orthopedic surgeon and orthopedic surgeons
15 deal with conditions of the skeleton and the muscles,
16 ligaments, joints, tendons, the bone and soft tissue
17 structures that comprise the human skeleton; both traumatic
18 conditions secondary to injury or degenerative conditions
19 secondary to wear and tear or congenital abnormalities.
20 Q Can you summarize for the jury your medical
21 educational background?
22 A! received my Bachelor of Science Degree at
23 Dickinson College in Carlisle, Pennsylvania. I attended
24 medical school at the Philadelphia College of Osteopathic
25 Medicine and upon graduation completed a rotating internship
5
1 at Community General Osteopathic Hospital in Harrisburg.
2 I completed my orthopedic surgical training at
3 Ohio University at a hospital called Grandview Hospital and
4 Medical Center in Dayton, Ohio.
5 I completed the pediatric portion of my training
6 at the Dayton Children's Medical Center at Children's
7 Hospital in Dayton and I completed a clinical fellowship in
8 adult reconstructive surgery for arthritis at Brigham and
9 Women's Hospital in Boston, Massachusetts.
10 Q After your residencies and internships, did you
11 go into private practice?
12 A I did in August of 1984.
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13 Q And was that here in Harrisburg
14 A Yes.
15 Q With Arlington Orthopedic Group?
16 A Yes.
17 Q Doctor, are you licensed to practice medicine in
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18 Pennsylvania?
19 A I am.
20 Q Beyond that license do you have any
21 certifications in the field of orthopedics?
22 A I am board certified by the American Osteopathic
23 Board of Orthopedic surgery and I am recently recertified
24 for 10 more years as of last year.
25 Q For members of the jury that may not be familiar
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1 with board certification and what it means within your
2 profession, can you explain to them what that means?
3 A The federal government and its regulatory
4 agencies recognize a board, a board for the MO surgeons, the
5 American Board of Orthopedic Surgery, ABOS, and a single
6 board is also recognized by those same agencies for the
7 Osteopathic surgeons that have trained with a DO degree in
8 Osteopathic residencies that are accredited.
9 That board is the American Osteopathic Board of
10 Orthopedic Surgery, the AOBOS. Certification is offered by
11 those boards to individuals that have completed an
12 accredited program with five years of post-doctoral training
13 after they have received a medical degree and if that
14 training is completed in an accredited program by either
15 board, then one may sit for the examination of that board
16 after training is completed.
17 The board examinations are conducted in the years
18 that follow the completion of a residency and in both
19 professions consist of a written and subsequent oral
20 examination and in the Osteopathic profession there is an
21 additional level, clinical evaluation that the MOs do not
22 have, principally due to their numbers, and that clinical
23 evaluation involves the observation of the candidate
24 performing at least two major surgical procedures of a
25 different nature and also the review of the last several
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1 hundred surgical cases that that candidate has performed,
2 both the pre and post-operative x-rays or diagnostic studies
3 and the hospital charts and the office charts.
4 I have completed all three elements of that
5 process in my own profession and am board certified by the
6 American Osteopathic Board of Orthopedic Surgery.
7 Q Is that a voluntary certification procese over
8 and above the licensing requirements of the State?
9 A Yes, it is.
10 Q Doctor, you've made mention of the fact to the
11 jury about Osteopathic medicine and you're essentially a DO,
12 Doctor of Osteopathic medicine?
13 A More than essentially. I am.
14 Q Is there any difference between a medical Doctor
15 and an Osteopathic Doctor with respect to orthopedics?
16 A Frankly as I perceive it, very little. You may
17 get an argument from the other side of the fence, but
18 traditionally Osteopathic medicine differs principally in
19 it's focus during the undergraduate training years.
20 Our philosophy has always been to train a uniform
21 quality family physician first and when that individual hae
22 completed that training in a general way and
23 traditionally also a rotating internship then he ie
24 considered able to specialize,
25 The MD profession traditionally has encouraged
1 subspecialization during the undergraduate medical year and
2 I think that's where the principal differences lie. Our
3 residents in training currently take the same in service
4 training exam as the MDs do and compete well with them
5 nationally on that scoring basis.
6
Q
Are the licensing procedures for the State of
7 Pennsylvania the same for DOs and MDs?
8
A
Essentially, yes.
Doctor Holencik, because I'm sure you're going to
10 be asked the question and the jury may wonder, Dr. pariser
9
Q
11 on whose behalf you're testifying today is a Doctor in the
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12 medical community in this area,
13 Prior to your treating him following his
14 accident, were you familiar with Dr. pariser on a
15 professional basis?
16 A
17 Q
18 beginning
19 A
20 to him in
21
Yes, for the last 13 years or so.
Did you have a personal friendship before
treatment of him in January of 1994?
Not beyond seeing him in the hallway or talking
a hospital business meeting or social function.
I think Ben may have been to my home once in 13
22 years for dinner several years ago, perhaps five.
23 MR. KOSIK: At this time we would offer Dr.
24 Holencik as an expert in orthopedic surgery.
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8
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9
1 CROSS EXAMINATION ON QUALIFICATIONS
2 BY MR. WIX:
3
Q
With regard to your relationship with Dr.
4 Pariser, you've known him for approximately 13 yeare, is
5 that cor.rect?
6
A
Yes.
7
Q
And during that period of time he has referred a
8 number of patients to you for treatment as it relates to
9 orthopedics?
10
A
Yes.
11
Q
And does that continue down to the present time,
12 that he refers patients to you?
oJ__. ~
',' 13 A Not exclusively, but he does refer patients here.
14 MR. WIX: Okay. That's all.
15 DIRECT EXAMINATION
16 BY MR. KOSIK:
17
Q
Doctor, the purpose for taking your deposition
18 today is to have you explain to the jury the injuries that
19 were suffered by Dr. Pariser in this accident December 7th,
20 1993, and specifically the injuries that you treated in
21 subsequent months and years.
22 You have before you a rather extensive chart.
23 The jury can't see that, but if you want to during the
24 course of the deposition refer to that chart, please feel
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25 free to refer to that.
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1 Can you tell the jury when you first saw Dr.
2 pariser following this accident?
3
A
He presented to my office for evaluation on
4 January 24th of 1994. At that time he was relating to me
5 that he had previouely been without symptoms referable to
6 his legs -- at that time the right -- and was crossing the
street, I believe in Carlisle locally and was struck on his
right side by a moving automobile and knocked to the ground
with resultant injuries that consisted principally of a
fracture and bruise or contusion of the lateral right leg
just below the knee and also what we call a closed head
injury, meaning that there was not penetrating trauma to the
head like a bullet or stick, but he struck his head on
something to the point of having what I believe to have been
a witnessed loss of consciousness, meaning that somebody
else saw the patient unconscious and it wasn't just the
patient's description of being quote, woozy, end quote,
after an event.
Q Was that your first involvement in his care?
20 Were you involved at all in his hospitalization?
21 A I had not seen him for this problem prior to
22 that.
23 Q Were you aware when he came in your office __
24 this is about six weeks post-accident -- of the treatment he
J 25 had received up to that point?
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1 A I was aware that he had been evaluated at the
2 Carlisle Hospital and that he had also been evaluated at the
3 Hershey Medical Center, I believe, by both neurosurgery and
4 general orthopedics.
Q The injuriee that you saw when he came into your
office, would these be consistent with the type of accident
that he described?
A Yes.
Q What was the purpose for his visit on January
24th, 1994?
A He was concerned because he was approximately
five or six weeks post-injury and still had significant pain
referable to his right leg and he wondered if the fracture
was healing properly and he also complained of significant
and diffuse weakness in the leg as well, on the right.
He had a persistent limp and was concerned about
17 the ultimate prognosis for this injury that he had
18 previously been assured was a relatively trivial structural
19 event.
20 Q Did you perform an examination and conduct any
21 tests on him to develop a diagnosis as to exactly what his
22 injury was?
23 A I examined his symptomatic areas at length. He
24 had a limp on the right and he also had tenderness at the
25 fracture site of the fibula, which is the small bone on the
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1 lateral aspect of the leg.
2 The leg from the knee to the ankle is comprised
3 of two bones, a larger bone called the tibia which courses
4 from the thigh bone or femur to the ankle and foot and a
5 long thin bone of equal length situated in the lateral
6 aspect of the leg called a fibula, which is perhaps in an
7 adult male the diameter of one's thumb and courses from just
8 below the knee joint to become the prominent bony bump on
9 the lateral aspect of the ankle.
10 Q This would be the bone on the outside portion of
11 the calf?
12 A Correct. In orthopedics the leg is traditionally
13 from the knee to the ankle and the thigh goes from the hip
to the knee; so the leg was injured on the right and at
approximately the level of an automobile bumper compared to
a standing adult male.
This was just below the knee, a somewhat
displaced or out of position complete fracture or break of
the fibula. My principal concern was that this injury and
the contact point that caused the fracture was almost
exactly where an important nerve called the peroneal nerve
crosses the fibular bone and it is the most commonly injured
peripheral nerve, meaning the nerve that is most
statistically often injured in the body; and his fracture
and impact were exactly where that nerve courses over the
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1 fibular neck.
2 Of concern to me at the time of his visit on
3 1/24/94 -- and mentioned in the second page of a rather
4 extensive note -- is the fact not only was he tender there,
5 but he had significant weaknesses of the muscles of the
6 right leg that are supplied by that nerve; specifically,
7 those that bring the ankle toward the patient's head and
8 curl the toes toward the top of the foot and those were
9 identified at the time of my exam, those functions were
10 identified to be quite weak.
11 I graded the weaknesses at three to four over
12 five plus. Three is significant weakness. Four is moderate
13 and I felt that he had sustained a contusional or bruising
14 injury to the common peroneal nerve at the site of his
15 injury and that concerned me.
16 I was also concerned because he was unable to
17 fully contract his quadriceps muscle. The thigh muscles
18 that support the knee were also weak at that time, although
19 not as significantly weak as the muscles below the knee
20 were.
21 I obtained x-rays of the knee and of the leg on
22 the affected side and I thought that the contusional or
23 bruising injury to the nerve may be one of his long term
24 problems as would potentially also be his kneecap as he was
25 irritable to compressive maneuvers of the kneecap and may
14
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1 well have sustained some type of bruising injury to the
2 patella or kneecap as well.
3 I recommended that he continue an exercise
4 program and that he wear an immobilizer which was a splint
5 on the knee with velcro fasteners to keep it in extension
6 and he was ambulating or walking with a cane and had a
7 moderate to mild amount of swelling in the knee; and that
8 fluid in the knee indicated that there was also some damage
9 to the structures inside the right knee above the fibular
10 fracture or there would not be fluid in the knee and he
11 would have been able to vigorously contract the quadriceps
12 or thigh muscle.
13 The patient was advised to return in six weeks
14 and I would again reevaluate him and I told him to expect
15 the muscular weakness of the leg to resolve over a period of
16 potentially many months or weeks and that he would have to
17 be careful on the limb relative to it giving way because of
18 the fact that there was weakness identified on both the far
19 and near side of the knee.
20 Q We have here today what we can show to the jury,
21 several medical diagrams which show the bones in the leg and
22 nerves in the lower leg.
23 If I could, I'd like to have you mark the area of
24 injury which you've already described for the jury so they
25 could be able to see that and we can use which ever one --
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A
I can actually draw on this, on the plastic?
2
Q
Yes, right on the plastic and we'll mark that one
3 as Exhibit A.
4 (Diagram produced and marked Holencik Exhibit A.)
5
THE WITNESS: I have marked with an X where the
6 fracture was sustained on the right leg.
7
MR. KOSIK: We'll mark that diagram of the nerves
8 Exhibit B.
9 (Diagram produced and marked Holencik Exhibit B.l
THE WITNESS: And I have also marked on the
11 second smaller diagram, plate 510, the fracture site, which
12 was directly overlying the anatomic course of the common
13 peroneal nerve, which is traditionally describing three
14 finger breadths on the far side of the head or bulge or
15 expansion of that bone lateral to the knee.
16 BY MR. KOSIK:
17
At that time, as of the first office visit, did
Q
18 you develop a diagnosis as far as the orthopedic injuries
19 that he suffered?
20
A
I did.
21
Q
And what were your diagnoses?
22
A
I said that he had a minimally to moderately
23 displaced proximal fibular fracture just distal or on the
24 far side of the fibular head on the lateral aspect of the
25 right knee with a co-existing contusional or bruise injury
15
16
1 to the common peroneal nerve, which is in medical language
2 called neuropraxia; and that he also had a right sided chest
3 wall and frontal skull contusion and abrasion which simply
4 means that the chest on the right side had a bruised area as
S did the front of his skull with some scuffing or abrasion of
6 the skin; and a cerebral concussion, which means the brain
7 took enough of a knock when his head struck whatever it did
8 that he was rendered temporarily unconscious and that is the
9 definition of a cerebral concussion.
10
Q
Doctor, based upon the history that had been
11 provided to you by Dr. Pariser, do you have an opinion to a
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12 reasonable degree of medical certainty as to whether these
13 injuries which you described to the jury were directly
14 related to this automobile accident on December 7, 1993?
15
A
I do have an opinion.
16
Q
And that opinion is?
17
A
My opinion is with a reasonable degree of medical
18 certainty that the injuries just described to you are
19 clearly and causally related to an auto/pedestrian impact
20 with Cr. Pariser as the pedestrian.
21 Q After that first office visit, did you have any
22 plans to follow-up with him from an orthopedic standpoint?
23 A I advised him to return in six weeks at which
24 point I would measure his thigh and leg and make sure the
.....J 2S muscular function was coming back and specifically do the
17
1 resisted muscle testing of the leg muscle referable to the
2 foot and ankle to make sure that there was continuing
3 improvement of the peroneal nerve bruise.
4
Q
And if I remember correctly, I think you
5 indicated you had recommended use of a knee immobilizer and
6 cane?
7
A
Yes.
8
Q
When he came back in on the 6th of March, 1994,
9 how was he doing at that point?
10
A
I believe it was March 9th listed in my office
11 notes.
12
Q
I'm sorry.
"",
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A
He told me he had been doing fairly well until a
14 few weeks prior to that when he was walking in the snow on
15 his way into the house and he went to move his trash can and
16 his right leg gave way and he twisted his left knee, falling
17 and noting immediate pain in his left knee.
18 His exam at that time demonstrated some
19 tenderness at the fracture site, but his left knee was
20 tender over the medial or inside compartment and also over a
21 structure called the medial meniscus or cartilage, a C
22 shaped cushion between the bones of the femur and tibia
23 which is often seen with a twisting maneuver.
24 He had a clunk or click when the knee was moved
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25 about with a typical testing or provocative maneuver for a
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cartilage tear and he had a mild effusion, which is a fluid
collection in the left knee and x-rays that were basically
normal, but did not show cartilage, only showed the bones
and bony anatomy.
He still had a considerable limp on the left and
it was my impression that he had a torn cartilage in his
left knee and at that point I recommended that he procure a
test called an MRI which is a way of looking at the soft
tissue and ligament structures; specifically, the cartilage
in the knee and attempting to determine whether or not his
swelling and pain were caused by a torn cartilage and if it
could be treated in a surgical way to relieve his symptoms.
Q Do I take it then when he came in on March 9th
that his primary complaints were with respect to the left
leg?
A Yes.
Q How was he doing with the right leg and the other
injuries which you had previously described in your
testimony?
A I thought he was doing well. He had minimal
21 tenderness at the site of his known fracture and he no
22 longer demonstrated significant irritability or weakness of
23 the thigh or leg on that side.
24 Q Did you ultimately get the results of the MRI
.....) which requested, Doctor?
25 scan you
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1 A I did and both to my eye and that of the
2 examining radiologist or x-ray specialist, that study
3 demonstrated a tear involving the posterior horn or the back
4 corner of the medial or inside meniscus.
5 That study was conducted at a place called the
6 Physician's Imaging Center and was dated 3/10/94.
7
Q
Dr. Holencik, based upon the description of the
8 injury to his left leg that Dr. pariser had described to
9 you, slipping on his right leg while walking in snow and
10 then twisting his left knee, do you have an opinion to a
11 reasonable degree of medical certainty as to whether the
12 injury to the left leg was related to the original injuries
13 which he had suffered to the right leg in the automobile
14 accident of December 7th, 1993?
15
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17
A
Q
A
I do have an opinion.
And what is that opinion?
My opinion is that the left knee injury or torn
18 cartilage was causally related to his vehicle accident or
19 pedestrian accident in the sense that he had significant
20 weakness of the muscles that support the ankle on the right
21 side and that muscular support was compromised and
22 significantly so; particularly, as this injury had occurred
23 several weeks prior to his re-examination on 3/9 and fairly
24 contemporary to my exam which demonstrated muscular
25 weakness.
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1 These patients have the inability or relative
2 inability to cant, the hind foot in either direction to
3 resist rolling over at the ankle. It's a traditional or
4 shall I say a classically described situation and it is a
5 reasonable description of circumstances on his part and I
6 believe causally related in that manner to the original
7 vehicle/pedestrian impact.
8 Had the nerve not been injured on the right side
9 and the muscle that supports the right ankle not weakened to
10 allow it to give way, he would not have injured his
11 contralateral or opposite lower extremity,
12 Q I believe Dr. pariser testified this event with
13 the left leg occurred on February 15th, which would be
14 approximately two months following the original automobile
15 accident. Would that still be within the normal healing
16 period for the injuries he suffered on the right leg?
17 A Yes, because I told him it maybe up to 12 or even
18 18 months before he got his -- I actually told him 18 to 24
19 months on January 24.
20 He had significant, not a trace, of weakness at
21 that time and that was approximately 20 or 21 days prior to
22 his fall.
23 Q Doctor, going back to your first office visit, I
24 note in the beginning of your office note there was some
25 mention of bilateral knee pain. Did you examine Dr,
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1 Pariser's left knee at the time of the initial evaluation?
2 A I did.
3 Q Was there any significant finding at the time of
4 the original office visit on January 4th, 1994, I believe
5 it's the third line down of the first office visit?
6 A I see that. He had pain in the left knee when I
7 performed what is called a patellar or kneecap compression
8 maneuver and that meant that he had possibly bruised or
9 struck the frontal aspect of the knee at some time during
10 his trauma.
11 His knee exam on the left was not very impressive
12 otherwise and I make little mention of anything else in the
13 way of irritability at that time.
14 Q As a result of the MRI that was taken on the left
15 knee, did you make any recommendations and follow through
16 with any type of treatment?
17 A The left knee had come to bother him more than
18 the right side by March 24th when he was re-evaluated and he
19 wasn't able to perform his daily living or professional
20 activities on the left knee with the pain that he had in
21 that inside compartment.
22 We discussed the risks and benefits of removal
23 and he chose to proceed with evaluation of the knee by
24 examination under anesthesia, which means to move it about
25 and see if it behaves normally or not in a mechanical way
22
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1 with the patient asleep and pain eliminated and also the
2 ineertion of a lighted telescope called an arthroscope,
3 which is a device that examines the internal contents of the
4 knee and if a torn meniscus or other damaged tissue that is
5 fixable with this technique is identified, then the torn
6 cartilage, for example, can be removed and the mechanically
7 offensive pieces of cartilage taken out of the knee so that
8 the knee no longer is painful or buckles.
9 Q I have as part of your records an operative
10 report from Community General Osteopathic Hospital, I
11 believe, dated April 1st, 1994. Is that when he underwent
12 this procedure?
13 A Yes.
14 Q If you can, explain to the jury essentially
15 what's done in the procedure. I know you just described for
16 them the arthroscopic procedure, but specifically what did
17 you do in Dr. pariser's case?
18 A The pain of the anticipated surgery is eliminated
19 by either a spinal anesthetic or a general anesthetic where
20 the patient is put to sleep, so to speak.
21 When the patient is properly anesthestized, the
22 affected knee is examined, The knee is placed through a
23 range of motion vigorously, it is twisted about to see if I
24 can make the bone pop out of the socket. The ligaments are
25 tested to make sure they are doing their job and testing
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1 called McMurray's io done and that involves rotation of the
2 knee and ankle with the knee held in a firm and stable
3 position and if crepitation -- our word for crackling or
4 popping -- is noted, that is felt to be highly suggestive
5 of a torn cartilage.
6 Once that examination is completed and a clinical
7 diagnosis is established, then the knee is prepared with
8 cleansing agents to render it as sterile as possible or as
9 clean as possible, a tourniquet, a rubber bladder device is
10 placed about the thigh on the affected side, the limb is
11 squeezed from the blood with a -- the blood is squeezed from
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12 the limb, rather, with a rubbery bandage and the tourniquet
13 inflated to a level that will keep the blood from returning
14 to the limb for the few minutes it requires to do the
15 operation.
16 A series of puncture wounds are created, two on
17 the front of the knee on either side of the kneecap tendon
18 and a third one above the kneecap and tubular devices are
19 inserted through which other instruments are inserted.
20 The knee is distended or puffed up with a fluid
21 solution to bring the anatomy away from the other structures
22 so the soft tissues don't collapse against the bone and then
23 the knee is examined internally.
24 In this case a tear of the medial or inside
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25 cartilage was noted. Probing of it with a metallic device
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1 while it was directly visualized demonstrated this tear to
2 be unstable, meaning I was able to bring this piece of
3 cartilage to an abnormal location in the knee between the
4 bones that would cauee the knee to be painful and then with
5 a variety of biting and suction devices that are mechanical
6 and squeeze, much like one would squeeze the trigger or
7 scissors, the mechanically offensive portion of the
8 cartilage is removed; in this case in the medial
9 compartment, and then further probed under direct
10 visualization while watching it to make sure that the
11 remnant that is left behind is stable.
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When that is completed and when the viewing of
all of the important structures of the knee is completed,
then the implementations withdrawn, the portals or incision
wounds for the insertion are closed with a stitch or a
staple and the patient is placed in a bulky dressing after
the tourniquet is placed, usually in 30 to 45 minutes.
Q Doctor, we have another diagram which shows a
view, an overview of the top of the tibia and which shows
the meniscus.
If you could, mark on there for the jury the area
that you're talking about where the tear was located and the
section of the meniscus was removed?
A (Witness complies.)
I would also like to show you, when I leave the
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room contemporary to the surgery, I draw while still in
the room with the patient being awakened I draw a
picture for myself upon which to base my description which
will be dictated a few minutes later in the surgical lounge
or physician's lounge area; so I drew a picture within
minutes of completing the procedure and there was a
significant tear involving the posterior or back sided horn
or corner of the knee where he was tender on clinical exam
and where the MRI said the tear was. That has been marked
with a black pen.
There are also some minor degenerative changes or
at least irregularities of the articular cartilage which is
the cartilage, the thin bluish translucent grizzle that
lines the end of the bone, much like a turkey or chicken leg
when eaten.
This should be very smooth and without any
fissure or cracking and there were some minor degenerative
changes in the opposite compartment to his symptoms in the
lateral or outside compartment on left and these were felt
to be of little clinical significance and did not require
any surgical treatment.
(Diagram produced and marked Holencik Exhibit C.)
BY MR. KOSIK:
Q Is this procedure done as an outpatient at the
hospital?
26
1
A
Yes, it is.
2
Q
Were your findings of the tear of the meniecus
3 consistent with the type of twisting injury that he
4 described to you?
5
A
Quite.
6
Q
Doctor, from reviewing your office notes, it
7 appears you saw Dr. pariser in follow-up approximately 10
8 days later on April 12th. How was he doing initially after
9 the procedure?
10
A
He was doing fairly well. He had a good range of
-)
~..
11 motion with a slight limp and was instructed in a home rehab
12 program which he was continuing,
13 I advised he continue his home program and I
14 would see him back in four to six more weeks, reserving
15 consideration for a supervised physical therapy program for
16 after my assessment of his progress.
17 My traditional way of dealing with these, I
18 instruct the patient in their own home program and if they
19 demonstrate compliance with that and progress with that
20 program I try not to send them to physical therapy in an
21 effort to avoid the cost and that's what I did with him.
22
Q
In reviewing your records it appears you saw him
23 on three more occasions throughout 1994, May 11th, June 15th
24 and August 24th.
~
25
Without going over each office visit, maybe you
'.~'.'.'" .,,,....,,. ,".~..~"
27
-,
,
1 can explain to the jury how he progressed and how he
2 recovered from this procedure?
3
A
He continued to complain of a morning ache and
4 slight limp and pain with kneeling, squatting and stair
5 climbing, which every patient after arthroscopy has for
6 three to five calendar months.
7 He had minimal fluid with a minimal limp and I
8 was satisfied with his progress in May and in June, now
9 about two and a half months out.
10 He had a full range of motion with minimal
11 discomfort and no further locking, crackling or giving way.
12 I advised that he return in a few more months and he was
:)
13 again evaluated five months post-op in August of that year
14 at the time when I would have expected most of his residual
15 symptoms to be resolving and he still had some kneecap pain
16 with compression as he had immediately after the accident
17 and had a deep pain in the knee that I felt to be on the
18 basis of either the meniscal remnant or on the basis of some
19 of the smoldering degenerative changes that were noted.
20 At that time, in August of 1994, I injected a
21 cortisone type solution into the knee in an effort to blunt
22 what may have been a persistent inflammation as he was
23 unable to take any of the arthritis or anti-inflammatory
24 medications because they caused stomach upset, which is very
,
......
25 common.
1 He was evaluated once again approximately six
2 months after that injection in February of 1995 and at that
3 time continued to demonstrate persistent aching of the left
4 inside compartment and at that time also had evidence of an
5 effusion or fluid formation,
6 This fluid formation at thie relatively later
7 date caused me concern because a standard cartilage excision
8 should not be swollen that many months out. It's obviously
9 something that the patient cannot create, it is a reaction
10 of the joint membrane to the to degeneration of particulate
11 debris, little pieces of dust, much like the debris that is
12 generated when one sands something with sandpaper is created
)
13 in the joint and this often causes something called a
14 synovitis.
15 He had x-rays obtained at that time that
16 demonstrated very minor or minimally degenerative changes
17 and I again repeated an injection with cortisone as that had
18 offered him several months of good, but not complete, relief
19 the past fall when it had been done or late summer.
20 Q That office visit in February of 1995 was a
21 little more than a year following the original accident.
22 How was he doing with respect to the other orthopedic
23 injuries to his right leg?
24 A I said that he had healed the right fibular
~ 25 fracture with no adverse sequela, meaning without any
28
.: .)
15
16
17
18
19
20
21
22
23
24
......) 25
29
1 residual problem.
2 I thought his right knee was not irritable, the
3 right knee healed nicely, the muscle had come back and I
4 thought he had done very well with his injuries on the right
5 side.
6 Q I didn't hear you mention it, but in my review of
7 that note for February of 1995 there was apparently some
8 atrophy developing of the left thigh. Do you recall that in
9 the office visit?
10 A I said there is radiographic evidence of disuse
11 atrophy of the bones of the left knee. Bone is alive and
12 dietary calcium, calcium that one eats or drinks in their
13 diet is distributed to the bone based on the bone's
14 metabolic demands.
The bone that is walked on heavily and used
heavily and normally will deposit symmetrical or significant
amounts of calcium in its bony architecture.
A bone that is in an extremity or that is painful
and being limped on and favored in a manner of speaking will
develop a washed out look with less whiteness, less calcium
on a plain x-ray.
Since you obtain the x-ray with both of the
patient's legs on a single cassette with a single x-ray
beam, the bone should have a symmetrical appearance or a
comparable amount of calcium, because all of the other
30
1 technique variables have been eliminated; it's not two
2 separate machines, it's not two separate films, everything
3 is done, being analyzed by the same x-ray beam; so the fact
4 that he had bony atrophy on the left implies again as
5 did his fluid collection
that there is something
6 inhibiting function on that side that is painful.
7
Q
Again, Doctor, without going over each visit, it
8 appeared after the February visit you had him return on
9 approximately a six month basis. There was a visit in June
10 of 1995 and then two visits in 1996.
11 Again, if you can just briefly summarize for the
12 jury how his condition progressed, whether there was any
4)
-1. 13 significant improvement from what you've already described
14 in February of 1995?
15 A There's been no significant improvement in the
16 sense that he continues to complain of intermittent mild to
17 moderate amounts of fluid accumulation, aching in the inside
18 compartment and an occasional limp, pain with weather
19 changes which can be expected to be potentially permanent at
20 this point and a persistent limp.
21 Interestingly, he developed a trochanteric
22 bursitis on the left and this often accompanies a chronic
23 limp. A bursa is a fluid filled sac where a bony prominence
"....)
24 has a bone pass over it; and his bursa on the left hip just
25 on the lateral aspect of the buttock where the bone is able
..',
31
~
1 to be felt was tender and I have injected that now on I
2 believe two occasions in an effort to render him able to
3 sleep on that side as that is a common complaint of the
4 patient with bursitis and also to try to improve his limp.
5 He takes only occasional narcotic analgesic or
6 stronger pain pills and x-rays of the pelvis and hip have
7 been normal.
S The right knee continues to do well. The left
9 knee has continued to do fairly poorly and he continues to
10 complain of intermittent pain referable to his greater
11 trochanter or hip on the left side.
12 His examination in February of 1996 demonstrated
13 between one-half and three-quarters inch of atrophy of the
14 left thigh and this, again, would imply some element of
15 shielding or favoring of that limb; and again, like the
16 swelling and like the wash out of bone, cannot be created or
17 fabricated by the patient; so he has continued to complain
1S of problems in his left knee that are fairly typical
19 sequela, things that one often sees after a procedure and
20 these findings in his left knee are commonly seen after
21 cartilage removal.
22 The menisca1 cartilage is a cushion between the
23 bones that shields the articular cartilage, the bluish
24 grizzle on the ends of bone from increased weight.
25 Virtually every time a cartilage is removed, a
,)
11
12
0 13
14
15
16
~
32
1 degenerative price is paid in the decades that follow and
2 hie recurrent swelling and pain in that compartment of
3 surgery are common findings in a patient a couple of years
4 after cartilage removal; although his degeneration in that
5 compartment has been a bit more rapid than I would have
6 expected to see and his degree of disability relative to the
7 limp and fluid accumulation are a bit more significant than
8 one would expect to see.
9 Q Based upon his course over the last approximately
10 two and a half years and your training and experience, would
you have a prognosis as far as what you would expect to
develop in the future in Dr. pariser's case?
A He is unable to take anti-inflammatory medication
with any degree of regularity and that is going to make
managing his inflammatory arthritis difficult.
He must take the anti-inflammatory medication
17 with a stomach protecting medicine or anti-ulcer type drug.
18 He may require periodic injections, although I would not
19 advise them to be conducted frequently or in large numbers
20 as repeated injections can have their own side effects which
21 are unfavorable to articular cartilage and can lead to
22 further arthritis or inflammation of the joint membrane,
23 I believe that he will have some element of pain
24 in the compartment, the inside compartment of his left knee,
25 particularly with weather change or vigorous activity and I
33
1 believe he will require medication or a fairly vigorous and
2 organized exercise program to keep this limb from withering
3 any further and maintaining his function.
4 I believe his trochanteric bursitis is probably
5 related to his chronic limp, although that is a relatively
6 secondary or minor complaint and I can say with a reasonable
7 degree of medical certainty, because he still has measurable
8 atrophy and visualized swelling at this later stage, that he
9 will probably -- he will certainly have further theraputic
10 requirements in terms of physician visits, medication or
11 injection or therapy.
..
I )
,
12 He may have further surgical requirements a
13 couple of decades from now in the form of some kind of
14 reconstructive arthritis surgery and it's far too early to
15 tell what that would be.
16
Q
Up until this point it did not appear from my
17 review of the reports you had actually sent him for
18 formalized physical therapy?
19
A
He has always been compliant enough on his own
20 and we discussed that at some length at his visits relative
21 to what the program consists of and whether or not it's
22 satisfactory to me.
23
Q
Again, Doctor I would just ask you whether you
24 have an opinion to a reasonable degree of medical certainty
,~
25 as to whether the injuries which you described for the jury,
34
1 the right fibular fracture and the tear of the meniscus of
2 the left knee, in your opinion are directly related to the
3 automobile accident on December 7th, 1993?
4
A
I believe that both lower extremity problems as
5 well as the nerve bruise on the right and the cerebral
6 concussion are causally related to his motor
7 vehicle/auto/pedestrian accident in December 1993.
8
MR. KOSIK: Thank you, Doctor.
9 MR. WIX: I would simply move at this time to
10 strike that portion of the testimony that related to surgery
11 several decades down the road as not being previously
.4
I '. ')
12 contained in any of the reports that had been furnished to
13 us.
14 May I see your records, please, Doctor?
15 CROSS EXAMINATION
16 BY MR. WIX:
17
Q
Doctor, as I understand it, you first saw Dr.
18 pariser on January 24, 1994, as it relates to this?
19
A
Dr. pariser, yes.
20
Q
pariser. Had he talked to you before January 24
21 concerning the accident?
22
A
Not at all. Didn't even know it happened to him.
23
Q
Okay, So when he came into your office that day,
24 that was the first that you had known that he had been
~
25 involved in an accident?
1
A
2
Q
35
Yes.
And I take it he was the only one that you talked
3 to about the accident?
4
A
5
Yes.
Q
Now, you then dictated a letter that same date,
6 is that correct?
7
8
A
Yes.
Q
And the information that you have in the first
9 paragraph relating to the accident, you received that from
10 Dr. pariser?
11
12
, "')
"....f
A
Dr. pariser, yes.
Q Did he indicate to you why he did not see the car
13
that struck him?
14
15
16
17
A
No.
Q
Did you ask him?
A
Yes, That's a natural question.
Q
And what did he tell you when you asked him why
18 he didn't see the car?
19
As I recall he simply stated he was crossing the
A
20 road and didn't notice the car coming up on him until the
21 very last instant when it was unavoidable. I didn't push
22 the issue after that,
23
Q
Now, was it the doctor that told you that he had
v
24 been unconscious after the accident?
Yes. He was told that he was by bystanders and
25
A
36
1 he had no recollection of the immediate several minutes
2 after the event.
3 Q Now, you mention in there that he sustained
4 injuries to his head when his forehead came against the hood
5 of the car. Do you see that in your report?
6 A Yes.
7 Q And that's what the doctor told you?
8 A That's his recollection.
9 Q And then the next sentence you comment on the
~
10 degree of velocity with which he was hit?
11 A Yes.
12 Q When you make the statement that the degree of
13 velocity with which he was hit, you're referring to the
14 speed of the car, is that correct?
15 A Yes.
16 Q Essentially you are saying if the car had been
17 traveling faster he may have been killed or more severely
18 injured?
19 A That's correct, I think.
20 Q Were you given any sense of how fast the car was
21 traveling?
22 A It wouldn't have been very fast or he would have
23 been hurt a lot worse, I guess is the implication of that
24 statement.
25 The velocity was absorbed by the fibula and it
.')
37
1 caused a fracture. Had it been a higher velocity accident,
2 both the bones would have been broken, for example, or other
3 things would have been hurt.
4
Q
Now, as I understand it, the injury to the right
5 leg clearly came from that accident?
6 A As far as I'm concerned.
7 Q All right. And again, referring to the right
8 leg, at the present time, what is the condition of the right
9 leg?
10
A
It's doing well without any significant symptoms
11 reported.
12
Q
So in terms of injury, would it be fair to say
-i
i )
.~
13 that during the course of your treatment and also in terms
14 of the future, the most - - the more significant injury
15 relates to his left knee?
16 A Yes.
17 Q And that injury occurred apparently on February
18 15th of 1994?
19
A
Yes.
20
Q
I assume that you have treated that type of an
21 injury in other patients previously, is that correct?
22
A
Sure,
23
Q
And that's the type of an injury that can come if
24 somebody twists their knee?
...)
25
A
Yes.
;e'J'
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~
38
1
o
Is that the type of injury that you have seen
2 before in patients who have sustained falls on ice or snow?
3
A
Sure, yes.
4
o
And is it the type of injury that you have
5 treated in people previously who have not had any problems
6 with the opposite leg?
7
A
Certainly.
8
o
And people in your experience can fall on ice and
9 snow even if they do not have any preexisting injury to
10 either leg, isn't that correct?
11
A
Yes.
12
o Now, when you had seen the plaintiff in January
13
of '94, did you place him on any restrictions at that time?
14
A
Just those previously described relative to
15 immobilizing his knee using an assistive device and
16 moderating his activities within his tolerance.
17
o
Okay.
18
A
He was also advised that he could gradually wean
19 away from all of the above as time passed at his own
20 discretion.
21
Q
And would it be fair to say that in your patients
22 that the instructions that you may have to give a patient
23 could vary from patient to patient; that is, some people
24 require quite a bit of emphasis and understanding and others
25 may need to be told little or nothing in order to properly
39
,,-..
,
I
1 care for themselves?
2
A
That is entirely correct.
3
Q
He and when you placed the doctor in this knee
4 immobilizer, did you give him any specific instructions
5 about walking over ice or snow?
6
A
I wouldn't think someone with 25 years of school
7 would need that.
--.)
8
9
10
11 p.m.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. WIX: I have no other questions.
MR. KOSIK: I have no questions.
(Whereupon, the deposition was concluded at 5:05
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PLAINTIFF'S
EXHIBIT
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VIDEOTAPE
DEPOSITION OF: ROBERT B. PAIGE, M.D.
" """',
,
TAKEN BY: PLAINTIFF
BEFORE: TAMMY J. BAKER, REPORTER
NOTARY PUBLIC
DATE: NOVEMBER 5, 1996, 3:05 P.M.
\. .'"\
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PLACE:
HERSHEY MEDICAL CENTER
500 UNIVERSITY DRIVE
HERSHEY, PENNSYLVANIA
FOR - PLAINTIFF
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APPEARANCES:
ANGINO & ROVNER
BY: MICHAEL E. KOSIK, ESQUIRE
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WIX, WENGER & WEIDNER
BY: RICHARD H. WIX, ESQUIRE
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FOR - DEFENDANT
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ORIGINAL
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115 PINE STREET. HARRISBURG, PA 17101
Harrisburg 717.232.5644 Fa. 717.232.9637 LBneaslBr 717,393.5101
2
1
2 NAME
3 ROBERT B. PAIGE, M.D
WITNESS
DIRECT
CROSS
4 BY: MR. KOSIK 3
5 BY: MR. WIX 10
6
7
8
9
10
11
12
'0.,- 13
14
15
16
17
18
19
20
21
22
23
24
25
f
i
3
'----
1 STIPULATION
2 It is hereby stipulated by and between counsel
3 for the respective parties that reading, signing, sealing,
4 certification and filing are hereby waived.
5
6 ROBERT B. PAIGE, M.D., called as a witness, being
7 duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MR. KOSIK:.
10 Q Dr. Paige, will you tell the jury and for the
11 record state your full name?
12 A Robert Bickel Paige.
13 Q And, Doctor, where do you practice medicine?
14 A At the Milton S. Hershey Medical Center in
15 Hershey, Pennsylvania.
16 Q Can you explain to the jury the type of medicine
17 you practice.
18 A We're a college of medicine and this is a medical
19 center where we take care of patients who have diseases of
20 the brain and the spinal cord and the spinal column.
21 Q What is the area in which you specialize?
22 A Neurosurgery.
23 Q If you can, Doctor, just briefly summarize for
24 the jury your medical educational background.
25 A Okay. I have to think about this. I graduated
)
---.
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
from Columbia College of Physicians and Surgeons in 1959,
did an internship and first year of residency at the
Bellview Medical Center in the Columbia Division in New York
for two years, then entered the United States Navy Reserve
for two years and then did a residency in neurosurgery at
the Yale New Haven Medical Center in New Haven, Connecticut,
and completed that in 1971.
Q Is that when you came to Hershey?
A No. I came to Hershey in 1972.
Q Okay.
A And I was on the staff at Yale for a year.
Q And have you been practicing here at the Medical
Center since 1972?
A Yes.
Q And what position do you currently hold within
the Neurosurgery Department?
A Professor of Neurosurgery.
Q Within the field of neurosurgery, do you hold any
certifications?
A Yes. I'm board certified by the American Board
of Neurological Surgeons.
Q Are you also licensed to practice medicine in
Pennsylvania?
A Yes.
MR. KOSIK: At this time we would offer Dr. Paige
4
5
6
7
8
9
10
11
12
"'-'-
~-~- 13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 as an expert in neurosurgery.
2 MR. WIX: I have no qu~stions on qualifications.
3 BY MR. KOSIK:
Q Doctor, as I explained to you, the purpose for
taking your deposition today is to have you explain to the
jury the treatment that was provided to Dr. pariser here at
the Medical Center and the injuries that he had sustained in
this accident.
If you can, please, briefly describe for the jury
how Dr. pariser first came to the Medical Center?
A The doctor was transferred from the Carlisle
Hospital with a history that he had been struck by a motor
vehicle on the evening of admission.
They did a CAT scan and a question of air within
the cranial vault was raised and so he was transferred to
the Medical Center for observation.
There had been a question of -- questionable
history of loss of consciousness at the scene. That's how
he came to be here.
Q When he came in, did he come in under your
review --
A Yes.
Q Were you the primary physician?
A I was the physician who took care of him, yes.
Q Did either you or a resident conduct a physical
6
1 examination--
2 A Yes.
3 Q -- of the doctor when he arrived?
4 A That's correct.
5 Q Can you explain to the jury what injuries he
6 presented with when he was examined here at the Medical
7 Center?
8 A From a neurologic point of view he was awake and
9 alert. He was only mildly amnesic for the event. There were
10 two small lacerations in the right frontal area of the head,
11
12
.~....
.j 13
14
15
up here.
The rest of his examination was normal except for
the examination of his legs -. and I'm trying to remember
which leg was --
Q I think the record will reflect and I don't think
16 there's any dispute
17 A He had a
18 Q Right ?
19 A -- a swollen painful right knee for which an
20 orthopedic consultation was obtained.
21
Q
Did you conduct any tests on Dr. pariser to
22 evaluate the injuries?
23
A
We were concerned with his head injury. The knee
24 injury we consulted the orthopedists on and they took care
25 of that.
7
1 The head injury was felt to be self.limited and
2 he had not had any kind of hemorrhage within his head or
3 anything.
4 He was observed for a day and remained
5 asymptomatic and he was discharged at that time. He
6 received instructions from the orthopedists as to care for
7 his injured knee.
8
Q
I think you indicated that when he came in he was
9 -- he came in with a CT scan having been performed at
10 Carlisle Hospital?
11
A
That's correct.
12
Q Were any further tests done of his head while he
'\
....~-'
13
was here at Hershey Medical Center?
14
A
Not to my knowledge, no.
15
Q
What did the CT scan done at Hershey indicate?
16
A
Well, the CT scan done at Carlisle showed a
17 fracture of the medial portion of the orbit and a very, very
18 small bubble of air at the base of the brain, about the size
19 of the head of a pin.
20
Q
The bone that's fractured, exactly where would
21 that be located in the skull?
22
A
Well, it would be behind the right eye and just
23 above it, between the eye and the brain.
24
Q
For that type of fracture is there any type of
25 treatment?
,;~
.~~
"0"
1 A Not with the minimal amount of change within the
2 cranial vault, no. It's just allowed to healed, which it
3 did.
4 Q I think you indicated and the records reflect
5 that several consultations were sought. You already made
6 mention to an orthopedic consultation. Essentially what did
7 the orthopedic doctor see Dr. pariser for, what type of
8 injuries?
9 A That was for the injury to his knee and as I'm
10 not an orthopedist, I would have to read that consultation
11 to you.
12 The consultation says 43-year-old pedestrian
13 struck by motor vehicle, I presume. Admitted for
14 pneumocephalus. Had pain in his right lower extremity on
15 admission about the knee.
16 Was able to weight bear and ambulate with mild
17 pain in the right lower extremity. The physical examination
18 says proximal fibular -- it says literally proximal fibular
19 over fibular head.
20 Tender, swollen, without an ech -- without a
21 bruise; and neurovascular examination normal and the
22 compartment was soft.
23 The x-rays showed a non-displaced right proximal
24 fibular fracture. That was their opinion. They recommended
25 an Ace wrap, elevate the leg and put ice on it, use
8
1 nonsteroidal anti-inflammatory agents and weight bear as
2 tolerated.
3 Q Do the records indicate whether he was
4 recommended to obtain any physical therapy for that injury?
5 A Not on that consultation, no. I would have to
6 look at ortho. Recommended crutch walk -- yeah, physical
7 therapy for crutch walking instructions and the patient was
8 instructed to bear weight as tolerated.
9 Q The records also indicate that there were two
10 other consults, an ENT and an ophthalmology consult. Again,
11 briefly if you can, tell the jury what the purpose for those
12 consults and what the findings were?
13 A Since he had facial; that is, orbital fractures,
14 ENT and the ophthalmologist were called as a matter of
15 course. We wanted to make sure that there was no damage to
16 the eye and the ophthalmologist found that there was some
17 mild bruising around the eye, but that the eye was
18 essentially normal and they recommended a follow-up with an
19 ophthalmologist in a year.
20 The ENT physicians noted that there was a medial
21 orbital wall fracture, there was swelling about the eye and
22 recommended follow-up in one week with the ENT doctor, Dr.
23 Fornadly.
24 Q As a result of the consults, was there a
25 diagnosis developed as far as the injuries Dr. Pariser had
9
~
)
,~
10
1 sustained from this automobile accident?
2
3
4
5
6
A It was felt that Dr. pariser had sustained a
medial orbital wall fracture and a probable basalar skull
fracture and a fracture of the right fibular head.
Q Doctor, based upon the history that had been
provided when Dr. Pariser came in, your training and
experience, do you have an opinion to a reasonable degree of
medical certainty as to whether these injuries came from the
automobile accident?
A I believe that they did.
MR. KOSIK: Thank you, Doctor.
CROSS EXAMINATION
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BY MR. WIX:
Q Dr. Paige, you indicated that insofar as his head
injuries were concerned, it was the feeling of yourself and
I guess the other physicians who saw him that his injuries
were self-limited?
A That's correct.
Q Could you explain to us as a layman what you mean
when you use the term self-limited?
A It meant there wouldn't be any hemorrhage or any
further injury sustained by them in a delayed fashion.
Q And for the type of fracture that he had at the
orbit of his eye, as I understand, at least by the nature of
his fracture at least, it didn't require any treatment of
......... ~"".-... -' '....
11
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3
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any sort?
A That's correct, it did not.
Q It simply heals on its own?
A That's correct.
Q And I take it the doctor was instructed that if
he had any neurological problems, he was to call for a
follow-up tr.eatment?
A Yes.
Q And did, in fact, he have any follow-up treatment
from you or anyone else here at Hershey?
A No. He did not call.
Q And that didn't surprise you?
A No.
Q Now, in terms of the fracture of his fibula, you
indicated that the x-rays showed that it was a small
non-displaced fracture. What does that term mean,
non-displaced?
A I'm just reading that and really you need to quiz
an orthopedist about that. I'm not qualified to make any
kind of definitive comments about fibular head fractures.
Q Okay. In terms of the consult, though, you had
read in the consult that the orthopedist had performed an
examination of his leg, is that correct?
A That's correct.
Q
And again, who was the orthopedic surgeon that
12
1 did that?
2 A That could be tricky
3 MR. KOSIK: Doctor, 1 can hand you a copy of part
4 of the consult.
5 THE WITNESS: Okay. It's Dr. spencer Reed. He
6 has returned to the Medical Center...
7 MR. WIX: Let me -- I'm just -- could I see
8 that?
9 MR. KOSIK: This is the front page to it.
10 BY MR. WIX:
11 Q The consultation by Dr. Reed, that indicates that
12 it was 0100. Was that 1:00 in the morning?
../
13 A That would be right.
14 Q Now, in the progress notes, also under the date
15 of December 8th, there's also another entry as it relates to
16 orthopedics. Do you see that one, Doctor?
17 A I see something that says 12/8, ortho.
18 Q Yes. Can you tell me whose writing that is?
19 A No, I can't. I cannot read it.
20 Q Okay. Does it appear to you, though, that that
21 physician was looking at the plaintiff from the aspect of
22 his knee injury as opposed to his head injury?
23 A Yes.
24 Q Could you read the note of that physician on
25 August 8th?
13
1
A
Patient continues to have pain only in the
2 proximal fibula, not in the hip, knee or ankle. No
3 something or back tenderness.
4 Assessment and plan, non-displaced right proximal
5 fibular fracture. Continue Ace wrap and ice. No NSAID
6 since PUD/GI intolerant history and decreased fracture
7 healing with NSAID.
8
Physical therapy for crutch walking. Patient may
i
10 Q Okay. And then there's a signature and that's !
11 the signature you're not able to identify, is that correct?
12 A I don't know who did that.
.....
) Is it though, in comparison,
13 Q clear, that
14 signature to Dr. Reed's, that it's an orthopedist other than
15 Dr. Reed?
16 A Well, it's clear that it's not Dr. Reed.
17 Q Okay. Now, Dr. Reed, when he examined the
9 bear weight as tolerated.
18 plaintiff, you indicated that his consult indicated that his
19 neurovascular exam of the leg was normal.
20
A
It says M V, open parenthesis, I, closed
21 parenthesis, comma, compartment soft.
22
Q
Okay. When the term neurovascular examination as
23 it relates to that, what is the areas being checked?
24
A
I can tell you what I mean by it. I cannot tell
,
-'
25 you what Dr. Reed means by i~ and you would best ask Dr.
1 Reed; but what I mean by it is that his pulses are normal
2 and that the nerves distal to that point work.
3 Q All right. Was therp. anything in either Dr.
4 Reed's consult or in the later examination that you had just
5 previously read from December 8th when the other physician
6 examined the leg to indicate that there was any nerve
7 damage?
8 A Nothing in those consults, no.
9 Q And, Dr. Paige in terms of nerves, that is in
10 your field?
11 A That is correct.
12 Q And in terms of nerves, if there is an injury to
13 a nerve, that can affect more than one thing; that is, it
14 can affect muscle and sensory feelings?
Yes.
And they're two distinct things?
Yes.
MR. WIX: That's all.
MR. KOSIK: I have no further questions.
(Whereupon, the deposition was concluded at 3:23
')
..../
15 A
16 Q
17 A
18
19
20
21 p.m.)
22
23
24
25
14
12
1
..
13
-...-I
1 COUNTY OF DAUPHIN
2 SS
3 COMMONWEALTH OF PENNSYLVANIA
4 I, Tammy J. Baker, a Notary Public, authorized to
5 administer oaths within and for the Commonwealth of
6 Pennsylvania, do hereby certify that the foregoing is the
7 testimony of ROBERT B. PAIGE, M.D.
8 I further certify that before the taking of said
9 deposition, the witness was duly sworn; that the questions
10 and answers were taken down stenographically by the said
11 Reporter-Notary Public, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the said deposition was taken
14 at the time and place specified in the caption sheet hereof.
15 I further certify that I am not a relative or employee
16 or attorney or counsel to any of the parties, or a relative
17 or employee of such attorney or counsel, or financially
18 interested directly or indirectly in this action.
19 I further certify that the said deposition
20 constitutes a true record of the testimony given by the said
21 witness.
22 IN WITNESS WHEREOF, I have hereunto set my hand
23
this 6th day of November, 1996.
. /u>m 11:"/ ;(6~
Tammy J. BalCer'; Reporter
Notary Public
24
25
'NOTARI~. ~E:AL
.\ 1"1. T'.\~l\n \ :....:1 ,\ ~~>4,1, \ ;1 ,":
I ' it.t'.....l:lIat.....I-wi' J'tI.!'Y., p.... . '.
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15
'-
ORIGINAL
.-\
BENJAMIN J. PARISER,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
v.
NO. 95-3703
CIVIL TERM
JURY TRIAL DEMANDED
PAY INEZ HOCK,
DEFENDANT
VIDEOTAPE
DEPOSITION OF:
TAKEN BY:
BEFORE:
HAYDEN S. STITT
DEFENDANT
TAMMY J. BAKER, REPORTER
NOTARY PUBLIC
PLACE:
AUGUST 30, 1996, 11:53 A.M.
770 NORTH MIDDLETON ROAD
CARLISLE, PENNSYLVANIA
~-
DATE:
..' )
".......---
APPEARANCES:
ANGINO & ROVNER
BY: MICHAEL E. KOSIK, ESQUIRE
FOR - PLAINTIFF
FOR - DEFENDANT
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WIX, WENDER & WEIDNER
BY: GIRARD E. RICKARDS, ESQUIRE
ALSO PRESENT:
MRS. STITT
.
.. .
~
Hughes, 7ll6rig11f, 'Foltz ir JlatJe J?eporiing &rlia, 8nc.
115 PINE STREET. HARRISBURG. PA 17101
Harrisburg 717.232.5644 Fa. 717.232.9637 Laneaslor 717.393.5101
2 NAME
a HAYDEN S. STITT
4
5
Ii BY: MR. RICKARDS
7 BY: MR. KOSIK
8
II
10
II
12
.......1 la
14
15
III
17
18
III
20
21
22
2.1
24
21;
'-"
WITNESS
DIRECT
3
2
CROSS RE-DIRECT
17
7
3
..---.,
STIPULATION
2
It is hereby stipulated by and between counsel for
3 the respective parties that reading, signing, sealing,
_I certification and filing are hereby waived.
Ii HAYDEN S. STITT, called as a witness, being duly
II sworn, testified as follows:
7 DIRECT EXAMINATION
8 BY MR. RICKARDS:
9
Q
Sir, would you state your full name and your home
10 address for the record?
\I
A
Hayden S. Stitt, 770 North Middleton Road, Carlisle.
Mr. Stitt, how long have you lived in the Carlisle
12
Q
() 13 area?
~..~ -
14
A
Over 20 some years.
15
Q
Sir, we're here because of an automobile accident,
IH automobile and pedestrian accident that occurred back in
17 December of 1993.
18
A
Yeah.
19
Q
It's my understanding that you witnessed an
20 accident?
21
A
Yes, I witnessed.
22
Q
Now, we're here in your home today on this
~ particular date to take your testimony in lieu of being in
24 court later on in the year.
25
Sir, could you tell the jury a little bit about your
............
4
physical condition now and why we're doing this here?
2 A Well, as of right now I'm full of brain tumors and
:1 I got cancer and they only give me three to four months to
,\ live, so they do. That's why I set this up.
5 Q Okay. And I appreciate you having us in here today
Ii to do so.
7 Now, according to the information I have -- and I
8 represent Mrs. Hock, the -- she was the driver of the Ford
9 Escort.
\0 A Yeah.
\I Q Can you tell the jury first of all where this
12 accident occurred?
13 A It happened in Carlisle. I don't know the name of
14 the street. What is it? There in front of YMCA, so it did.
15 Q All right. And if I represent to you that the YMCA
16 is on South West Street in Carlisle, is that the road you're
17 talking about?
18 A Yeah, that's the road I'm talking about.
19 Q And in relation to Mrs. Hock's vehicle, which was a
20 Ford Escort, and the vehicle involved in the accident, where
21 were you?
22 A I was - - we were coming from Hill's out and we were
~I stopped at the red light there at the Walnut Bottom Exit and
24 the YMCA is just a couple stone -- maybe a stone's throw on
2; the other side of the red light there.
'........'
.'
5
This gentleman had pulled in on his vehicle there
2 and we were sitting at the red light and the light had changed
:l and we had gotten out or we had come across the red light
,\ and this guy had gotten out of the car and walked straight
5 across the street in front of this -- in front of the lady.
Ii And I told my son, I said there's going to be an
7 accident. I could just feel it in me and see it. And the guy
K never looked or anything and just walked straight across the
9 street and the lady hit him.
\() Q Let me go back just for a minute, sir. Do I
II understand that your vehicle was behind Mrs. Hock's vehicle?
12 A I was the second vehicle back, that's right.
i 1:1 Q Was there any vehicles between your vehicle and her
1,\ vehicle?
If. A No. Just her vehicle was in front and mine was
Hi behind and that's it. There was just us two there, so there
17 was.
IK Q
19 A
20 Q
21 A
22 Q
2.1 light?
24
2.~
"",-"",
And you said there was a red light?
Yes, a red light.
A short distance from where this occurred?
Yeah.
Did both your vehicles come to a stop at that red
A
Q
Both of us, yes.
And then the light changed colors?
l.
6
A The light changed colors, yeah.
2 Q You both proceeded through the intersection?
3 A Yes.
4 Q And that's when the accident occurred?
.; A That's when the accident occurred.
(j Q In terms of - - are you able to say how long of a
7 time it was from when you were both stopped at the
8 intersection until the accident happened?
9 A Well, there was a few minutes there, because the
\() light - - we had to wait on the light, so there was.
\I Q From the time that my client started to go through
12 that intersection after the light changed until the accident
1:1 occurred, are you able to say -- are you able to give a
... reasonable estimate as to what her speed was, her top speed
If, during that?
iii A I would say it's no more than 20 miles an hour,
17 because we had just started out and I seen this happen. We
18 weren't going very fast, so we weren't.
HI Q Now, the fellow you said who parked his car, I
~l guess, and then went out across the road, how long of a time
21 was it that he had been stopped?
22 A Not very long. He had just pulled his car in,
~l opened the door. I'd say maybe just a couple seconds.
24 And he just got out and walked right across the
2'; road. That's why I knew something was going to happen,
---./
7
I mean he didn't look. He didn't
Just walked straight across, so he
because I could feel it.
2 look up and down the road.
a did.
1 Q Mr. Stitt, you've heard the names of the parties,
5 there's a Dr. pariser who's the plaintiff and Fay Hock who I
li represent as a defendant. Do you know either of those
7 A No.
S Q -- individuals?
9 A No. I don't know none of them.
10 MR. RICKARDS: Cross-examine.
II CROSS-EXAMINATION
12 BY MR. KOSIK:
13 Q Mr. Stitt, I'm Michael Kosik, I introduced myself
11 briefly before --
15 A Yeah, hi.
Hi Q and as you know I represent Dr. Pariser. I want
17 to ask you a few questions just to clarify in my own mind and
18 maybe for the jury exactly what you saw, okay?
19 A Yeah.
20 Q Do I understand you that while you were stopped
21 waiting for the light is when you first saw Dr. Pariser's car
22 pull off?
~I A No. We were at the light and he just pulled in.
~ The light had just -- I think it just had changed and he had
25 just pulled in and that's when he got out. The other car
B
-~
I already had started.
2 Q The car in front of you had already started when you
:I saw
.1 A The light had already changed.
5 Q From where you sat at the light
Ii A I mean there were a couple seconds. I seen him
7 pulling down and pulling in and just a couple seconds and then
f! got out and walked across the road.
9 Q From where you sat at the light, did you have any
10 problem looking up the highway --
\1 A No.
12 Q -- and seeing Dr. pariser's car pullover to the
1:1 side of the road opposite the Y?
14 A I didn't have no problems seeing no view or nothing.
15 I mean I could see everything.
,
'"~... .
\Ii Q Okay.
17 A So I could.
If! Q Was there anything unusual that struck you when Dr.
19 pariser first parked his car, just about the manner that he
20 parked it?
21 A No. He pulled in all right and stuff. It just
22 puzzled me when he got out that he didn't look. I mean you
2:1 know, mostly everybody looks up and down the road, but the guy
24 didn' t look.
21i Q From the time that you started out from the stop
~'
9
sign up until the accident occurred, do you recall whether any
which was traveling in the opposite direction as you
2 traffic
:1
~ A
Ii Q
Ii A
7 Q
No, I don't remember seeing none.
You don't recall any?
Nope.
At the time of the accident do you recall any
8 traffic being real close to you coming in the opposite
9 direction?
10 A You mean later on after the accident?
1\ Q Right at the time of the accident.
\2 A No, not at the time. There was other vehicles
13 afterwards, I mean after it already had happened, came down
\.1 and stopped.
Hi Q Okay.
Ili A But not before.
17 Q And do I take it from what you said that when you
18 pulled out behind this car that was ahead of you from the
19 light, you were able to observe
I could see it all.
-- Dr. pariser closing his door and crossing the
20 A
21 Q
22 street?
2:1 A I seen the door shut and everything, yep.
2~ Q Now, you said before that you would estimate Mrs.
2.; Hock's speed - - the car that was in front of you - - at
...........
10
."'~."
approximately 20 miles an hour?
2 A Yeah, somewhere around there, yeah.
:I Q Would it be fair to say that from the point where
" she stopped and then started after the light changed up until
5 the accident, she would have been accelerating?
Ii A Not that much, because it wasn't that far away.
7 That's why --
!I Q Okay.
9 A -- you know, I know we weren't going that fast and
10 I was right behind the lady.
11 Q I understand that, but obviously the car did stop
12 from a dead stop when the
1:1 A A dead stop and then started, yes. That's why I'm
1.1 saying I don't think it was much more than 20 if it was any at
15 all.
\(; Q What I'm trying to get an understanding of, are you
17 saying at the time the accident occurred Mrs. Hock's speed
1!1 would have been approximately 20 miles an hour?
19 A I'd say somewhere around there, yes.
20 Q Okay. Up until the time of the actual impact
21 between Mrs. Hock's car and Dr. pariser, do you recall seeing
22 brake lights?
2:1 A I don't remember seeing anything. That's what I
~ mean, you know, I don't think she hit her brakes or anything.
2.'i That's why it just looked to me like he walked straight across
--'
11
and she hit him. She didn't even sep. him, so she didn't.
2 Q Did you ever see her vehicle either veer to the left
:\
4 A Yeah, after she had hit. After she had hit him, I
o guess then she had veered to the -- what would be the -- to
Ii try to get off the road a little bit.
7 Q Okay.
8 A So she did, yeah.
9 Q You are saying opposite, meaning you are using your
III right hand, which would be --
II A Well, we were going down this road. She was trying
12 to get off on this side a little, you know.
13 Q To the right, towards the Y?
14 A She hit him here and she swerved over a little bit
10 here to get stopped. I mean after she had already hit him.
III I guess when she hit him she realized what she had done, see
17 what I'm trying to say, then she stopped there.
18 Q Okay.
19 A But she only went just a short distance. It wasn't
20 that far.
21 Q But to the best of your recollection, though, she
22 veered to her right, which would be by the parked cars?
2:1 A Yeah, by the parked cars.
24 Q Towards the YMCA?
25 A Towards the YMCA, yeah.
'-/
-~)
.
'-----,
12
Q Do you have any recollection, were there parked cars
2 on the right side of the road that evening?
:I
4
A
5 hands and maybe I was misinterpreting it, that Dr. pariser
Q
There was some, yes. Yes. I know that.
Now, you're indicating - - again, you were using your
6 struck the front of her car?
7
8
And the fender, yeah.
A
Q
To the best of your recollection where was the
9 initial point of impact on Mrs. Hock's vehicle?
\0
11
It was somewhere in the front fender there.
A
12 been on the driver's side?
Q
Okay. When you say the front fender, would it have
1:1
14
A
It would have been on the driver's side, yeah.
Do you recall if it would have been in front of the
Q
15 car or directly on the side of the car?
u;
17
\8
I think it was on the side.
A
Q
Okay.
A
But I don't remember hitting the front. I think it
19 was on the side, so I do.
20
And it's your recollection that she then
21 veered to the right
Q
Okay.
22
2:\
24
2!l
A
Yeah.
Q
to get away from Dr. pariser?
A
To get away.
Did you fully see what happened to Dr. pariser as a
Q
......--.....
.-.'~"
'-'
13
result of that impact?
2 A I seen him going down the road if that's what you
:J mean.
4 Q Okay.
5 A He had his shoe knocked off and he was sliding down
Ii the road a little bit. I don't know how far, but it was a
7 little piece, you know, so it was.
8 Q Did you actually see where he came to rest on the
9 highway?
10 A Yeah.
II Q Okay. Where would it have been in relationship to
12 that travel lane that you were traveling in? Would it have
13 been closer to the center of the road or closer to the side of
14 the road?
15 A It was somewhere closer to the inside of the center
\Ii of the road, I mean towards her vehicle, like. Not dead
17 center. I mean over towards the YMCA a little bit.
III Q Okay.
19 A But he was still laying out on the road pretty good.
W Q Okay. Because I haven't been out there and I don't
21 remember if there are actually double yellow lines going down
22 the middle of that street, let me ask you to assume that
~ either there's an imaginary center line or there's a yellow
24 dividing line which would separate the two travel lanes.
25 Would you --
14
A
I don't remember seeing any out there. Do you?
MRS. STITT: Don't look at me. I wasn't with you,
2
:\ Hon.
., THE WITNESS: No, but I mean on the road, I don' t
[, remember seeing any yellow marks on the road.
Ii BY MR. KOSIK:
7 Q Within that travel lane you were heading in, would
8 you put him closer to what would be the center of the road?
9 A Yeah. He was pretty close to the center, so he was.
III He was off a little bit, but he was pretty close.
II Q As you proceeded behind Mrs. Hock's vehicle and you
12 said you had this sense that something was going to happen --
13 A Yeah.
14 Q -- did you have to slam on your brakes at all?
15 A Yeah, I stopped.
IH Q But did you have to slam on your brakes?
17 A Well, I didn' t really slam down hard on, but you
18 know when you know something's going to happen, you know, you
I!l stop, so you do.
20 And yeah, I was maybe two car lengths behind her or
21 something like that when I got stopped, so I was.
22 Q When you came to a stop, were you up to the point
Zl where Dr. pariser ended up laying in the highway? Were you
24 before that or after that? I know this is going back quite a
~5 number of years.
15
A I'm trying to think. It's a couple of years.
2 Q To the best of your ability.
:\ A I remember him sliding down the road on the
., blacktop, but I don't know how far. I mean how far he slid
5 down.
6
Q
Do you recall bringing your car to a stop in the
7 travel lane? Did you pull off to the right?
R A No. I was - -
9 Q Why don't we get his answer on.
\() A I was -- now I forget what it was.
II MR. KOSIK: I'll come back to it.
12 THE CAMERA MAN: Off the record. The time is 12: 08 .
..-. (Discussion held off the record. )
) 1:\
-.,."
1,\ THE CAMERA MAN: We are back on the record. The
15 time is 12:08.
\6 BY MR. KOSIK:
17
Q
Mr. Stitt, I think my last question to you is do you
18 recall whether you actually came to a stop in the travel lane
\9 or were you pulled over to the right where the parked cars
20 were?
2\
A
I pulled off as close as I could to the other
22 vehicles on account of the ambulance and stuff coming, so I
~1 mean I was still in the road, center of the road, but I was
~ pulled off as close as I could get.
2.')
Q
Okay. And again, I think going back to my first
,
-.....-
--..,...... ..
.. ....,-
16
question there, do you recall if you actually passed the point
2 where Dr. pariser was laying in the highway or did you stop
3 before that or after it?
.\ A I think I stopped before that to be honest with you,
5 because the other car was in front of me and he had slid down
II the road a little piece and I'm pretty sure I stopped behind.
7 I mean I didn't go where he had been hit at.
8 Q Okay. Just from looking at diagrams of the accident
9 site, I know the driveway to the parking lot to the YMCA is
10 just beyond where this accident --
11 A Yes. Right beyond that, yeah.
12 Q So you hadn't gotten to that point?
13 A No.
14 Q Do you recall, were streetlights on and people
15 driving with their headlights at the time of the accident?
III A I don't remember having no lights on at that - - it
17 was still it just -- I think it was just breaking dusk and
18 stuff. You could still see real good, so it was. I don't
19 remember exactly what time it was.
20 Q And as far as you can recall, you had no problem --
21 A No, I didn't have no problem seeing the guy or the
22 vehicles or the guy getting hit and sliding. No, I didn't
Zl have no problem seeing that.
~ MR. KOSIK: Okay. Those are all the questions I
2; have for you then. Thank you.
17
RE-DIRECT EXAMINATION
2 BY MR. RICKARDS:
:J
Q
Mr. Stitt, based on what you observed, was there
4 anything Mrs. Hock could have done to avoid this accident?
5
MR. KOSIK: I'm going to object to the question.
Ii BY MR. RICKARDS:
7
Q
You can answer.
8
A
I can answer? To be honest with you, no. I felt
9 that there was nothing that she could have done.
I mean I
III seen what was going to happen and I knew it and there was
II nothing that I could have probably done, so there wasn't.
12
Q
Mr. Stitt, how long have you been driving an
13 automobile?
,....j
1.1
15
Q
Since I was 16. I'm 48. Twenty some years.
All right. And at the time of the accident you were
A
16 licensed to drive a vehicle?
17
A
Yeah.
18
MR. RICKARDS: That's all I have. Thanks.
ID
MR. KOSIK: I have no further questions. Thank you
W very much, Mr. Stitt.
21
22 )
p.m.
(Whereupon, the deposition was concluded at 12:11
2:J
24
2.~
\.......-
,
18
t1
COUNTY OF DAUPHIN
2 COMMONWEALTH OF PENNSYLVANIA
SS
:I
I, Tammy J. Baker, a Notary PUblic, authorized to
-I administer oaths within and for the Commonwealth of
5 Pennsylvania, do hereby certify that the foregoing is the
6 testimony of HAYDEN S. STITT.
7
I further certify that before the taking of said
8 deposition, the witness was duly sworn; that the questions and
9 answers were taken down stenographically by the said Reporter-
\() Notary Public, and afterwards reduced to typewriting under the
11 direction of the said Reporter.
\2
I further certify that the said deposition was taken
.. ') 1:1 at the time and place specified in the caption sheet hereof.
~.,._.t
\-1
I further certify that I am not a relative or
15 employee or attorney or counsel to any of the parties, or a
IH relative or employee of such attorney or counsel, or
17 financially interested directly or indirectly in this action.
\8
I further certify that the said deposition
19 constitutes a true record of the testimony given by the said
20 witness.
2\
IN WITNESS WHEREOF, I have hereunto set my hand this
22 9th day of September, 1996.
2.1
24 NOTARIAL SEAL
lAMMY J. SPOTTS. NllafY P1lblic
2.~ LIWIt SwUm hp.. Dauphln Clunty, PI.
M CIIMlII~ln h 1m Nit, 9, 1996
j ./
. f.^ ." . .,! h
\ 'Ul/rn ,)1.,/ .. ,- V '):"(.,c(,,( -
Tammy J. Ba~er, Reporter
Notary Public
'-"
;-..