HomeMy WebLinkAbout95-06704
j"
"
:>\
't.'
~:~~;~~~:~c~'".-.
&-~
lIT)
.~
~-
, ,
'".
, t
it)
J'
filE COpy
JONNIE LEAPHART
Plaintiff
IN THE COURT m' COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 95-6704 CIVIL TERM
VI,
CYNTHIA LONITA WITTIG
Defendant
CIVIL ACTION. LAW
NOTICE OF HEARING BY BOARD OF AnBlTRA TORS
YOU ARE HEREBY NOTIFIED that the Board of Arbitrators appointed by the Court In the
abovc-captioned case will sit for the purpose of their appointmCllt in the above-captioned
action on Tuesday, June 9, 1998 at 9:00 a,m, In the Second Floor Hcaring Room of the Old
Cumberland County Courthouse, Carlisle, Pennsylvania.
April 14, 1998
. BROUJOS, ESQUIRE, CHAIRMAN
D DORER, ESQUIRE
FALLER, lR., ESQUIRE
COPIES TO:
Mal/hew S. Crosby, Esquire
HANDLER & WIENER
AI/orney for Plaintiff
Rolf E. Kroll,Esqulre
REYNOLDS &: HAVAS
AI/orney for Defendant
//C-I.~ C;;..i ei eLl
G
(o1;).J L.d LJ-'--''' l.)~
o~ ~
..li i) ,C:: 'I'
~~
George B. Faller, Jr.. Esq.
to E, High Street
rarlisle, P A 17013
.
John H, Broujos, Esq,
Donald Dorer, Esq.
214 Senate Ave.
CampHiIl,PA 17011
~L""
"U
d Co..)
BOARD OF ARBITRATORS
Fri., April 24
Thurs., April 30
Fri., May I
Mon., Mal 4
Thurs.. May 7
Fri.. May 8
Weds.. May 27
Fri., May 29
731.0988
(1' J I
11 .. p.:1 ]@
Fri.. May
.,
t"J2 . .J\'~ 29
243-3341
~ Ill"'--
(/~19 01<-
.-
'0,C+, -ht ~ ."r-
Jill I April '4
'fhmJi, J.p.-II '"
~
~
_'HI~ ." ! ""7
'F.;. r'l~ ltJ
2:15 p,m,
9:00 a,m.l2:15 p.m.
9:00 a,m.l2:15 p.m.
9:00 a.m.l2:15 p.m.
2:15 p.m,
9:00 a.m.l2:15 p,m.
9:00 a.m.l2:15 p.m.
9:00 a.m.l2:15 p.m.
.:1.I~ ....,.. v
9.Afl n ... :: 1 ~ 1 m.
/'
. '
t lie. / I ,{~ p.m.
~.:... a"'" , ,.1 ( '1""'1 l!J,'
2.1; I'''''
9.!}6 &A au :~ I~ p IR.
~:~~ ~~ /..61 QM."J
1" l'i I J
~jJO 12~";" ~
9:.... 1- ,..1 ~ .. ~.
9: - _.....;8.1 r ",m.
-~
"< ~
~~
~~
.-.'>f
f /,
"
II:
w
,Z
!!! 'I
~ I~EI
B D : ~ "":,
a ~ 11.1' ~, , ",.,..' ',:;,
~ II: Q ~..
W · e; -,,"
~ ii ll,
D
Z
C
:t
.... . .
. . . .
':;:, , .......
." --......
---
.
JONNIE LEAPHART,
PllllntitT
: IN TilE COURT OF COMMON PLEAS
: CUI\IIIERL..\ND COUNTY, PENNSYLVANIA
",
NO, 95-6704 Civil Term
CYNTHIA LONI'fA WI1TIG, CIVII_ ACTION - l.A W
Dcfcndllnt
PETITION FOR APPOINTMENT OF ARBITRATORS
TO TIlE HONORABLE, THE ,JUDGES OF SAID COlIRT:
MATTHEW S, CROSBY, ESQ" counsel for the PlaintitTin the above action
respectfully represents that:
I, The above-captioned action is at issue,
2, The claim for thc Plaintiff in this action is $25,000, Thc countcrclaim of
the Defcndant is $7,500,
The following alloll1cys are intercsted in the case as counselor are othcrwise
disqualified to sit as arbitrators:
. R, James Reynolds, Jr., Esq,; John Havas, Esq,; Michael M.
Badowski, Esq,: Stephen L. Banko, Jr., Esq.: Rolf E, Kroll, Esq.; Barry A.
Kronlhal, Esq.: Lauralee B. Baker, Esq.; Michele J, Thorp, Esq. and any other
attolllcys of the law linn of Reynolds & Havas,
. Stcphen D, Tiley, Esq,
WIIEREFORE, your Pctitioncr prays your Honorable Court to appoint three (3)
arbitnllors to whom the cllse shall be submillcd,
Respc
IIA
BY:
Iy submitted,
ER & WIENER
DATE: 3117/q[(
I
, a t lew S, C osb , . sq.
ID No, 69367
319 I\llIrkct 0
1',0, Box II 7
HlIrrisburg, PA 17108
717-238-2000
Allollleys for Plaintiff
..,
aRTIFICA TE OF SERVI~E;
I hereby certify that a true and correct copy of the foregoing document was served on the
Cynthia Lonita Wittig, by sending a copy of the same to her counsel of record, Rolf E.
KrolI, Esq., REYNOLDS & HAVAS, 101 Pine St., P,O. Box 932, Harrisburg PA 17108.
0932, by United States Mail, regular service. in Harrisburg. Pennsylvania on March J:1,
1998.
B
R AND WIENER
DATE:
3/17/QY
,
S, Crosby,
Attorney 1.0, #693
P,O. Box 1177
Harrisburg, P A 17108
(717) 238-2000
Attorneys for Plaintiff
"
"
,,~
. .
:.-'
.,
~
~~
'l (i
~ n
~~
"
IE
W 'c"
Z '8 " '",
w' , ,,' ','.,
1 ~! t i ',;;~
z'.
C
:J:
.
~.- ..
;;
.'
..
~/G~1.iD/1.apka~t.~.
JONNIB LBAPHAIlT, I IN THB COURT OP COMMON PLEAS
PLAINTIPP I CUMBBRLAND COUNTY, PBNNSfLVANIA
I
v. I NO. CIVIL, 1995
I
I CIVIL ACTION - LAW
CYNTH:!:A LONITA WITTIG, I
DIlPINDANT I JURY TRIAL DEMANDBD
COMPLAINT
AND NOW, comes the Plaintiff, JONNIE LEAPHART, by and through
her attorneys, HANDLER ~ WIENlR, and makes the within Complaint
against the Defendant as follows:
1. Plaintiff, Jonnie Leaphart is an adult individual
currently residing at 1809 Willow Road, Carlisle, Cumberland
County, Pennsylvania, 17013.
2. Defendant, Cynthia Lonita Wittig, is an adult individual
currently residing at 193 Lawrence Lane, Carlisle, Cumberland
County, Pennsylvania, 17013,
3, At all times material to this action, Plaintiff, Jonnie
Leaphart, was the owner and operator of a 1985 Ford Escort bearing
vehicle identification number 41634591502"
4. At all times material to this action, Defendant, Cynthia
Wittig, was the owner and operator of a 1992 Pontiac Grand prix,
bearing vehicle identification number 45248664501,
5, On or about December 7, 1993, at approximately 4:15 P.M.
Plaintiff, Jonnie Leaphart, was stopped at the bottom of the
1
.
southbound off ramp of exit 16, on SR-81, in Middlesex Township,
Cumberland County, Pennsylvania
6. On or about December 7, 1993, at approximately 4:15 P.M.,
Defendant's vehicle, was traveling on the southbound off-ramp of
exit 16, on SR-81, in Middlesex Township, Cumberland County,
Pennsylvania,
7. Suddenly, and without any warning, Defendant's vehicle
collided with the rear end of Plaintiff's vehicle,
8. As a direct and proximate result of the negligence of
Defendant, Plaintiff, Jonnie Leaphart, has suffered serious bodily
injury as set forth in full hereinafter,
COUNT I
JONNIB LBAPHART v. CYNTHIA WITTIG
9, The occurrence of the aforesaid events and the injuries
to Plaintiff, Jonnie Leaphart, resulting therefrom were caused
directly and proximately by the negligence of the Defendant,
Cynthia Wittig, generally and more specifically as set forth below:
(a) In failing to keep a proper lookout for vehicles
lawfully stopped on the southbound off-ramp of exit
16, in Middlesex Township, Cumberland County,
Pennsylvania;
.
-
(b) In failing to keep a proper lookout for the traffic
conditions then and there existing;
(c) In failing to be reasonably vigilant to observe
Plaintiff's vehicle;
(d) In failing to operate her vehicle in such a manner
so that she could apply her brakes to avoid a
collision with the Plaintiff;
(e) In failing to operate her vehicle at a speed that
was safe for existing conditions, in violation of
75 Pa,C,S,A, ~3361; and
(f) In failing to exercise reasonable care in the
operation and control of her vehicle, in violation
of 75 Pa.C,S,A, ~3714;
(g) In failing to operate her vehicle at a speed, and
under such control, as to be able to stop within
the assured clear distance ahead, in violation of
75 Pa.C.S,A, ~3361;
(h) In following another vehicle more closely than is
reasonable and prudent, without due regard for the
speed of the vehicles and the traffic upon and the
condition of the highway, in violation of 75
Pa,C,S.A, ~3310,
10, As a direct and proximate result of the negligence
of Defendant, Cynthia Wittig, Plaintiff sustained severe injuries
,
<
including but not limited to, the head, knee, abdomin, arms, and
cervical spine.
11, As a result of the negligence of Defendant, Cynthia
Wittig, Plaintiff has been and will in the future be hindered from
performing the duties required by her usual occupation and from
attending to her daily duties, to her great detriment, loss,
humiliation, and embarrassment,
12, As a result of the negligence of the Defendant, Cynthia
Wittig, Plaintiff has undergone great physical pain, discomfort,
and mental anguish, and she will continue to endure the same for an
indefinite period of time in the future, to her great physical,
emotional, and financial detriment and loss,
13, As a result of the negligence of the Defendant, Cynthia
Wittig, Plaintiff has been compelled, in order to effect a cure for
aforesaid injuries, to expend large sums of money for medicine and
medical attention, Plaintiff continues to receive treatment and
incur expenses for said injuries, and will continue to do so in the
future, to her great detriment and loss,
14. As a result of the negligence of Defendant, Cynthia
Wittig, Plaintiff has suffered a loss of life's pleasures and she
will continue to suffer the same in the future, to her great
detriment and loss.
15, As a result of the negligence of Defendant, Cynthia
Wittig, Plaintiff, has suffered a loss of wages and will continue
to suffer the same in the future, to her great detriment and loss,
.
Date: 11-1 ~ _c{<)
.
16. Plaintiff, Jonnie Leaphart, believes and therefore avers
that her injuries are permanent in nature,
WHIRIPORI, Plaintiff, Jonnie Leaphart, seeks damages from
Defendant, Cynthia Wittig, in an amount in excess of Thirty-Five
Thousand Dollars ($35,000.00),
Respectfully submitted,
HANDLIR ~ WIINIR
thew S, Crosby,
I.D, No. 69367
319 Market Street
P ,0, Box 11 77
Harrisburg, PA 17108-1177
Attorney for Plaintiffs
5
VBRIPICATION
I, JONNI. LBARBART hereby verify that the statements made in
the foregoing pleading are true and correct to the best of my
knowledge, information, and belief.
I understand that false
statements herein are made subject to the penalties of 18 Pa, C, S.
Section 4904 relating to unsworn falsification to authorities,
Date:-' I-I V - 9s
^ , 1 i I l'
~lI~n'lLU' ',,/\ "\L~.Ai( 'e. '
J JONNI. L BUT
',"'.(
:(;,l,C
'-'":'<'- -'-,::
;~.~;: 'i-':~
...->-.,-.-"'......>..
~. ;... .... .; .... ~ '.." '.' -- '.
~~~~f':"~! ,':!! ~ ,
,
~....~ ...."""..
r;l;,,~' ;"
d\~~t),!;~S ~,' -- ,
!,"-:'-,">'''';' .
,.:,i'{1.:'::Wt\_,~ "i ,~:
I~'1'~g,:::~~_;g.i.~:~ :.
l{~ji:f;~:~:'::' '
)~~~t:JFi" ~\
.-
';V
'~
i:<' QI
',!::iJ
,.(.,-
. ,,', .~~
: ....5i
,..!f.&4,n~~
E~"'~
1_.C)~~~
C~..
.!.c.:j",
"''''....
=i"&"~
...._ :z:mo.;
....
::>.,
:!;..
~', .
-.,--~
r'__.f;
~,
N',
Ii:,!
IX
w
z
w !"
i~h:1
!:'I ~ I ~'
w _ eo, ll'
.:I .",
D
Z
C
X
.-:('.
!,
, ..
,i. ;~'
\~eAt~.l\~\dl.~oye~\~...~o\l.apba~t
v.
I
I
I
I
I
I
I
I
IN THB COURT or CODON PLDS
CUMBERLAND COUNTY, PINNSYLVANIA
NO.91-t,7()'/ CIVIL, Eq;
JONNIE LDPIlART,
PLAINTIrr
CIVIL ACTION - LAW
CYNTHIA LONITA WITTIG,
DEPENDANT
JURY TRIAL DJDlANDED
PLAINTIrr's REQUESTS rOR PRODUCTION or DOCUKBNTS
DIRECTED TO DlrENDANT. CYNTHIA LONITA WITTIG
To: Defendant, CYNTHIA LONITA WITTIG:
Cynthia L. Wittig
193 Lawrence Lane
Carli.le, PA 17013
Pursuant to Pa, Rule of civil Procedure 4009, you are hereby
requested to produce the below listed documents and/or items for
purposes of discovery, This material will be examined and/or
photocopied; photography negatives will be processed and
photographs reproduced, Said documents obtained will be reproduced
at the offices of Handler & Wiener, 319 Market street, P,O. Box
1177, Harrisburg, Pennsylvania, 17108, within thirty (30) days of
the date of service hereof and supplemented thereafter,
hew S, Crosby,
1.0. No, 69367
319 Market Street
P,O, Box 1177
Harrisburg, PA 17108-1177
Attorney for Plaintiffs
INSTIlUCTIONS
1, If you object to the production of any documents on the
grounds that the attorney-client, attorney work product or any
other privileges applicable thereto, with respect to that document,
state:
(a) its date;
(b) identify its author;
(c) identify each person who prepared or participated
in preparation of the document;
(d) identify each person who received it;
(e) identify each person from whom the documents were
received;
(f) state the present location of the document and all
copies thereof;
(g) identify each person who has ever had possession,
custody or control of it or a copy thereof;
(h) provide additional information concerning the
document and the circumstance thereof to explain
the claim of privilege and to permit the
adjudication of the propriety of that claim,
2, The term "identify" as used with respect to documents
means to state the date, author, addressee, type of document (e.g.
letter), to identify its last-known custodian and location and the
exhibit number of the document if it has been marked during the
course of a court proceeding.
2
3, The term "identify" as used with respect to non-written
communication means state the date, persons that participated in
the communication, type of communication (e,g, telephone
conversation) and substance of the communication,
4, The term "identify" when used with respect to an
individual, means to give the person's full name, all known
aliases, present and last known business and home address, present
and last known telephone number and present position or business
affiliation.
5, The term "identify" when used with respect to any other
person, means to give the person's official, legal and/or formal
name and/or the name under which the person acts or conducts
business; the address of the person's place of business,
profession, commerce or home; and the identity of the person's
principle or chief executive officer or person who occupies a
position most clearly analogous to a chief executive,
DOCUMENTS RBQUlSTBD
1. All statements, signed statements, transcripts of
recorded statements or interviews of any person or witness relating
to, referring to, or describing the incident which gave rise to
this action, and any defenses thereto,
2. All photographs taken or diagrams prepared concerning
this matter or any instruments involved therein.
3
,
3. Any and all documents containing the names and home and
business addresses of all individuals who may be potential
witnesses in this case.
4. All documents which you intend to rely upon or introduce
at trial of this litigation,
5, The entire file accumulated by you or your insurance
company relating to the incident which is the subject matter of
this litigation, including, but not limited to, any item within the
definition of documents explained above, as well as any other
document, intangible object, correspondence, memoranda, notes,
telephone log, guidelines, in the possession and control of your
insurance company which in any way relate to the incident which is
the subject matter of this litigation,
6. All expert opinions, reports, summaries or other writings
in your custody or control or the cusotdy and control of your
attorneys or insurers which relate to the subject matter of this
litigation,
7. All exhibits intended to be used at trial.
4
8. Please also consider this a formal request for production
of all documents referenced in your Answers to the within
Interrogatories,
HANDLIR AND WIINIR
~ ~ .J-,
BY: ~ 5
Date: II-I ~ -'15"'
tthew S. Crosby, e
1.0, No. 69367
319 Market Street
P,O, Box 1177
Harrisburg, PA 17108-1177
Attorney for Plaintiffs
5
d
~ 0 i;;
-
I~ N ...
_.'l<
8""
::t: "-$
.,
0- (~::..;
.'~ i'-'
8 .:r ~1'1
I .""
fi:~ - fj~
~. , ,,1
r-: ~r. ~~ u..
-, :5
l5 .."
0', U
II:
W
Z ,',
wI"".
I ;1 i il"Y'
! II: .2,1
w -
...'1'\ '
a '""
'Z
'~
;'
'.,
,,~.,. \.
.;".....
" ..
',-."
f""
,.,
..... ",..,..,
,", .' '",-"
.,'.i;.'-'
"
,'.
~l- . ;
'I'
,.,)., ,
,
,I
'.
L~; ;
,\
'.~ ':'1,.
.
",'..,. --
.j ,..~....1'M:
".~--
it-;:
'''''.'
'~~e -
.
,..
dml \an."u\le"phart .nm
JONNII LEAPHART, I IN THE COURT OP COMMON PLEAS
plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
v, I NO. 95-6704
I
CYNTHIA LONITA WITTIG, I CIVIL ACTION - LAW
Defendant I JURY TRIAL DEMANDED
PLAINTIPF'S ANSWER TO DEPENDANT'S NBW MATTER
17,
Denied.
The averment contained in Paragraph 17 of
Defendant's New Matter represents a conclusion of law to which a
response is not required.
However, it if were judicially
determined that a response was required, the averment is
specifically denied, with strict proof thereof demanded at the time
of trial, if deemed material,
18. Denied,
The averment contained in Paragraph 18 of
Defendant's New Matter represents a conclusion of law to which a
response is not required.
However, it if were judicially
determined that a response was required, the averment is
specifically denied, with strict proof thereof demanded at the time
of trial, if deemed material,
19, Denied.
The averment contained in Paragraph 19 of
Defendant's New Matter represents a conclusion of law to which a
response is not required,
However, it if were judicially
determined that a response was required,
the averment is
specifically denied, with strict proof thereof demanded at the time
of trial, if deemed material.
20,
Denied,
The averment contained in Paragraph 20 of
Defendant's New MaLter represents a conclusion of law to which a
response is not required, However, it if were judicially
determined that a response was required, the averment is
specifically denied, with strict proof thereof demanded at the time
of trial, if deemed material,
21. Denied. The averment contained in Paragraph 21 of
Defendant's New Matter represents a conclusion of law to which a
response is not required, However, it if were judicially
determined that e response was required, the averment is
specifically denied, with strict proof thereof demanded at the time
of trial, if deemed material,
22. Denied. The averment contained in Paragraph 22 of
Defendant's New Matter represents a conclusion of law to which a
response is not required, However, it if were judicially
determined that a response was required, the averment is
specifically denied, with strict proof thereof demanded at the time
of trial, if deemed material,
Respectfully submitted,
Date:
3-~'f-~1o
JOWl. LIlAPHART, I IN THB COURT or COMMON PL..s
PLAINTIFF I CUMBERLAND COUNTY, PBNNSYLVANIA
I
v, I NO, 95-6704 CIVIL TERM
I
I CIVIL ACTION - LAW
CYNTHIA LONITA WITTIG, I
DBFBNDANT I JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have served a true and correct copy of
Plaintiff's Answer to New Matter upon all counsel of record on this
:.J~1-'" day of ~,<:Al , 1996, by placing the same in the
U,S, first class mail, postage pre-paid, at Harrisburg,
Pennsylvania addressed as follows:
ll.mOLDS (0 HAVAS
101 Pine Street
Harrisburg, PA 17108-0932
ATTN: Rolf E. Kroll, Esquire
HANDLER AND WIBNER
'3-;) 9-9"
x.
Date:
tary to
squire
K,
S,
. ~
IIOLP I, 1tIIOU. IIClUIM
,,, AlIIHMy I.D. No. 47241
IlIYNOUIIt HAVAS
"P'laI . .IIICofporlllon
101 rIne lIlreIl
!'oil 0llI0e lox U2
............. ~...... 1710NN2
1717)21W2OO
"lIIlm8Y lor DoM....
CYNTHIA LON ITA W1rnG
JONNIE LEAPHART,
plaintiff
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
.
.
.
.
v..
I
I
NO. 9!5-6704
JURY TRIAL DEMANDED
CYNTHIA LONITA WITTIG,
Defendant
I
DEnNDANT' S MOTION 'l'O QUASH IIUJl8UANT 'l'O
PAt R.C.P. NO. 234.2 AND OBJECTIONS
TO SUBPOENA IIUJl8UANT 'l'O JWLE 4009.21
Defendant CYNTHIA LONITA WITTIG objects to and moves to
quash the proposed subpoena that is attached hereto for the
following reasons:
l. On or about January 2, 1998, Defendant received a
Notice of Intent to Serve a Subpoena upon the Records Custodian
for Ellis F. Friedman, M.D. Dr. Friedman is the physician
retained by Defendant to perform a physical examination of
Plaintiff and to render opinions on the nature and extent of any
injury Plaintiff sustained as result of the motor vehicle
accident that is the subject of this lawsuit. A copy of the
proposed subpoena is attached hereto as Exhibit "A".
2. By letter dated January 9, 1998, the undersigned
objected to this discovery because the discovery request sought
information beyond the scope of Pa, R.C.P. No. 4003.5. A copy of
the January 9, 1998 letter is attached hereto as Exhibit "B".
('.~
,.,....
'" .'. ~ ~ '''/)../'1.....,_
". . \"''',,,,
" '; "j.: .'~':...<.~
'1'"1...
' , ~.I/..: -9 J'
". ';
"';;' I :)1
, .~
(..,
'0) .lltl ':'I.
".-; ,I
~
ll...: '.
,'~-'\":.'
""';,
L
::'\
"
. '\"}
'"., ..
I .
. ~~ ".'1",
.
3. Counsel for Plaintiff disaqreed, By letter dated
January l2, 1998, counsel for Plaintiff refused to withdraw the
subpoena.
4. The undersiqned requested case law to support
Plaintiff's discovery request. Counsel for Plaintiff provided
the undersiqned with an unreported federal decision based upon
the Federal Rules of Civil Procedure.
5. By letter dated January 19, 1998, the undersiqned
advised counsel for Plaintiff that the Middle District case was
based upon the Federal Rules of Civil Procedure and was
inapposite to the instant case, and aqain requested vOluntary
withdrawal of the subpoena.
6. Pat R.C.P. No. 4003.5(a) (2) demands that a party
seekinq information from an expert witness beyond that contained
in the expert's report, show cause why any further discovery
beyond the report itself should be ordered sUbject to provisions
concerninq fees and expenses. Pat R.C,P, No. 4003,5(a) (2).
7. Also, there is no support for the broad sweeping
discovery sought by Plaintiff's subpoena found in Pat R.C.P. No.
40l0, qoverninq physical and mental examinations of persons.
-2-
.
8. Despite these rules and Plaintiff's notice of same,
Plaintiff continues to insist upon moving forward with the
subpoena.
9. Accordingly, the undersigned has been unnecessarily
placed in the position of having to move to quash and/or object
to Plaintiff's subpoena when under the rules, it is Pl.inti~~'.
burden to ..tabli.h cau.. why .h. .hould be .ntitled to the
di.cov.ry .ought. ~ Pat R,C,P. No, 4003.5(a) (2),
lOt In addition to being beyond the scope of discovery
pursuant to Pa, R.C,P. No. 4003.5(a) (2), the discovery sought is
unreasonably burdensome as follows:
(a) It is believed and therefore averred that Dr.
Friedman does not keep records of his examinations by the
requesting party;
(b) It is believed and therefore averred that Dr.
Friedman does not have his patient files indexed by their insurer
or by referring attorney. Therefore, Plaintiff's request would
require Dr. Friedman to examine each and every patient file for
the past two years to determine whether the patient was seen at
the request of the undersigned 2E any member of his law firm or
on behalf of state Farm Mutual Automobile Insurance company.
-3-
e...-r.-rl!.a... a. .mK!tdIl!lIII.mm.
Pur.uant to Local Rule 206-2, on January 21, 1998, coun.el
for Defendant .ought concurrance fro. coun.el for plaintiff in
the filing of the foregoing Motion. No concurrence ha. baen
obtained.
Date: /-~/yr
ca,OIWEAI:m or PnNriLVAHIA
c:aJNTY OF ClHBERLAND
Jonnle Leaphart. Plaintiff
.
.
I FUe No. 95-6704
.
.
SUBPOENA
TO. Records Custodian. Ellis Friedman. M.D.. 320 Ablngton Drive. Wyomlsslng. PAt 17610
v.
Cynthia Lonlta Witting. Defendant
1. You are ordered by the court to come to Handler & Wiener Law Office. 319 Market Street.
Harrisburg. PAt 17610
at
(Specify courtrocm or other place)
County, Pennaylvlll\ia, on
at
o'clock,
M., to testify on behalf of
in the above case, and to remain until excused.
2. And bring with you the following. Any financial records specifically concerning any
h1dependent medical examinations- ur rt::t;urd~ revlt:w "hen. Dr. frledlllGII Iaa:) 1-'1:1 FUlIlI''Cd Uti beha
of Rnlf ~A krnl1. F-~nllirp nr nn hphAlf nf ~hp l~w firm nf ~Aynnlrlc I H~v~~_ or on behalf 0
State Farm Insurance Company within the last 24 months. Please Include the number of exams
BlI1Qllnt ~h.aJ:oprl for thp "}tAme;. ~mQJ1nt t"hArrtiOrt fnr r" 1 Atpd cprv' (,PC: (x_~c. l,.. amount.
If you 'fiiI to atteno or to produce the OOC\iiiiiiits or ffiings reqI.Ii.riii-oy-tIili 1!JtlpOena,
you may be subject to the sanctions authorized by Rule 234.5 of the Pennlylvania It.IleI
of Civil ~","edw:e, including but not limited to costs, attorney fees and iJlprilOrlMllt.
ISSUED BY A PARTY/COUNSEL IN CCH'LIArU WI'nf Pa.R.C.P. No. 234.2(a)
NAME. Matthew S. Crosby. Esquire
Handler & Wiener
ADDRESS. 319 Market Street
HarrlsburQ. PA 17108
~. (717) 238-2000
SUPREME COURT ID. 69367
BY 'nfE COURT.
DATE.
Prothonotary, Civil Division
Seal of the Court
Deputy
OFFICI/.L N01'E. This fom of subpoena shall be used whenever a subpoena is issUllb1e,
including hearings in connection with depcsitions and before ~itrators. masters,
oonmissioners, etc. in coopliance with Pa.R.C.E'. No. 234.1. If a subpoena for production
of doc:uIm\ts, records or things is desired, call11ete paragr~ 2.
*charged for reports and testimony concerning those exams for the last 24 months. EXHIBIT
(Rev. 1/90) A
R, JAM" AnNOLOS, JR,
JOHN HAV"S
MICHAIL M. IAOOWIKI .
ITlI'HIN L. 'ANKO. J".
"OLP I. K"OLL
.A....y A. K"ONTMAL
LAU"ALII .. SAKI"
MICHILI J. TMO"'
REYNOLDS & HAVAS
... NU..MION..... COlNlllUftOH
ATTORNlva AND eOUNIllORS AT lAW
IOll'1Nl.TIIIIT
POaT Q.,lel lOX '32
HARRI"URG. PeNNSVlVANIA 17108.0'32
TlLUHONI
17171231.3200
FAX
1717123"_3
I.MAIL
f.vh.~.pl..n.'
January 9, 1998
VYA FAX/FIRST CLASS MAlL
Matthew S. Crosby, Esquire
Handler & Wiener
319 Market Street
Harrisburg, Pennsylvania 17108-1177
Re: Leaphart VB. Wittig
Our File No. 3276-1
Dear Matt:
I am in receipt of your subpoena directed to Dr. Friedman,
to which I Object. Please adVit me immediately of your
authority under Pat R.C.P. No. 03.5 that entitles you to the
information sought in the subpo na. If you are able t.o produce
same, I will be guided accordingly. Otherwise, I plan to seek
sanctions with the court.
sinc1lttl
./ E. Kroi,
REX/mps
.C.IIII..... C~~ TII" MY.....I. by the ~.IIIlNlIut. 01 fll" ~OI..y
A ......,.,""..u ~om. COUll ,.."..11I" "'IN'I
EXHIBIT
B
C..TI.IC&~ O. S..VIeR
I hereby certify that a true and correct copy of the
foregoing was served upon counsel of record on January 21, 1998,
by forwarding same by United States First Class Mail, postage
prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Matthew S. Crosby, Esquire
Handler and Wiener
Post Office Box 1177
Harrisburg, Pennsylvania 17108-1177
(Attorney for Plaintiff)
.'
I
_.,
REYNOLDS & HAVAS
A professional Corporation
(3276)
.q.:
00'
~'1
COO
-!:!.
..
€J
.1
4
t='
b: 1"" "'-
.,' LJ-; r.-
i;.-: ..
Ill~, 1 t~ ' ' ~
( I ..~=:. 4" ,....
ri" I -,' (.)~'t:
leT ..,
9'" L...
l: 0.':
CJ\l~ ~j
':.':1' ('oJ
w...:,'" : " '~ . .~,-
;~ ..'J. ,..1'1"1
."J ~. !;J..
11- '.
0 0:1 ~ :'1
0' (.:I
.
..
. ,
JONNIE LEAPIIART.
Plointiff
IN TIlE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY.
PENNSYLVANIA
v.
CIVIL ACTION - LAW
NO. 95-6704
CYNTIlIA LONITA WrrnNO,
Defellllonl
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
PISCOVERY PURSUANT TO RULE 4009.:n
Plointiff intends to serve 0 subpoeno idenlicol to the one thot is ottoched to this notice.
You hove twenty (20) doys from the dote listed below in which to file of record nod serve upon
the undersigned on objection to the subpocno. Ifill! objection is mode. the subpoeno moy be
served.
By:
ew S. Crosby.
iDII 69367
319 Morket Street
Ilorrisburg. I' A 17108
(717) 238-2000
Allorncys lor I'lointiff
)LER AND WIENER
Dote: December 30. 1997
t CO) [Pf~(
., .
cx:tf'Q.WEAL'nf OF PE7MYLVAHIA
CClJHI"{ OF Clt1BEJlLAN)
Jonnle Leaphart, Plaintiff
I
I
I File No. 95-6704
I
I
SUBPOENA
TO. Records Custodian. Ellis Friedman. M.D.. 320 Ablngton Drive, Wyomlsslng. PAt 17610
v.
Cynthia Lonlta Witting. Defendant
1. You are ordered by the court to come to Handler & Wiener Law Office, 319 Market Street.
Harrisburg. PAt 17610
(Specify courtroom or other place)
County, Pennsylvania, on
at
at
o'clock,
M., to testify on behalf of
in the above case, and to remain until excused.
2. And bring with you the following. Any financial records specifically concerning any
Independent medical examinations ur re\;urd) review ~haL Or. Fr Illdlllall Ila) I"" fUIIln::d UII behalf
of Rnlf ~A krol1. ~~Qulrp. or on bphAlf nf thp lAW firm nf AAynnlrlc I H~V8S. or on behalf of
State Farm Insurance Company within the last 24 months. Please Include the number of exams,
a~unt ch.aJ::ppd for thp p~am~. amount charlu.rt for r"l.tpd .~"rv I r"~ (~-r~c. I " amount.
If you 'fiiI to attend or to produce the 'OOCiJiiiints or tliIilgs reqwziln)y thiI subpOlNl,
you may be subject to the sanctions authorized by Rule 234.5 of the PeMay1ven:i.a auel
of Civil P~","edure, including but not limited to costs, attomey fees and iJIpri.~t.
ISSUED BY A PARTY/COUNSEL IN CCH'LIANCE WI'nl Pa.R.C.P. No. 234.2(a)
NAME. Matthew S. Crosby, Esquire
Handler & Wiener
ADDRESS. ~19 Market Street
HarrlsburQ. PA 17108
~I (717) 238-2000
SUPmtE COURT IDf 69367
-.~\ ~..-~>. f- .. -. ,--.
(J (( ))I/;t),
. --'.,' i If
BY THE COURT I
Prothonotary, Civil Divi.ion
DATE.
seal of the Court
Deputy
OFFICIAL N01'EI This fom of SUbpceM shall be used whenever a subpoena il illUllble,
including hearings in coMection with depositions and before arbitrators, mutan,
canmi..ioners, etc. in coopliance with Pa.R.C.P'. No. 234.1. If a subpoena for pxaduction
of docuI8nts, records or things is delired, CXlI1Illete paragreph 2.
*charged for reports and testimony concerning those exams for the last 24 months.
(Rev. 1/90)
"
to
Jonnle Leaphart. Plaintiff
v.
File No. 95-6704
.
.
Cynthia Lonlta Witting, Defendant :
CERTIFICATE OF SERVICE
AND NOW, this ~61l.'day of December, 1997, I, Matthew S. Crosby, hereby certify that
on this day, I served a Noticc of Intent to Serve a Subpoena directed to the Records Custodian,
Ellis Friedman, M.D. via First Class United States Mail and Certified, Return Receipt Requested,
postage prepaid as follows:
RolfE. Kroll
REYNOLDS & HAVAS
101 Pine Street
POBox 932
Harrisburg PA 17108-0932
DLER AND WIENER
Date: Ja!3D!q7
w S. Crosby, Es
10# 69367
319 Market Street
Harrisburg PA 17108
(717) 238-2000
Attorneys for PlaintilT
~ -. ....
~ \l'I ....
C': r;;
.. L"
Ig - -.JOC.
~-):i':
:c: l...)..o::
i1; a.. r1~!
F.' N :':i~
.L
... I _..J..._
't' .-.
' C!! ;;" ld&
'.r-: ." ,t"}
-, ~-
t5. ex: i3
0'
!.
.
.
.
,
,.
"
,.j,
Il
W
Z ,
w 8.-
~ i' ';:8:
;lJO l: .~8' , ,i'
I i II il! ': "'j~
! II: . ~ g . 0 ,"
w _ ,0,
.J II . "
o .
z
C
:t
;
1\
~fR ,~ 6 1998
.
proposed subpoena, attached hereto, made a part hereof and marked
"Exhibit A."). On January 21, 1998, Defendant filed a Motion to
Quash Plaintiff's subpoena.
II. QUlSTION PRESINTID
A. WDTBJ:R PLAINTIFF BAS TBJ: RIGHT TO DISCOVER DOcmuarrS
RELATING TO THE EXISTENCE OW A WINANCIAL RELATIONSHIP
BETWEEN TBJ: DEWENDANT'S EXPERT, THE DEWENSE COUNSEL'S
FIlii A!fD TBJ: DE'ENDANT'S INSURANCE COIIPANY WOR TBJ:
P'ORPOSE OW IMPEACIDIINT IASJrD UPON INTEREST A!fD lIAS?
(Propo.ed anlwer i. in the affirmative.)
B. WDTBJ:R PLAINTIFF BAS THE RIGHT TO DISCOVER DOcmuarrS
RELATING TO THE EXISTENCE OW A WINANCIAL RELATIONSHIP
BETWEEN THE DE'ENDANT'S EXPERT, TBJ: DE'ENSE COUNSEL'S
WIlli A!fD TBJ: DE'ENDANT'S INSURANCE COMPANY IECAUSE IT
IS NOT UNREASONABLY l'lJRDENSOIm?
(Propoled anlwer il in the affirmative.)
III. DISCUSSION
A. PLAINTI'W BAS THE RIGHT TO DISCOVER DOCUJDNTS ULATIHG
TO TBJ: EXISTENCE 0' A WINANCIAL RELATIOHSBIP IETWEEN
TBI D.WENDART'S EXPERT, TBJ: DEWENSE COUNSEL'S WIRK AHD
TBI D.WENDART'S INSURANCE COJI1IANY 'OR TBI P'ORPOS. OW
IIIPEACBIIKNT BASED UPON INTEREST AHD BIAS.
The Rules governing discovery in Pennsylvania provide that,
"a party may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in
the pending action." ~ Pa.R.C.P. 4003.1. Furthermore, it is
not grounds for objection that the information sought will be
inadmissible at the trial if the information Bought appear.
-2..
r.alonably calculated to lead to the dilcovery of adaillible
evidence. ~ Pa.R.C.P. 4003.1(b) (emphasis added).
It has been established by the Pennsylvania Supreme Court
that it is permissible to impeach expert witnesses based upon
their partiality to the party for whom the expert is testifying.
Grutski v. Kline, 352 Pa. 401, 43 A.2d 142 (1945). It is proper
to elicit from an expert the fee that the expert is being paid to
testify and whether a personal relationship exists between the
expert and either the party calling him or that party's counsel.
Smith v. Celotex, 564 A.2d 209, 213 (Pa. Super. 19B9).
As recently as December 17, 1997, it has been held that
financial information, such as that sought by plaintiff in the
present case, is discoverable. Koqod v. Spanqler, CV-97-060B
(M.D. Pa. 1997). Defendant contends that the Koqod opinion is
inapposite to the case at bar because it is based upon the
Federal Civil Rules of Civil Procedure. Defendant fails to
mention that Koqod also relies, in large part, on three State
Court opinions that clearly were not interpreting the Federal
Rules. (See the Koqod opinion, attached hereto, made a part
hereof and marked "Exhibit B.")
Furthermore, our Superior Court has also held that "a party
is always entitled to explore the credibility of a witness and
expose any bias or interest which might affect the witness's
testimony." ~,Tiburzio-Kellvv. Montqomerv, 6B1 A.2d 757, 767
-3-
(pa. Super. 1996) (citing Doualas v. Licciardi Construction Co.,
386 Pa. Super. 292, 300, 562 A.2d 913, 917 (1989)). In its
opinion, the Tiburzio-Kelly court wrote, inter alia,
In the present case, appellants sought to show
a professional relationship, beyond the
confines of this case, between the experts and
the defense attorneys. Certainly evidence of
an ongoing relationship between the witnesses
and attorneys is information which the jury
would want to know about, and we believe is
entitled to know about.
Tiburzio-Kellv, at 767.
In this case, plaintiff seeks to do just that. Plaintiff
seeks to impeach Dr. Friedman with information directly related
to his work as an expert for the defense.
Moreover, the above-stated case law addresses ~
admiaaibilitv of evidence at trial. This case is not even at
that stage. plaintiff is only seeking to discover this financial
information. She has not yet used it.
If the courts of our
Commonwealth have consistently held that this type of financial
information is admissible at trial, it logically follows that the
same information is discoverable. Certainly, the discovery of
information concerning the financial relationship between Dr.
Friedman and the defense is reasonably calculated tQ ~ tQ the
discovery of admissible evidence. The Pennsylvania Supreme Court
has previously expressed its unqualified support that "the
purpose of all impeachment, of course, is to affect the
credibility of the witness... It is beyond dispute that the
-4-
interest in or bias of a witness towards either side of a lawsuit
may be exposed upon cross-examination and ...the blocking of such
a line of attack may constitute reversible error." Downev v.
Weston, 451 Pa. 259, 263-265, 301 A.2d 635 (1973). For this
reason, the discovery of this information should be pern\itted by
the court.
The Defendant also contends that the discovery sought by
Plaintiff is beyond the scope of discovery permitted by Pa.R.C.P.
No. 4003.5. Rule 4003.5, however, is not applicable to the
subpoena in question. The Rule reads, in pertinent part,
(a) Discoverv of facts known and ooinions
held bv an expert, otherwise discoverable
under the provisions of Rule 4003.1 and
acquired or developed in anticipation of
litigation or for trial, may be obtained
as follows.
Pa.R.C.P. No. 4003.5 (emphasis added).
The Rule goes on to state the limits of discovery and the
manner in which that discovery may be obtained. Defendant's
reliance on Rule 4003.5 is misplaced, because the financial
records sought by Plaintiff do not fall within the category of
"facts known and opinions held by an expert." The information
Plaintiff seeks goes only to Dr. Friedman's potential bias and
prejudice. Therefore, based upon the plain reading of the
Statute, Rule 4003.5 does not even apply to the issue before this
Court.
-5-
B. PLAINTIFF BAS THE RIGHT TO DISCOVlR DO~uaadTS RELATING
TO TEl EXISTENCE 0' A FINANCIAL RELATIONSHIP BETWEEN
THE DEFENDANT'S EXPERT, THE DEFENSE COUNSEL'S FIRM AND
THE DEFENDANT'S INSURANCE COMPANY BECAUSE IT IS NOT
UNREASONABLY BURDENSOME
Rule 4011 of the Pennsylvania Rules of Civil Procedure
states that "No discovery shall be permitted which... (b) would
cause unreasonable annoyance, embarrassment, oppression, burden,
or expense to the deponent or any person or party." The burden
is on the objecting party to establish that the discovery sought
is unreasonably burdensome. Spence v. Caesars Paradise Stream
Resort, 20 D.&C.4th 426, 429(1994). All discovery creates some
degree of annoyance; therefore, if the benefits to be obtained by
the discovery outweigh the annoyance or burden, the discovery
should be permitted. ~ at 429, (quoting Lynn Enqineerinq &
Mfq. Co. v. Achev, 73 D.&C.2d 129 (1976)).
The Defendant contends that the discovery sought is
unreasonably burdensome. The basis for this contention is that
Defendant does not believe that Dr. Friedman has his patient
files indexed by their referring insurance carrier or attorney.
Surely, however, Dr. Friedman can easily distinguish between
those patients who are part of his regular practice and those
patients who he has either seen only once or not at all (the
latter, being in the case of records reviews). Plaintiff further
presumes that defense counsel could shed some light on those
individuals his law firm has sent to Dr. Friedman. The benefits
to be obtained by exposing Dr. Friedman's bias and partiality in
.6-
.': ~:"-:'~:'~#_'~'. .~~~;," f~'::C~'i2A:~y;K~,",
'.',
j,
"i
;\'
"
e
.,
'';
!lCHIIUT "
i'
\'
'...:
.
'JI'1lJii!~Wi!lJ
~4~1;W,1Ib-..'uu
111m
.l.
.,
--
--------....-"..------~
-_.-.-_.~~
HT__'''__....__ -.._- "."_.. - ,-",,--,"'.'~
"_:.u._.~...___ __~......
,
. '.) 0
'" C'CH1JtM'.AL'nf OF ~EmSYLVANIA
COONrY OF ClI1BEIU..AKl
Jonnle Leaphart, Plaintiff
v.
I
I
I File No. 95-6704
I
I
SUBPOENA
Cynthia Lonlta Witting, Defendant
TO. Records Custodian. Ellis Friedman, M.D.. 320 Abtngton Drive, Wyomlsslng, PA. 17610
1. You are ordered by the court to come to Handler & Wiener Law Office. 319 Market Street.
Harrisburg. PA, 17610
at
(Specify courtroom or other place)
County, Pennsylvlll\ia, on
at
o'clock,
M., to testify on behalf of
in the above case, and to remain until excused.
2. And bring with you the following I Any financial records specifically concerning any
independent medical examinations ur rt:curd::i rt:vl~w lohdt. Dr. Friedman 1,0:) Jlt:I fUllucd VII behalt
of Rnlf fa Kroll. E~qlJirp nr on hph~lf of thp lAW firm of ~pynnlr1c & Hava~. or on behalf of
State Farm Insurance Company within the last 24 months. Please Include the number of exams.
unt*
I you to attend or to produce the CIocurents or t ' 911 re Y t a 15
you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania 1l1le.
of Civil ~........dure, including but not limited to costs, attorney fees liIld iqlril5Onnent.
ISSUED BY A PARTY/COUNSEL IN c:cH'UANCE WI'nl Pa.R.C.P. No. 234.2(a)
NAME I Matthew S. Crosby. Esquire
Handler & Wiener
ADDRESS I 319 Morket Street
HarrlsburQ, PA 17108
.", ,-:.:--.
"."(r\, ri'~'>"
~ ( ,I' ":,..' \.
TELEPHONE. (717) 238-2000
SUPREME COURT IDf 69367
BY 'nfE COURT I
DATt:1
Prothonotary, Civil Division
Seal of the Court
Deputy
OFFICI/.L t<<:m:1 This fOIm of sUbpcena shall be used whenever a subpoena is issuable,
including hearings in connection with depositions and before arbitrators, IlIIIlIters,
ClOlmIissioners, etc. in conpliance with Pa.R.C.P'. No. 234.1. If II subpcena for production
of doc:I.m!nts, reoords or things is desired, carplete paragraph 2.
*charged for reports and testimony concerning those exams for the last 24 months.
(Rev. 1/90)
F.XNYlUT II
~~
..".~
"
"r
!e
'I
.
-..-...."'.........-.......~~,.,_..~....-" -
----.-'"-.-~-_.__i4.,. li'l'lLa 'I~--
.-.' -~~.-"'--- "","- .".., .~.-_.._..,-,. .- .,... ~_. '. .'-
..._.-+~,~""'-----",.. .-
'.
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SANDRA KANU KOGOD,
CIVIL NO. 1.CV-97-0608
Plaintiff
(Judge Caldwell)
v.
(~agistrate Judge Smyser)
ANITA M. SPANGLER,
Defendant
v.
FILED
HARRISBURG. PA
LIAME WHITE,
Third-Party
Defendant,
DEe 17 1997
ORDER
, Ni"RE/\. r.L~"'(
-
The plaintiff commenced this action by filing a
complaint on April 18, 1997. On May 12, 1997, the defendant
filed an answer to the complaint, and on May 14, 1997, the
defendant filed a third party complaint. On July 17, 1997, the
third-party defendant filed an answer to the third-party
complaint.
I:XHTRTT R
,
"'0 72"
(RIY 8182)
November 13, 1997, the defendant filed a motion for a
protective order and to quash the subpoena served by the
plaintiff on the records custodian of Perry A. Eagle, M.D. On
November 13, 1997, the defendant filed briefs in support of
these motions.
On November 24, 1997, the plaintiff filed briefs in
opposition to the three motions filed by the defendant. No
reply briefs have been filed.
The defendant contends that the subpoena to State rarm
Insurance Company should be quashed because evidence of
insurance is not admissible, because evidence of other exams
performed for State Farm or at the direction of defense counsel
are not relevant, because an expert r.lay not be cross-examined
with regard to receipt of fees for medical or legal cases other
than the one being tried, and because the subpoena is unduly
burdensome. The defendant contends that the subpoena to the
records custodian at York Hospital should be quashed because
evidence of Dr. Eagle's hospital privileges, operating schedule
5
,
1\0 721\
(Rty 8182)
examine the defendants' experts to attempt to show a
professional relationship, beyond the confines of the case at
bar, of the experts and the defense attorneys) .
The discovery sought by the plaintiff regarding Dr.
Eagle'S work for State Farm and defendant's counsel may be
relevant to Dr. Eagle's bias or prejudice. The discovery
sought by the plaintiff regarding Dr. Eagle's hospital
privileges, operating room schedule and procedures performed
may be relevant to Dr. Eagle's qualifications as an expert.
The defendant states in a conclusory fashion that the
subpoenas are unduly burdensome. If information sought through
discovery is relevant, the burden is on the party opposing
discovery to show that the request is unduly burdensome. sea
51enerally Cipollone v I,i~51ett Group. Inc., 785 F.2d 1108,
1121 (3d Cir. 1986) ("Broad allegations of harm, unsubstantiated
by specific examples or articulated reasoning, do not satisfy
the Rule 26 (c) test."). The defendant has not explained how or
why the subpoenas are unduly burdensome.
9
,
1.0 721.
(R...81B2)
aMI fiCA TE Qf SEflVICE
I hereby certify that a true and correct copy of the foregoing document was served on
Cynthia Lonita Wittig, by sending a copy of the same to her attorney of record, Rolf E.
Kroll, Esq., REYNOLDS & HAVAS, 101 Pine St., P.O. Box 932, Harrisburg, PA 17108.
0932, by United States Mail, regular service, in Harrisburg, PeMsylvania on February 6,
1998.
B
ew S. Crosby'
Attorney 1.0. #69367
P.O. Box 1177
Harrisburg, PA 17108
(717) 238.2000
Attorneys for Plaintiff
DATE: ,),6 'fr
.
fal\an...r\l.aphart..q
JONNIE LEAPHART,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUHBERLAND COUNTY, PENNSYLVANIA
v.
NO. 95-6704 CIVIL TERM
()
r"
~i\.1
g:\y
JURY TRIAL DEMANDED r. :"
.;~ t".
;:r: j
..... ()
;.,,-~
PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO OUASH~
PURSUANT TO PAt R.C.P. NO. 234.2 AND
OBJEcTIONS TO SUBPOENA PURSUANT TO RULE 4009.21
,rJ n
\J' -\1
.., ':l
rn ~., ;:g
uJ
I '()~
,1' 1I
I,:.,..,
::- ;;i~
. r
o.
- 5111
-
.. ---I
-~
:::> ~
C.:I ....
CIVIL ACTION - LAW
CYNTHIA LONITA WITTIG,
DEFENDANT
AND NOW comes the Plaintiff, JONNIE LEAPHART, by and
through her attorneys, HANDLER & WIENER, by Matthew S. Crosby,
Esq., and answers the Defendant's Motion to Quash as follows:
1. Admitted.
2. Admitted in part and Denied in part. It is admitted
that defense counsel objected to Plaintiff's subpoena in a letter
dated January 9, 1998. It is specifically denied, however, that
the discovery sought is beyond the scope of Pa.R.C.P. No. 4003.5.
By way of further answer, Rule 4003.5 does not apply in the
instant case because the discovery sought does not deal with
"facts known and opinions held by an expert." ~ Pa.R.C.P.
4003.5.
-1-
,
3. Admitted.
4. Admitted in part and Denied in part. It is admitted
that defense counsel requested case law on this issue. It is
specifically denied, however, that the opinion in Koqod v.
Soanqler, CV-97-060B (M.D. Pa. 1997), was "based upon the Federal
Rules of civil Procedure." In fact, the Koqod opinion relied
primarily on Pennsylvania case law and cited no less than three
Pennsylvania cases, including Grutski v. Kline, 43 A.2d 142
(1945), a Pennsylvania Supreme Court opinion.
5. Admitted in part and Denied in part. It is admitted
that defense counsel requested a withdrawal of Plaintiff's
subpoena in a letter dated January 19, 199B. It is again,
however, specifically denied that the Koqod opinion was "based
upon the Federal Rules of Civil Procedure." The Federal Rule of
Civil Procedure defense counsel refers to is identical to Rule
4003.1 of the Pennsylvania Rules of Civil Procedure.
6. Denied. Pa.R.C.P 4003.5 governs the "discovery of facts
known and opinions held by an expert," and does not apply in.the
instant case because the discovery Plaintiff seeks does not
include "facts known or opinions held" by Dr. Friedman. ~
Pa.R.C.P. 4003.5.
7. Denied. By way of further answer, Pa.R.C.P. 4010 does
not apply in the instant case because it governs when a party
shall be forced to undergo a physical or mental examination and
when a party shall receive the physician's medical report based
on this examination. This Rule does not govern the discovery
-2-
,
sought in the instant case, namely, financial records of a third
party that might indicate bias or partiality. ~ Pa.R.C.P.
4010.
8. Denied. By way of further answer, Plaintiff is merely
following the procedure set forth in Pa.R.C.P. 4009.21 that
governs the issuance and service of subpoenas upon persons not a
party to the action.
9. Denied. By way of further answer, it is the objecting
party who has the burden of proving why the discovery sought
should not be permitted. This is expressly stated in Rule
4009.21. Also, as stated previously, Pa.R.C.P 4003.5 does not
apply in the instant case, because the discovery plaintiff seeks
does not include "facts known or opinions held" by Dr. Friedman.
~ Pa.R.C.P. Nos. 4003.5 and 4009.21
10. Denied. The averments contained in Paragraph 10 and
subsections (a) and (b) are specifically denied. By way of
further answer, the burden is on the Defendant to establish that
the discovery sought is unreasonably burdensome. Defendant has
not met this burden.
11. Denied. The averment contained in Paragraph 11 is
specifically denied. By way of further answer, the discovery at
issue was requested in order to show bias or partiality on behalf
of Dr. Friedman toward defense counsel, defense counsel's law
firm, and/or State Farm Insurance company. The courts of this
commonwealth have consistently held that such information is
-3-
,
extremely relevant.
12. The averment contained in Paragraph 12 does not require
a response.
.4-
,,"
L,',
"
(!>:~:i '
'it':i'j:lS:,;,'lr .~
;~~~r::' .
.,
, IE
/w
'z
I i 1= ~f:;~;i
a II'. iIIS::;~:;;~i~
~' iEit"j;,;!ld,:
: ~:-'!'~.~ ~,i;~::.:,J:Y;';r.~t1
I \:'<'~}~i
:1:' ,
.,.,,',"
-...
..
"'."
;,--;:;'"
c
.~. ..
. .
.
,
. ......"
f ..r"r....-
. ........
.'
'-4l
JOIINII LIAl'IlART,
PLAINT II'I'
IN THE COURT 01' COIIKON PLUS
CUllBERLAND COmn'Y,pIDfNSYLVAHIA
v.
NO. 95-6704 CIVIL TERM
CIVIL ACTION - LAW
CYNTBIA LONITA WITTIG,
DII'IDfDAHT
JURY TRIAL DEHAHDED
ORDER 01' COURT
AND NOW, this ____day of
1998, upon
consideration of the within pleading,
IT IS RIRIBY ORDIRID that the Defendant's Motion to
Quash Pursuant to Pa. R.C.P. No. 234.2 and Objections to subpoena
Pursuant to Rule 4009.21 be dismissed and Plaintiff is hereby
permitted to serve the subpoena on Dr. Ellis Friedman.
BY THB COURT.
J.
hI\.......\l...b&rt. -'I
JORRI. LUPBART,
PLAINTI"
IN TIm COUJI.T 01' COIIIION PLUS
cmm.aLAlfD COUNTY, pmmSYLVANIA
v.
NO. 95-6704 CIVIL TKRK
CIVIL ACTION - LA"
Cl~&.IA LONITA "ITTIQ,
D.I'DIlANT
JURY TRIAL DIllAlQ)a)
PLAINTIFF' S ANsna TO J).I'DtIANT' S IIOTIOR TO OUASH
PURSUANT TO Pol. a.c.p. NO. 234.2 AHD
OB3cTIOHS TO SUBPODA PURSUANT TO am. 4009.21
AND NO" comes the plaintiff, JONNIE LEAPHART, by and
through her attorneys, HANDLER & WIENER, by Matthew S. Crosby,
Esq., and answers the Defendant'S Motion to Quash as follows:
1. Admitted.
2. Admitted in part and Denied in part. It is admitted
that defense counsel objected to plaintiff's subpoena in a letter
dated January 9, 1998. It is specifically denied, however, that
the discovery sought is beyond the scope of Pa.R.C.P. No. 4003.5.
By way of further answer, Rule 4003.5 does not apply in the
instant case because the discovery sought does not deal with
"facts known and opinions held by an expert." SG Pa.R.C.P.
4003.5.
-1-
3. Admitted.
4. Admitted in part and Denied in part. It is admitted
that defense counsel requested case law on this issue. It is
specifically denied, however, that the opinion in Kogod v.
Spanaler, CV-97-0608 (M.D. Pa. 1997), was "based upon the Federal
Rules of Civil Procedure." In fact, the Koaod opinion relied
primarily on Pennsylvania case law and cited no less than three
Pennsylvania cases, including Grutski v. Kline, 43 A.2d 142
(1945), a Pennsylvania Supreme Court opinion.
5. Admitted in part and Denied in part. It is admitted
that defense counsel requested a withdrawal of Plaintiff's
subpoena in a letter dated January 19, 1998. It is again,
however, specifically denied that the Koaod opinion was "based
upon the Federal Rules of Civil Procedure." The Federal Rule of
Civil Procedure defense counsel refers to is identical to Rule
4003.1 of the Pennsylvania Rules of Civil Procedure.
6. Denied. Pa.R.C.P 4003.5 governs the "discovery of facts
known and opinions held by an expert," and does not apply in the
instant case because the discovery Plaintiff seeks does not
include "facts known or opinions held" by Dr. Friedman. ~
Pa.R.C.P. 4003.5.
7. Denied. By way of furthe~ answer, Pa.R.C.P. 4010 does
not apply in the instant case because it governs when a party
shall be forced to undergo a physical or mental examination and
when a party shall receive the physician's medical report based
on this examination. This Rule does not govern the discovery
-2-
sought in the instant caso, namely, t.inancial records of a third
party that might indicate bias or partiality. ~ Pa.R.C.P.
4010.
8. Denied. By way of further answer, Plaintiff is merely
following the procedure set forth in Pa.R.C.P. 4009.21 that
governs the issuance and nervice of subpoenas upon persons not a
party to the action.
9. Denied. By way of further answer, it is the objecting
party who has the burden of proving why the discovery sought
should not be permitted. This is expressly stated in Rule
4009.21. Also, an stated previouslY, Pa.R.C.P 4003.5 does not
apply in the instant case, bocause the discovery plaintiff seeks
does not include "facts known or opinions held" by Dr. Friedman.
SAA Pa.R.C.P. Nos. 4003.5 and 4009.21
10. Denied. The avsrments contained in paragraph 10 and
subsections (a) and (b) are specifically denied. By way of
further answer, the burden is on the Defendant to establish that
the discovery sought is unreasonably burdensome. Defendant has
not met this burden.
11. Denied. The averment contained in paragraph 11 is
specifically denied. By way of further answer, the discovery at
issue was requested in order to show bias or partiality on behalf
of Dr. Friedman toward defense counsel, defense counsel's law
firm, and/or State Farm Insurance company. The courts of this
commonwealth have consistently held that such information is
.J.
JONNIE LEAPHART,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 95-6704
CYNTHIA LONIT A WITTING,
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I hereby certify that I have selVed a true and correct copy of the foregoing Notice To
Attend on all counsel of record by placing the same in the United States Mail at Harrisburg,
Pennsylvania, first-class postage prepaid, on the ~day of April, 1998, addressed as follows:
RolfE. Kroll, Esquire
REYNOLDS & HAVAS
101 Pine Street
POBox 932
Harrisburg PA 17108-0932
(Counsel for Defendants)
LER AND WIENER
By:
Matthew S. Crosby,
Supreme Court ID /I
319 Market Street
POBox 1177
Harrisburg P A 17108
(717) 238-2000
Attorneys for Plaintiff
.
~ "I ~
'"
.. a~
r '"
~~ :;:: uiE
C4. ~
C!i;:!
c:.' .:I' wi
1{ C'\I
~ 8.:
oct' <;-'
~ ca a
en
- 0
Q
-r
.j o oJl .A"
~ In >- ~ -
(~ Ll~ l~ - 8
t-' M ,;.. <. a
~Q. ) " ... (..
_. - Q~; ~ ()
B L.' .'- ~~~5 --q
-r-. u...
~c ..,;- '1 -t !
IL. m ~..(n
u:~ 1 ..)2
- 1.1--- E d
_. ,.1(i.l
rl: :::> IOU..
., ~.
IS CXI :5
en CJ
~.
\,01,'('11'0 Ow -
II'WJI.:;j
',(0
o~ml(j' uaJ}"'C(j . (I)
- ...Y'dJ ~ PiS"O\lCl(J
'j/ 'f?I - ';!)~T1(,UCCl . It U I{ "f
,to'
;i ~~i~~~t..:
.".
.r",,;,
',' "f\;{;"::rm',:~~
" ;,<;"-Ji_..::c~
,!" . ,~'~-'.t0"i
!~.f ':' r;:; ","',
'\H~
"
":.'..!:'
--^:.;.'i:!;:~
',,-
..
.
if "
.,.
t't!!1 <;,.
'r;'
if~~l@N.~:.+ ..
.(,~,~"":~'" '-.:-' .,
.f1f-''''''l~ ~ ~~'I'."
'1t".......:'f. .
';;~"'_I'!J", '
I ~I 'I ,,-
"~"E' .
i M:;.;) ':'12 ,';
la;~t~~~. :,",
t:p".'iJ. ':.
\ '- \<<1..... ;';:'" :.
f'. j~,I;." ,-(:ti /'';: l'
> t<f.!.r'~',.\'._"'''';
;;,;X,i\',:.,;: 1.' '"
Jj.j)~:'.,i'" ,
"
",
"
.. ., . .
:' ~-:~'~:~-it}1:}j\~1
,'i'~;tJ~1
..t,_'L",lll
- ,~i~\~~~;:'.~Y..;
I
-L'\,
-, (,i,~,'.:'~-_!~l;.!it;-1j-':
.i'',ie,f
:.J~l
: 'J ._:':I'~~
I :.. .",1)
.C, ~>:;:-:: ,',If
. %,' ,:'.;t.',!~ .;!~
; . ~:: >;:~;:ij;:}~.
"
'_J,
.'l
~O.
~~
.-
-......
IID100 MMtI:>>
0: LEAPHART.
Plllntlrr
: IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY. PENNSYLVANIA
: NO, 9!-6704 CIVIL TERM
v.
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
CYNTHIA LONITA WITTIG
Defendant
ftlAJ:CIPE
. TO THE PROTHONOTARY:
Please mark the above-captioned matter settled, discontinued and satisfied.
BY:
DATE:
I L?rJlq~
I
Itthew S.
319 Market St.
P.O. Box 1177
Hlrrlsburg. PA 17108
Tel. No.: 717-138-1000
Supreme Court ID No.69367
Attorneys for Plaintiff