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Home My WebLink About2006-6524 MICHAEL P. GARDNER and : IN THE COURT OF COMMON PLEAS OF CYNTHIA L. GARDNER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : : : : v. : : : STEPHEN A. HOWE, JR. GAIL K. HOWE : and HAROLD A. RASMYSSEN, : No. 06-6524 Civil Defendants : IN RE: DEFENDANTS’ MOTION TO COMPEL ANSWER TO INTERROGATORY NO. 17 REGARDING MICHAEL GARDNER’S WAGE LOSS CLAIM BEFORE GUIDO, J. AND EBERT, J. OPINION AND ORDER OF COURT EBERT, J., January 18, 2012 - Background Plaintiffs, Michael P. Gardner and Cynthia L. Gardner (“Plaintiffs”), initiated this action 1 by filing a Writ of Summons on November 9, 2006. On September 30, 2008, Plaintiffs filed a 2 complaint against Defendants, Stephen A. Howe, Jr., Gail K. Howe and Harold A. Rasmyssen. The Complaint alleges serious and permanent injuries sustained by Plaintiffs resulting from a 3 rear-end collision due to Defendants’ negligence. Plaintiff Michael P. Gardner alleges serious and permanent injuries which include but are not limited to: injuries to the lumbar spine, right leg/hip injury requiring a total hip replacement, contusions, severe shock to the nervous system, 4 and mental and physical anguish. Plaintiff Cynthia L. Gardner alleges serious and permanent injuries which include but are not limited to: labral pathology in right shoulder including right 1 Praecipe Write of Summons, filed Nov. 9, 2006. 2 Plaintiffs’ Complaint, filed Sept. 30, 2008 (hereinafter Pls.’ Compl. ¶ __). 3 Pls.’ Compl. ¶¶ 9-11, 13, 22. 4 Pls.’ Compl. ¶ 13. superior labral anterior posterior tear requiring surgery, cervical sprain/strain, contusions, severe 5 shock to the nervous system, and mental and physical anguish. A Stipulation to Dismiss was filed on October 30, 2008, withdrawing all claims and causes of action with prejudice against 6 Defendant Harold Rasmyssen. On November 7, 2008, Steven A. Howe, Jr. and Gail K. Howe 7 (“Defendants”) filed their Answer with New Matter to the Complaint. On August 15, 2011, 8 Defendants’ filed a Motion to Compel Discovery. The parties have filed briefs and after argument, the issue of whether to compel discovery is before this Court. Defendants’ Motion to Compel is based upon Interrogatory Number 17 (“No. 17”) and 9 the answer with accompanying documentation provided by Plaintiff Michael P. Gardner. 10 Interrogatory No. 17 and the subsequent answer are provided: 17. Exactly how much income, if any, do you claim to have lost to date as a result of the within accident and state the method of calculating said loss and the facts upon which you rely to base your calculation? ANSWER: Plaintiff is in the process of determining the loss of income from his business and will supplement his answer to this Interrogatory in accordance with Pennsylvania Rules of Civil Procedure. Additionally, Plaintiff Michael P. Gardner avers that Defendants have been provided with “all 11 documents, reports, and tangible things” necessary to support a wage loss claim at this time. Defendants claim that additional, substantive information consisting of an actual amount of wage 12 loss is required. 5 Pls.’ Compl. ¶ 22. 6 Stipulation to Dismiss, filed Oct. 30, 2008. 7 Defendants’ Answer with New Matter, filed Nov. 7, 2008 (hereinafter Defs.’ Answer ¶ __). 8 Defs.’ Motion to Compel Discovery, filed Aug. 15, 2011 (hereinafter Defs.’ Motion to Compel ¶ __). 9 Defs.’ Motion to Compel ¶¶ 4, 9, 16-18, 21, Exhibits A, B. 10 Defs.’ Motion to Compel, Exhibit B. 11 Pls.’ Response to Defendants’ Motion to Compel, filed Aug. 31, 2011, ¶ 6. See Defs.’ Motion to Compel, Exhibits C-G for Plaintiff Michael P. Gardner’s Deposition and Tax returns and additional information. 12 Defs.’ Motion to Compel, ¶ 17. 2 Discussion Pa. R.C.P. No. 4003.1 states the general scope of discovery as follows: (a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. “[A]s a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A.2d 202, 204 (Pa. Super. 2002); see also PECO Energy Co. v. Ins. Co. of N. Am., 852 A.2d 1230, 1233 (Pa. Super. 2004). The Superior Court has stated that a trial court, as the overseer of discovery between parties, has the “discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of matters allowed by the Rules of Civil Procedure.” PECO, 852 A.2d at 1233 (internal quotations omitted). Specifically regarding expert witnesses, “the proponent of an expert witness is required to identify its expert witness in response to interrogatories and state the substance of the expert’s facts and opinions in a signed report or answer.” Curran v. Stradley, Ronon, Stevens & Young, 521 A.2d 451, 456 (Pa. Super. 1987) (citing Pa. R.C.P. 4003.5(a)(1)). In the case sub judice, Defendants’ request for a detailed accounting of Plaintiff Michael P. Gardner’s wage loss is reasonable. Questions proposed in Interrogatory No. 17 touch on requests for information that go directly to the heart of Plaintiffs’ case, but were answered with indefinite responses and ambiguous documentation. Plaintiffs allege serious and permanent injuries resulting in past and future wage loss and admit an expert will be needed to determine the exact amount of their wage loss. Plaintiffs have yet to hire an expert to determine these essential figures now approximately three (3) years after filing a complaint, five (5) years after 3 filing a Writ of Summons and seven (7) years after the collision. Additionally, the figures supplied by an expert witness will not only materially further discovery in this case, but will also conserve judicial resources by advancing the case through the pre-trial period. See Pa. R.C.P. No. 126. Accordingly, the following order is entered: th AND NOW , this 18day of January 2012, upon consideration of Defendants’ Motion to Compel Discovery, Plaintiffs’ Response, oral argument and briefs filed by the parties; IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Motion to Compel Discovery to Interrogatory No. 17 regarding Michael P. Gardner’s wage loss claim is GRANTED . Plaintiff Michael P. Gardner is directed to respond to Defendants’ Interrogatory No. 17 with an expert’s report including past and future wage loss analysis within sixty (60) days of the date of this Order. By the Court, M. L. Ebert, Jr., J. Andrew C. Spears, Esquire Attorney for Plaintiffs Michael B. Scheib, Esquire Erick Violago, Esquire Attorney for Defendants 4 MICHAEL P. GARDNER and : IN THE COURT OF COMMON PLEAS OF CYNTHIA L. GARDNER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : : : : v. : : : STEPHEN A. HOWE, JR. GAIL K. HOWE : and HAROLD A. RASMYSSEN, : No. 06-6524 Civil Defendants : IN RE: DEFENDANTS’ MOTION TO COMPEL ANSWER TO INTERROGATORY NO. 17 REGARDING MICHAEL GARDNER’S WAGE LOSS CLAIM BEFORE GUIDO, J. AND EBERT, J. ORDER OF COURT th AND NOW , this 18day of January 2012, upon consideration of Defendants’ Motion to Compel Discovery, Plaintiffs’ Response, oral argument and briefs filed by the parties; IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Motion to Compel Discovery to Interrogatory No. 17 regarding Michael P. Gardner’s wage loss claim is GRANTED . Plaintiff Michael P. Gardner is directed to respond to Defendants’ Interrogatory No. 17 with an expert’s report including past and future wage loss analysis within sixty (60) days of the date of this Order. By the Court, M. L. Ebert, Jr., J. 5 Andrew C. Spears, Esquire Attorney for Plaintiffs Michael B. Scheib, Esquire Erick Violago, Esquire Attorney for Defendants 6