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HomeMy WebLinkAbout2009-5978 SUSAN BOYER and PAUL BOYER, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : NICHOLLE DIXON and LISA KREITZ, : No. 2009-5978 CIVIL Defendants : IN RE: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS, P.J., MASLAND, J., and PECK, J. At issue before this Court are Defendants Dixon and Kreitz’s Motions for Summary Judgment. In this case, the Plaintiffs have been precluded from utilizing expert testimony as a result of the failure to file expert reports pursuant to an earlier order of court. Defendants argue Plaintiffs will be unable to prove the causal connection between the accident and Susan Boyer’s injuries. As a result, Defendants believe they are entitled to judgment as a matter of law. Plaintiffs, meanwhile, assert that the connection between the accident and Susan Boyer’s injury is obvious and therefore does not necessitate expert testimony. A 3-vehicle accident occurred along Route 581 East in Cumberland County on September 17, 2007. Plaintiff Susan Boyer alleges various neck, back, spine, shoulder, arm, and leg injuries in addition to general soft tissue bruising and contusions. Plaintiffs also claim economic damages including lost wages, loss of earning capacity, and loss of consortium. This Court, after a Case Management Conference, ordered Plaintiffs to produce expert reports by December 8, 2014. Plaintiffs did not file expert reports and Defendants Dixon and Kreitz both filed Motions for Summary Judgment. Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. A court may “grant summary judgment only where the right to such a judgment is clear and free from doubt.” Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). Our courts have held that “where the disability complained of is the natural and probable result of the injuries, the fact-finding body may be permitted to so find, even in the entire absence of expert opinion.” Smith v. German, 253 A.2d 107, 109 (Pa. 1969) (internal citations and quotations omitted). However, “\[t\]he two must be so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection." Id. In instances in which the causal connection is not obvious, parties are required to proffer expert testimony to establish the causal connection. Id. By way of guidance, the court in Lattanze v. Silverstrini, 448 A.2d 605, 608 (Pa. Super. Ct. 1982), examined a number of Pennsylvania cases to determine when expert testimony was essential to determining causation. The Lattanze court stated that injuries must be the "immediate and direct" or the "natural and probable" result of the alleged negligent act. Lattanze, 448 A.2d 608. The Lattanze court found that in cases where expert testimony was not required, that \[those\] cases contain two common characteristics. The first is that the respective plaintiffs began exhibiting symptoms of their injuries immediately after the accident or within a relatively short time thereafter. The second is that the injury complained of was the type one would reasonably expect to result from the accident in question. Lattanze v. Silverstrini, 448 A.2d 605, 608 (Pa. Super. Ct. 1982). 2 did However, the cases examined in Lattanze which require expert testimony were found to have other causes for the injury which were just as likely as the alleged negligent act, even if the injury suffered was immediate and reasonably expected. Lattanze, 448 A.2d 609. The facts underlying Lattanze were such that the injured party suffered no pre-existing injury or malady which could be attributable to the alleged injuries therefore expert testimony was not required. Id. Here, Defendants argue that because Ms. Boyer exhibited lumbar pain—as evidenced by her medical records and physical therapy—prior to the accident, her injuries are not readily apparent that a layman could diagnose without guessing. (Defendant Dixon’s Motion for Summary Judgment, ¶ 20, December 11, 2014). Conversely, Plaintiffs argue that Susan Boyer stated at her deposition that she experienced pain in the days immediately following the accident. (Plaintiffs’ Answer to Defendant’s Motion for Summary Judgment, ¶ 9, January 9, 2015 (Hereinafter “Answer at __”)). Ms. Boyer was examined three days post-accident and diagnosed with lumbar strain. (Answer at ¶ 10). Five days after that, eight days post-accident, Ms. Boyer again visited her doctor and was then diagnosed with cervical muscle strain and contusions. (Answer at ¶ 11). As a result of her injuries, Ms. Boyer’s doctor placed her on a reduced work schedule. (Answer at ¶ 14). Neck and spine injuries are some of the most common, and complex, injuries which result from vehicle accidents. Despite their commonplace nature, it is almost impossible for a lay person to properly determine the cause of such injuries. The waters are further muddied in this case due to Ms. Boyer’s history with back pain which included Ms. Boyer requiring physical therapy for back pain less than a month prior to 3 the accident. Whether Ms. Boyer’s injuries were caused by the September 17, 2007 accident cannot be answered by purely lay testimony. Expert testimony is required to determine the causal connection between the accident and the injuries which Plaintiffs are claiming. Since Plaintiffs have failed to file expert reports within the timeframe permitted by this Court, expert testimony is precluded. Lacking any viable expert witness, Plaintiffs are unable to establish the causal connection necessary to determine 1 Defendants’ liability. ORDER th AND NOW, this 10 day of March, 2015, upon consideration of Defendants Dixon and Kreitz’s Motions for Summary Judgment to Plaintiffs’ Complaint, briefs by the parties, and after oral argument on the matter, Defendants’ Motions for Summary GRANTED Judgment are . BY THE COURT: ________________________ Kevin A. Hess, P.J. Thomas Gannon, Esquire For Plaintiffs Kevin Rauch, Esquire For Defendant Dixon Randy Burch, Esquire For Defendant Kreitz 1 The Plaintiffs’ treating physician is Dr. Richard J. Boal, a well-known and well-respected orthopedist in Cumberland County. There is nothing in our jurisprudence to prevent the Plaintiffs’ treating physician from also acting as an expert. Nonetheless, the Plaintiffs have failed to designate him as such. 4 SUSAN BOYER and PAUL BOYER, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : NICHOLLE DIXON and LISA KREITZ, : No. 2009-5978 CIVIL Defendants : IN RE: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS, P.J., MASLAND, J., and PECK, J. ORDER th AND NOW, this 10 day of March, 2015, upon consideration of Defendants Dixon and Kreitz’s Motions for Summary Judgment to Plaintiffs’ Complaint, briefs by the parties, and after oral argument on the matter, Defendants’ Motions for Summary GRANTED Judgment are . BY THE COURT: ________________________ Kevin A. Hess, P.J.