Rake v. Moultrie

74 Pa. D. & C.4th 12, 2005 Pa. Dist. & Cnty. Dec. LEXIS 90
CourtPennsylvania Court of Common Pleas, Berks County
DecidedSeptember 29, 2005
Docketno. 98-6083
StatusPublished

This text of 74 Pa. D. & C.4th 12 (Rake v. Moultrie) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rake v. Moultrie, 74 Pa. D. & C.4th 12, 2005 Pa. Dist. & Cnty. Dec. LEXIS 90 (Pa. Super. Ct. 2005).

Opinion

STALLONE, J,

This is an automobile negligence action which arises out of a two-vehicle “rear-end” collision. On December 2, 1997, at approximately 4:45 p.m., the appellant, Kathleen Rake, was stopped at the intersection of Route 422 and Pine Street in the Borough of Wernersville, Berks County, Pennsylvania, when the rear of her vehicle was struck by a second vehicle being driven by the appellee, Stephanie Moultrie. In her complaint, Mrs. Rake alleged that, as a result of this collision, she sustained multiple injuries to her cervical and thoracic spine, one of her teeth and to her temporomandibular joint. Her husband, appellant Mark Rake, also asserted a claim for loss of consortium. In response, Ms. Moultrie admitted that she was negligent, but contended that her negligence was not a factual cause of the injuries and losses complained of by Mr. and Mrs. Rake.

After a trial, a jury returned a verdict in favor of Ms. Moultrie, which prompted Mr. and Mrs. Rake to file a motion for post-trial relief. Following our denial of that motion, they filed a timely appeal to the Superior Court of Pennsylvania in which they are raising three issues for appellate review.

[15]*15Their first is that they are entitled to judgment n.o.v. on the basis that the jury’s verdict was against the weight of the evidence.1 This requires an examination of the evidence to determine whether Mr. and Mrs. Rake are entitled to such relief.

Beginning with Mrs. Rake’s claim for injuries to her cervical and thoracic spine, the evidence is that, following the collision, Mrs. Rake was able to drive her vehicle away from the scene onto a side street, at which time she informed Ms. Moultrie, as well as a police officer who subsequently arrived on the scene, that she was “fine.” N.T. trial, pp. 85-86. Three days after the collision, Mrs. Rake sought medical treatment for stiffness in her neck, although she could move her neck and shoulders normally and had normal motor strength and reflexes. N.T., trial, pp. 347-48. She did not seek any further medical care or treatment until April 20, 1998, approximately four and one-half months later, when she saw her family physician, Thomas A. Stewart M.D.

At that time, Mrs. Rake complained of numbness in her upper and lower extremities and a “cracking” noise in her neck. N.T. trial, p. 372. Dr. Stewart was familiar with Mrs. Rake’s history, having treated her for a pinched nerve two years earlier in 1996. N.T. trial, p. 375. Dr. [16]*16Stewart ordered a magnetic resonance imaging (MRI) scan of Mrs. Rake’s cervical spine, which disclosed a congenital narrowing of her spinal column, as well as cervical cord compression and disc protrusion at C5-C6. N.T., trial, pp. 354-55. Dr. Stewart also had Mrs. Rake undergo a thoracic MRI study, which resulted in the discovery of a right side thoracic disc herniation at T9-T10 and prompted Dr. Stewart to refer Mrs. Rake to Clifford ReedM.D., who is a neurologist. N.T. trial, pp. 356-58.

Dr. Reed testified as an expert witness relative to the issue of causation of her cervical and thoracic spine injuries, as he had taken a medical history from, and conducted a complete neurological examination of, Mrs. Rake. He was of the “impression”2 that she had sustained a cervical “whiplash” injury, but he did not opine that the December 2, 1997 collision was the cause of that injury. N.T. trial, pp. 401-402. However, he then went on to state that the December 2, 1997 collision “could have caused” her thoracic disc herniation, but again did not opine that the December 2, 1997 collision was the cause of that particular injury. N.T. trial, p. 402. Furthermore, he admitted on cross-examination that he had previously treated Mrs. Rake in 1996 for subjective complaints of pain in her thoracic spine and that there was a similarity between her prior complaints of pain in 1996 and those in 1998. N.T. trial, p. 412. Dr. Reed also stated that, ordinarily, a person suffering from disc herniation would feel pain of some type immediately, not four and a half months after the incident which caused it, as claimed by Mrs. Rake. N.T. trial, pp. 413-14.

[17]*17During the defense case, the jury heard the testimony of Walter Finnegan M.D., who conducted an independent medical examination of Mrs. Rake on August 16, 1999. N.T. videotaped deposition, p. 9. After examining Mrs. Rake and reviewing her medical records, Dr. Finnegan diagnosed Mrs. Ralee with cervical degenerative disc disease at C5-C6, disc herniation atT9-T10 and degeneration of other discs in her thoracic spine. N.T. videotaped deposition, pp. 9-11. In Dr. Finnegan’s opinion, both her cervical and thoracic injuries were pre-existing and, therefore, were not caused by the December 2, 1997 collision. N.T. videotaped deposition, pp. 10-12. Furthermore, according to Dr. Finnegan, there was no objective evidence showing that the collision in any way “aggravated” either her cervical or thoracic injuries. N.T. videotaped deposition, pp. 76-77.

This brings us to the evidence relative to Mrs. Rake’s claim for injuries to her one tooth and her temporomandibular joint. In support of these claims, she presented the testimony of her treating dentist, Scott E. Roseberry D.D.S., as well as that of Brendan F. Mulligan D.M.D., who testified as an expert witness.

Beginning with Dr. Roseberry, he testified that he discovered a fracture of Mrs. Rake’s tooth number 13 on February 11,1998, which he treated by performing a root canal and the installation of a crown. N.T. trial, pp. 278-79. As for the cause of that fracture, Dr. Roseberry said that a fracture like this “could occur” as a result of the jaw snapping shut in a motor vehicle collision, but he was not qualified to render an opinion as to whether the December 2, 1997 collision caused this fracture. N.T. trial, pp. 285-86. Dr. Roseberry also diagnosed Mrs. Rake as suffering from a temporomandibular joint injury, which [18]*18he treated by the use of various mouthpieces and, ultimately, orthodonture. However, he likewise was not able to render an opinion relative to the causation of this injury. N.T. trial, pp. 290-91.

Dr. Mulligan, who never examined Mrs. Rake and neither spoke to Dr. Roseberry nor reviewed any of Dr. Roseberry’s records, arrived at a different diagnosis, opining that Mrs. Rake suffered from atypical myofascial pain syndrome.3 N.T. trial, pp. 143-44. Although he then went on to say that atypical myofascial pain syndrome “could be caused” by a rear-end collision, he did not opine that the December 2, 1997 collision was a factual cause of this condition in Mrs. Rake. N.T. trial, pp. 144-45.

In response, Ms. Moultrie called Barry Glassman D.M.D., to present expert testimony relative to Mrs. Rake’s fractured tooth and her temporomandibular joint. Dr. Glassman testified that, after reviewing Dr. Rose-berry’s medical records, he could find no evidence to support Dr. Roseberry’s finding of a fracture to Mrs. Rake’s tooth number 13 or that Mrs. Rake had sustained any temporomandibular joint injury as a result of this collision. N.T. trial, pp. 456-57, 463-64.

In Pennsylvania, it is the jury’s function to determine the weight and the credibility of the evidence submitted at trial and a reviewing court may not substitute its own judgment where it finds that the verdict is supported either by the evidence or by the lack of evidence presented [19]*19in support of a particular claim. Stewart v. Owens-Corning Fiberglas,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wexler v. Hecht
847 A.2d 95 (Superior Court of Pennsylvania, 2004)
Nigra v. Walsh
797 A.2d 353 (Superior Court of Pennsylvania, 2002)
Miller v. Brass Rail Tavern, Inc.
664 A.2d 525 (Supreme Court of Pennsylvania, 1995)
Commonwealth v. Impellizzeri
661 A.2d 422 (Superior Court of Pennsylvania, 1995)
Janis v. AMP, INC.
856 A.2d 140 (Superior Court of Pennsylvania, 2004)
Stewart v. Owens-Corning Fiberglas
806 A.2d 34 (Superior Court of Pennsylvania, 2002)
Mitzelfelt v. Kamrin
549 A.2d 935 (Supreme Court of Pennsylvania, 1988)
Cauthorn v. Owens Corning Fiberglas Corp.
840 A.2d 1028 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Hindi
631 A.2d 1341 (Superior Court of Pennsylvania, 1993)
Daniel v. William R. Drach Co., Inc.
849 A.2d 1265 (Superior Court of Pennsylvania, 2004)
Vattimo v. Eaborn Truck Service, Inc.
777 A.2d 1163 (Superior Court of Pennsylvania, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
74 Pa. D. & C.4th 12, 2005 Pa. Dist. & Cnty. Dec. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rake-v-moultrie-pactcomplberks-2005.