Appendix — Charney v. Panitz

y_,\ Supreme Court, Um

| FILED

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25 16 96 ape ist

No. 95- 7 ™

CSIC’ OF pas: my

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

JOHN CHARNEY, ALICE CHARNEY, JOHN

CHARNEY, JR., AND BRIAN CHARNEY,

a minor, by John Charney, his guardian,

Petitioners,

--V.--

ELAINE B. PANITZ,

Respondents.

Petition For a Writ of Certiorari To The

Superior Court of Pennsylvania

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

KENNETH W. BEHREND

Behrend and Ernsberger

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

Attorney for Petitioners

i

TABLE OF CONTENTS

PAGE

Charney v. Panitz, No. 17 W.D. Appeal

Docket 1995 (Pa. January 18, 1996)

(Order Dismissing Appeal)................ la

Charney v. Panitz, No. 459 W.D. Allocatur

Dkt. 1994 (Pa. March 6, 1995)

(Order Granting Petition for Allowance

Ee Gs PR SS VS MOA Le. 2a

Charney v. Panitz, No. 2033 Pittsburgh 1993

(Pa. Super. Ct. July 27, 1994)

(Memorandum Affirming Dismissal of

I a kw a ee e's 3a

Charney v. Panitz, No. 2033 Pittsburgh 1993

(Pa. Super. Ct. July 27, 1994)

Ee 0 eee eee 6a

Charney v. Panitz, No. 877 of 1993

(Pa. Ct. Comm. Pl. November 22, 1993)

(Opinion and Order Sustaining Defendant's

yo Be 7a

Amended Complaint

Defendant Elaine P. Panitz, M.D.'s

Preliminary Objections to

Plaintiffs’ Amended Complaint

Plaintiffs’ Answer to Preliminary

Objections of Defendant

Se, WU RS ee ve ees eens eae’ 43a

Expert Report of Elaine B.

Painitz, M.D.P.A. .

.5la

la

J-130-1995

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

: No. 17 W.D. Appeal Docket 1995

JOHN CHARNEY and ALICE :

CHARNEY, his wife, and : Appeal from the Order of the

JOHN CHARNEY, JR., their : Superior Court at No. 2033

son, and JOHN CHARNEY as : Pittsburgh, 1993, entered July

parent and natural guardian of : 27, 1994, affirming the Order

BRIAN CHARNEY, a minor, : of the Court of Common Pleas

Appellants, : of Westmoreland County, Civil

: Division at No. 877 of 1993,

v. : entered November 22, 1993.

ELAINE B. PANITZ,

Appellee.

: ARGUED: September 19, 1995

ORDER

PER CURIAM DECIDED: January 18, 1996

The appeal is dismissed as having been improvidently

granted.

Mr. Justice Montemuro, who was sitting by designation,

did not participate in the decision of this case.

JUDGEMENT ENTERED THIS 18TH DAY OF JANUARY 1996

ls/ Amy J. Ceraso

DEPUTY PROTHONOTARY

2a

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

JOHN CHARNEY AND : No. 459 W.D. Allocatur Dkt. 1994

ALICE CHARNEY, HIS :

WIFE, AND JOHN

CHARNEY, JR., THEIR

SON, AND JOHN

CHARNEY, AS PARENT :

AND NATURAL

GUARDIAN OF

BRIAN CHARNEY, A

MINOR,

Petitioners,

v.

: Petition for Allowance of Appeal

ELAINE B. PANITZ, : from the order of the

Respondent. : Superior Court

ORDER

PER CURIAM:

AND NOW this 6th day of March, 1995, the Petition for

Allowance of Appeal is GRANTED. Petitioners’ Petition for

Consolidation with the Petition for Allowance of Appeal at No.

647 W.D. Allocatur Docket 1993 is DENIED as moot.

Mr. Justice Montemuro is sitting by designation.

A True Copy Irma T. Gardner

as of: March 6, 1995

Test: /s/ Irma T. Gardner

Deputy Prothonotary

Supreme Court of Pennsylvania

3a

J. A24047/94 - 1

JOHN CHARNEY AND ALICE : IN THE SUPERIOR COURT

CHARNEY, HIS WIFE, AND : PENNSYLVANIA

JOHN CHARNEY, JR., THEIR :

SON AND JOHN CHARNEY

AS THE PARENT AND

NATURAL GUARDIAN OF

BRIAN CHARNEY, A

MINOR, APPELLANT

V.

ELAINE B. PANITZ,

APPELLEE : NO. 02033 PITTSBURGH 1993

Appeal from the Order Entered November 22,

1993, In the Court of Common Pleas of

Westmoreland County, CIVIL, No. 877 of 1993 Term.

BEFORE: BECK, HUDOCK, and CERCONE, JJ.

MEMORANDUM: Date: July 27, 1994

This is an appeal from an order sustaining appellee Dr.

Elaine Panitz’s preliminary objections and dismissing appellants’

complaint. For the reasons stated herein, we affirm the order of

the trial court and remand for the trial court to assess attorney's

fees.

The factual and procedural history is summarized as

follows. The Chamey family (appellants) initiated an action

against Crawford Construction Company alleging that they had

sustained injuries as a result of being exposed to formaldehyde

present in building materials. Appellee Panitz was employed as an

expert witness to support appellants’ personal injury action. Panitz

testified at trial that in her opinion appellants’ injuries had been

caused by the formaldehyde. However, when Panitz was cross-

4a

J. A24047/94 - 2

examined about the lack of sensitization of cigarette smokers who

are regularly exposed to formaldehyde, she failed to explain the

inconsistency in her testimony. Panitz later informed appellants

that prior to trial she had realized that her conclusions regarding

the formaldehyde sensitization of cigarette smokers was inaccurate.

A verdict unfavorable to appellant was returned in the

underlying action. Appellant then filed a complaint against Panitz

alleging breach of contract, negligence, negligent misrepresentation,

and gross negligence. Panitz filed preliminary objections to

appellants’ complaint. The trial court sustained the preliminary

objections and dismissed the entire complaint. This appeal

followed.

On appeal, appellants contend that the trial court erred in

extending the absolute testimonial privilege to Panitz’s pre-trial

representations. The argument raised in the instant appeal is the

precise argument raised and rejected by this court in Panitz v.

Behrend, 632 A.2d 562 (Pa. Super. 1993). To the extent

appellants ask us to revisit this issue, we note that absent reversal

by the Supreme Court our decision in Behrend is controlling

authority. Commonwealth v. Leib, 588 A.2d 922, 932 (Pa. Super.

1991). Accordingly, we find no error.

As a separate and additional matter, Panitz contends that

appellants’ appeal is frivolous and requests an award of counsel

fees pursuant to Pa.R.A.P. 2744. An appeal is considered frivolous

when the realistic chances of ultimate success are slight and

continuation of the contest is unreasonable. Murphy v. Murphy,

699 A.2d 647 (Pa. Super. 1991). See also Jac v. Modern

Sa

J. A24047/94 - 3

Mailers, Inc., 537 A.2d 878 (Pa. Super. 1988). Under the circum-

stances of this case, an award of counsel fees to Panitz under

Pa.R.A.P. 2744 is warranted. Hence, on this issue alone, we

remand to the trial court to assess the amount of counsel fees.

The trial court's order is affirmed. The matter is remanded

for an assessment of counsel fees. Jurisdiction is relinquished.

6a

SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH DISTRICT

JOHN CHARNEY AND ALICE :

CHARNEY HIS WIFE, AND

JOHN CHARNEY, JR.,

THEIR SON AND JOHN

CHARNEY AS THE PARENT

AND NATURAL GUARDIAN

OF BRIAN CHARNEY, A

MINOR,

APPELLANT

VS.

ELAINE B. PANITZ, : NO. 2033 PITTSBURGH 1993

APPELLEE

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment of the Court

of Common Pleas of Westmoreland County be, and the same is

hereby affirmed. The matter is remanded for an assessment of

counsel fees. Jurisdiction is relinquished.

BY THE COURT:

/s/ Eleanor R. Valecko

DEPUTY PROTHONOTARY

DATED: JULY 27, 1994

7a

IN THE COURT OF COMMON PLEAS OF WESTMORELAND

COUNTY, PENNSYLVANIA

CIVIL DIVISION

JOHN CHARNEY and ALICE i+)

CHARNEY, his wife, 2nd JOHN )

CHARNEY, JR., their son, and ss)

JOHN CHARNEY, as the )

parent and natural guardian

of BRIAN CHARNEY, minor,

)

)

Plaintiffs )

) Court en Banc

vs. ) No. 877 of 1993

)

ELAINE B. PANITZ, )

Defendant )

OPINION

This matter comes before the Court upon the Preliminary

Objections of the Defendant Elaine B. Panitz.

The Plaintiffs have filed an Amended Complaint alleging

that the Defendant fraudulently and negligently provided expert

testimony for them in a case in which they were plaintiffs. The

Plaintiffs alleged that the Defendant promised to provide specific

testimony for them at the trial of Chamey vy. Crawford

Construction Co., No. 5306 of 1984 (Westmoreland). The

Defendant provided expert testimony at trial and the Plaintiff allege

that she failed to answer questions on cross examination as she had

represented she would answer. The Plaintiff seeks damages in the

amount that they allege they would have recovered in Chamey v

Crawford Construction Co. if the Defendant's testimony would

have been given as represented.

8a

The Defendant argues that the Plaintiffs have no cause of

action against her. She requests that the cause of action against her

be dismissed based upon the absolute privilege protecting testimony

at trial.

As a result of the trial Charney v. Crawford Construction

Co., the Defendant filed suit in Allegheny County seeking the

payment of her expert witness fees. A counterclaim was filed

against the Defendant alleging the same cause of action as set forth

in the above-captioned case. The counterclaim was dismissed by

Judge Wettick based upon the absolute privilege relating to

testimony at trial. Panitz v. Behrend, 141 P.L.J. 203 (1993). See

also Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986); Clodgo v

Bowman, 411 Pa. Super. 267, 601 A.2d 342 (1992).

The decision of Judge Wettick was affirmed by the

Superior Court. Panitz v. Behrend, No. 399 of 1993 (Pa. Super.

1993). The Superior Court specifically noted that the privilege

protects testimony given at trial and further extends to pre-trial

communications. Panitz, No. 399 of 1993 at 5. See also Moses _v.

vy. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988).

The Superior Court addressed the issue before this Court

in Panitz. In addition, this Court is bound by the case law

preceding Panitz governing the issues of privilege as to

communications in judicial proceedings. The Plaintiffs’ Complaint

fails to state a cause of action.

The Court will enter the following Order:

EI Oe rN TI pata,

a ee ee ee kt oT ee, fy fe ore eer "

J. eigenen a) Met

9a

IN THE COURT OF COMMON PLEAS OF WESTMORELAND

COUNTY, PENNSYLVANIA

CIVIL DIVISION

JOHN CHARNEY and ALICE )

CHARNEY, his wife, and JOHN )

CHARNEY, JR., their son, and )

JOHN CHARNEY, as the parent and )

natural guardian of BRIAN )

CHARNEY, minor, )

Plaintiffs )

) Court en Banc

VS. ) No. 877 of 1993

)

ELAINE B. PANITZ, )

Defendant )

ORDER OF COURT

AND NOW, to wit, this 22nd day of November, 1993, the

Preliminary Objections of the Defendant Elaine P. Panitz to the

Plaintiffs’ Amended Complaint are granted. The Amended

Complaint against the Defendant is dismissed.

BY THE COURT:

ls/

Bernard F. Scherer, Judge

ATTEST:

Prothonotary

10a

IN THE COURT OF COMMON PLEAS OF WESTMORELAND

COUNTY, PENNSYLVANIA

JOHN CHARNEY and ALICE

CHARNEY, his wife, and JOHN

CHARNEY, JR., their son, and

JOHN CHARNEY, as the parent

and natural guardian of

BRIAN CHARNEY, a minor,

Plaintiffs,

Vv.

ELAINE B. PANITZ,

Defendant.

JURY TRIAL DEMANDED

CIVIL DIVISION

NO. 877 OF TERM, 1993

CODE:

AMENDED

COMPLAINT IN

CIVIL ACTION

Filed on behalf of

John Charmey, Alice

Chamey, John Chamey, Jr.,

and Brian Charney,

Plaintiffs

Counsel of Record for these

parties:

Kenneth W. Behrend

PA. I.D. No. 00406

BEHREND AND

ERNSBERGER

Firm No. 018

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

ae le toate

oe a

fe Sy ROO ANA a Elle BD RSL MAINE ROS Sea A, eR NPE oA Piet,

Ila

IN THE COURT OF COMMON PLEAS OF WESTMORELAND

COUNTY, PENNSYLVANIA

CIVIL DIVISION

NOTICE TO DEFEND AND CLAIM RIGHTS

TO THE ABOVE DEFENDANT(S):

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 complaint and

notice are served, by entering a written appearance personally or by

attomey and filing in writing with the Court your defenses or

objections to the claims set forth against you. You are warmed 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 or defendant. You may

lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR

LAWYER 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.

WESTMORELAND BAR ASSOCIATION

129 NORTH PENNSYLVANIA AVENUE

GREENSBURG, PA 15601

(412) 834-8490

12a

JOHN CHARNEY and ALICE : COURT OF COMMON PLEAS

CHARNEY, his wife, and ‘WESTMORELAND COUNTY

JOHN CHARNEY, JR., their:

son and JOHN CHARNEY, as : CIVIL ACTION - LAW

parent and natural guardian of :

BRIAN CHARNEY, a minor, : NO. 877 OF TERM, 1993

Plaintiffs,

We

ELAINE B. PANITZ,

Defendant.

AMENDED COMPLAINT

AND NOW, comes the Plaintiffs, John Chamey and Alice

Chamey, his wife, and John Chamey Jr., their son, and John

Chamey as the parent and natural guardian of Brian Chamey, a

minor, by and through their attorney, Kenneth W. Behrend, and the

law firm of Behrend and Emsberger, and file the within Amended

Complaint and in support thereof avers the following:

FA AL BACK ND

1. The Plaintiffs John Chamey, his wife Alice Charney

and their sons John Chamey Jr. and Brian Charney are individuals

who reside in Westmoreland County, Pennsylvania at 10 Carlisle

Drive, R.D. #1, Irwin, Pennsylvania.

2. Defendant Elaine B. Panitz, M.D., is an expert medical

witness who offers her professional services of providing expert

medical opinions for use in civil litigation throughout Pennsylvania

and in Westmoreland County and who resides in Princeton, New

Jersey.

Laps nM a ce eae ad

13a

3. Plaintiffs had initiated a suit in Westmoreland County,

Chamey v. Crawford Construction Company, claiming injuries as

a result of formaldehyde poisoning from outgassing materials used

in the construction of their home. Formaldehyde sensitization was

a rare area of litigation at that time and the Plaintiffs needed an

expert that had a sound knowledge of the subject and familiarity

with the medical literature.

4. In March, 1990, the Defendant agreed to review

medical records, conduct a physical examination of each Plaintiff

and provide an expert medical opinion regarding the Plaintiffs’

claim of formaldehyde poisoning. On March 30, 1990, the

Defendant was sent records of the Plaintiffs’ medical treatment and

history along with a letter from Plaintiffs’ counsel requesting this

Defendant's expert medical opinion as to whether or not the

Plaintiffs had suffered formaldehyde injuries, and if they had, the

extent of their sensitivity to formaldehyde and any other chemicals

and how this might affect their ability to work. Additional medical

records were sent to the Defendant for her review on April 6, 1990

and on April 10, 1990.

5. On April 13, 1990, the Defendant sent a letter by fax

to the Plaintiffs’ attorney agreeing to examine the Plaintiffs on

April 18, 1990, with a retainer of $3,900 to be paid in advance.

6. On April 17, 1990, the Defendant sent to the Plaintiffs’

legal counsel six (6) volumes of this Defendant's deposition

testimony from an earlier lawsuit, the Alaskan “Crown Point

Litigation”, which involved a formaldehyde spill and exposure.

This was presented to the Plaintiffs as the Defendant's expert

medical opinion on formaldehyde sensitization and represented the

extent and nature of the testimony she would give in the Plaintiffs’

case on various formaldehyde sensitization issues.

7. A serious issue in the area of formaldehyde

sensitization is that of tobacco smokers and their alleged exposure

to high levels of formaldehyde and apparent lack of formaldehyde

sensitization reactions. This was important not only from the

standpoint that one of the Plaintiffs had been a smoker once, but

because it challenged the assertion that it_ was even possible for

iti f Idehyde. Defendant Panitz

l4a

opined that exposure to .1 to .2 parts per million (ppm) of

formaldehyde was sufficient to cause sensitization in people;

however, tobacco smoke can contain as much as 40 ppm of

formaldehyde, and yet most smokers show no signs of

formaldehyde sensitization. Failure to satisfactorily explain this

paradox would undermine the Plaintiffs’ entire case.

8. The Defendant's opinion was clear from the “Crown

Point Litigation” depositions that:

a. people can become sensitized and still smoke;

b. forty parts per million (40ppm) of formaldehyde in

the smoke does not necessarily translate to the

same number in the lungs;

C. it is possible that smokers do react and are simply

denying the sensitization reaction; and

d. the sensitization reaction might be masked by the

regular irritati ve symptoms caused by the cigarette

smoke.

9. On April 18, 1990, Defendant traveled to Pittsburgh to

perform a history and physical examination of the Plaintiffs. She

prepared and delivered to the Plaintiffs an expert report based on

the physical examinations performed in Pennsylvania. The

Plaintiffs, John and Alice Charney, paid the Defendant $3,900.00

for this work by personal check.

10. On May 14, 1990, the Defendant provided her report

to the Plaintiff's based on her examination of the Plaintiffs and a

review of their history and medical records. Her charge for the

report was $245.00 and was paid by the Plaintiffs. There was no

indication in the reports nor at any time did the Defendant notify

the Plaintiffs or their counsel any intention to give testimony

contrary to her opinions clearly stated in the “Crown Point

Litigation” depositions.

11. The Defendant continued to correspond with the

Plaintiffs and their counsel and expressed her willingness to offer

her expert opinions into testimony at trial. A letter from the

Defendant on January 7, 1991 conveyed her agreement to do so for

a retainer of $5,100.00.

12. The Defendant in this action is a medical doctor who

15a

derives 90% of her income by giving testimony as an expert

witness. She is a New Jersey resident and was referred to the

defendants by a medical doctor in California. She was selected as

an expert witness in the case of Chamey vs. Crawford

Construction Co. in Greensburg, Pennsylvania, because she asserted

she was knowledgeable about the effects of formaldehyde gas on

individuals, and because she had performed similar expert witness

services for attorneys in Alaska and Florida. She was indicated she

could respond convincingly to cross examination and support what

she said with medical evidence.

13. The Plaintiffs reasonably expected that Defendant

Elaine Panitz would be able to respond to cross examination about

formaldehyde in tobacco smoke and that she would have medical

proof for what she had to say.

14. At no time did the Defendant indicate to the Plaintiffs

or their attorneys that she would change her testimony on

formaldehyde in tobacco smoke from what it had been when she

had testified in the “Crown Point Litigation”.

15. The Defendant testified at trial beginning February 7,

1991, and at that time the issue of formaldehyde in tobacco smoke

was raised by defense counsel. The Defendant Elaine Panitz then

changed her testimony from what she had testified to in the

Alaskan “Crown Point Litigation” and instead supported the

assertion that 40 parts per million of formaldehyde in tobacco

smoke translates to a like amount in the lungs, and that a pack-a-

day smoker inhales 1,430 parts per million total aldehydes, most of

which is formaldehyde, in the course of a single day.

16. The Defendant further testified that any sensitized

individual generally has great difficuity with being in the presence

of smoke, but then offered no testimony to explain why a smoker

who appears to be exposed to high levels of formaldehyde does not

seem to exhibit symptoms of being sensitized to formaldehyde.

17. The Defendant Elaine Panitz, completely contrary to

the testimony she indicated to the Plaintiffs she would give and

contrary to the testimony she had given in earlier cases, then fell

silent and failed to offer any of the four explanations for the

apparent lack of smoker sensitization that she gave in the “Crown

16a

Point Litigation” depositions. She failed to say that people can

become sensitized and still smoke; that forty parts per million

formaldehyde in the smoke does not necessarily translate to the

same number in the lungs; that it is possible that smokers do react

and they are simply denying the sensitization reaction; and that the

seisitization reaction might be masked by the regular irritative

symptoms caused by cigarette smoke. She fully supported the

figures on formaldehyde inhalation offered by the defense counsel

although she had told the Plaintiffs that-her testimony regarding

such figures would be entirely different; nor had she ever expressed

to the Plaintiffs her intention to testify to something radically

different, especially on such a pivotal part of her testimony.

18. The Defendant Elaine Panitz further testified that this

was the first time she ever testified in court on the subject of

formaldehyde sensitization, but failed to explain that she had given

swom testimony in other cases by deposition, leaving the clear

impression that she was inexperienced in this field.

19. After the Defendant Elaine Panitz left the witness

stand, she told the Plaintiffs’ counsel that she could not explain

why tobacco smokers did not experience sensitization reaction, that

the medical literature was silent on the subject, and also that she

now thought that the full 40 parts per million of formaldehyde in

tobacco smoke could be absorbed by the body not only through the

lungs, but also through the nasal passages and eventually work its

way into the bloodstream. She did not and could not explain why

she had expressed to the Plaintiffs and their counsel that her

testimony would be one thing, when in fact, it was entirely

different.

20. This failure to explain why tobacco smokers did not

experience sensitization reactions destroyed her credibility and

struck a mortal blow to the very heart of the Plaintiff's case as

defense counsel was able to argue in a very short closing statement

that people do not become sensitized to formaldehyde at all.

Sensitization is not seen even among those who experience high

levels of formaldehyde exposure, such as those who smoke

tobacco.

21. Defendant Elaine Panitz misled the Plaintiffs and their

17a

counsel when she delivered the Crown Point Deposition transcript

and indicated that she was prepared to testify on their behalf in

support of the opinions she had given before.

22. The Defendant willfully, wantonly, and/or negligently

and with reckless disregard of the consequences deceived the

Plaintiffs when she represented to them her expert medical opinion

on a critical matter in the Plaintiffs’ case, and her willingness to

testify consistent with that opinion, when in fact, her testimony on

the issue was entirely different and was instead detrimental to the

case. :

23. The Defendant willfully, wantonly, deceitfully and/or

negligently and with reckless disregard of the consequences

induced the Plaintiff to contract for her services knowing that the

Plaintiffs would expect her to give testimony consistent with

Defendant's prior testimony in earlier litigation, or that the

Defendant would advise the Plaintiffs or their counsel if the

Defendant's expert medical opinion had changed since that time.

24. Defendant's failure to notify the Plaintiffs before trial

that her testimony at trial would be different that what she had

represented to the Plaintiffs --that her expert opinion was consistent

with her testimony in the “Crown Point Litigation’-- was a breach

of contract and a fraud upon the Plaintiffs.

COUNT I

BREACH OF CONTRACT

25. Plaintiff incorporates Paragraphs | through 24 as if the

same were set forth herein at length.

26. Defendant represented herself to the Plaintiffs John

and Alice Charney to be a medical expert competent to give expert

medical testimony concerning formaldehyde poisoning and

experienced.

27. Defendant represented to the Plaintiffs and their

counsel that she had certain and definite expert medical opinions

regarding formaldehyde sensitization and that those opinions were,

in fact, the same opinions she set forth under oath in a deposition

she gave as part of an Alaskan lawsuit known as “Crown Point

Litigation”; the relevant portion of such deposition is attached and

18a

marked exhibit A.

28. Defendant agreed to have medical proof for the

testimony she was expected to give.

29. In reliance on the Defendant's representations, the

Plaintiffs entered into a contract with the Defendant whereby the

Defendant, in consideration for $3,900.00 from the Plaintiffs,

agreed to conduct a medical examination of the Plaintiffs and

prepare an expert report. Defendant was to provide the Plaintiffs

her honest evaluation of their case, from a medical and scientific

standpoint, and advise the Plaintiffs if her expert medical opinions

were supportive of their case or if the Plaintiffs’ case had medical

or scientific flaws. Further, the Defendant agreed to testify on the

Plaintiffs behalf at the Plaintiffs’ trial in consideration for an

additional fee including a, $5,100.00 pre-trial retainer.

30. Plaintiffs paid the Defendant $3,900. 00 by personal

check for her services in examining the Plaintiffs and preparing an

expert report. The Defendant also was paid $5,100.00 to cover her

estimate of the time required for testimony and travel expenses.

31. At trial, the Defendant changed her testimony from

what she had previously testified to under oath according to the

deposition she presented to Plaintiffs and she failed to have

medical proof to support her testimony.

32. Plaintiffs reasonably relied on the Defendant to give

testimony as she had in her deposition and reasonably relied on

Defendant to have medical proof for her expected testimony.

33. Defendant's testimony was crucial to the Plaintiff's

case and the Plaintiffs and their counsel relied upon the Defendant's

representations in evaluating their case, making a judgment of the

chances of a successful outcome verses an early settlement, or

whether to go forward with the litigation and the expenses it would

incur.

34. Plaintiffs reasonably relied on the Defendant to advise

them or their counsel if she intended to change her expert medical

testimony on issues being litigated in the Plaintiffs’ suit from the

expert medical opinion the Defendant represented as her own and

as evidenced in the deposition from the “Crown Point Litigation”.

19a

35. As a direct and legal result of Defendant's failure to

give testimony according to her previous deposition and the

representations made to the Plaintiffs and their counsel, and of her

failure to have medical proof to support those opinions, and of her

failure to notify the Plaintiffs or their counsel of her intention to

change or alter her testimony from what she had represented to the

Plaintiffs and their counsel, the Plaintiffs have suffered the

following injuries and damages:

The Defendant Elaine Panitz was a substantial

contributing factor in the subsequent loss of the

Plaintiffs’ formaldehyde poisoning suit and the

substantial award for damages it would have

provided them to make them whole.

The Plaintiffs were deprived of the opportunity to

make an informed evaluation of their case and

therefore was led to litigate the case, based on

false information supplied by the Defendant Panitz

and her failure to provide an honest evaluation of

the case prior to trial, rather than consider a

settlement out of court.

Plaintiffs have paid Defendant $9,000.00 and have

been billed by the Defendant for an additional

$5,330.26 for services which all came to no avail

as a result of Defendant's breach of contract.

Plaintiffs have incurred substantial legal fees and

expenses in reliance on Defendant's agreement to

testify according to her representations. Much of

these fees and expenses could have been avoided

if the Defendant had advised the Plaintiffs of her

change of opinion prior to trial.

WHEREFORE, Plaintiffs demand judgment against the

Defendant in an amount in excess of $30,000 and any other relief

that the court deems necessary or proper.

COUNT II

NEGLIGENCE

36. Paragraphs | through 35 are incorporated herein as if

204

the same were set forth at length.

37. Defendant had a duty to express her opinions with a

reasonable degree of medical and/or scientific certainty.

38. Defendant had a duty to accurately express and

communicate her opinion and her qualifications prior to trial so

that the Plaintiffs would know that Defendant was ready to testify

at trial.

39. Defendant had a duty to prepare for trial and be ready

with medical and/or scientific support for the opinions she was to

express at trial.

40. Defendant had a duty to accurately express her

knowledge, skills and qualifications at trial and to be prepared to

adequately defend herself under cross-examination at trial.

41. Defendant had a duty to inform Plaintiffs, prior to

trial, when she finds that she is unable to express her opinions with

a reasonable degree of medical and/or scientific certainty or if she

had any intention to change or alter her testimony from what she

had represented to the Plaintiffs or their counsel.

42. Defendant had a duty to inform the Plaintiffs, prior to

trial, when she found that she no longer has the confidence in her

opinions that she had earlier stated or implied.

43. Defendant negligently failed to:

a. express her opinions with a reasonable degree of

medical and/or scientific certainty.

b. accurately express and communicate her opinion

and her qualifications prior to trial so that

Plaintiffs would know that Defendant was ready to

testify at trial.

C. prepare for trial and be ready with medical and/or

scientific support for the opinions she was to

express at trial.

d. inform Plaintiffs, prior to trial, when she finds that

she is unable to express her opinions with a

reasonable degree of medical and/or scientific

certainty.

e. inform the Plaintiffs, prior to trial, when she found

that she no longer has the confidence in her

2a

opinions that she had earlier stated or implied or if she had any

intention to change or alter her testimony for whatever reason from

what she had represented to the Plaintiffs to be her honest and

truthful testimony.

44. Plaintiffs reasonably relied on the Defendant to give

testimony as she had in her deposition and reasonably relied on

Defendant to have medical proof for her expected testimony.

45. Defendant's testimony was crucial to the Plaintiffs’

case and the Plaintiffs and their counsel relied upon the Defendant's

representations in evaluating their case, making a judgment of the

chances of a successful outcome verses an early settlement, or

whether to go forward with the litigation and the expenses it would

incur.

46. Plaintiffs reasonably relied on the Defendant to advise

them or their counsel if she intended to change her expert medical

testimony on issues being litigated in the Plaintiffs’ suit from the

expert medical opinion the Defendant represented as her own and

as evidenced in the deposition from the “Crown Point Litigation”.

47. As a direct and legal result of Defendant's failure to

give testimony according to her previous deposition and the

representations made to the Plaintiffs and their counsel, and of her

failure to have medical proof to support those opinions, and of her

failure to notify the Plaintiffs or their counsel of her intention to

change or alter her testimony from what she had represented to the

Plaintiffs and their counsel, the Plaintiffs have suffered the

following injuries and damages:

a. The Defendant Elaine Panitz was a substantial

contributing factor in the subsequent loss of the

Plaintiffs’ formaldehyde poisoning suit and the

substantial award for damages it would have

provided them to make them whole.

b. The Plaintiffs were deprived of the opportunity to

make an informed evaluation of their case and

therefore was led to litigate the case, based on

false information supplied by the Defendant Panitz

and her failure to provide an honest evaluation of

the case prior to trial, rather than consider a

22a

settlement out of court. |

C. Plaintiffs have paid Defendant $9,000.00 and have

been billed by the Defendant for an additional

$5,330.26 for services which all came to no avail

as a result of Defendant's breach of contract.

d. Plaintiffs have incurred substantial legal fees and

expenses in reliance on Defendant's agreement to

testify according to her representations. Much of

these fees and expenses could have been avoided

if the Defendant had advised the Plaintiffs of her

change of opinion prior to trial.

WHEREFORE, the Plaintiffs demand judgment for

compensatory against the Defendant in an amount in excess of

$30,000.00 and any other such relief the court deems necessary OF

proper.

COUNT Ill

NEGLIGENT MISREPRESENTATION

(Restatement _of Torts, Second, Section 552

48. Paragraphs I through 47 are it orporated herein as if

the same were set forth at length.

49. Defendant in the course of her business, and

profession and employment supplied false information for the

guidance of the Plaintiffs in their business transactions.

50. Defendant represented to Plaintiffs that she was ready

for trial.

51. Defendant represented that she was prepared to

respond to questions regarding the sensitization of individuals to

formaldehyde.

52. These representations were misrepresentations because

she was not prepared to respond as she has stated or implied.

53. Defendant represented that she was prepared to explain

why tobacco smokers who are exposed to formaldehyde in

concentrations in excess of 40 ppm in tobacco smoke do not

exhibit sensitization reactions.

54. Defendant represented that she was prepared to

disagree with the proposition that 40 ppm formaldehyde in tobacco

23a

smoke meant that 40 ppm was pulled into the lung; before trial she

said in her Crown Point deposition:"I'm not sure that that means

the individual is pulling in 40 parts per million formaldehyde into

his lungs.”

55. Defendant stated that she had read substantially all the

medical literature on the subject and reasonably implied that she

had some medical and/or scientific basis for her unwillingness to

agree that 40 parts per million formaldehyde is pulled into the

lungs.

56. This representation was a misrepresentation because

she was not prepared to disagree, and at trial did not contest the

assertion that tobacco smokers inhale 40 parts per million

formaldehyde into the lung.

57. Defendant represented that she was prepared to say

that in her opinion: “It's possible that they [tobacco smokers] do

react and they are suppressing the symptoms and don’t wish to

recognize that the cigarette smoke is bothering them, that's

possible, but I otherwise can’t explain it.”

58. Again she implied that having read substantially all the

literature on the subject of formaldehyde sensitization that there

was some medical and/or scientific basis for her opinion that

tobacco smokers do react and ate suppressing their symptoms.

59. This representation was a misrepresentation because

she had no medical and/or scientific basis for the opinion and after

trial she said there was no medical literature on the subject.

60. Defendant negligently represented her ability to testify

on medical issues. She knew that proceeding to trial without a

proper basis for her opinions that she stated or implied would

create an extreme risk of loss. She proceeded with reckless

indifference to the consequences of her conduct.

61. When she learned that she had no medical facts to

support the testimony she had offered to give regarding

formaldehyde in tobacco smoke, she negligently, and recklessly,

failed to tell the Plaintiffs that she was not prepared to testify as

she had indicated.

62. Defendant intended that the Plaintiffs would be guided

by the information and knew that the Plaintiffs would rely on the

24a

information given in their preparation of the case for trial.

63. Plaintiffs justifiably relied on her to testify and to

respond to cross examination as she represented that she would.

64. Defendant negligently supplied information for the

guidance of Plaintiffs when she failed to exercise reasonable care

or competence in obtaining or communicating the information.

65. Plaintiff a reasonably relied on the Defendant to give

testimony as she had in her deposition and reasonably relied on

Defendant to have medical proof for her expected testimony.

66. Defendant's testimony was crucial to the Plaintiff's

case and the Plaintiffs and their counsel relied upon the Defendant's

representations in evaluating their case, the chances of a successful

outcome verses an early settlement, or whether to go forward with

the litigation and the expenses it would incur.

67. Plaintiffs reasonably relied on the Defendant to advise

them or their counsel if her expert medical testimony on issues

being litigated in the Plaintiffs’ suit changed or differed from the

expert medical opinion the Defendant represented as her own, as

evidenced in the deposition from the “Crown Point Litigation”.

68. As a direct and legal result of Defendant's failure to

give testimony according to her previous deposition and the

representations made to the Plaintiffs and their counsel, and of her

failure to have medical proof to support those opinions, and of her

failure to notify the Plaintiffs or their counsel of her intention to

change or alter her testimony from what she had represented to the

Plaintiffs and their counsel, the Plaintiffs have suffered the

following injuries and damages:

a. The Defendant Elaine Panitz was a substantial

contributing factor in the subsequent loss of the

Plaintiffs’ formaldehyde poisoning suit and the

substantial award for damages it would have

provided them to make them whole.

b. The Plaintiffs were deprived of the opportunity to

make an informed evaluation of their case and

therefore was led to litigate the case, based on

false information supplied by the Defendant Panitz

and her failure to provide an honest evaluation of

25a

the case prior to trial, rather than consider a

settlement out of court.

C. Plaintiffs have paid Defendant $9,000.00 and have

been billed by the Defendant for an additional

$5,330.26 for services which all came to no avail

as a result of Defendant's breach of contract.

d. Plaintiffs have incurred substantial legal fees and

expenses in reliance on Defendant's agreement to

testify according to her representations. Much of

these fees and expenses could have been avoided

if the Defendant had advised the Plaintiffs of her

change of opinion prior to trial.

WHEREFORE, the Plaintiffs demand judgment for

compensatory and punitive damages against the plaintiff in an

amount in excess of $30,000.00 and any other such relief that the

court deems necessary or proper.

COUNT IV

GROSS NEGLIGENCE

69. Paragraphs | through 68 are incorporated herein as if

the same were set forth at length.

70. In the Crown Point Deposition Defendant stated that:

a. people can become sensitized and still smoke;

b. forty parts per million formaldehyde in the smoke

does not necessarily translate to the same number

in the lungs;

e that it is possible that smokers do react and they

are simply denying the sensitization reaction; and

d. the sensitization reaction might be masked by the

regular irritative symptoms, due to cigarette

smoke.

71. Prior to trial she found that there were no medical

facts to support this testimony.

72. When she learned that she had no medical facts to

support the testimony she had offered to give regarding

formaldehyde in tobacco smoke, she negligently, and recklessly,

failed to tell Plaintiffs that she was not prepared to testify as she

had indicated or that she intended to give testimony that

26a

substantially differed from the testimony she had represented to the

Plaintiffs reflected her true expert opinion.

73. She knew that proceeding to trial without a proper

basis for her opinions that she stated or implied would create an

extreme risk of loss. She proceeded with reckless indifference to

the consequences of her conduct.

74. Defendant acted with willful wanton and reckless

disregard of the truth or falsity of the testimony she had offered to

give at trial, and when she learned of her inability to give the

required testimony she willfully wantonly and recklessly failed to

advise the Plaintiffs and/or their counsel.

75. Defendant demanded and accepted a retainer check in

the amount of $5,100.00 knowing that she could not present and

defend the testimony she had represented that she would make at

trial.

76. Plaintiffs reasonably relied on the Defendant to give

testimony as she had in her deposition and reasonably relied on

Defendant to have medical proof for her expected testimony.

77. Defendant's testimony was crucial to the Plaintiff's

case and the Plaintiffs and their counsel relied upon the Defendant's

representations in evaluating their case, the chances of a successful

outcome verses an early settlement, or whether to go forward with

the litigation and the expenses it would incur.

78. Plaintiffs reasonably relied on the Defendant to advise

them or their counsel if her expert medical opinion on issues being

litigated in the Plaintiffs’ suit changed or differed from the expert

medical opinion the Defendant represented as her own now, as in

the deposition from the “Crown Point Litigation”.

79. As a direct and legal result of Defendant's failure to

give testimony according to her previous deposition and the

representations made to the Plaintiffs and their counsel, and of her

failure to have medical proof to support those opinions, and of her

failure to notify the Plaintiffs or their counsel of her intention to

change or alter her testimony from what she had represented to the

Plaintiffs and their counsel, the Plaintiffs have suffered the

following injuries and damages:

a. The Defendant Elaine Panitz was a substantial

27a

contributing factor in the subsequent loss of the

Plaintiffs’ formaldehyde poisoning suit and the

substantial award for damages it would have

provided them to make them whole.

b. The Plaintiffs were deprived of the opportunity to

make an informed evaluation of their case and

therefore was led to litigate the case, based on

false information supplied by the Defendant Panitz

and her failure to provide an honest evaluation of

the case prior to trial, rather than consider a

settlement out of court.

c. Plaintiffs have paid Defendant $9,000.00 and have

. been billed by the Defendant for an additional

$5,330.26 for services which all came to no avail

as a result of Defendant's breach of contract.

; d. Plaintiffs have incurred substantial legal fees and

expenses in reliance on Defendant's agreement to

testify according to her representations. Much of

these fees and expenses could have been avoided

if the Defendant had advised the Plaintiffs of her

change of opinion prior to trial.

WHEREFORE, the Plaintiffs demand judgment for

compensatory and punitive damages against the defendant in an

amount in excess of $30,000.00 and any other such relief the court

may deem necessary or proper.

Respectfully submitted,

BEHREND & ERNSBERGER

By/s/

Kenneth W. Behrend

Attormey for the Plaintiffs

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198

SUPERIOR COURT OF THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

) No. 3AN-86-5812 Civil

CROWN POINT LITIGATION _ )

) VOLUME II

Computer-aided transcript of deposition

testimony of ELAINE B. PANITZ, M.D., taken

stenographically in the above entitled matter before

EDWIN SILVER, Certified Shorthand Reporter and Notary

Public of the State of New Jersey, at the offices of

SMITH, STRATTON, WISE, HEHER & BRENNAN,

ESQS., 600

College Road East, Princeton, NJ 08540, on Tuesday,

December 5, 1989, commencing at 8:40 a.m.

SILVER & RENZI REPORTING SERVICE

824 WEST STATE STREET, TRENTON, NJ 08618

(609) 989-9191 or (800) 792-8880 (NJ Only)

Silver & Renzi Reporting Service

Oe AU PWN

29a

399

Panitz - by Kapshandy

sensitized tend to have symptoms when they encounter

tobacco smoke, although some who are sensitized still

manage to smoke.

Q My question was: A person says that

smoking doesn’t bother him, could he be sensitized to

formaldehyde?

A My evaluation of these plaintiffs has

been that some of the individuals who are sensitized

are still smoking, and I think one or two of them told

me that he is not aware of increased symptoms while

smoking.

Q But he is still sensitized to

formaldehyde?

A I believe so, yes.

Q Even though formaldehyde

contains--cigarette smoke contains approximately 40

parts per million of formaldehyde?

A Correct.

Q Well, let's alter the body's immune

response. Before the exposure he would react to 80

parts per million and after 60 parts per million, so

it really doesn’t come into play with tobacco smoke?

I have difficulty understanding how

his immune response is altered if he can be exposed to

Silver & Renzi Reporting Service

URWNK COO WIDIAUNUAWNK OV ANAYNAS WN

30a

400

Panitz - by Kapshandy

40 parts per million. It doesn’t seem very sensitive.

A No, you can’t--the 40 parts per million,

it is my understanding that the 40 parts per million

represents the formaldehyde generated in, say, a room

where there is a cigarette being smoked. The data is

from the surgeon general 1979 publication. I

believe that’s where I have read it.

I'm not sure that that means the

individual is pulling in 40 parts per million

formaldehyde into his lungs. I don’t personally know

what the concentration is when you're pulling it into

their lungs.

Q Well, if there is 40 parts per million in

the smoker in the room, he is exposed to it, either

his skin or his eyes or his upper respiratory tract,

correct?

A Correct.

Q I'm not limiting myself to the lungs.

If an individual can have his skin

and eyes and upper respiratory tract exposed to 40

parts per million with no problems, do you consider

him sensitized?

A There are some of these individuals who

had symptoms in relation to smoking, eye and

Silver & Renzi Reporting Service

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401

Panitz - by Kapshandy

respiratory symptoms in relation to smoking, although

it’s not, in my opinion, possible to detect whether

they were having regular irritative symptoms in that

situation due to cigarette smoke.

I cannot explain why certain of the

individuals who I believe are sensitized to

formaldehyde do not react to cigarette smoke when they

smoke. It's possible that they do react and they are

suppressing the symptoms and don’t wish to recognize

that the cigarette smoke is bothering them, that's

possible, but I otherwise can’t explain it.

Q Basically, your diagnosis of

sensitization is that an individual experiences more

symptoms after exposure to a substance than he did

before?

A Correct, and to lower levels.

Q That was my next question.

How do you know what the levels were

before and after to which they are exposed that caused

the symptoms?

A I'm sorry, could you clarify your

question? I’m not sure what you're asking.

Q How do you know the lower--strike that.

How do you know that they are

Silver & Renzi Reporting Service

CERTIFICATE OF SERVICE

I, Kenneth W. Behrend, hereby certify that a true and

correct copy of the foregoing Amended Complaint in Civil Action

was served upon all counsel of record by U.S. first-class mail,

postage prepaid on this 2nd, day of August 1993, as follows:

Alan S. Gold, Esquire

MONAGHAN & GOLD

Manor, Professional Building

7837 Old York Road

Elkins Park, PA 19117

BEHREND AND ERNSBERGER

BY:/s/

Kenneth W. Behrend

33a

IN THE COURT OF COMMON PLEAS OF

WESTMORELAND COUNTY

JOHN CHARNEY and ALICE COURT OF COMMON PLEAS

CHARNEY, his wife, and WESTMORELAND COUNTY

JOHN CHARNEY, JR.,

their son, and JOHN NO. 877 OF TERM, 1993

CHARNEY as the parent

and natural guardian of CIVIL ACTION - LAW

BRIAN CHARNEY, a minor,

-Plaintiffs

Vv.

ELAINE P. PANITZ, M.D.,

Defendant

CIVIL COURT EN BANC NOTICE FORM

Name of pleading filed: Preliminary Objections of Defendant,

ine P i Amended

i intiffs, Al

wi i law

Has the above captioned case been

previously listed on any Court en _XX_ Yes No

Banc list? If yes, name the

judge. Bernard F. Scherer Judge

If this is a Preliminary Objection

to a late joinder of an addition

defendant, name the Judge who

permitted the joinder. Judge

Is transcript requested? __No__

34a

Present this notice to the Court Administrator's Office for

assignment prior to filing the motion.

Date & Time of presentment

Judge assigned

SERVE THE ORIGINAL AND ONE COPY OF THE MOTION

UPON THE COURT ADMINISTRATOR. ATTACH THE

WHITE COPY OF THIS NOTICE TO THE FRONT OF THE

ORIGINAL MOTION AND FILE WITH THE

PROTHONOTARY. SERVE A COPY OF THIS NOTICE AND

THE MOTION UPON ALL PARTIES.

You, as the moving party, must file the original and one (1) copy

of your brief with the Prothonotary within twenty (20) days of the

filing of this motion if no transcript has been requested, and, if a

transcript has been requested, within twenty (20) days of receiving

notification that the transcript has been filed. In all cases, you

must serve copies of your brief on all opposing parties or counsel

before or immediately after filing your brief. Certification of

Service must be filed within three (3) days of the filing the brief.

Failure of the moving party to file a brief or certification of service

thereof will result in dismissal of the motion.

The original and one (1) copy of the responding briefs are due

within twenty (20) days of the filing of the moving party's briefs.

Service must be made on all parties and certification of service

must be filed within three (3) days of filing the brief with the

Prothonotary and the Court Administrator. You will not be

rmitte resent oral a ent if you fail 2 ding brief or

certification of service.

List Opposing Attorneys and Address:

Kenneth W. Behren uire, 2400 Grant Building, Pi rgh, PA

15219, counsel for Plaintiffs

35a

FAILURE OF THE MOVING PARTY TO SERVE A COPY

OF ALL MOTIONS AND PLEADINGS OR THE CIVIL

COURT EN BANC NOTICE FORM ON ALL OPPOSING

COUNSEL WILL RESULT IN THE DISMISSAL OF THE

MOTION OR PRELIMINARY OBJECTION.

CERTIFICATION OF SERVICE OF THE DOCUMENTS

MUST BE FILED WITHIN THREE (3) DAYS OF THE

FILING OF THOSE DOCUMENTS WITH THE

PROTHONOTARY.

ls/ Alan S. Gold

Attorney for Defendant,

Elaine P. Panitz, M.D.

36a

MONAGHAN & GOLD P.C. ATTORNEY FOR DEFENDANT,

BY: ALAN S. GOLD ELAINE P. PANITZ, M.D.

ATTY. LD. NO. 23400

7837 OLD YORK ROAD

ELKINS PARK, PA 19117

(215) 782-1800

JOHN CHARNEY and COURT OF COMMON PLEAS

ALICE CHARNEY, his wife, WESTMORELAND COUNTY

JOHN CHARNEY, JR.., their

son, and JOHN CHARNEY,

as parent and natural NO. 877 OF TERM, 1993

guardian of BRIAN

CHARNEY, a minor,

Plaintiffs

CIVIL ACTION - LAW

Vv.

ELAINE P. PANITZ, M.D.,

Defendant

ORDER

AND NOW, this day of , 1993 it is hereby

ORDERED and DECREED that the Preliminary Objections of

Elaine P. Panitz, M.D. to the Amended Complaint of John Charney

and Alice Chamey, his wife, and John Charney, Jr., their son, and

John Charney, as the parent and natural guardian of Brian Chamey,

a mincr are granted and their Amended Complaint is dismissed

with prejudice.

BY THE COURT:

37a

Please be advised that you

have twenty (20) days in

which to respond to the

Prel Object. of Def.

MONAGHAN&GOLD, P.C. ATTORNEY FOR DEFENDANT,

BY: ALAN S. GOLD ELAINE P. PANITZ, M.D.

ATTY. I.D. NO. 23400

7837 OLD YORK ROAD

ELKINS PARK, PA 19117

(215) 782-1800

JOHN CHARNEY and COURT OF COMMON PLEAS |

ALICE CHARNEY, his WESTMORELAND COUNTY

wife, and JOHN CHARNEY,

JR., their son, and JOHN

CHARNEY, as the NO. 877 OF TERM, 1993

parent and natural guardian

of BRIAN CHARNEY, a

minor,

Plaintiffs

CIVIL ACTION - LAW

¥.

ELAINE P. PANITZ, M.D.,

Defendant

PRELIMINARY OBJECTIONS OF ELAINE P. PANITZ, M.D.

TO THE AMENDED COMPLAINT OF THE PLAINTIFFS

Elaine P. Panitz, M.D. (hereinafter referred to as “Dr.

Panitz”) preliminarily objects to the amended complaint of John

Charney and Alice Chamey, his wife, and John Charney, Jr., their

son, and John Chamey, as the parent and natural guardian of Brian

Chamey, a minor (hereinafter collectively referred to as the

“Chameys”) and states in support thereof the following:

1. The Charneys have filed a amended complaint

38a

against Dr. Panitz contending that Dr. Panitz failed to testify at

trial for them in a case that they had brought against a third party

in the manner in which she had promised. A copy of the amended

complaint appears hereto as Exhibit “A”.

ai. 2. According to the amended complaint in the case in

which Dr. Panitz agreed to be an expert for the Chamey she did

testify. The Chameys only complain about what she said.

3. The Chameys possess no cause of action against

Dr. Panitz because Dr. Panitz has an absolute privilege protecting

anything that she said at trial regardless of her motivation or intent.

This identical claim was brought against Dr. Panitz by the

Chameys’ attorneys in the underlying litigation in a counterclaim

to Dr. Panitz's complaint for her expert witness fees. In response

to preliminary objections by Dr. Panitz to the counterclaim, Judge

Wettick of the Court of Common Pleas of Allegheny County held

that the absolute privilege relating to testimony at trial defeated the

counterclaim of the Chameys’ attorneys. Judge Wettick granted the

preliminary objections of Dr. Panitz and dismissed the counterclaim

of the attomeys, Behrend & Emsberger. A copy of that

counterclaim is attached hereto as Exhibit “B”. It is identica2i in all

respects to the complaint of the Chameys. Judge Wettick issued

an opinion to support his ruling. It is reported at 141 P.L.J. 203

(1993). A copy of the opinion appears hereto as Exhibit “C”. For

the reasons set forth in Judge Wettick’s opinion an absolute

privilege protects Dr. Panitz’s testimony.

4. The Superior Court of Pennsylvania in Clodgo by

Clodgo_v. Bowman, 441 Pa. Super. 267, 601 A.2d 342 (1992)

applied the absolute privilege to a case identical in all important

respects to the one now before this Court. In Clodgo a mother

sued to recover the child support that she should have been

awarded in support proceedings. In the initial support proceeding,

Dr. Bowman had been appointed by the trial court to conduct

blood tests. He sent a letter to the court which stated that the

blood tests established that the person whom the mother had sued

could not be the child’s biological father. On the basis of that

Statement, the court dismissed the support action. It was

subsequently determined that Dr. Bowman had improperly recorded

39a

the blood test results, thereby erroneously excluding the defendant

as the father. The mother instituted a second support action which

the court dismissed when the defendant raised res judicata as a

defense. The mother, on behalf of herself and her child, then

instituted a civil proceeding against Dr. Bowman based on medical

malpractice. The trial court granted Dr. Bowman's preliminary

objections in the nature of a demurrer on the basis of the absolute

testimonial privilege for communications made in connection with

judicial proceedings. The Superior Court concluded that no doubt

existed that the communication made by Dr. Bowman occurred in

the course of a judicial proceeding. Bowman made the comment

directly to the court and the litigants. It was material and relevant

to the paternity question at issue. Id. at 601 A.2d at 344.

3. In response to the argument of the mother’s counsel

that the absolute privilege only applied to defamation actions, the

Superior Court in Clodgo said:

Our precedent is clear. The form of the cause of

action is not relevant to application of the

ion_with judicial i was

lev i ivilege applies.

Thus, while we agree with appellant's premise that

this action is not premised upon defamation but is

a medical malpractice action, this does not alter

the conclusion that the privilege applies. Id. at

601 A.2d at 345. (emphasis added).

6. The Superior Court indicated that public policy

required it to extend the privilege to Dr. Bowman and to other

doctors in medical malpractice actions. According to the Superior

Court:

Our review of authority in other states reveals that

medical malpractice actions have been instituted

on the basis of expert opinions offered in judicial

proceedings. If we carve out an exception to the

judicial immunity for medical malpractice actions,

proceedings. An example is a psychiatrist asked

to give an opinion of parental competency in a

custody action. If we allow medical malpractice

actions to survive application of the privilege, we

open those experts to potential medical malpractice

actions premised upon allegedly incorrect

assessments of a parent's mental capacity to care

for the children. (citation omitted). Similarly, a

doctor who renders an opinion as to another

doctors medical malpractice in a civil action

instituted by a patient would be open to claims of

malpractice based upon that expert's opinion in the

civil action. This simply cannot be allowed as the

privilege is necessary to prevent a witness from

refusing to testify based on the fear of potential

civil liability. The rationale for the immunity

applies just as strongly to medical malpractice

actions as to any other type of civil action.

Accordingly, we cannot allow an exception for the

doctrine of judicial immunity where the cause of

action contained in the complaint is medical

malpractice. Id. at 601 A.2d at 345 and 346.

7. The decision of the Superior Court in Clodgo,

supra 601 A.2d 342 compels the dismissal of the Charneys’

amended complaint. Dr. Panitz’s communication occurred in the

context of a trial. She answered a question asked by counsel for

the defendants. She uttered her comment directly to the court and

the jury. It was material and relevant to the issues in the action.

Failure to apply the absolute privilege in this case results in experts

like Dr. Panitz being targets of malpractice actions every time they

give an opinion on the stand in response to cross-examination

which the party that hired them dislikes. Experts would become

the guarantors of victory at trial. Every case involving an expert

4la

would have the potential of resulting in a malpractice action

against that expert. Many qualified individuals would refuse to

testify. Many individuals who did testify might hesitate to tell the

absolute truth.

8. The public policy of Pennsylvania bars the

amended complaint of the Charneys. The Charneys seek to hold

an expert witness responsible for money damages for testifying

truthfully whenever the expert's testimony fails to fully support the

retaining party's cause of action. The amended complaint does not

deny that Dr. Panitz testified truthfully. Nowhere do the Chameys

contend that Dr. Panitz provided anything less than completely

truthful testimony at trial. All of the courts which have dealt with

this issue have unanimously held that an expert has no duty to

testify in a certain manner and that contracts which seek to impose

such an obligation violate public policy. See Griffith v. Harris, 17

Wisc. 2d 255, 116 N.W. 2d 133 (1962) cert. denied. 373 U.S. 927

(1963); Curtis v. Wolfe, 160 Ill. App. 3d 588, 513 N.E. 2d 1139

(1987) app. denied 118 Ill. 2d 542, 520 N.E. 2d 384 (1988);

Schaffer v. Donegan, 585 N.E. 2d 854 (Ohio App. 2 Dist. 1990).

9. Judge Wettick held in Panitz v. Behrend, et al., 141

P.L.J. 203 (1993) that permitting a cause of action against Dr.

Panitz based on the conduct alleged by the Charneys’ in their

amended complaint violates the public policy of Pennsylvania.

10. The Chameys are playing a reprehensible game

with the legal system in this case. Their attorneys brought an

action in their own right seeking damages as a result of Dr. Panitz’s

testimony at trial on behalf of the Chameys. Having lost before

Judge Wettick, and not willing to wait for the appeal process which

they themselves commenced in the Superior Court, they have

convinced their clients, the Chameys, to bring an identical action

against Dr. Panitz in Westmoreland County, although the exact

claim has been denied in Allegheny County. This kind of forum

shopping should not be encouraged or permitted.

11. In Count II of their amended complaint the

Chameys seek to recover based on economic loss only caused by

negligence. The courts of the Commonwealth of Pennsylvania fail

to recognize a cause of action for economic loss based on

42a

negligence. See Spivack v. Berks Ridge Corp., Inc., 402 Pa.

Super. 73, 586 A.2d 402 (1990).

12. In Count II] of their amended complaint the

Chameys fail to state a cause of action for negligent

misrepresentation. In order to state a cause of action for negligent

misrepresentation, there must be a misrepresentation of fact, not

Statements of opinion. The Chameys base their negligent

misrepresentation claim on Dr. Panitz’s statement of her expert

opinion not on her misrepresentation of fact.

13. | The Charneys’ claim for negligent misrepresentation

also fails because the alleged misrepresentations of Dr. Panitz

consists of future facts.

14. A claim for negligent misrepresentation only exists

relating to present or past facts.

15. Count IV of the amended complaint of the

Chameys fails to state a cause of action for gross negligence. The

courts of the Commonwealth of Pennsylvania recognize no such

cause of action.

WHEREFORE, defendant Elaine P. Panitz, M.D.

respectfully requests that her preliminary objections be granted and

that the amended complaint of Charneys be dismissed with

prejudice.

MONAGHAN & GOLD, P.C.

DY: #

ALAN S. GOLD

Attorney for Defendant,

Elaine P. Panitz, M.D.

7837 Old York Road

Elkins Park, PA 19117

(215) 782-1800

43a

IN THE COURT OF COMMON PLEAS OF WESTMORELAND

COUNTY, PENNSYLVANIA

JOHN CHARNEY and ALICE

CHARNEY, his wife, and JOHN

CHARNEY, JR., their son, and

JOHN CHARNEY, as the parent

and natural guardian of

BRIAN CHARNEY, a minor,

Plaintiffs,

v.

ELAINE P. PANITZ,

Defendant.

JURY TRIAL DEMANDED

CIVIL DIVISION

NO. 877 OF TERM, 1993

CODE:

PLAINTIFFS’ ANSWER

TO PRELIMINARY

OBJECTIONS OF

DEFENDANT, ELAINE

P. PANITZ

Filed on behalf of

John Chamey, Alice

Chamey, John Chamey,

Jr., and Brian Charney,

Plaintiffs

Counsel of Record for these

parties:

Kenneth W. Behrend

PA LD. No. 00406

BEHREND AND

ERNSBERGER

Firm No. 018

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

44a

JOHN CHARNEY and ALICE: COURT OF COMi.«ON PLEAS

CHARNEY, his wife,and : WESTMORELAND COUNTY

JOHN CHARNEY, JR.,

their son, and JOHN : CIVIL ACTION - LAW

CHARNEY, as the parent

and natural guardian of : NO. 877 OF TERM, 1993

BRIAN CHARNEY, a

a minor,

Plaintiffs,

V.

ELAINE B. PANITZ,

Defendant.

PLAINTIFFS' ANSWER TO PRELIMINARY OBJECTIONS

OF ELAINE P. PANITZ

AND NOW, come the Plaintiffs, John Charney and Alice

Chamey, his wife, and John Chamey, Jr., their son, and John

Chamey as the parent and natural guardian of Brian Charney, a

minor, by and through their attorney Kenneth W. Behrend and the

law firm of Behrend and Emsberger, and files the following

Answer to the Preliminary Objections of the Defendant, Elaine B.

Panitz:

1. Paragraph number | is admitted insofar as the

Plaintiffs did indeed file a aménded complaint against the

Defendant. Plaintiffs deny the balance of the paragraph as it is an

inaccurate characterization of the nature of the Plaintiffs’ amended

complaint. The Defendant attempts to portray the amended

complaint as an action against the Defendant for testifying contrary

to promises made beforehand. The amended complaint was filed,

instead, for the Defendant's deliberately misleading statements to

the Plaintiffs prior to trial which had a serious adverse effect on the

Plaintiffs’ ability to properly evaluate their own case and in their

45a

and their counsel's ability to make informed decisions and conduct

the Plaintiffs’ case in a knowledgeable and competent wanner.

3 Paragraph number 2 is admitted in part in that the

Defendant did testify in the initial lawsuit brought against a third

party. The statement that the Plaintiffs only complain about what

the Defendaat said (strongly implying that the Plaintiffs objected

only to her testimony at trial) is a distortion of the Plaintiffs’ case

and is denied. The Plaintiffs filed their amended complaint

because the Defendant failed to notify or advise the Plaintiffs or

their counsel of her true expert opinions prior to giving testimony

of such opinions in court. This was particularly improper because

the Defendant had represented to the Plaintiffs and their counsel

that her opinions were something entirely different from what they

were in reality.

2 Paragraph number 3 is admitted in part and denied

in part. It is admitted that Judge Wettick issued an opinion on the

counterclaim filed by Behrend & Emsberger. The balance of the

paragraph is denied. The Defendant attempts to side-step the true

issues in the amended complaint by focusing on the privilege a

witness has in testifying at trial. Yet the Plaintiffs have never

maintained that the Defendant or any other witness should do

anything less than speak their own mind and tell the truth while

testifying under oath at trial. The Plaintiffs complain instead that

such truthfulness and honesty should also apply to the Defendant's

dealings with the Plaintiffs prior to trial.

The Plaintiffs’ amended complaint at bar is not identical

with the counterclaim of Behrend and Ernsberger, neither in form

nor identity of parties. The Plaintiffs, who had little to do with the

counterclaim by Behrend and Emsberger against Dr. Panitz, have

not had their day in court although they have been grievously

wronged by the Defendant, and so they now bring this amended

complaint in the county in which they are domiciled. The

Plaintiffs are relying on this Honorable Court to use its own

judgment in deciding the merits of the Plaintiffs’ case.

4. Paragraph number 4 is not an objection but rather

merely an argument and conclusion of law supporting the objection

in paragraph 3 and which should be more

46a

properly included in Defendant's supporting brief. As such, no

response is required to paragraph 4. To the extent that a response

is required, paragraph number 4 is specifically denied. In fact,

Defendant's paragraphs 4, 5, 6, and 7 are all arguments and

conclusions of law that require no response and they represent a

word-for-word recitation of pages 11 through 13 of the Defendant's

brief submitted to the Superior Court in the Panitz v. Behrend &

Emsberger case, and is material more properly suited for

Defendant's memorandum in law supporting her preliminary

objections than the preliminary objections themselves. To the

extent that a response is required, plaintiffs specifically deny

paragraphs 5, 6 and 7. Plaintiffs will respond more fully to

Defendant's paragraphs 4, 5, 6, and 7 in Plaintiffs’ memorandum in

law supporting Plaintiffs’ answers to Defendant's preliminary

objections.

FP Paragraph number 8 is specifically denied. The

Plaintiffs deny that they seek to hold the Defendant responsible for

testifying truthfully. The Plaintiffs instead seek to hold the

Defendant responsible for being untruthful prior to testifying. The

Defendant, seeking employment by the Plaintiffs, represented to the

Plaintiffs her knowledge, skills and opinion to be one thing when,

in fact, they were another, or if her opinion had substantially

changed prior to testifying, she chose to keep that quiet rather than

risk the possibility that the Plaintiffs would be forced to settle on

the basis of her adverse opinion and the likelihood that her services

would not then be needed. While a witness may not be able to

contract to give certain testimony in a court of law, that witness

can contract to appear and testify and as such is not at liberty to

use fraud or deceit to induce a party to contract for her services.

In addition, an expert witness hired by a party to litigation has

additional duties to that party besides merely testifying at trial

which include giving truthful and frank opinions to the hiring

parties and their counsel in order to assist such parties in making

informed decisions concerning the conduct of their case. Public

policy demands that witnesses not only testify truthfully, but that

they deal with the parties to the litigation in a truthful and honest

manner even prior to giving testimony. The cases cited by

SF PR As SPSS

47a

the Defendant on this issue in paragraph 8 are not on point and are

more fully explained in Plaintiffs’ accompanying brief in support

of this Answer to Defendant's Preliminary Objections.

6. Paragraph number 9 is a _ continuation of

Defendant's objection on public policy grounds delineated in detail

in paragraph 8, but is nevertheless admitted insofar as Judge

Wettick did express an opinion in Panitz v. Behrend. et al., but it

is denied that the Plaintiffs’ case at bar violates the public policy

of Pennsylvania.

¥ Paragraph number 10 is specifically denied. As

indicated earlier, the case of Panitz v. Behrend et al,, is before the

Superior Court and involves this Defendant and Behrend &

Emsberger because this Defendant chose to sue Behrend &

Ermsberger and not the Chameys. The Plaintiffs in the present

action have a right for redress that was not attended to in the other

lawsuit. The Plaintiffs have therefore asserted their right to bring

their own action in the county of their domicile to recover damages

they have suffered at the hands of the Defendant. This is the first

time the Plaintiffs have filed any kind of action against the

Defendant and they therefore can not be guilty of “forum

shopping” as the Defendant alleges.

8. Paragraph number 11 is specifically denied. This

paragraph is an impermissible mixture of objection and argument

with case citations. The Plaintiffs are nevertheless compelled to

respond to such a convoluted objection.

The Plaintiffs are entitled to economic losses due to the

Defendant's negligence. Defendant cites Spivack v. Berks Ridge

Corp., Inc., 402 Pa. Super. 73, 586 A.2d 402 (1990) as

controlling, yet that case only refers to Aikens v. Baltimore &

Qhio Railroad Co,, 348 Pa. Super. 17, 501 A.2d 277 (1985),

which, when carefully read, objects to the recovery of economic

damages in a negligence action without physical injury or damage

because the harm caused is usually unforeseeable. The Superior

Court went on to say:

A cause of action exists in this situation only if the

tortious interference was intentional or involved

parties in a special relationship to one another

48a

(citations omitted).

[NJegligent harm to economic advantage alone is

too remote for recovery under a negligence theory.

The reason a Plaintiff cannot recover stems from

the fact that the negligent actor has no knowledge

of the contract or prospective relation and thus has

no reason to foresee any harm to the Plaintiffs

interest (citations omitted). Aikens at p.278 &

279.

The foreseeable harm caused by the Defendant's actions, however,

were known and obvious to all parties and the Defendant cannot

hide behind the plea that the consequences of her actions were too

remote to anticipate. See also the Restatement (Second) of Torts

Sec. 766C, comments a and b.

9. Paragraph number 12 is denied. The fact that was

misrepresented was that she held a particular opinion as well as her

representations that she possessed the knowledge and skills

necessary to back up her expert opinion. The true facts were that

she chose to keep her true opinions to herself and misled the

Plaintiffs for her own gain.

10. Paragraph number 13 is denied. The Defendant

represented, at a specific point in time, that her opinion was one

thing, when in fact, it was something else. The Plaintiffs had a

right and a need to know the Defendant's honest expert opinion at

that time prior to trial. That is when the negligent

misre presentation was made. The Plaintiffs relied upon and made

decisions on the basis of Defendant's representations to their

detriment as such representations by the Defendant were false. See

the Restatement (Second) of Torts Sec. 552.

11. Paragraph number 14 is a conclusion of law that

has no supporting authority or citations and is therefore denied.

12. Paragraph number 15 is denied. Gross negligence

consists of the absence of even slight care and performing or

failing to perform a duty in reckless disregard of the consequences,

and is in accord with Pennsylvania law. Douglas W.

49a

-Randall, Inc. v. AFA Protective Systems, Inc., 516 F. Supp. 1122

(1981, E.D. Pa).

WHEREFORE, Plaintiffs respectfully request that the

preliminary objections of Defendant Elaine P. Panitz be denied and

that the Defendant be ordered to file a Reply to the Amended

Complaint.

BEHREND & ERNSBERGER

lsl

Kenneth W. Behrend

Attorney for the Plaintiffs

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

50a

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

Plaintiffs’ Answer to Preliminary Objections of Elaine P. Panitz,

along with a supporting memorandum of law has been served upon

the following counsel of record for the Appellee in the manner set

forth below:

Service by First Class Mail

Addressed as follows:

Eugene Mattioni, Esquire

Mattioni, Mattioni & Mattioni, LTD.

399 Market Street, Second Floor

Philadelphia, PA 19106

Alan S. Gold, Esquire

Monaghan & Gold, P.C.

7837 Old York Road

Elkins Park, PA 19117

ls

Kenneth W. Behrend

Attorney for Appellants

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

Dated: August 31, 1993

Sla

Elaine B. Panty M.D. PA.

Nabe bone In Reply: basl Manco Professeo net

Park

(609) 448-3737 34 Cleveland Lane One Méle Froad Suleorseon

Fabecopos Pincelon, AZ 08540 Heghlslowon, Now farsey

O8S#O

(609) 924- 3054

BY FEDERAL EXPRESS

May 14, 1990

Daniel W. Emsberger, Esquire

Behrend & Ernsberger

2400 Grant Building

Pittsburgh, PA 15219

Re: Chamey v. Crawford Construction et al.

Your File Number: 88-0173

Dear Mr. Emsberger:

At your request, I have reviewed medical and other records

pertaining to each of the Chamey family members, including John

George Chamey II (age 47), Alice Elizabeth Chamey (age 37),

John George Charney III (age 15), and Brian Richard Charney (age

13), as detailed in Appendix A. On 4/18/90 I obtained a complete

medical and occupational history and performed a physical

examination on each of the Charney family members, and

appropriate laboratory was obtained in the same time frame (see

Appendices B-E).

Exposure

52a

Based on my review of available records, and history obtained

from the family in person, it is clear that all four family members

have suffered chronic exposure to airborne formaldehyde in the 10

Carlisle home. The exposure duration has been 13 years to date

(summer 1977 to the present), with initial levels estimated at 0.16

to 0.59 PPM, and current levels (3/8/90) measured at .003-.005

PPM. the airborne formaldehyde has been due to release from a

formaldehyde resin in plywood flooring.

DIAGN AND Al T.

John e mey III 4

1. History of chronic formaldehyde exposure, 1977 to present,

confirmed by elevated IgG (1:32) and IgM (1:16)

formaldehyde serum antibodies on 4/26/88.

2: Formaldehyde sensitization, due to 1., manifested by:

a) Past history of skin rash, eye irritation,

respiratory irritation and sensitization, and central nervous

system dysfunction.

b) Organic mental disorder (current).

3. Impairment: His formaldehyde sensitization is permanent

and lifelong. His organic mental disorder will continue to

cause him difficulty in interpersonal relationships for the

indefinite future, jeopardizing both his marriage and his

employability (as it has in the past I3 years). He is urged

to change residence as soon as possible. He will require

an older home, with old or used furnishings, in a rural

setting, with no gas heat or air conditioning.

Alice Eli A

i History of chronic formaldehyde exposure, 1977 to present,

confirmed by elevated IgG formaldehyde serum antibody

53a

level (1:16) an 2/26/88.

2.

Formaldehyde sensitization, due to) 1., manifested by:

a) Fast history of eye irritation, respiratory

irritation and sensitization, gastrointest inal dysfunction, and

central nervous system dysfunction.

b) Respiratory tract sensitization, with small airways

dysfunction, confirmed on spirometry (current); organic

mental disorder (current); gastrointestinal dysfunction

(current).; reproductive dysfunction (current).

Impairment: Her formaldehyde sensitization is severe,

permanent and lifelong. She is at risk for progression of

her respiratory tract sensitization and her organic mental

disorder. She is urged to remove herself from the current

home on 10 Carlisle Drive. She will require an older

home, with old or used furnishings, in a rural setting, with

no gas heat or air conditioning. In my opinion, she is

totally and permanently disabled from continuous

employment due to the presence of formaldehyde in

virtually all employment settings. I believe her marriage

is also im jeopardy, at least in part due to continued

exposure to formaldehyde.

John George Chamey III (Age 15)

I, History of chronic formaldehyde exposure, 1977 to

present, confirmed by elevated IgM formaldehyde serum

antibody level (1:16) on 2/26/88.

2. Formaldehyde sensitization, due to I., manifested

by:

a) Past history respiratory irritation and

sensitization, central nervous system

dysfunction, and _ gastrointestinal

dysfunction.

54a

b) Respiratory tract sensitization, with small

airways dysfunction confirmed by

spirometry (current); organic mental

disorder (current), gastrointestinal

dysfunction (current).

3. Impairment: His formaldehyde sensitization is severe,

permanent, and lifelong. He is clearly a depressed child.

He is currently having difficulty maintaining attendance

and performance at school. In fashion, in my opinion, he

will be totally and permanently disabled from continuous

employment when he completes schooling, due to the

presence of formaldehyde in virtually all employment

settings. It is urgent that his continued formaldehyde

exposure at 10 Carlisle be terminated, to prevent further

deterioration of his central nervous System function. He

will require an older home, with old or used furnishings,

in a rural setting, with no gas heat or air conditioning.

Brian Ri Age 1

‘ History of chronic formaldehyde exposure, 1977 to

present, with elevated IgM formaldehyde serum antibody

level (1.16) an 2/26/88.

2. Formaldehyde sensitization, due to 1., manifested

by:

a) Past history of skin rash, respiratory irritation and

sensitization, central nervous system dysfunction, and

gastrointestinal dysfunction.

b) Respiratory tract sensitization with small airways

dysfunction, confirmed on spirometry (current); organic

mental disorder (current); gastrointestinal dysfunction

(current).

55a

a Impairment. His formaldehyde sensitization is

severe, permanent, and lifelong. Although he appears less

depressed than his brother John, he too has been struggliag

to maintain attendance in his schooling.

In like fashion, in my opinion, he will be totally and

permanently disabled from continuous employment upon

completion of his schooling, due to the presence of formaldehyde

in virtually all employment settings. It is urged that he be removed

from the current home on 10 Carlisle Drive, to prevent further

respiratory tract sensitization and central nervous system

dysfunction. He will require an older home, with old or used

furnishings, in a rural setting, with no gas heat or air conditioning.

Future Health Care

All of the Chameys will required frequent supportive medical care,

to deal with the continuing skin, respiratory, gastrointestinal,

neurologic, and neuropsychological disorders arising from

formaldehyde sensitization. In my opinion, Mr. and Mrs. Charney

need psychological and marital counseling on an ongoing basis, to

deal with the additional stress imposed by their continuing health

problems. John III is in urgent need of psychological support at

this time, and I believe both children will need cognitive

rehabilitation and psychological support as their learning problems

cause emotional stress in the future.

Yours truly,

Elaine B. Panitz, MD

EBP/jp

Enclosures