# Appendix — Charney v. Panitz

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1775%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1018

## Text

y_,\ Supreme Court, Um
| FILED
——
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1775%3A2. Public record. Not legal advice.