Free Proposed Pretrial Order - District Court of Delaware - Delaware


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Case 1:05-cv-00053-Gl\/IS Document 48-3 Filed 05/15/2006 Page 1 of 3
IN THE UNITED STATES DiSTRICT COURT
FOR THE DISTRiCT OF DELAWARE
RICHARD F. WHITE JR., :
Plaintiffs,
v. C. A. No. 05C-53 GMS
FED EX GROUND PACKAGING
SYSTEMS, 6 : i
Defendant.
DEFENDANT FED EX GROUND PACKAGING SYSTEiVIS’ TRIAL BRIEF
(A.) NATURE OF THE CASE.
This action for personai injuries arises out of a motor vehicle accident that occurred
on Prospect Avenue, Berlin Township, New Jersey, on August 27, 2003. Piaintiff was
operating a vehicie on Prospect Avenue when a Fed Ex deiivery truck, operated by
Thomas Saivo, backed out of a residential driveway onto Prospect Avenue. The two
vehicies coilided. Plaintiff ciaims that he sustained bodily injuries as a direct result ofthe
accident. Agency and Iiabiiity on the part‘of the defendant is not disputed, but there
remains for determination by the jury issues ot comparative negligence, the nature and
extent of the piaintiffs alleged injuries and tosses, and the amount of money damages
which would fairiy and reasonable compensate him for those aiieged injuries and losses.
(B.) - (C.) CONTESTED FACTS AND DEFENDANT’S THEORY OF DEFENSE.
Negligence on the part of defendant Fed Ex Ground Packaging Systerns’ agent, -
Thomas Salvo, has been admitted. l\/ir. Saivo backed his deiivery truck out of a residential
driveway into the roadway and into the side ofthe Plaintiffs vehicie which was proceeding

Case 1:05-cv-00053-GI\/IS Document 48-3 Filed 05/15/2006 Page 2 of 3
down the roadway. However, the driveway in question was a long driveway, the Plaintiffs
view of the driveway and the Fed Ex truck backing down the driveway was unobstructed,
Plaintiff was unable to see il/lr. Salvo inside the delivery truck, and the Plaintiff failed to
sound his horn or otherwise warn lVlr. Salvo that he was present on the roadway. it is the
Defendants contention that Plaintifftailed to maintain a proper lookout, failed to control the
operation of his vehicle so as to avoid the collision, and failed to sound his horn or
otherwise warn the driver ofthe Fed Ex delivery truck that he was present on the roadway
even upon observing that the truck was not stopping as it backed down the driveway. (Dei.
C. Ann. Title 2t, § 4‘l76(b) 1995); Trievel v. Sabo, 714 A. 2d. 742, 745 (Del. Supr. ‘i998);
State v. Elliott, 8 A.2d 873, 875-76 (i 939); Dietz v. Mead, 160 A.2d. 372, 376 (Del. 1960).
(D). DEFENDANT’S THEORY OF DAMAGES.
Defendant Fed Ex Ground Packaging Systems had the Plaintiff independently
examined by Dr. Andrew Gelmah. Dr. Geiman is a Board-certified orthopaedic surgeon.
It is Dr. Gelman’s opinion that ll/lr. White suffered from a longstanding pre-existing history
of musculoskeletal problems involving prior fusion surgery to the C6-7 level of the cervical
spine, cervical spine degenerative disc disease, and shoulder problems (subacromiai
impingemerit). it is Dr. Geiman’s opinion that these preexisting conditions were
aggravated or exacerbated by the subject motor vehicle accident, but were not caused by
the accident. lt is further Dr. Gelman’s opinion that ll/lr. VVhite’s left wrist and hand
problems, diagnosed as carpal tunnel syndrome, pre~existed and are unrelated to the
motor vehicle accident. ln addition, it is Dr. Gelmarfs opinion that Mr. Whites low back
condition was not caused by the motor vehicle accident as its onset occurred too remotely
in time. it is further Dr. Geiman’s opinion that much ofthe pain management treatment lVlr.

Case 1:05-cv-00053-GMS Document 48-3 Filed 05/15/2006 Page 3 of 3
White received from Mid Atlantic Pain institute was not reasonable or necessary and that
Mr. White requires no additional formal medical care for his injuries after his examination
of November 4, 2005. Finally, it is Dr. Gelrnarrs opinion that Mr. White is capable of
working on a full time basis and engaging in his activities of daily iiving without any
restrictions or iimitations related to the automobile accident. `
(E). ANTICIPATED I\l|OTiON FOR DIRECTED VERDICT.
Defendant Fed Ex Ground Packaging Systems does not anticipate any Motion for
Directed Verdict.
TYBOUT, REDFEARN & PELL A
n o ¤ cui.i.EY, Esouine
Deiaw e Bar l.D. 2141
750 S uth Madison Street
PO. Box 2092
Wilmington, DE 19899
. (302) 658-6901
E—rnail Address: [email protected]
Attorneys for Defendant
DATED: May 15, 2006