Joint Pre-Trial Memorandum filed: Applies To: Frey, Ellsworth (Plaintiff); Lawina, Krystyna (Defendant); Hatch Property Managment, LLC (Defendant) June 19, 2018 (2024)

 
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 COMMONWEALTH OF MASSACHUSETTSDEPARTMENT OF THE TRIAL COURTHAMPDEN, SS. SUPERIOR COURT DEPARTMENTCIVIL ACTION NO. 1679CV00815 ELLSWORTH FREY,Plaintiff HAMPD.t SUPERIOR oov. FILEDJUN 19 2018KRYSTYNA LAWINA, andHATCH PROPERTY MANAGEMENT, LLC,DefendantsMe ee eee JOINT PRE-TRIAL CONFERENCE MEMORANDUM 1. AGREED FACTSNone.2. BRIEF STATEMENT OF WHAT THE PLAINTIFF, ELLSWORTH FREY,EXPECTS THE EVIDENCE TO SHOW:On or about March 12, 2016, the Plaintiff, Ellsworth Frey went to the Post Officelocated at 534 Main Street, Hampden, in order to mail two (2) packages and two (2)envelopes at the Post Office. Frey was walking upon the sidewalk that lies between thePost Office Building and the parking lot for the premises. The parking lot has delineatedspaces for parking, which are organized as perpendicular bays immediately adjacent tothe said sidewalk. There are no safety measures in place to prevent cars from pulling toofar into a parking space and onto the sidewalk (such as safety bollards). At least oneAlprior incident occurred on the premises, on or about July 15, 1998, wherein a vehicledrove through the parking space, over the sidewalk and into the side of the Post Officebuilding, causing damage to both the exterior and interior walls where the vehicle madecontact. According to the Police Report for this accident, the vehicle operator’s footslipped off the brake and onto the gas pedal, causing the vehicle to drive forward acrossthe sidewalk and into the Post Office Building.An almost identical accident occurred in the present case, except that in this case,a pedestrian was traversing the sidewalk between the parking lot and the Post OfficeBuilding at the time a vehicle drove through the parking space onto the sidewalk. Morespecifically, as Mr. Frey was traversing the sidewalk, the Defendant, Krystyna Lawina,while navigating her vehicle into a parking space, attempted to hit her brakes and insteadaccidentally hit her vehicle’s gas pedal. With no bollard or other barrier in place betweenthe parking space and the sidewalk, Ms. Lawina’s vehicle shot through the parking spaceonto the sidewalk, striking Mr. Frey and crushing him against the Post Office Building.Ms. Lawina’s vehicle also struck the building, leaving paint on the brick wall from hervehicle.Mr. Frey suffered severe injuries as a result of the accident. His lower left legwas crushed, his ankle was fractured, his Achilles tendon was severed, an artery in his legwas torn, and his skin was torn the entire length from his knee to his ankle. Anothertendon in the front of his leg was also severed. Mr. Frey’s left leg is disfigured and willremain so. Mr. Frey still suffers persistent pain from his ankle, and walks with a limp.Mr. Frey also suffered significant bruising to his left side, and an artery in his upper leftleg was also damaged. The Plaintiff further suffered injuries to his right foot.Notwithstanding multiple surgeries and months of physical therapy, Mr. Frey is at a endresult and has suffered permanent impairment as a result of this accident, including lossof mobility, scarring and suffers continued pain and discomfort. Mr. Frey has beenunable to perform any work since the accident, and is permanently disabled from work.To date, Mr. Frey’s medical bills alone exceed $138,000.00.Notwithstanding the prior similar incident damaging the Post Office building, andthe obvious danger arising from a perpendicular parking space approximately level withan adjacent sidewalk located aside the Post Office building, the owner of the premises,the Defendant, Hatch Management, LLC, negligently took no measures whatsoever tomaintain its Premises in a safe, suitable and adequate condition for persons traversing thesidewalk located upon its Premises. As a minimum safety measure, an array of four 8”bollards installed between the parking lot and the sidewalk, at a material cost ofapproximately $5,000.00, would have prevented this accident.BRIEF STATEMENT OF WHAT THE DEFENDANT, KRYSTYNALAWINA, EXPECTS THE EVIDENCE TO SHOW:The defendant denies that she was negligent and asserts that the plaintiff's ownactions caused or contributed to the plaintiff's alleged injuries.The defendant further contests the nature and extent of the plaintiffs claimedinjuries. The defendant asserts that the plaintiff's complaints are inconsistent with themedical evidence.The defendant disputes the plaintiffs claimed lost wages and asserts that the plaintiffwill be unable to substantiate any such claim.BRIEF STATEMENT OF WHAT THE DEFENDANT, HATCHPROPERTY MANAGEMENT, LLC, EXPECTS THE EVIDENCE TOSHOW:Hatch Property Management, LLC (“Hatch”) expects the evidence to show that itacquired title to the building and premises at 534 Main Street, Hampden, Massachusettsin February of 2016 approximately one month before the subject accident. Its manager,Richard Hatch, will testify that the property had been owned by other members of hisfamily previously and that it was originally constructed as a Post Office. He will alsotestify that since its original construction the building has served exclusively as a UnitedStates Post Office. There have been minimal changes to the building since its originalerection. He will testify that he has no knowledge of any prior automobile versuspedestrian accidents on the premises since its original construction in 1964. Theevidence will show that Ms. Lawina was required to execute a 90° turn to enter theparking lot of the Post Office from Main Street in the village of Hampden. The evidencewill show that after entering the parking lot she had to execute another 90° turn in aneffort to avail herself of a parking space alongside the building. Ms. Lawina apparentlylost control of her Ford automobile causing it to move forward onto the sidewalk strikingthe Plaintiff Mr. Frey. The evidence will show that there had been no prior complaints,orders or requirements to Hatch to modify the layout of the parking lot from its originalconstruction in 1964. Hampden is a small village in a suburban/rural region and traffic inthe parking lot is exclusively for patrons of the Post Office. Richard Hatch will testifythat he did not foresee the possibility or likelihood that someone would lose control of anautomobile in the parking lot and cause harm to a pedestrian.3. DESCRIPTION OF THE CASE TO BE READ DURING JURYIMPANELMENT:The parties are unable to agree to a draft Statement to be Read to the Jury.The Plaintiff, Ellsworth Frey, proposes the following Statement be Read tothe jury:This case involves an alleged motor vehicle accident occurred on March 12,2016, at around 10:30 a.m., at the Post Office located at 534 Main Street,Hampden, Massachusetts. The Plaintiff asserts that Ms. Lawina wasnegligent in her operation of the vehicle, and that the owner of the premises,Hatch Property Management, LLC, was negligent in not having safetymeasures in place to prevent vehicles from driving through the designatedparking spaces onto the adjacent sidewalk. The Defendants deny that theywere negligent or that their actions or failures to act were a cause of thePlaintiff's injuries. The Defendants further contest the Plaintiff's allegeddamages.The Defendant, Hatch Property Management, LLC, proposes the followingStatement be read to the jury:This is an action for money damages brought by Plaintiff Ellsworth Freyagainst Defendant Krystyna Lawina, the operator of an automobile whichstruck Mr. Frey, a pedestrian, on the sidewalk adjacent to the parking lot atthe Post Office in the Town of Hampden. Suit has also been broughtagainst Hatch Property Management, LLC, the owner of the building andpremises at 534 Main Street, Hampden.The Defendant, Krystyna Lawina, proposes the following Statement be readto the jury:This is a personal injury action arising out of an incident that occurred on March12, 2016 at the Post Office located at 534 Main Street, Hampden, MA. The plaintiff,Ellsworth Frey, alleges that he sustained injuries as a result of the negligence of thedefendants, Krystyna Lawina and Hatch Property Management, LLC. The defendantsdeny that they were negligent and also contest the plaintiff's alleged damages.4. SIGNIFICANT LEGAL ISSUES:None presently anticipated.5. PLAINTIFF’S WITNESSES:1.2.10.11.Ellsworth Frey, Plaintiff;Krystyna Lawina, Defendant;Richard A. Hatch, Jr., Hatch Property Management, LLC, Defendant.Rachel Varney, 5 Ripley Street, Wilbraham, Massachusetts.Tara Nickerson, 26 Thames Street, Springfield, MassachusettsTerry Loncrini, 387 Allen Street, Hampden, MassachusettsPolice Officer Nichole Gura, Hampden Police DepartmentPolice Officer Jeffrey Beattie, Hampden Police DepartmentHampden, MA Postmaster, Katherine E. Nardi (or her successor)Any and all witnesses called by any party in this action; andWitnesses necessary to authenticate documents.* Plaintiff reserves the right to supplement this list of witnesses with identities ofadditional witnesses with reasonable notice to all parties and the Cowrt.DEFENDANT, KRYSTYNA LAWINA’S, WITNESSES:1. Plaintiff Ellsworth Frey2. Defendant Krystyna Lawina3. Richard A. Hatch, Jr., Defendant Hatch Property Management, LLC.4, Rachel Varney, 5 Ripley Street, Wilbraham, Massachusetts.5. Tara Nickerson, 26 Thames Street, Springfield, Massachusetts6. Terry Loncrini, 387 Allen Street, Hampden, Massachusetts7. Police Officer Nichole Gura, Hampden Police Department8. Police Officer Jeffrey Beattie, Hampden Police Department9. Keepers of Records of plaintiff's financial and employment records10. Keepers of Records of plaintiffs health care providersThe defendant reserves the right to supplement this list and to call all witnesses listedby the other parties.DEFENDANT, HATCH PROPERTY MANAGEMENT, LLC’S,WITNESSES:1. Richard Hatch, Jr., 155 South Monson Road, Hampden.2. Krystyna Lawina, 34 Echo Valley Drive, Hampden.3. Tara Nickerson, 26 Thames Street, Springfield.4, Rachel Varney, 5 Ripley Street, Wilbraham.5. Officer Nichole Gura, Hampden Police Department.6. Reserve Officer Jeffrey Beattie, Hampden Police Department.7. Keeper of Records, Building Department, Town of Hampden.6. PLAINTIFF’S EXPERT WITNESSES:Bennet S. Burns, MDPaul RolandRobert Reiter[See Plaintiff's Supplemental Answer toExpert Interrogatory attached hereto]* Plaintiff reserves the right to supplement this list of expert witnesses with identities ofexpert witnesses with reasonable notice to all parties and the Court.DEFENDANT, KRYSTYNA LAWINA’S, EXPERT WITNESSES:The defendant reserves the right to supplement this Memorandum by identifyinganticipated expert testimony in accordance with M.R.C.P. 26(b)(4) in a timely mannerand upon receipt of plaintiff's expert disclosure.DEFENDANT, HATCH PROPERTY MANAGEMENT, LLC’S, EXPERT‘WITNESSES:1. James D’ Angelo, P.E., 70 Main Street, North Andover, Massachusetts.If called, it is anticipated that Mr. D’Angelo will testify about the design andlayout of the parking lot, sidewalk and Post Office building at 543 Main Street,Hampden. He is expected to testify that the building, constructed in 1964, complied withdesign standards for parking lots as they existed at that time. He will observe that thebuilding since its construction has been exclusively used as a Post Office and that therehas not been a substantial renovation or rebuilding of the building. For that reason, Mr.D’ Angelo is expected to testify that there was no requirement that the design andconstruction of the parking lot be altered to conform with modern standards. He willtestify that prior to the accident, Ms. Lawina would have had to execute a 90° turn fromMain Street in the Village of Hampden into the parking lot and that prior to striking Mr.Frey would have had to execute a second 90° turn and that such maneuvers could not bemade at a high rate of speed. If called, Mr. D’Angelo is expected to base his testimonyon his education, training and experience as a civil engineer, his inspection of the locationat 534 Main Street, Hampden, his review of the records of the Building Department ofthe Town of Hampden, the police accident report, photographs of the vehicle operated byMs. Lawina, photographs of the location at 534 Main Street, Hampden, witnessstatements from Rachel Varney and Tara Nickerson, Ms. Lawina’s answers to thePlaintiff's interrogatories and site plans of the location.7. ESTIMATED LENGTH OF TRIAL:Four (4) full days.8. PLAINTIFF’S ITEMIZATION OF SPECIAL OR LIQUIDATEDDAMAGES ALLEGED:Plaintiff alleges to have incurred in excess of $138,000.00 in medical bills, alongwith damages for lost earnings and lost earning capacity, permanent impairment,disfigurement, scarring, emotional distress, pain and suffering.9. CERTIFICATION:Counsel for all parties have conferred and discussed the possibility of settlement,and the amenability of the case to mediation or other forms of alternate disputeresolution. Plaintiff is amenable to mediation.10. Counsel also certify that they have consulted about the provisions of SuperiorCourt Rule 20(h)-(i).Dated: June 18, 2018The DefendantKRYSTYNA LAWINABy Her AttorneyRespectfully Submitted,The Plaintiff,ELLSWORTH FREYBy his attomey, Goldsmith, Katz & Argenio, PC1350 Main Street, Suite 1505Springfield, MA 01103Telephone: (413) 737-5996Email: targenio@gkalawfirm.comThe DefendantHATCH PROPERTY MANAGEMENT, LLCBy its Attorney< ff¢ pti vad Vaxecke Cro?)Christophér J. O’ Rourke, Esq. L. Jeffrey Meehan, Esq.(BBO #546091)Law Office of Christopher J. O’Rourke83 Walnut Street, Suite 150Wellesley, MA 02481Telephone: (413) 623-8337Email: chris@orourkelawoffice.com(BBO #341440)Doherty, Wallace, Pillsbury and Murphy, P.C.1414 Main Street, Suite 1900Springfield, MA 01144-1900Telephone: (413) 733-3111Email: limeehan@dwpm.comCOMMONWEALTH OF MASSACHUSETTSDEPARTMENT OF THE TRIAL COURTHAMPDEN, SS. SUPERIOR COURT DEPARTMENTCIVIL ACTION NO. 1679CV00815 ELLSWORTH FREY,PlaintiffKRYSTYNA LAWINA, andHATCH PROPERTY MANAGEMENT, LLC,DefendantsLe SSS eS Se Se SS PLAINTIFF'S SUPPLEMENTAL RESPONSE TO FIRST SET OFINTERROGATORIES PROPOUNDED BY THE DEFENDANT.Sa ee RR ENV ANI,HATCH PROPERTY MANAGEMENT, LLCBal AN EN19. Ifyou, your attorney or anyone on your behalf has consulted or retained an expertor experts who may be called to testify at trial, please state:a) The name, age, residential address, occupation, business address and area ofexpertise or specialization;b) A complete description of the subject matter upon which the expert isexpected to testify;c) Acomplete description of the substance of the facts and opinions to which theexpert is expected to testify;d) A complete description of the grounds for each opinion.RESPONSE:Dr. Bennett S. BurnsSee attached hereto:Report of Dr. Bennett S. Burns, dated January 2, 2017.Robert ReiterReiter and Reiter Consulting ServicesSee attached hereto:Curriculum Vitae of Robert Reiter andSummary of Expert Opinions of Robert Reiter In the Matter of EllsworthFrey v Krystyna Lawina and Hatch Property Management LLC HampdenCounty Superior Court Docket Number: 1679VC00815Paul RolandSce attached hereto:Curriculum Vitae of Paul Roland andSummary Opinion of Paul Roland21, — If you, your attorney or anyone on your behalf has consulted or retained an expertor experts who may be called to testify at trial, please state:a) The name, age, residential address, occupation, business address and area ofexpertise or specialization;b) A complete description of the subject matter upon which the expert isexpected to testify;c) A complete description of the substance of the facts and opinions to which theexpert is expected to testify;d) A complete description of the grounds for each opinion.RESPONSE: See Supplemental answer to Interrogatory #19.Swom to under the pains and penalties of perjury this day of June, 2018.ELLSWORTH FREYCERTIFICATE OF SERVICEI, Thomas E. Argenio, Esq., hereby certify that on this day of June, 2018, Iserved a copy of the foregoing upon the Defendant, Hatch Property Management, LLCby mailing a copy of same first class mail, postage prepaid, to the Defendant, HatchProperty Management, LLC's counsel of record:L, Jeffrey Meehan, EsquireDoherty, Wallace, Pillsburyand Murphy, P.C.1414 Main Street, Suite 1900Springfield, MA 01144-1900Thomas E. Argenio, EsquireBBO #541796GOLDSMITH, KATZ & ARGENIO, PC1350 Main Street — Suite 1505Springfield, MA 01103Tel: (413) 737-5996Fax: (413) 781-3780Email: targenio@gkalawfirm.comLouis M. Adler, MDJ. Stephen Brecht,Trauma & Fracture Carelex Fractures.Bennett §, Burns, MD‘Trauma & Fracture CareComplex FracturesJohn R. Corsetti, MDSports Medicine/ ArthroscopyperShoulder & Kae SanpeeR. Scott Cowan,ine SurJortanN, Greenbaum, moJoint Replacement S‘Sumner B. Karas,Shoulder Surgery & Arthrose:Stephen J. Kelly, MOJoint Replacement Sexgerysagt Soy‘enum & Fracture Cre: lex FracturesRober ,Brvshell, MDJoint Replacement Su‘Foak gc Anke Stefoot & AnkleB. Lehman, MBJoine Replacement‘Martin J, Luber, MDMedicine/ Arthroscopyhot ides, Knee & Elbow Surgery‘Thomas A. McDonald, MDPoot & Ankle SusperyLois Ann Nichols, MDTrauma de Fracrure Carelex Fracturessept ‘Sklar, MDrs Medicine/KneeJacqueline CV jandereandea, MDHand, Wrist & Elbow SuSteven M. Wenner, MBHand & Wrist Susgecy‘Tamer Bahgat, PAGHeng Casagrande Jr. PA-sae Rat te‘A. Chaplin, PAJessa M. Deena, ‘APRNMark A. Dutille, PA-CBeverly Faille, APRNTerri Gardner, APRNKevin MacPherson, PA-CPeter A. Michaud, PA-CMelissa Mol-Pelton, PA-CAnika Opp-Harzis, PA-CBiwath Pacitt, PA-Cioe B. Pierson, PA-CBrian K, Puchalski, PA-C‘Timothy B. Rice, PA-CDonald C. Salva, PACElizabeth Sklar, PA-CJames D. Vreeland, PA-C‘Samantha Whalen, PA-CMiriam K. Wiggins, PACJoseph V. Zwirka, PACExecutive DirectorAnthony Rino00 Bimie AvenueSuite 201‘Speingficld, MA.O1107.1107413.785.4666www.neortho.com NEW ENGLAND ORTHOPEDIC SURGEONSJanuary 2, 2017Thomas E. Argenio, Esq.Goldsmith, Katz and Argenio, PC1350 Main St., Suite 1505Springfield, MA 01103RE: Ellsworth M FreyDOB: 11/20/1939Account #: 395679Dear Attorney Argenio:This letter is provided at the request of Thomas R. Argenio of Goldsmith,Katz and Argenio, PC dated 12/1/16, included with letters and appropriatedocumentation for release of medical information.I first became involved in the care of Mr. Frey when he was allegedlyinvolved in an accident in a post office parking lot. He was struck by a carand pinned against a wall with a crush injury to his left leg. There was alarge deep area of skin injury across the entire length of his knee from theknee to the ankle with a separate fracture of the left ankle, involving both thefibula, ligaments between the tibia and fibula, and the medial deltoidligament.This resulted in the widening of the ankle joint, and instability of the* juncture between the 2 bones by the ankle. He was also evaluated that dayby the vascular service and found on the angiogram to have a tear of one ofthe vessels in the leg above the knee in the superficial femoral artery. Thevascular trauma teams opted to observe this. On the following day, 3/13 hewas deemed to be stable enough to take to the OR for his ankle. Skinlaterally although contused was actually better than the other areas of skininjury and we were able to place a plate and screws fixing the fibula fractureand fixing the 2 bones together at the ankle, restoring ankle alignment. Thepatient underwent multiple débridements and skin grafting of this with thetrauma team, specifically Dr. Winston, iRE: Ellsworth M FreyDOB: 11/20/1939Account #: 395679Page 2We have been following him since then. The patient was hospitalized to rehabilitation on 3/15,‘was readmitted on 3/22 due to concerns about cellulitis and breakdown of the skin. Heunderwent debridement, dressing changes. Was brought back on 5/20 by Dr. Winston for skingrafting. We had seen him just before that on 3/18 when one of our PA’s saw him in the office.At that point, the areas of bruising and soft tissue injury of the leg were noted. His incision washealing nicely, sutures were intact without drainage. X-rays showed maintained alignment of theankle joint, but no signs of hardware failure. Patient had been placed on Doxycycline due to hisopen wounds. He was seen while in the hospital where follow up x-rays did not show any signsof new bone formation as yet.I saw him again in the office on 3/21, no complications to the wound were observed. New x-rayswere taken at that visit, weight bearing and activity at that point were still limited, more by thesoft tissue injury than by the ankle.Tagain saw him on 4/7. Wounds were again evaluated. He had about a 30 degree flexioncontracture of his knee, meaning he would not extend fully. Ankle motion was actuallysomewhat better, with dorsiflexion past 90 degrees, and the ability to plantar flex to 30 degrees,There was a small area of darkened skin by the top of the incision but no signs of any infection.He was having Silvadene applied to his leg in preparation for grafting. There was concern raisedby the trauma team as to whether the splint may have caused some of the skin breakdown,however the location of this was nearly hemi-circumferential and not in the locations where thesplints were applied and still felt to be due to his original trauma.He was seen again on 4/28, soft tissue injuries still remained fairly similar, no evidence of anydead or infected tissue but some of the overlying dead skin had started to demarcate and sloughoff. X-rays at that point showed hardware to be intact and our feeling was that he was safe toallow to advance weight bearing on this rather than place a splint or occlusive dressing over thisthat might put pressure on the wounds or an eventual skin grafting. He was maintained inawalker with no splint. Continued elevation to minimize swelling,I then saw him again on 6/23, still had a moderate limp on the left hand side. Skin grafts were inplace and he had been allowed to start weight bearing by the trauma surgeons. Still couldn’t fullybring the foot up due to tightness in the posterior aspect of the ankle. He did actively dorsiflex,so there was no sign of any nerve injury. He was allowed to weight bear, described a course ofstretching.RE: Ellsworth M FreyDOB: 11/20/1939Account #: 395679Page 3Tagain saw him on 8/11, approximately 4 months after his injury, at that point one of the twoScrews traversing the distal tibia and fibula had broken, which is commonly seen in these injuriesand is not an unexpected outcome. J reassured him that the joint remained well aligned, andasmall amount of motion between the two is expected. We did discuss the possible role forhardware removal in the future, continue weight bearing as tolerated. He could dorsiflex hisankle to 10 degrees beyond 90, plantar flexion 30, No instability was noted.My last visit with him was on 1 1/28, approximately 7 months after his injury. Skin grafting hadall taken and trauma surgery had signed off. He still had some discomfort on the back of his heel,more in the area of the Achilles tendon than in his fibula. Dorsiflexion remained at 10 degrees,plantar flexion at 30, full knee Tange of motion without contractures. The Achilles tendon wasintact, but had some tenderness with passive dorsiflexion. X-rays showed no further signs of anyhardware failure, and fractures all appeared to be healed. We did again discuss the Possible rolefor hardware removal, and/or joint capsular release but recommended doing so only if he werelimited in function, as there is some risk to operating through his previously damaged skin.With regards to the questions raised in the attomey letter, the patient’s description of the accidentinvolved him being crushed between a car and a wall on his left side primarily from the thigh tobelow the knee.With regard to past medical problems, the patient does have a history of diabetes, hypertensionand gout. While diabetes may be a factor in wound healing and risk of infection, it is my medicalopinion that the severity of his injuries was such that this probably the cause of the skin injuryand the diabetes had little impact upon the degree of skin loss and areas that needed to be skingrafted. Diabetes can impact upon the speed at which wounds heal or form granulation tissue forskin grafting, but this is usually a phenomenon or limited to the lower portion of the leg or endsof the extremities where blood supply is less. His injuries involved areas from the thigh anddown to the leg, and all of these healed in a fairly similar pattern suggesting that the diabetes wasnot playing a large role in the healing of this. The patient otherwise is healthy, hypertension waswell controlled and there were no flairs of gout during his recovery.In regards to my initial examination of the patient, when first seen he had significant swelling ofthe thigh. The ankle was grossly unstable, obviously not examined while he was awake but whenhe was asleep the leg was contused with extensive bruising and superficial skin tears extendingfrom the mid thigh to below the knee and leg.RE: Ellsworth M FreyDOB: 11/20/1939Account #: 395679Page 4Questions raised regarding course of treatment and tests performed are involved with orthopedicswas primarily with x-rays following the course of healing, the degree of new born formation andeventual breakage of one of the screws and maintained alignment of the joint itself. The patientdid have routine blood work during the course of his treatment including complete blood counts,looking for white blood counts, but also checking for anemia before any surgeries,As far as his condition during treatment, the left leg was extensively bandaged, had dailyapplications of Silvadene cream to try and minimize risk of infection and the open wounds,similar to how one treats a bum injury, large areas of skin loss required serial operations toremove them, both in the office and in the OR, and ultimately skin had to be harvested byshaving off another part of the body and applied to these areas to create coverage.During the first 2 months he was not allowed to weight bear on this both due to the fracture itselfbut also due to the skin injuries, By late May the trauma team had cleared him to weight bear onthis, and he had been walking with crutches and a cane.The patient's diagnosis is a degloving skin injury and traumatic skin slough of the left leg,estimated 4% of body surface area and left functional bimalleolar ankle fracture withsyndesmotic disruption. Both of these are causally related to his accident of 3/12/16, and none ofthese were present prior to same by any history or examination. There is nothing in his pasthistory of his description to Suggest any of these injuries that occurred prior to that date,In regards to employment, during the 2% months of absolute prohibition of weight bearing onthe left leg and dressing changes, the patient was limited in his mobility to crutches only, thewounds had to be changed ona daily basis, and cannot be exposed to dirt, oil, grease orcontamination. I think it is fair to say that during that timeframe, he was unqualified for anythingbut strict desk work and would have had severe difficulty getting to and from a job site onaregular basis. Following the 2% month timeframe, although he was undergoing débridementsand having skin grafting, he still had some limitations to function. Presently he remains limitedin his ability to bring the ankle into full dorsiflexion for walking. He is able to walk without acrutch or a cane. ! would say at this point he is limited in high end activities such as climbing,jumping, running.At this point, I feel he has reached maximum medical improvement. It is unlikely to changesignificantly in the future.RE: Ellsworth M FreyDOB: 11/20/1939Account #: 395679Page 5With regards to impairment, utilizing the AMA Guides to the Evaluation of PermanentImpairment, Sixth Edition, foot and ankle lower extremity grids, ankle fracture is listed on page503, table 16-2 with moderate motion deficits and no signs of malalignment, I would probablyplace him on the lower end of a class II impairment which qualifies as 19-25% of the lowerextremity. The soft tissue injuries, moving to knee and hip regional grids in the same table whichare listed in table 16-3 and 16-4, both knee and hip soft tissue lesion fall in the same class I, with0-2% impairment as options.Moving on to the history adjustment table 16-6 on page 516, patient with a mildly antalgic gaitwould qualify as a grade I modifier. Similarly, physical examination adjustment table 16-7 onpage 517 would place him at a grade 1] modifier as moderate findings consistently document andsupported by anomalies, Decreased range of motion would similarly be a class II.Finally, clinical studies, table 16-8 on page 519 would likely be on the higher end of a grade Ilmodifier as clinical studies confirm the diagnosis and 1 think they are slightly more thanmoderate pathology given the large area of skin grafting and residual stiffness in the ankle.However, would therefore place this as a grade II modifier in 2 sections, and grade | in one.Adding together the soft tissue and ankle pathology would therefore place him at 24% of thelower extremity, and this would translate on table 16-1 as a 9% whole person impairment. Thereis still a 5-10% chance he will need to have eventual hardware removal and/or ankle jointrelease. He has fairly extensive skin grafts over his anterior left leg, comprising about 2/3 of theanterior surface of his leg.T hope this is helpful. Don’t hesitate to contact me if you have any further questions or requireclarification.Signed and sworn to under the pains and penalties of perjury this 2nd day of January, 2017.Sin Bennett $. Bums, MDBSB/ypROBERT REITER2725 Clapton Drive Colorado Springs Colorado 80920909.964.2906 * rob.reiter.pp@gmail.com 2015-2017 Principal, Reiter and Reiter Consulting Services — Colorado Springs, Colo.Incorporated consulting firm providing product development, research, business development,expert witness and other consultative services. Providing various consulting, productdevelopment and business development services for companies in the United States, Australia,and the United Kingdom that are active in the prevention of vehicle incursions in commercialand public areas.Currently consulting on product development for a West Coast manufacturer of bollards andsafety barriers and for an East Coast manufacturer of anti-terrorist active barrier systems, Alsocoordinating American introduction of innovative security and safety bollards and barriersdeveloped, tested, and manufactured in Coventry, UK. Consulting with arenas, cities, retailers,and other entities to prevent deliberate or accidental vehicle incursions into crowds or property.Published articles in more than a dozen publications on causes, prevention, and frequency ofDeliberate vehicle attacks and accidental vehicle incursions and pedestrian safety issues andparticipated in numerous media interviews for articles authored by others.Conducting ongoing research collection and analysis of vehicle-into-building crashes andpedestrian incursion events nationally, providing statistics on causation, location, and driverspecific data on such accidents on both private property and public streets and roads. Data ispublished publicly and provided at no cost to industry, academic institutions, and governmenttesearchers,Active as an Expert Witness retained in numerous vehicle incursion lawsuits throughout theUnited States and Canada.2009-2014 Independent Consultant — Los Angeles, CAConsultant to Eastern US-based high-security barrier company approved by the United StatesDepartment of State to design and manufacture protective barrier systems for use at embassiesand missions in the US and overseas. Conceived and tested innovative surface-mounted vehiclebarrier suitable for retrofit on sidewalks, curbs, and post-tensioned suspended slabs forinternational perimeter protection company. Participated in numerous new product designprojects including the evaluation of crash testing for anti-terrorist and force protectionfabrications in the US and UK.Began research and data collection project for vehicle-into-building crashes and pedestrianincursion events nationally, which is ongoing today.Expert witness retained in numerous vehicle incursion lawsuits throughout the United States andCanada.2002-2009 Vice President Calpipe Industries - Downey, CATook lead in growing company from small regional supplier into well-known nationalmanufacturer of electrical products, bollards and other safety barriers. Led acquisition efforts andsuccessfully acquired two companies in three years. Increased company-wide sales 400% oversix years. Director of sales, marketing and product innovation at subsidiary Calpipe SecurityBollards, working nationally with developers, insurance underwriters, contractors, and engineers.Conceived and executed the Pedestrian Safety Scale. Active in safety, security, and lossprevention efforts nationally, and authored or co-authored early articles on pedestrian safety andvehicle incursions. Led efforts to collaborate and establish ongoing corporate relationships withASTM, NAED, AJA, UL and many others. Introduced several initiatives which are continuing toflourish.OTHER EXPERIENCE AND TRAININGActive participant in ASTM F12-10 committee workCo-Chairman ASTM subcommittee that wrote the F-3016 test standard for low speed safetybarriers, including ongoing updates.Trained in Force Protection / Anti-Terrorist Perimeter SecurityTrained in Active Barrier Systems — design and safety and specificationsTrained in C4SRI by various DOD entitiesPast or ongoing associations with ASME, ASSE and Underwriter’s LaboratoryApproved presenter for an AIA registered for credit course on selection and specification ofbollards by engineers, architects, and other professionals.ONGOING SAFETY WORKASTM F12-10 COMMITTEEOngoing service on ASTM F12-10 committee that re-wrote testing standard F2656 for high-speed, anti-terrorist barriers to replace the U.S. Department of Diplomatic Security/Departmentof State’s previous “K RATINGS” standard. Wrote first draft proposal for new, low-speedbarrier test standard for ASTM in 2007.Currently serving as co-chairman of the subcommittee which wrote the new ASTM test standard“F3016-2014 “Standard Test Method for Surrogate Testing of Vehicle Impact ProtectiveDevices at Low Speeds” approved on 1 November 2014.Currently tasked as Technical Contact and Author for ASTM WK56283 “Guide forrecommendations on the selection, specification and installation of safety barriers andbollards”STOREFRONT SAFETY COUNCILCo-Founder of the Storefront Safety Council with Mr. Mark Wright in Washington D.C. TheCouncil is a small, unfunded volunteer advocacy group engaged in the promotion of safetystandards, increased awareness of vehicle-into-building crashes and pedestrian incursion events,and conducting research and collecting statistics on causation, location, and driver specific-dataon such accidents on both private property and public streets and roads. Data is publishedpublicly and provided at no cost to industry, academic institutions, and government researchers.CHAIN STORE AGECurrently serving on the Chain Store Age/SPECS advisory board where I contribute myexperience and knowledge to retailers and suppliers about trends in storefront safety generallyand storefront crashes and pedestrian parking lot risks specifically.EDUCATIONB.A. in Law and Society from the University of California 1976PUBLICATIONS AND RESEARCH"IS RISK COMING AT YOU HEAD ON?" by Rob Reiter, published in Claims Joural.,September 22, 2014"BREAD, MILK AND MAYHEM: STOREFRONT CRASHES MORE COMMON THANYOU THINK, AND OFTEN PREVENTABLE,(Rob Reiter quoted and provided all researchmaterials and statistical information) Fair Warning, September 9, 2014 “THE OVERLOOKED THREAT OF VEHICLE-INTO-BUILDING ACCIDENTS" by RobReiter, published in Risk Management Magazine, September 1, 2014 "GONE IN SIXTY SECONDS - CRASH AND GRAB CRIME ON THE RISE", by Rob Reiter,published in ATM Marketplace, April 18, 2014 "HOW SAFE IS YOUR PARKING LOT?" by Robert Reiter and Mark Wright, Storefront SafetyCouncil, published in Development Magazine, March 21, 2014“SAVING LIVES AT STOREFRONT PARKING” by Rob Reiter, Parking Magazine, March 8,2014,“SXSW CRASH RAISES CONCERNS ABOUT BARRICADE SAFETY" Radio and PrintInterview by Kate McGee, NPR Station KUT in Austin Texas, March 13, 2014"WE'RE SHAMEFULLY BAD AT PROTECTING PEDESTRIANS AT EVENTS", (RobReiter quoted and provided research material and statistics) article by Sarah Goodyear, TheAtlantic Cities, March 13, 2014"SAVING LIVES AT STOREFRONT PARKING" by Robert Reiter, Parking Magazine, March8, 2014"IS YOUR STORE READY FOR PEDAL ERROR?" by Robert Reiter & Mark Wright,Storefront Safety Council, published in Convenience Store News, September 13, 2013“DATA ANALYSIS AND PREVENTION OF VEHICLE-INTO-BUILDING CRASHES”AUGUST 2, 2013. Paper co-authored by Rob Reiter and Dean Alberson and Felicia Desorcie ofthe Texas Transportation Institute at Texas A&M University"STOREFRONT CRASHES: A BIGGER URBAN DESIGN ISSUE THAN WE THINK", byMarlis Harris, MINNPOST, August 2, 2013 "THE HIDDEN EPIDEMIC OF STOREFRONT CRASHES", article by Sarah Goodyear, TheAtlantic Cities, August 1, 2013"PARKING IS A FULL-TIME JOB" - Rob Reiter collaboration with the Texas Traffic Instituteat Texas A&M University, July 25, 2013RETAIL STORE SAFETY CRASH PREVENTION CASE STUDY ON STARBUCKS , MarkWright interviews Rob Reiter on the impact of storefront crashes on Starbucks, July 15, 2013“LOW SPEED VEHICLE BARRIERS” - ASTM STANDARDIZATION NEWS UPDATE.SEP/OCT 2012Co-chairman, ASTM F12-10 Committee CRASH VICTIMS' LAWSUITS TAKE AIM AT STOREFRONT SAFETY, by Rob Reiter andSR Nh WEEE ER OE A DREN PAPEL YL,Mark Wright, December 2012NEW ASTM LOW SPEED IMPACT TESTING STANDARD TO AID IN LOWERING RISKOF STOREFRONT CAR ACCIDENTS, ASTM Standardization News Update November 2014 TTI PLAYS KEY ROLE IN CREATING NEW SAFETY STANDARD TO PREVENTSTOREFRONT CRASHES. Texas Traffic Institute at Texas A&M University December 2014STOPPING VEHICULAR ATTACKS: VEHICLE INTRUSION RISKS INCREASE by RobReiter, published in Claims Journal Magazine April 2017 How Retailers Can Avoid a Crash Course in Storefront Safety Interview with Rob ReiterSTORES Magazine, a publication of the National Retail Federation August 2017Summary of Expert Opinions of Robert Reiter In the Matter ofEllsworth Frey v Krystyna Lawina and Hatch Property Management LLCHampden County Superior Court Docket Number: 1679VC008151. Tam the principal of Reiter and Reiter Consulting Incorporated. The firmprovides consulting, product development, and business development services for companies inthe United States, Australia, and the United Kingdom related to the prevention of vehicleincursions into commercial and public areas.2. For almost twenty years, I have been involved in the manufacture, specification,testing, selling, and research of bollards and barriers for the safety and security of people,structures, and public areas, My clients and employers have included steel manufacturers,security companies, engineering companies, government entities, large energy companies, designprofessionals, and private parties, among others.3. Based on my experience, education, and training, I have become an expert inpreventing both deliberate vehicle incursions (the use of vehicles to gain entry, ramraids, vehicleattacks on pedestrians, etc.) and accidental vehicle incursions, where a driver loses control of avehicle causing it to crash into a pedestrian or retail area. I have found as a result of my training,research, and experience that such accidental vehicle-into-commercial building crashes occur asmany as 60 times per day in the United States, most commonly as a result of some sort of drivererror, and that each year as many as five hundred people are killed and approximately fourthousand people are injured in what are almost always preventable incidents.4. To that end, I have co-founded the Storefront Safety Council in order to bringattention to this pervasive problem, to promote academic and industry-focused research into thescope of the problem, to present best practices and solutions, and to educate the public, industrygroups, and code enforcement entities about emerging crash test standards and effective andaffordable solutions. Please see Storefront Safety Council5. Asa result of my work in this field, including research on the causes of suchaccidents, consultation with insurance companies and risk underwriters, my work withgovernment and civil authorities, projects undertaken for federal, state, and local municipalities,review of documentation from various court cases, and my own research investigation orreported incidents in the media, I have determined that the problem of pedal error or driver erroraccidents in parking areas such as this incident can reasonably be scen as being a foreseeableevent.6. In this matter, we have the consequence of the failure of a commercial property totake simple steps to remedy a known hazardous condition. We have sufficient information toexpress the opinion that this incident was foreseeable and it was preventable. But for thesesimple steps, no one would have been injured at this property when a vehicle inadvertently strucka pedestrian and an exterior wall of the Hampden Massachusetts Post Office.7. The police report in this case (16-20-AC, authored by Officer Nichole GURA,Hampden Police Department) indicates that at approximately 10:30 in the morning on 12 March2016, a 2000 Ford Focus being driven by Krystyna Lawina (aged 85 years at time of incident)was pulling into the Post Office building shown on the report to be located at 534 Main Street inHampden. As Ms. Lawina was pulling into the parking lot and then pulling into a parking space,some sort of driver error / pedal error occurred which resulted in the vehicle accelerating forwardrather than slowing to a stop. As a result, the vehicle overran the parking space, overran thesidewalk, and struck Mr. Ellsworth Frey (aged 76 years at time of incident) before impacting thewall of the structure. Mr. Frey suffered injury as a result of the impact, and Ms. Lawina sufferedinjury as a result of the airbag deployment. The Post Office suffered only minor damage.8. As previously stated, I am an expert in vehicle incursions, and I am an expert inthe frequency and causes of accidents where a vehicle strikes a pedestrian or building at storeslike this one. The database of the Storefront Safety Council includes over 20,000 vehicleintrusion accidents from around the United States, and my knowledge of pedestrian safety andthe prevention of vehicle incursions in retail environments is a specialty. I have written anumber of articles, participated in a number of panels and briefings, and presented on these twotopics to dozens of groups of architects, engineers, policy makers, retailers and other audiencesin many regions of the United States to educate them about solutions these safety issues.9. Vehicle incursion incidents such as in this case are frequent and they arewell known to the industry and risk managers. In 2012 Argo Insurance made a point to alertcommercial clients that such parking lot incidents like this one might represent a hazard to thepublic and AIG made safety and security devices part of their parking lot checklist since at least2014, ARGO Insurance in their “Insurance Tip of the Month” in 2013 was very specific aboutthe need for property owners to protect pedestrians from vehicle incursions:“Parking lot accidents are often foreseeable, We know that people can do unexpectedthings with their cars, A foot can slip off a clutch, causing a vehicle to jump forward and overshootparking spaces; or a driver may inadvertently step on the gas pedal instead of the brake.‘Retailers are implicitly ‘inviting’ customers to their store to shop. Because of thisinvitation, retailers are obligated to create and maintain a safe shopping environment. Enhanceyour store’s pedestrian safety and building security by installing bollards.”(attached as an exhibit in its entirety)10. Vehicle / pedestrian or vehicle / building accidents such as occurred in this caseare common at Post Offices, just as they are generally. I have attached a sample of a preliminarydata run of such incidents from our Storefront Safety Council research showing more than 125vehicle / pedestrian or vehicle / building incidents at Post Offices over a four to five-year period.11. Such vehicle / pedestrian or vehicle / building accidents have been acknowledgedby the USPS as foreseeable hazards and publicly acknowledged as such in officialdocumentation. As one example, in 2012, the Postmaster in Tampa Florida noted that there hadbeen ten such incidents at local Post Offices in a span of just fifteen months, with eight in 2012alone. It should be noted that the Post Office saw fit to put out a public document warning of thedanger of these accidents, which in their description match exactly with the incident in this case:“There are employees, customers and pedestrians at Post Offices and a vehicle accident can result in seriousinjuries, or even fatalities,Fortunately, the eight accidents have not resulted in fatalities. However, the accidents have caused injuriesand property damage,The top two causes of customers driving through Post Offices are:« Stepping on the gas pedal instead of the brake pedal.* Accelerating when the vehicle was in drive and the customer thought it was in reverse,Customers are asked to protect themselves and others by staying alert and attentive while driving in PostOffice parking lots.” ( http://about.usps.com/news/state-releases/fi/2012/f1_ 2012_0919.htm and attached)12. Vehicle / pedestrian or vehicle / building accidents such as occurred in this caseare common in Massachusetts. I have attached a sample of a preliminary data run of suchincidents from our Storefront Safety Council research showing more than 380 vehicle /pedestrian or vehicle / building incidents in Massachusetts over a four to five-year period.13. My own research and the data from the Storefront Safety Council show that morethan half of all vehicle incursion accidents are a result of some sort of driver error/pedal error,which occurred in this incident: ‘ Latest statistics onSTOREFRONT CRASHES In the U.S.INCIDENTS BY CAUSE |—— Operator Error|—— Pedal Error—— DUI—— Traffic Accident—— Medicalid —— Ramraid 14. My own research and the data from the Storefront Safety Council show that morethan 43% ofall vehicle incursion accidents involve a driver over 60 years of age, as occurred inthis incident: Latest statistics onSTOREFRONT CRASHESin the U.SINCIDENTS BY AGE 20142017 cxasn axta 02030 STOREFRONT EAETY COUNGR,15. It is my opinion that this incident was foreseeable. It was foreseeable that avehicle navigating the parking lot, or in the act of parking in a nose-in parking space in proximityto pedestrian areas, might unexpectedly overrun the parking space and make contact with apedestrian or structure. Such accidents might occur for any number of reasons — driver pedalerror, driver medical emergency, driver distraction, driver impairment, vehicle malfunction or acollision between two vehicles in motion. This parking lot arrangement identified in the policereport, which pointed vehicles at unprotected pedestrians, presented a foreseeable hazard.16. The additional details already presented also speak to the foresecability of thisincident: the presence of older drivers as clientele at Post Offices; the acknowledgement by thePost Office of how common and how dangerous such incidents are; the documentation of suchincidents at Post Offices nationally; the frequency of such incidents in Massachusetts; thewarnings presented by insurance companies and risk managers; the common risk of pedal error /driver error in parking lots.17. Finally, there is an added factor which highlights this incident being foreseeable —to the degree that it might even be considered predictable. I have been provided with a policereport ofa prior incident occurred on this very property in 1998. Driver Joyce Bethel (aged 67years) pulled her 1993 Lincoln into the same parking lot and, just as Ms. Lawina did in thiscurrent incident, Ms. Bethel made a pedal error, sending her car through the end of the parkingspace, over the sidewalk, and into the side of the building.18. Given the prior incident at the location, the risks associated nationally with PostOffice locations, and the known risk of vehicle-into-building crashes nationally and in theCommonwealth of Massachusetts, a prudent property owner should have foreseen that anothervehicle incursion incident was likely at some time, putting pedestrians and customers andemployees at the Hamden Post Office at risk.This document is a summary of my opinions, which J hold to a reasonable scientificcertainty in the above referenced fields of access control and 

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