The Powell Law Group - Personal Injury, Corporate & Municipal Law

Woman disputes location of accident
that killed young girl
by Paul Krupski, Standard-Speaker

WILKES-BARRE - The Drums woman whose car struck and killed 3-year-old Joann Torres said Friday for the first time, the plaintiffs lawyer claimed, that the fatality didn't occur at the intersection of North Church and Fern Streets.

Judith McGuinness, 74, of Beech Mountain Lakes, testified, "I'm sure it happened on Church. I'm not sure of Fern. I don't remember it happening under a light."

The little girl died after being hit by the car while crossing North Church Street on Dec. 17, 1997, headed to a nearby park to see a lighted Christmas tree.

McGuinness said she told a police officer she thought the girl was struck farther back. When she heard screams and the girl's mother, Maruja Arce, asked to be taken to a hospital, McGuinness said, "She brought the baby up from behind my car."

Defense lawyer Robert Powell challenged the disclosure, stating she never told anyone previously, not her attorney, nor her investigator nor police, the girl wasn't struck at Church and Fern.

"This is the first time you're saying she came from behind," Powell charged. McGuinness, whose ability to see while driving is at issue, said, "I had no problem seeing. I was looking at the (traffic) light at Diamond Avenue. I wasn't expecting anyone to run out on the street."

Earlier testimony determined McGuinness is essentially blind in her left eye from a childhood injury and suffers from blurred vision in her right eye.

Powell alleged she didn't keep eye doctor appointments because she didn't want to lose her driver's license and wouldn't be able to do things for her husband, who was sick at the time.

"I'm not afraid of losing my license," McGuinness said. She said she didn't go back for an eye checkup partly because of the lawsuit and because of depression and being "ashamed to see anybody."

Arce, administrator of the girl's estate, is the plaintiff in the wrongful death and survival action being heard before a jury and Judge Michael Conahan. The trial will resume on Monday.

A defense pathologist testified Friday that the girl's injuries were "inconsistent with a frontal impact."

Dr. Gary Ross testified as an expert in anatomical, clinical and forensic pathology. He said he based his opinions on the point of impact and the consciousness and suffering of the victim on police and medical reports he reviewed. He said hospital reports noted bruises of the head, face and toes but no injuries "from the neck down." "There was no indication of trauma anywhere but to her head," Ross stated.

He gave the opinion a frontal impact was untenable because a bumper impact would have resulted to multiple injuries to her body.

Ross said her injuries were "inconsistent with frontal impact. She suffered no bumper or hood injuries whatsoever." He said the evidence showed "a child hit or deflected by the side of a car. She ran into the side of the vehicle and either struck her head on the vehicle or on the sidewalk." He said the cause of death was "closed head trauma. She suffered a skull fracture." He said she was "comatose from the moment of impact. I don't believe she suffered any pain. She never regained consciousness."

His conclusions were directly at odds with testimony given Thursday by the plaintiff's expert, Dr. Wayne Ross, the medical examiner in Dauphin County who was erroneously identified yesterday as Dr. Gary Ross. They are unrelated.

Wayne Ross is a forensic and neurological pathologist also considered as an expert in biomechanics and kinematics. He concluded the girl was struck by the front bumper and suffered injuries not inflicted by bouncing off the side of a car. Gary Ross attributed small signs of body trauma to treatment procedures and said they were insignificant. He said their cause could have been insertion of a breathing tube and ventilating of her lungs or bruises from needles.

Also, he said the girl developed a bleeding disorder as part of the dying process as her vital organs shut down.

Under cross-examination, Gary Ross was asked if "this is a case of the defense only giving you records they wanted you to see." He acknowledged he didn't receive or review the autopsy findings or the report prepared by Lt. Mark Koch, the accident reconstruction expert for the Hazleton Police Department.

Koch said he found chip marks and swipes on the vehicle and reached the opinion the point of impact was the right front bumper. Dr. Wayne Ross agreed with Koch's finding.

Gary Ross said he didn't inspect the car or the child's clothing or review depositions of police officers and the report of Wayne Ross. He also said he wasn't a radiologist or qualified to read x-rays and CAT scans.

He said his report was written April 3 after a three-week review and admitted he didn't request any of the reports in preparing his opinion. He said they wouldn't have changed his opinion and that he didn't necessarily agree with Wayne Ross's opinions.

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