United States District Court, D. New Jersey, Camden Vicinage
MEMORANDUM OPINION AND ORDER
Schneider United States Magistrate Judge
matter is before the Court on the “Motion to Preclude
Plaintiff's Expert Report and Testimony”
(“motion”) filed by defendant Delaware River
& Bay Authority (“defendant” or
“DRBA”) [Doc. No. 13]. The Court received
plaintiff's opposition [Doc. No. 17] and defendant's
reply [Doc. No. 18]. The Court exercises its discretion to
decide plaintiff's motion without oral argument. See
Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be set
forth in this Memorandum Opinion and Order, defendant's
motion is GRANTED in part and DENIED in part. All opinions
relating to prognosis and causation contained in Dr.
Skolnick's expert report are STRICKEN. Defendant's
motion is DENIED as to Dr. Skolnick's findings and
observations concerning plaintiff's physical examination.
Dennis Flynn (“plaintiff”) commenced this action
on June 13, 2018 in the United States District Court of New
Jersey, asserting various claims against defendants Delaware
River & Bay Authority (“DRBA”), John Does
1-10, and The Doe Legal Entity 1-10, including causes of
action under the Jones Act, 46 U.S.C. § 30104, and
general maritime law. See Compl. ¶ 5-10 [Doc. No. 1]. On
August 16, 2018, the parties consented to the jurisdiction of
this Court to handle this matter pursuant to 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73. See Doc. No. 10.
claim arises from an incident which allegedly took place on
or about February 11, 2016. See Mot. at 1. Plaintiff was the
pilot of a passenger ferry vessel and allegedly suffered
injuries from an accident that occurred on the M/V Cape
Henlopen. See Compl. ¶ 5. Plaintiff alleges he was
thrown from his chair and suffered injuries to his shoulder
and neck as a result of the accident. See Aff. of Counsel
Oliver T. Barry ¶ 3 [Doc. No. 17].
time of the accident, plaintiff was being treated for neck
problems, diagnosed as “moderate to severe degenerative
discogenic disease with foraminal encroachment.” Mot.
at 2. On April 15, 2015, plaintiff consulted an orthopedic
surgeon, Dr. Stephen Dante, for his neck condition.
Id. Dr. Dante recommended a laminectomy and fusion
surgery to address plaintiff's neck complaints.
Id. The record indicates plaintiff was planning to
move forward with the cervical surgery to address persistent
pain and worsening numbness in his fingers. Id.
(citing Exs. 6, 7). On the day of the accident, ambulance
records indicate plaintiff complained of injuries to his
right shoulder and knee, and specifically denied neck or back
pain. Id. at 3. Further, when plaintiff was taken to
Cape Regional Medical Center, he only complained about his
right shoulder and knee. Id. After the accident,
even though plaintiff continued seeing Dr. Dante, his records
do not mention the February 11, 2016 incident, nor do they
indicate it was ever discussed. Id.
discovery ended on March 29, 2019 and plaintiff's expert
reports were due on April 30, 2019. Doc. No. 9. On or about
February 5, 2019, plaintiff served a copy of the November 27,
2018 report of his trial expert, Orthopedic Surgeon Cary
Skolnick, M.D. Defendant then served a narrative report from
Orthopedic Surgeon Dr. Jeffrey Malumed, M.D. See Aff. of
Counsel Oliver T. Barry ¶ 7. The parties' medical
experts agree that plaintiff suffered a rotator cuff tear as
a result of the accident. Id. ¶ 9. However, the
medical experts disagree whether plaintiff suffered any
aggravation of preexisting damage in his cervical spine, with
complications in his left upper extremity. Id.
noted, Dr. Skolnick issued a report in which he opined on
plaintiff's injuries. See Dr. Skolnick's Report
(“Skolnick Rep.”) [Doc. No. 13-3]. Dr.
Skolnick's report contains three types of opinions: (1)
present symptomology opinions; (2) prognosis opinions; and
(3) causation opinions. After providing a detailed review of
plaintiff's medical history, Dr. Skolnick discusses
plaintiff's present symptoms, the physical examination he
conducted, and his diagnosis based on his physical
examination. Id. at 8-11. Next, Dr. Skolnick
discusses plaintiff's alleged work-related disability and
states, “[a]fter this accident, [plaintiff] has been
unable to work, in any regard.” Id. at 11.
Last, Dr. Skolnick makes conclusory statements about
plaintiff's injuries and states, for example,
“[t]he cervical spine, right shoulder and left upper
extremity were weakened by this injury and damaged, and will
be predisposed to further injury from aggravation and trauma
which would not have otherwise bothered the patient prior to
the accident.” Id. Dr. Skolnick further opines
with “a reasonable degree of medical probability”
that plaintiff's injuries and treatment are directly and
causally related to the February 11, 2016 accident.
Id. at 12. Dr. Skolnick contends the injuries
sustained by plaintiff have “produced demonstrable
medical evidence, of an objective nature, of restriction in
the function, and in the material lessening, of the
patient's working ability . . . [and] ability to fully
perform activities of daily life.” Id.
Further, Dr. Skolnick opined “with a reasonable degree
of medical certainty” that plaintiff suffered permanent
injury to “the cervical spine, right shoulder and left
upper extremity” as a result of the accident.
moves to strike Dr. Skolnick's report contending it fails
to satisfy the requirements of Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Defendant argues Dr. Skolnick's report should be stricken
because it “fails to reveal any methodology used to
reach his opinions, and fails to set forth any verifiable
standards or any medical evidence in the record to support
his opinion. As such, it is a net opinion and should not be
admitted.” Mot. at 8. Defendant also argues Dr.
Skolnick's report should be stricken because he fails to
explain how he concluded plaintiff's injuries were caused
or aggravated by the February 11, 2016 accident. Id.
at 10. Defendant further argues that Dr. Skolnick has been
involved in numerous cases like the one at hand where courts
found his report constituted net opinions and excluded his
report and testimony. Id. at 12. Last, defendants
argue Dr. Skolnick's report contains incorrect
information about the plaintiff, specifically relating to his
ability to work, which is likely to confuse the jury.
opposition, plaintiff argues that if defendant's motion
is granted, it should be limited to barring testimony
relating to any aggravation of the condition of
plaintiff's neck but permit testimony as to the shoulder
injury plaintiff suffered. See Pl.'s Opp'n at 3 [Doc.
No. 17]. Plaintiff argues that because both defendant and
plaintiff's experts come to the same conclusion regarding
plaintiff suffering a rotator cuff tear, Dr. Skolnick should
be allowed to testify about that subject matter. Id.
at 2. Plaintiff further argues Dr. Skolnick's report is
not a net opinion because he reviewed plaintiff's medical
records and conducted a physical examination, and it is
generally accepted that medical experts can reach conclusions
based on a review of medical records and a physical
examination of the patient. Id. at 4. Last,
plaintiff argues Dr. Skolnick's testimony will assist the
trier of fact in assessing what injuries or aggravation of
preexisting injuries were causally related to the accident.
Id. at 5.
Rule of Evidence 702 governs the admissibility of expert
testimony, permitting a witness “qualified as an expert
by knowledge, skill, experience, training, or
education” to testify in the form of an opinion,
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and