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Flynn v. Delaware River & Bay Authority

United States District Court, D. New Jersey, Camden Vicinage

November 5, 2019

DENNIS FLYNN, Plaintiff,


          Joel Schneider United States Magistrate Judge

         This 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.


         Plaintiff 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.

         Plaintiff's 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].

         At the 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.

         Fact 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. ¶ 10.

         As 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.[1] 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. Id.

         Defendant 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. Id.

         In 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.


         Federal 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, provided that:

(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 ...

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