FLYNN v. DELAWARE RIVER & BAY AUTHORITY

[Doc. No. 13]

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DENNIS FLYNN,

Plaintiff,

v. Civil No. 18-10505 (JS)

DELAWARE RIVER & BAY

AUTHORITY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

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.

Background

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

1 For purposes of clarity, Dr. Skolnick’s “present symptomology

opinions” refers to all information included in the report

sections labeled “present symptomology,” “physical exam,”

“records reviewed,” and “diagnoses”. See Skolnick Rep. at 8-11.

Dr. Skolnick’s “prognosis opinions” refers to all information

included in the report sections labeled “discussion” and

“permanency, prognosis and recommendations.” Id. at 11. Dr.

Skolnick’s “causation opinions” refers to information included

in the report section labeled “conclusion.” Id. at 12.

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.

Discussion

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 methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

FED. R. EVID. 702; see generally Daubert, supra. Because Rule

702 “clearly contemplates some degree of regulation of the

subjects and theories” to which an expert may testify, the

Supreme Court has stated:

[I]n order to qualify as “scientific knowledge,” an

inference or assertion must be derived by the scientific

method. Proposed testimony must be supported by

appropriate validation – i.e., “good grounds” based on

what is known. In short, the requirement that an expert’s

testimony pertain to “scientific knowledge” establishes

a standard of evidentiary reliability.

Id. at 590; see also Oddi v. Ford Motor Co., 234 F.3d 136, 144-

45 (3d Cir. 2000). In practice, this requires the Court to act

as a “gatekeeper” to prevent expert testimony running afoul of

Rule 702 from ever reaching the jury. See Daubert, 509 U.S. at

596-97. Thus, the Court “must determine ... whether the expert

is proposing to testify to (1) scientific knowledge that (2)

will assist the trier of fact to understand or determine a fact

in issue.” Id. at 592. “This entails a preliminary assessment of

whether the reasoning or methodology underlying the testimony is

scientifically valid and of whether that reasoning or

methodology properly can be applied to the facts in issue.” Id.

at 592-93.

The Third Circuit has described Rule 702 as embodying a

“trilogy of restrictions on expert testimony: [1] qualification,

[2] reliability, and [3] fit.” Calhoun v. Yamaha Motor Corp.,

U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider v.

Fried, 320 F.3d 396, 405 (3d Cir. 2003)). First, the witness

must be qualified to testify as an expert, which requires “that

the witness possess specialized expertise.” Id. This

requirement, however, has been interpreted liberally to

encompass “a broad range of knowledge, skills, and training.”2 In

re Paoli T.T. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).

Second, the testimony must be reliable, which demands that “the

expert’s opinion must be based upon the ‘methods and procedures

of science,’ rather than on ‘subjective belief or unsupported

speculation.’” Daubert, 509 U.S. at 590; see Calhoun, 350 F.3d

at 321. Thus, the Court must assess the “reliability of

scientific evidence under Rule 702” in order to determine “its

2 Defendants have not objected to Dr. Skolnick’s qualifications.

scientific validity.” Daubert, 509 U.S. at 590. Third, the

expert’s testimony must “fit” the case. Id. at 592. Otherwise

known as the “helpfulness” standard, this requires there be “a

valid scientific connection to the pertinent inquiry as a

precondition to admissibility.” Id. at 591-92. The fit

requirement “goes primarily to relevance.” Id. “[T]he expert’s

testimony must be relevant for the purposes of the case and must

assist the trier of fact.” Schneider, 320 F.3d at 404 (citations

omitted). The party that proffers the expert testimony bears the

burden of establishing its admissibility by a preponderance of

the evidence. Daubert at 592 n.10 (citing Bourjaily v. United

States, 483 U.S. 171, 175-76 (1987)).

Here, defendants primarily contest the opinions expressed

by Dr. Skolnick in his report by alleging they fail to satisfy

the reliability and fit requirements of Daubert. Defendants

argue Dr. Skolnick’s opinions lack a proper foundation and

amount to net opinions, and as such, are inadmissible. The Court

finds Dr. Skolnick’s opinions regarding prognosis and causation

leave too large a gap between the data presented and the

conclusions rendered, and consequently, fail to satisfy

Daubert’s reliability and fit requirements. Because Dr.

Skolnick’s opinions on plaintiff’s present symptomology are

based on his physical examination of plaintiff, the Court finds

they satisfy Daubert’s reliability and fit requirements.

1. Qualification

Since defendants do not specifically object to Dr.

Skolnick’s qualifications, it will be assumed for present

purposes Dr. Skolnick is qualified.

2. Reliability

The Court must decide whether the opinions offered by Dr.

Skolnick are based on reliable principals and methods. In

determining the reliability of expert testimony, the Court is

guided by the following principles:

(1) whether a method consists of a testable hypothesis;

(2) whether the method has been subject to peer review;

(3) the known or potential rate of error; (4) the

existence and maintenance of standards controlling the

technique's operation; (5) whether the method is

generally accepted; (6) the relationship of the

technique to methods which have been established to be

reliable; (7) the qualifications of the expert witness

testifying based on the methodology; and (8) the

nonjudicial uses to which the method has been put.

Calhoun, 350 F.3d at 321 (quoting In re Paoli, 35 F.3d at 742

n.8). However, the Court is not restricted to any “definitive

checklist or test.” Daubert, 509 U.S. at 593. This inquiry is “a

flexible one” focusing “solely on the principles and

methodology, not on the conclusions that they generate.” Id. at

595. While reliability does not require “correctness,” it does

prohibit “too great a gap between the data and the [expert’s]

opinion proffered.” Oddi, 234 F.3d at 146 (quoting Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 146 (1997)). Thus, the court “must

examine the expert's conclusions in order to determine whether

they could reliably flow from the facts known to the expert and

the methodology used.” Id. (quoting Heller v. Shaw Indus., Inc.,

167 F.3d 146, 153 (3d Cir. 1999)).

Further, the inadmissibility of net opinions is a

longstanding rule that dictates exclusion of expert testimony

that contains “bare conclusions, unsupported by factual

evidence.” Holman Enter. v. Fidelity & Guar. Ins. Co., 563

F.Supp.2d 467, 472 n. 12 (D.N.J. 2008). The net opinion rule

requires an expert to give the “why and wherefore” of the

opinion, rather than a mere conclusion. See Curtis v. Besam

Group, No. 05-CV-2807 (DMC), 2008 WL 1732956, at * 6 (D.N.J.

Apr. 10, 2008) (citing Rosenberg v. Tavorath, M.D., 352

N.J.Super. 385, 800 (N.J.Super. Ct. App. Div. 2002)). Expert

testimony, therefore, is not admissible if it appears that the

witness is unable to articulate a reasonably accurate

conclusion, as distinguished from a mere guess or conjecture.

See id. (citing Vuocolo v. Diamond Shemrock Chem. Co., 240

N.J.Super. 289, 299 (N.J.Super. Ct. App. Div. 1990)). As stated

by the court in Lasorsa v. Showboat: The Mardi Gras Casino, Civ.

No. 07-4321, 2009 WL 2929234, at *5 (D.N.J. Sept. 9, 2009),

“[w]ithout a reliable, objective basis for [an expert’s]

testimony, stemming from identifiable industry standards, codes,

publications or training, it must be precluded under Rule 702.”.

Defendant argues Dr. Skolnick’s report does not meet the

element of reliability because he fails to reveal any

methodology used to reach his conclusions. Mot. at 8. Plaintiff,

on the other hand, argues Dr. Skolnick’s report is reliable

because he based his opinions on plaintiff’s medical history and

physical examination. Pl.’s Opp’n at 4. The Court agrees with

plaintiff regarding Dr. Skolnick’s opinions on present

symptomology but disagrees with plaintiff regarding Dr.

Skolnick’s opinions on prognosis and causation. As discussed

above, Dr. Skolnick’s report provides his opinion on plaintiff’s

present symptomology based on the physical examination he

conducted. The Court finds Dr. Skolnick’s opinions on present

symptomology are reliable because they are opinions based on the

physical examination he conducted. The physical examination

conducted by Dr. Skolnick plus his years of experience as an

Orthopedic Surgeon allow the Court to conclude his opinions

regarding plaintiff’s present symptomology reasonably flow from

the facts known to him.

The Court, however, agrees with defendant regarding Dr.

Skolnick’s opinions on prognosis and causation. As noted above,

Dr. Skolnick’s report includes opinions about plaintiff’s work-

related disability, permanency and prognosis, and causation of

plaintiff’s injuries. The Court finds that nothing in the record

or in plaintiff’s medical reports links plaintiff’s cervical

spine and left upper extremity injuries to the February 11, 2016

accident.

Having read all relevant factual and medical records, the

Court finds there is no material evidence indicating that

plaintiff injured his cervical spine or left upper extremity

when he fell on February 11, 2016. Dr. Skolnick did not

articulate in his report the reason why he concluded plaintiff’s

injuries resulted from the incident. Dr. Skolnick also did not

point to any evidence in the record to support his opinions.

Further, Dr. Skolnick’s report fails to rule out the possibility

that plaintiff’s injuries resulted from his preexisting

condition and not from the February 11, 2016 incident. In fact,

Dr. Skolnick does not even meaningfully address plaintiff’s

prior injuries and their effect on his current condition. The

Court, therefore, is unable to conclude Dr. Skolnick’s opinions

on prognosis and causation “reliably flow from the facts known”

to him. See Oddi, 234 F.3d at 146. Plaintiff’s own statements

make clear that plaintiff only injured his right shoulder and

right knee and never complained about his neck or left upper

extremity. See Mot. Ex. 9-10. The Court also finds Dr.

Skolnick’s opinion that plaintiff’s “material loss of

productivity . . . is causally related to [the] accident” is not

reliable because plaintiff was able to return to work after the

accident. See Skolnick’s Rep. at 11. Therefore, Dr. Skolnick’s

opinion is based on a false fact and is not reliable.

The Court finds plaintiff has failed to show that Dr.

Skolnick’s opinions regarding prognosis and causation are

reliable. See In re Paoli, 35 F.3d at 743-44 (stating that the

proponent of an expert report must demonstrate by a

preponderance of the evidence that the expert’s opinions are

reliable). Therefore, the sections in Dr. Skolnick’s report

regarding prognosis and causation fail the reliability prong.

3. Fit

In contrast to the reliability prong of Daubert, the fit

restriction “goes primarily to relevance,” which requires the

testimony “fit” the issues in dispute and assist the trier of

fact in understanding them. Krys v. Aaron, 112 F. Supp. 3d 181,

190 (D.N.J. 2015) (quoting Daubert, 509 U.S. at 591). Put

simply, the expert’s testimony must be relevant to the case and

helpful to the jury in deciding the issues therein. This

“‘helpfulness’ standard requires a valid scientific connection

to the pertinent inquiry as a precondition to admissibility.”

Schneider, 320 F.3d at 404 (quoting Daubert, 509 U.S. at 591-

92).

Defendant argues Dr. Skolnick’s report does not pass the

test of fitness because he provides no causation analysis or

explanation for the mechanics of the alleged aggravation to

plaintiff’s neck or left upper extremity. See Mot. at 9.

Defendant further argues Dr. Skolnick’s report will not assist a

jury because it discusses incorrect statements of fact about

plaintiff’s ability to work. Id. Plaintiff, however, argues that

Dr. Skolnick’s report and testimony will assist a trier of fact

in comprehending the extent of plaintiff’s injuries. See Opp’n

at 5.

The Court disagrees with defendant’s argument regarding Dr.

Skolnick’s opinions on present symptomology but agrees with

defendant’s argument regarding Dr. Skolnick’s opinions on

prognosis and causation. Dr. Skolnick’s opinions on present

symptomology will assist a jury in understanding the extent of

plaintiff’s current symptoms. However, Dr. Skolnick’s opinions

on prognosis and causation will not assist a jury because he

does not explain how the accident caused or aggravated

plaintiff’s injuries to his neck and left upper extremity. His

opinions on prognosis and causation consist of only net

opinions. For example, Dr. Skolnick states, plaintiff’s injuries

are “directly and causally related to the accident” that

occurred on February 11, 2016. However, nowhere in his report

does Dr. Skolnick explain how plaintiff’s fall resulted in

injury to his cervical spine or left upper extremity. Further,

Dr. Skolnick’s opinion that plaintiff has been “unable to work

in any regard” after the accident is false. See Skolnick Rep. at

11. Plaintiff passed the Coast Guard Physical and returned to

work in the same position he was working before the incident

just weeks after his fall.3 See Mot. Ex. 13-14. Therefore, Dr.

Skolnick’s report will not assist a jury in understanding and

deciding the cause of his injuries.

This is not the first time Dr. Skolnick presents a court

with an inadmissible net opinion. In Mahmood v. Narisco, No. 09-

2656(DEA), 2012 WL 1067700, at *3 (D.N.J. Mar. 29, 2012). In

Mahmood, Dr. Skolnick’s report provided no basis for his

conclusion that plaintiff could only perform sedentary work and,

without reference to any medical or factual evidence, concluded

that cervical fusion is indicated. Id. The court stated, “while

such an opinion may be within his area of expertise, there are

insufficient references in the Plaintiff’s medical records and

reports of other physicians to support this opinion.” Id.

Similarly, the Court finds Dr. Skolnick’s opinions regarding

prognosis and causation should be stricken because they are

inadmissible net opinions.4 Like the court in Mahmood, this Court

3 As part of the paperwork for the Coast Guard Physical,

plaintiff answered “no” when asked about any “back pain, joint

problem, or orthopedic surgery” and denied any medical issue

other than high blood pressure. Mot. Ex. 13. Further, the

medical practitioner checked “normal” when asked about

plaintiff’s “upper/lower extremities.”

4 See also Chapnick v. U.S., No. 07 Civ. 0577(BMC), 2009 WL

5511188, at *10 (E.D.N.Y. Sept. 2, 2009) (striking Dr.

Skolnick’s report because “there is no contemporaneous evidence

of any kind proving that plaintiff suffered a shoulder injury”);

finds there is not sufficient evidence in the record to support

Dr. Skolnick’s opinions on prognosis and causation.

In addition to Mahmood, the Superior Court of New Jersey

determined Dr. Skolnick’s opinions should be stricken in

Beausejour v. Chamberlin Plumbing & Heating, Inc., A-1459-12T4,

2014 WL 300929, at *2 (N.J.Super. Ct. App. Div. Jan. 29, 2014).

In Beausejour, plaintiff appealed a judgment of the Division of

Workers’ Compensation which dismissed his claim petition against

respondent Chamberlin Plumbing & Heating for a pre-existing

lower back condition allegedly worsened or aggravated by a work-

related injury. Id. at *1. Dr. Skolnick provided an expert

report after he examined appellant on one occasion. Id. at *2.

Specifically, Dr. Skolnick opined that the accident aggravated

and exacerbated appellant’s pre-existing lumbar degenerative

disc disease. Id. The court affirmed the lower court’s ruling

and found plaintiff failed to prove the exacerbation of his pre-

existing condition was causally connected to the injury he

sustained at work. Id. at 4. Similarly, Dr. Skolnick now

provides an expert report based on his one interaction with

Pugliese ex rel. Pugliese v. Red Bank Armory, Inc., A-3715-11T4,

2013 WL 1492867, at *4 (N.J.Super. Ct. App. Div. Apr. 12, 2013)

(striking Dr. Skolnick’s report because he “offered no opinion

pertaining to the propriety of supplying a walker for the use of

skaters, or, indeed, any opinion at all relating to the walker

that was used.”).

plaintiff and fails to provide reasoning for his opinion that

plaintiff’s injuries resulted from the accident.

Therefore, the Court finds Dr. Skolnick’s opinions

regarding prognosis and causation fail the “fit” requirement

because he provides no opinion that would assist a jury in

understanding how the February 11, 2016 accident caused or

aggravated plaintiff’s neck or left upper extremity injuries.

The Court also finds Dr. Skolnick’s report contains false

information such as his claim that “after this accident,

[plaintiff] has been unable to work in any regard.” See

Skolnick’s Rep. at 11. Further, Dr. Skolnick’s report contains

net opinions as he does not explain how he reaches his

conclusions. Therefore, the Court finds Dr. Skolnick’s opinions

regarding prognosis and causation do not satisfy the “fit”

requirement as they would not assist a jury.

Conclusion

The Court finds Dr. Skolnick’s opinions regarding prognosis

and causation leave too large a gap between the data presented

and the conclusions rendered, and consequently, fail to satisfy

Daubert’s reliability and fit requirements. Therefore, Dr.

Skolnick’s opinions regarding prognosis and causation do not

meet the Daubert admissibility standard and must be stricken.

Dr. Skolnick’s opinions regarding plaintiff’s present

symptomology pass the Daubert admissibility standard and will

not be stricken.

Order

Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED this 5th day of November 2019, that

defendants’ “Motion to Preclude Plaintiffs’ Liability Expert’s

Report and Testimony” [Doc. No. 13] is GRANTED in part and

DENIED in part. Dr. Skolnick’s opinions regarding prognosis and

causation included within his November 27, 2018 liability expert

report are hereby STRICKEN. The only opinions and testimony of

Dr. Skolnick that will not be stricken are his findings and

observations regarding plaintiff’s physical examination.

s/ Joel Schneider

JOEL SCHNEIDER

United States Magistrate Judge

Date: November 5, 2019