Opinion
Civil Action 3:17-CV-01910
12-14-2022
EDWIN GARCIA, Plaintiff, v. UNITED STATES, Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court is a motion for summary judgment filed by Defendant, the United States. (Doc. 58). Pro se Plaintiff Edwin Garcia (“Garcia”) initiated this medical malpractice action on October 18, 2017, with the filing of a complaint under the Federal Torts Claims Act (“FTCA”) against the United States Department of Veterans Affairs (“VA”), an agency of the United States. (Doc. 1). The action arises out of allegedly negligent medical care provided by physicians at the Wilkes-Barre Veterans Administration Medical Center (“Wilkes-Barre VAMC”), who Garcia alleges failed to utilize sterile equipment and/or maintain a sterile operative field during the placement of the spinal cord simulator leading to an infection. (Doc. 1, ¶ 2). For the reasons set forth herein, it is respectfully recommended that the motion for summary judgment of the United States be GRANTED.
I. Statement of Undisputed Material Facts
This factual background is taken from the statement of undisputed material facts filed by the United States. (Doc. 59). Garcia filed his response to the statement of facts and provided accompanying exhibits. (Doc. 63). The Court accepts as true all undisputed material facts supported by the record, and notes where a fact is in dispute. M.D. Pa. LR 56.1. Pursuant to Local Rule 56.1, a statement of material fact that is “disputed” shall be deemed admitted if it includes a reference to the part of the record that supports the statement and the disputing party neglects to provide record support for its position. M.D. Pa. LR 56.1. However, as Garcia now proceeds pro se, the Court liberally construes his pleadings to accurately reflect what the record provides. In addition, the facts have been taken in the light most favorable to Garcia as the non-moving party, with all reasonable inferences drawn in his favor.
Garcia was admitted to the Wilkes-Barre VAMC on April 21, 2015, for the surgical implantation of a spinal cord stimulator secondary to diagnoses of chronic low back pain with radicular pain and left lumbar radiculopathy. (Doc. 59, ¶ 1; Doc. 59-1, at 2-4). On April 24, 2015, Thomas W. Hanlon, M.D. (“Dr. Hanlon”), surgically implanted an 1192 Swift Lock Anchor Stimulator, manufactured by St. Jude Medical into Garcia at the superior endplate of the T-8 vertebrae. (Doc. 59, ¶ 2; Doc. 59-2, at 2-3). Garcia was discharged from the Wilkes Barre VA Medical Center later the same day. (Doc. 59, ¶ 3; Doc. 59-3, at 2-3).
Garcia was readmitted to the Wilkes-Barre VAMC on May 5, 2015, with a diagnosis of leukocytosis/sepsis and was placed on IV antibiotics. (Doc. 59, ¶ 4; Doc. 59-4, at 2-7). Garcia also underwent an incision and drainage of an abscess at the surgical site of the simulator implantation on May 5, 2015. (Doc. 59, ¶ 5; Doc. 59-5, at 2-4). On May 7, 2015, Garcia was diagnosed with bacteremia with cultures positive for methicillin-susceptible Staphylococcus aureus (“MSSA”), and treated with IV Vancomycin, an antibiotic, and subsequently with Cefazolin. (Doc. 59, ¶ 6; Doc. 59-6, at 2-3). On May 8, 2015, a PICC line was placed in Garcia's right upper extremity. (Doc. 59, ¶ 7; Doc. 59-7, at 2-4). On May 11, 2015, Garcia was transferred from the Wilkes-Barre VAMC to Geisinger Wyoming Valley Hospital secondary to persistent infection and bacteremia.(Doc. 59, ¶ 8; Doc. 59-8, at 2-5). On May 15, 2015, Garcia was re-admitted to the Wilkes-Barre VAMC for continued antibiotic treatment. (Doc. 59, ¶ 9; Doc. 59-9, at 2-4). On May 21, 2015, Garcia was admitted to the Wilkes-Barre Community Living Center for the completion of IV antibiotic therapy. (Doc. 59, ¶ 10; Doc. 59-10, at 2-9). Garcia was discharged from the Wilkes-Barre Community Living Center on August 1, 2015. (Doc. 59, ¶ 11; Doc. 59-11, at 2-7).
Garcia denies this averment, but does not provide record support for the denial, stating that it is “a conclusion of law to which no responsive pleading is required, none is given.” (Doc. 63, ¶ 5). Where record support for opposition is lacking, facts are deemed undisputed. See Goode v. Nash, 241 Fed.Appx. 868, 869 (3d Cir. 2007) (“[A]lthough the party opposing summary judgment is entitled to ‘the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and ‘cannot rest solely on assertions made in the pleading, legal memoranda or oral argument.'”) (internal quotations omitted).
Garcia denies this averment, but does not provide record support for the denial, stating that it is “a conclusion of law to which no responsive pleading is required, none is given.” (Doc. 63, ¶ 6). Where record support for opposition is lacking, facts are deemed undisputed. See Goode, 241 Fed.Appx. at 869.
Garcia denies this averment as stated, but does not provide record support for the denial. Garcia states: “While [Garcia] has consulted with numerous experts, [Garcia] has not ‘retained' an expert due to the current deadlines in place. By way of further response, [Garcia] has previously filed a Motion to Extent the Court's Deadlines to complete discovery. By way of still further response, [Garcia] would be able to retain an expert if the deadlines were extended.” (Doc. 63, ¶ 8). Where record support for opposition is lacking, facts are deemed undisputed. See Goode, 241 Fed.Appx. at 869.
Garcia denies this averment, but does not provide record support for the denial, stating that it is “a conclusion of law to which no responsive pleading is required, none is given.” (Doc. 63, ¶ 9). Where record support for opposition is lacking, facts are deemed undisputed. See Goode, 241 Fed.Appx. at 869.
Garcia denies this averment, but does not provide record support for the denial, stating that it is “a conclusion of law to which no responsive pleading is required, none is given.” (Doc. 63, ¶ 11). Where record support for opposition is lacking, facts are deemed undisputed. See Goode, 241 Fed.Appx. at 869.
A. Present Action
On October 18, 2017, Garcia filed the above-captioned FTCA action against the United States, alleging negligent medical care by physicians at Wilkes-Barrer VAMC. (Doc. 1). Summons was issued to the United States on October 25, 2017. (Doc. 2). After extended issues related to service of the complaint, on October 27, 2020, the United States filed an answer to the complaint. (Doc. 27). On December 9, 2020, the Court entered an Order establishing case management deadlines, including the close of fact discovery (September 3, 2021), expert disclosures by Garcia (October 3, 2021) and by the United States (November 3, 2021), completion of expert depositions (December 3, 2021), and filing of dispositive motions (January 3, 2022). (Doc. 33).
Given difficulties attenuated with arranging for Garcia's deposition secondary to Garcia's indecision as to his choice of counsel, and Garcia's resultant failure to provide answers to written discovery, on September 3, 2021, the case management deadlines were adjusted as follows: fact discovery (November 2, 2021), expert disclosures by Garcia (December 3, 2021) and by the United States (January 3, 2022), and dispositive motions (January 3, 2022). (Doc. 40). On October 28, 2021, the United States again moved the Court to extend the case management deadlines secondary to the inability to complete Garcia's deposition within the applicable discovery deadline due to Garcia undergoing surgery and a hospitalization. (Doc. 44). The Court granted the motion on October 29, 2021, and reset the deadlines as follows: fact discovery (January 21, 2022), expert disclosures by Garcia (March 2, 2022) and by the United States (April 1, 2022), and dispositive motions (April 1, 2022). (Doc. 46). On January 3, 2022, the parties submitted a joint motion to extend case management deadlines because Garcia's liability and causation expert “retired, left the county and his whereabouts are unknown”. (Doc. 47, ¶ 3). The Court granted the motion and adjusted the deadlines as follows: fact discovery (April 1, 2022), expert disclosures by Garcia (May 1, 2022) and by the United States (June 1, 2022), expert witness depositions (May 1, 2022), and dispositive motions (June 1, 2022). (Doc. 49).
On March 31, 2022, Garcia filed a motion to compel discovery and to extend case management deadlines. (Doc. 52). Following a conference between counsel and the Court, the Court entered an Order denying the portion of Garcia's motion seeking to compel discovery, but granted the request for an extension of the case management deadlines by ninety (90) days, adjusting the deadlines as follows: fact discovery (July 7, 2022), expert disclosures by Garcia (August 7, 2022) and by the United States (September 7, 2022), and dispositive motions (September 7, 2022). (Doc. 55). On July 7, 2022, Garcia filed another motion to compel and to extend case management deadline. (Doc. 56). On November 7, 2022, the Court denied Garcia's motion, finding that Garcia's discovery request for medical records was satisfied by the provision of his medical records by the United States and that Garcia had adequate time to retain a qualified expert and failed to do. (Doc. 68).
On August 8, 2022, the United States filed the instant motion for summary judgment. (Doc. 58). The motion has been fully briefed and is now ripe for disposition. (Doc. 59; Doc. 60; Doc. 63; Doc. 66; Doc. 69).
II. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 324 . If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 322-23. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan, 497 U.S. at 888; see also Thomas v. Delaware State Univ., 626 Fed.Appx. 384, 389 n.6 (3d Cir. 2015) (not precedential).
III. Discussion
Garcia's claims arise from medical treatment provided to him at Wilkes-Barre VAMC between April 24, 2015, and August 1, 2015. (Doc. 1, ¶¶ 2-7). Moving for summary judgment, the United States argues that Garcia's claims of professional negligence are subject to dismissal on two grounds: (1) that Garcia has failed to adduce reliable causation evidence necessary to demonstrate liability under the FTCA; and (2) that, even if Garcia somehow shows that he has timely disclosed evidence that the conduct alleged caused his injury, that such evidence and testimony is unreliable and should be excluded. (Doc. 60, at 4-7; Doc. 66, at 3).
The FTCA provides that “[t]he United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances ....” 28 U.S.C. § 2674. Therefore, the court will look to the substantive negligence law of Pennsylvania. See Davila v. Patel, 415 F.Supp.2d 528, 529 (E.D. Pa. 2005). In Pennsylvania, medical negligence, or medical malpractice, is defined as “the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa. 1939)). Under Pennsylvania law in order to establish a cause of action for professional negligence, the plaintiff must prove the following:
(1) a duty owed by the physician to the patient (2) a breach of duty from the physician to the patient (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm.
Mitzelfelt v. Kamrin, 584 A.2d 888, 891 (Pa. 1990).
To satisfy the burden of providing a medical malpractice claim the plaintiff “is also required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Mitzelfelt, 584 A.2d at 892 (citing Brannan v. Lakenau Hosp., 417 A.2d 196 (Pa. 1980)); see also Toogood, 824 A.2d at 1145 (“[A] plaintiff must present medical expert testimony to establish that the care and treatment of the plaintiff by the defendant fell short of the required standard of care and that the breach proximately caused the plaintiff's injury.”).
As to causation “‘[w]hat the expert [report] must demonstrate is that the negligence of the defendant either proximately caused the plaintiff's harm, or increased the risk of its occurrence.'” Grossman v. Barke, 868 A.2d 561, 572 (Pa. Super. Ct. 2005) (quoting Watkins v. Hosp. of the Univ. of Pa., 737 A.2d 263, 267 (Pa. Super. Ct. 1999)); see also Vicari v. Spiegel, 936 A.2d 503, 510 (Pa. Super. Ct. 2007) (“Additionally, a ‘medical opinion need only demonstrate, with a reasonable degree of medical certainty, that a defendant's conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm.'”) (quoting Smith v. Grab, 705 A.2d 894, 899 (Pa. Super. Ct. 1997)).
A. Substantive Causation
The United States argues that Garcia's negligence claims fail because he has not produced sufficient causation evidence. (Doc. 60, at 6). specifically, the united states contends that expert testimony on causation is required here because Garcia's complaint includes claims that the surgeon implanted a non-sterile spinal cord simulator, which thereafter resulted in Garcia acquiring MssA and that Garcia was not appropriately medically treated for the resulting infection. (Doc. 1, ¶ 2). in response, Garcia submits:
While [Garcia] has consulted with numerous experts, [Garcia] has not “retained” an expert due to the current deadlines in place. By way of further response, [Garcia] has previously filed a Motion to Extent the Court's Deadlines to complete discovery. By way of still further response, [Garcia] would be able to retain an expert if the deadlines were extended.(Doc. 63, ¶ 8).
A plaintiff can establish a prima facie case of negligence by proving the following four elements: “(1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Estate of Swift by Swift v. Northeastern Hosp., 690 A.2d 719, 722 (Pa. super. 1997). under Pennsylvania tort law, a plaintiff must prove a requisite causal connection between a defendant's wrongful act and his injuries. Reott v. Asia Trend, Inc., 55 A.3d 1088, 1103 (Pa. 2012). The Pennsylvania superior Court stated, with respect to Garcia's burden of proof, that:
Section 1346(b) of the FTCA gives federal district courts exclusive jurisdiction over claims for money damages against the united states for those torts cognizable under state law that are committed by federal employees acting within the scope of their employment. 28 U.S.C. § 2679(b)(1); 28 U.S.C. § 1346(a), (b); see generally United States v. Orleans, 425 U.S. 807, 813 (1976) (limited waiver). in this case, the Court must look to Pennsylvania state law to determine whether Garcia can meet his burden to prove each element of a tort. See Cecile Indus., Inc. v. United States, 793 F.2d 97, 99 (3d Cir. 1986); Gould Elec., Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000) (citing 28 U.S.C. § 1346(b)).
To prove causation, a demonstration that the breach of duty was both the proximate cause and actual cause of injury [is] required. It is not sufficient ... that a negligent act may be viewed, in retrospect, to have been one of the happenings in the series of events leading up to an injury. Even if the requirement of actual causation has been satisfied, there remains the issue of proximate or legal cause. The determination of proximate cause is primarily a problem of law and must, as a threshold matter, be determined by the judge and it must be established before the question of actual cause is put to the jury.
Eckroth v. Pa. Elec., Inc., 12 A.3d 422, 427-428 (Pa. Super. 2010).
In a personal injury case, “[g]enerally, causation must be established through expert medical testimony.” Lattanze v. Silverstrini, 448 A.2d 605, 608 (Pa. Super. Ct. 1982) (discussing the applicable causation standard in a motor vehicle accident case). There is an exception to the general rule requiring expert medical testimony on causation only when “an obvious causal relationship exists where the injuries are either ‘immediate and direct' or the ‘natural and probable' result of the negligent act.” Lattanze, 448 A.2d at 608. Furthermore, “[t]he two must be ‘so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection' ....” Lattanze, 448 A.2d at 608 (quoting Smith v. German, 253 A.2d 107, 109 (Pa. 1969) (internal citations omitted)). Courts do require expert medical testimony on causation when “there were other equally likely or more likely causes of the injury.” Lattanze, 448 A.2d at 609. The necessity of medical testimony depends upon the particular facts of each case. SeeFlorig v. Sears, Roebuck & Co., 130 A.2d 445, 447 (Pa. 1957).
Here, the circumstances of this case dictate that medical testimony is necessary to establish causation. If a connection between Garcia's injury and alleged incident that took place at the Wilkes-Barre VAMC between April 24, 2015, and August 1, 2015, was “readily apparent,” expert testimony on causation may have been excused. However, causation is not “readily apparent” in this case. Attached to Garcia's complaint is a one-page letter authored by Thomas Alapatt, M.D. (“Dr. Alapatt”). (Doc. 1, at 3). Dr. Alapatt opines that: “More likely than not, the infection that Mr. Garcia sustained was due to an infected neck that contained MSSA (Methicillin Sensitive Staphylococcus Aureus) and E. Cola (sic)”. (Doc. 1, at 3) (emphasis added). Furthermore, Dr. Alapatt states, in summary: “These ailments and drug abuse, more likely than not, due to the surgery, leading to sepsis, leading to a back wound that does not heal and increasing pain in Mr. Garcia ....” (Doc. 1, at 3) (emphasis added).
However, notably, in a motion to compel, Garcia subsequently advised the Court that Dr. Alapatt will not serve as an expert witness for him and that Dr. Alapatt has “left the country and his whereabouts were (sic) unknown.” (Doc. 56, ¶ 4). If Garcia does not intend to rely on Dr. Alapatt's report, the undersigned notes that despite having seven months to retain an expert to review this matter and prepare an expert report supportive of his claims, Garcia has failed to retain an expert. (Doc. 33; Doc. 40; Doc. 46; Doc. 49). As noted by the Court in the Order denying Garcia's motion for extension of case management deadlines, the deadline for Garcia's production of expert reports has passed. (Doc. 68); see Fed.R.Civ.P. 26(a)(2)(D).
Nevertheless, the records give no indication that Garcia's surgery on April 24, 2015, is the obvious and immediate cause of his diagnosis of leukocytosis/sepsis on May 5, 2015. Under these circumstances, factfinders need a qualified medical expert to explain and opine on how the symptoms and treatments may have been different and how the surgery of April 24, 2015, may have caused the leukocytosis/sepsis. Garcia's assertions regarding the different treatments, diagnoses, and ramifications of the underling incident only appear as argument in the complaint and subsequent briefing, and are not discussed by competent experts. For these reasons, Garcia has not met his burden to establish that the alleged incident that took place at the Wilkes-Barre VAMC between April 24, 2015, and August 1, 2015, caused any injury and/or damages. Because he has not established substantive support for the causation element, Garcia cannot support his professional (medical) negligence claims.
Further, as this Court has previously determined, more than adequate time has passed for Garcia to have retained a qualified expert, and he has failed to do so. This matter has been pending for over five years. Accordingly, it is recommended that the motion for summary judgment of the United States be granted.
B. Evidentiary Causation
As an additional basis for summary judgment, the United States argues that any proffered causation evidence, namely Dr. Alapatt's letter, is unreliable and inadmissible. (Doc. 60, at 6-8). The United States avers that Dr. Alapatt's letter “is deficient as a matter of law in that the opinions expressed therein failed to meet the legal threshold for admissibility,” because “[t]estimony proffered that is ‘more likely than not' or ‘more probable than not' fails to satisfy the standard for admissibility.” (Doc. 60, at 7-8). Garcia has not addressed these admissibility and reliability arguments.
Expert opinion testimony from a physician is only proper if the opinion is held “to a reasonable degree of medical certainty.” McCann v. Amy Joy Donut Shops, 472 A.2d 1149, 1151 (Pa. Super. 1984); Cohen v. Albert Einstein Medical Ctr., 592 A.2d 720, 724 (1991) (“Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about that injury.”) (quoting Kravinsky v. Glover, 396 A.2d 1349 (1979)). The medical certainty requirement is part of a plaintiff's burden of proof under the Federal Tort Claims Act. SeeIn re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 752 (3d Cir. 1994). As the Pennsylvania Supreme Court noted, courts require that expert medical opinions be held to a reasonable degree of medical certainty because “if the plaintiff's medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.” McMahon v. Young, 276 A.2d 534, 535 (1971). An expert's use of the word “apparent” to characterize any conclusion on causation can demonstrate the opinion is not held with the requisite certainty, in the absence of any other more-concrete statements. See e.g., McCann, 472 A.2d at 1151; Karkalas v. Martin, 2016 WL 5920417, at *8 (Pa. Super. Ct. Sept. 6, 2016) (finding treatment notes stating that the defendant “apparently missed” the diagnosis were not sufficient to establish proximate cause on a traffic accident case). Similarly, “an expert fails the standard of certainty if he testifies that the alleged cause ‘possibly' or ‘could have' led to the result, that it ‘could very properly account' for the result, or even that it was ‘very highly probable' that it caused the result.” Kravinsky, 396 A.2d at 1355-56. In similar instances, where a treating physician's statements reflect that the physician only treated and diagnosed the patient-rather than conduct any analysis of causation-courts have found the plaintiff cannot meet the burden of proof on causation. See Gapsky v. RTM Acquisition Co., LLC, 2014 WL 10979830, at *2 (Pa. Super. Mar 7, 2014) (affirming summary judgment for the defendant after plaintiff offered as evidence of causation only the notes of a treating physician stating that the plaintiff's “story seems consistent with an infestation of salmonella . . .”) (citing Griffin v. UPMC, 950 A.2d 996 (Pa. Super. Ct. 2008); and McCann, 472 A.2d 1149).
Here, even if Garcia intended to rely on Dr. Alapatt's letter as support for his claims, the report is deficient to support his claims of professional negligence as the opinions expressed therein fail to meet the legal threshold for admissibility. The letter does not state that any conclusion was reached with any degree of medical certainty. (Doc. 1, at 3).
Furthermore, the letter states that it is “[m]ore likely than not, the infection that Mr. Garcia sustained was due to an infected neck that contained MSSA (Methicillin Sensitive Staphylococcus Aureus) and E. Cola (sic)”. (Doc. 1, at 3) (emphasis added). Because Dr. Alapatt uses the phrase “more likely than not,” his opinion reaches no opinion on the cause of Garcia's injury to the required degree of medical certainty. See McMahon, 276 A.2d at 535 (physician's testimony that arthritic condition was probably caused by automobile accident was not made with sufficient certainty and was not competent evidence to prove causation). Therefore, the undersigned finds that any opinions disclosed in Dr. Alapatt's letter lack certainty and would therefore be inadmissible.
Accordingly, the undersigned recommends that motion for summary judgment be granted on the basis that the proffered opinion a by Dr. Alapatt are inadmissible.
IV. Recommendation
Based on the foregoing, it is respectfully recommended that Defendant's motion for summary judgment (Doc. 58) be GRANTED, and the Clerk of Court be directed to CLOSE this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 14, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.