Opinion
CIVIL ACTION NO. 01-5819
December 30, 2003
MEMORANDUM
On December 3, 1999, plaintiff Carroll Lee Johnson ("plaintiff") slipped and fell while working as a dockworker at the Delaware River Refinery, Pier 3. Approximately one week later, on December 10, 1999, plaintiff suffered a stroke. Plaintiff claims that the stroke was caused by his fall on December 3, 1999. Plaintiff's third amended complaint brings claims against Vane Line Bunkering, Inc. ("defendant") under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b), in admiralty and negligence, and for loss of consortium on behalf of plaintiff's wife.
Presently before the court is defendant's renewed motion in limine to preclude expert testimony and for summary judgment. For the reasons that follow, the court finds that the plaintiff's expert report and proffered testimony satisfy the requirements of reliability and relevance established by the Supreme Court in Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993) and crafted into Fed.R.Evid. 702. Therefore, defendant's renewed motion in limine and for summary judgment shall be denied.
I. BACKGROUND
In order to satisfy his prima facie case, plaintiff must show that the December 3, 1999 accident on the pier caused the stroke he suffered on December 10, 1999. Initially, plaintiff sought to establish causation through the medical opinion of his treating physician, Dr. Stephen Penny ("Dr. Penny"). Dr. Penny's report, dated January 2, 2003, in its entirety reads as follows:
It is my opinion with a reasonable degree of medical certainty that Mr. Johnson suffered multiple posterior circulation strokes due to basilar artery thrombosis, secondary to vertebral artery dissection as a result of his accident of December 3, 1999.
Def. Mem. Summ. Judg. at Exhibit 7.
By order dated May 27, 2003, this court ruled that Dr. Penny's report was subject to the strictures of Fed.R.Civ.P. 26(a)(2) because it contained opinions as to causation and went beyond what was necessary to provide appropriate medical care. The court found that the January 2, 2003 report did not meet the requirements of the Rule and ordered the report excluded. Because excluding Dr. Penny's report would mandate dismissal of plaintiff's case — given that plaintiff would be left without any evidence of causation — the court granted plaintiff leave to file a supplemental report which complied with Fed.R.Civ.P. 26(a)(2). In response, plaintiff submitted three supplemental expert reports from Dr. Penny, one dated June 2, 2003, and two dated June 9, 2003. Thereafter, defendant deposed Dr. Penny pursuant to Fed.R.Civ.P. 26(b)(4)(A).
Under the rule, the report is required to contain, inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Fed.R.Civ.P. 26(a)(2)(B).
Defendant has now filed a renewed motion in limine to preclude Dr. Penny's reports and opinion on causation and a renewed motion for summary judgment. According to defendant, Dr. Penny's supplemental expert reports and opinion on causation still do not satisfy Fed.R.Civ.P. 26(a)(2), Fed.R.Evid. 702, and the standard established in Daubert for determining the reliability and relevancy of expert opinions. Accordingly, defendant argues that summary judgment is warranted because, absent Dr. Penny's opinion on causation, plaintiff cannot make out a prima facie case of causation between the alleged negligence of defendant and plaintiff's injury.
II. DISCUSSION
A. Standard for Summary Judgment.
A court may grant summary judgment only when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" only if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is "genuine" only when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. In determining whether there exist genuine issues of material fact, all inferences must be drawn, and all doubts must be resolved, in favor of the non-moving party. Coreqis Ins. Co. v. Baratta Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).
B. The Court's Gatekeepinq Role Under Daubert.
Under Daubert, a "trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."Daubert, 509 U.S. at 589. Expert testimony is admissible only where "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.
In order to constitute "scientific knowledge," the expert's proposed opinion "must be derived by scientific method . . . and supported by appropriate validation, i.e., `good grounds.'" Id. at 590. Second, expert testimony is deemed to assist the trier of fact to understand or determine a fact in issue where "the expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id. at 591. "The consideration has been aptly described . . . as one of `fit.'" Id. In other words, Daubert requires a "valid scientific connection to the pertinent inquiry as a precondition to admissibility" of expert testimony. Id. at 592. "This requires a preliminary assessment of whether the reasoning or methodology underlying the [proposed] testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 593.
Factors that may guide a district court's preliminary assessment of these requirements include: (1) whether the methodology can and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error of the methodology; and (4) whether the technique has been generally accepted in the proper scientific community. Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999) (citing Daubert, 509 U.S. at 593-94). The district court's role as the gatekeeper is a "flexible one" and "the factors are simply useful signposts, not dispositive hurdles that a party must overcome in order to have expert testimony admitted." Heller, 167 F.3d at 152.
In addition to the factors listed above, the Third Circuit has suggested that the district court consider additional factors including: (1) the existence and maintenance of standards controlling the technique's operation; (2) the relationship of the technique to methods which have been established to be reliable; (3) the expert witness's qualifications; and (4) the non-judicial uses to which the method has been put. Heller, 167 F.3d at 152 (citing In re Paoli R.R. Yard PCB Liticr., 35 F.3d 717, 742 n. 8 (3d Cir. 1994)).
C. Dr. Penny's Qualifications.
Defendant does not challenge Dr. Penny's qualifications. Dr. Penny received his medical degree from Thomas Jefferson Medical College in Philadelphia, PA. He is board certified by the American Board of Neurology and Psychiatry and has attended numerous conferences within his field. By his own estimate, Dr. Penny has seen more than 500 patients with neurological conditions.
D. The Methodology Employed by Dr. Penny.
1. Differential diagnosis for treatment and for causation.
Following the accident on December 3, 1999, plaintiff was seen by emergency room physicians at Christiana Hospital. On December 7, 1999, just four days later, plaintiff was seen again by emergency room physicians this time at Kent General Hospital. Three days later, on December 10, 1999, plaintiff suffered a stroke. On this day, plaintiff was examined by Dr. Penny, who proceeded to perform certain medical tests on plaintiff at both Dr. Penny's office and at Kent General Hospital.
In support of the admissibility of Dr. Penny's opinion and report, plaintiff contends that Dr. Penny employed a medical method known as "differential diagnosis" to both diagnose plaintiff and determine the cause of plaintiff's injuries. As plaintiff would have it, differential diagnosis is "universally" recognized as valid and is "consistent" with the medical literature. By utilizing differential diagnosis, plaintiff argues "Dr. Penny adhered to the accepted practice in the community for diagnosing and treating plaintiff's condition, as well as opinion on issues of causation." Plain. Mem. Opp. Summ. Judg. at 16. The court agrees.
The Third Circuit has "recognized `differential diagnosis' as a technique that involves assessing causation with respect to a particular individual." See Kannankeril v. Terminix Int'l, 128 F.3d 802, 807 (3d Cir. 1997). "Differential diagnosis is defined for physicians as `the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings.'" Id. (quoting Stedman's Medical Dictionary 428 (25th ed. 1990)). Indeed, this Circuit has indicated that "[differential diagnosis . . . is `the basic method of internal medicine,'" Heller, 167 F.3d at 156 (quoting Paoli, 35 F.3d at 755). Thus, the court finds that differential diagnosis is a scientifically valid method of determining the cause of a patient's medical condition.
Defendant contends, however, that Dr. Penny's opinion as to causation (contained in the reports of June 2, 2003 and June 9, 2003) was not the result of differential diagnosis because, at the time Dr. Penny formulated his conclusion as to the cause of plaintiff's condition on December 10, 1999, Dr. Penny's "overwhelming and major concern" was treatment of the patient and not determining the cause of the stroke.
Defendant relies on Turner v. Iowa Fire Equipment Co., 229 F.3d 1202, 1208 (8th Cir. 2000), in which the Eighth Circuit drew a distinction between differential diagnosis (as understood within the medical community) for the purpose of identifying a patient's condition and differential diagnosis (as understood within the legal community) for the purpose of identifying the cause of a patient's condition. According to Turner, "medical" differential diagnosis, is untested, not peer-reviewed, and not generally accepted for making determinations of causation. Id. "Legal" differential diagnosis, on the other hand, is performed for the purpose of identifying cause and makes an "attempt to consider all possible causes, or the exclude each potential cause until only one remained, or to consider which of two or more non-excludable causes [is] the more likely to have cause the condition." Id. at 1208.
Turner is not helpful in this case for two reasons. One, the court notes that this strict distinction between "medical" and "legal" differential diagnosis has not been recognized in the Third Circuit. See Kannankeril, 128 F.3d at 807(using the definition of "differential diagnosis" as used by physicians in acknowledging that differential diagnosis involves assessment of causation). Two, Turner excluded the medical opinion of a treating physician because he failed to "rule outall other possible causes" while making his initial determination of causation. Turner, 229 F.3d at 1208 (emphasis added). This standard is more stringent than the standard established in the Third Circuit which provides that a physician need not rule out every possible cause "so long as he or she employed sufficient diagnostic techniques to have good grounds for his or her conclusion." Paoli, 35 F.3d at 761; see also Heller, 167 F.3d at 156 (an expert is "not required to rule out all alternative possible causes") (emphasis in original).
For these reasons, the court finds that differential diagnosis is a scientifically valid method of determining the cause of a patient's medical condition and that Dr. Penny's report will not be excluded solely on the defendant's contention that Dr. Penny's focus, while examining the plaintiff on December 10, 1999, was primarily on treating the plaintiff and not determining the cause of the stroke.
2. Differential diagnosis as applied by Dr. Penny.
The court must now determine whether Dr. Penny applied differential diagnosis in a reliable manner. At his deposition, Dr. Penny explained his use of differential diagnosis as follows:
Q: Okay. Did you utilize differential diagnosis in reaching your determination?
A: Yes.
Q: Did you utilize differential diagnosis in reaching your causation opinion with respect to Mr. Johnson?
A: Yes.
* * *
Q: Can you take me through that differential diagnosis?
A: When I was initially evaluating the patient, I had several concerns which had already been exclude (sic) by the emergency visit such as a brain tumor, an intracranial (sic) hemorrhage, a fractured skull, a collection of fluid on the outside of the brain. Those things had been excluded with the reports of the imaging study the CAT scan that I had from Kent General Hospital on 12/7/99. So a significant portion of the differential diagnosis was already excluded. It was further excluded as part of my evaluation, I performed an MRI of his brain and saw that he had multiple strokes . . .[H]e also had the MRA at the same time that showed a thrombosis in the basilar artery.
* * *
Q: After the MRA, did you confirm you differential diagnosis for the stroke?
A: Very clearly. Although, again, you could still mention other potential causes although the likelihood was very low.
Q: And eventually as you indicated before at some point you reached a determination that that [dissection] in fact was the cause [of the strokes]; is that correct?
A: That's correct.
Q: Now when you're making that determination, what other causative potentials were in the diagnostic differential diagnosis?
A: Atherosclerotic disease of the vessels in the brain causing stroke, a cardiac, a problem with his heart which would predispose him to formation of blot clots in his heart which could travel to the brain and cause strokes, an unknown problem with his blood coagulation system which might render him to [be] more likely to suffer a stroke.
Q: Now how did you go about ruling out these other causatives potentials?
A: During his hospitalization he had a diagnostic testing done trying to exclude some of those other potential causes.
* * *
Q: Okay. With respect to the first atherosclerotic disease of the vessels, how did you go about ruling that out as cause?
A: The patient underwent a cerebral angiogram on 12/10/99. Which is a test that can access the presence of atherosclerotic disease very accurately,
* * *
Q: What is your understanding of what the results of that test are?
A: There were several findings. One of which there was not significant atherosclerotic disease in the proximal vessels in the chest and the proximal vessels in the neck. . . .[T]here was an occlusion in the distal vertebral artery and the basilar artery.
Penny, Dep. Tr. at 69-70, 73-77, 81-82.
Based on Dr. Penny's deposition testimony of the methodology utilized, the court concludes that Dr. Penny "engaged in [differential diagnosis] in a reliable manner, ordering standard laboratory tests, physically examining the plaintiff, taking medical histories, and considering alternative causes of the plaintiff's illness." Heller, 167 F.3d at 156. It is uncontested that Dr. Penny ordered a carotid doppler study, a MRI and MRA and took a complete physical and neurological examination of the plaintiff. In addition, Dr. Penny reviewed plaintiff's medical records of December 10, 1999, including a MRI and MRA from Kent General Hospital and, at the very least, received an oral communication regarding the December 7, 1999 medical report from Kent General Hospital. Further, Dr. Penny reviewed plaintiff's medical records from prior consultations with Dr. Penny in July and September of 1999 and consulted with other doctors in his office on December 10, 1999. "[P]erformance of standard diagnostic techniques provides prima facie evidence that a doctor has considered such causes and has attempted to test his or her initial hypothesis." Paoli, 35 F.3d at 759.
Defendant takes issue with Dr. Penny's methodology based on Dr. Penny's alleged failure to review "critical" medical records of the plaintiff. Specifically, defendant asserts that Dr. Penny failed to review (and has never reviewed) plaintiff's emergency room records of December 3, 1999 and December 7, 1999 and plaintiff's deposition.
Defendant also indicates that Dr. Penny failed to review the medical records of a "Dr. Dolnick," but provides no basis as to the importance or relevance of these records.
Defendant argues that these records evidence the failure of Dr. Penny's expert report to "fit the facts." According to defendant, the medical records from December 3, 1999 and December 7, 1999 do not indicate that plaintiff suffered from any headache or neck pains. Further, defendant asserts that plaintiff denied having any headache or neck pain in his deposition. Defendant argues that, if Dr. Penny had reviewed these medical records and plaintiff's deposition testimony, Dr. Penny would have found that plaintiff's medical history was not consistent with the teachings of an article published in the Canadian Journal of Neurological Sciences (the "Canadian Journal"), which was cited by Dr. Penny in his report, dated June 9, 2003. According to defendant, the Canadian Journal reportedly indicates that "neck pain is present in 88% of vertebral artery dissections and is a warning sign in over half." Had Dr. Penny examined the medical reports of December 3, 1999 and December 7, 1999, defendant contends Dr. Penny would have recognized that plaintiff's complaints were not consistent with vertebral artery dissection. In this case, the court concludes that the alleged failure of Dr. Penny to review the medical reports of the December 3, 1999 and December 7, 1999 do not render his opinion unreliable.
Vertebral artery dissection is an increasingly recognized cause of stroke in patients younger than 45 years. E-Medicine: Vertebral Artery Dissection at http://www.emedicine. com/emerg/topic832.htm. An expanding hematoma in the vessel wall is the root lesion in vertebral artery dissection. This intramural hematoma can arise spontaneously or as a secondary result of minor trauma, through hemorrhage of the vasa vasorum within the media of the vessel. Id.
There is substantial disagreement between the parties as to whether or not plaintiff had a vertebral artery dissection on December 10, 1999. During the hearing on the renewed motion in limine and summary judgment, defendant's counsel argued that Dr. Penny's interpretations of diagnostic studies on the plaintiff are inconsistent with each other and with the observations made by Dr. Michael Amygdalos, a radiologist at Kent General Hospital. Defendant also argues that if Dr. Penny had reviewed the records from December 10, 1999 after the onset of this litigation, he would have identified these inconsistencies.
Rather than going to the methodology employed by Dr. Penny, and hence, the reliability of his report and opinion, these arguments, which the court considers "contrary evidence," go to the basis of his opinion.Heller, 167 F.3d at 152. "Daubert does not set up a test of which opinion has the best foundation, but rather whether any particular opinion is based on valid reasoning and reliable methodology. Admissibility decisions focus on the expert's methods and reasoning; credibility decisions arise after admissibility has been determined." Kannankeril, 128 F.3d at 806. If disagreements on particular points between proposed experts and others in their field were a proper basis for questioning the reliability and relevance of the methods employed by the experts, it is likely that very few expert opinions would be admissible in trial.
Physicians are not required to review every record or perform every conceivable test in order to reach a reliable conclusion as to causation. Indeed, the Third Circuit has instructed that "there will be some cases in which a physician can offer a reliable differential diagnosis without examining the patient, looking at medical records, taking a medical history, and performing laboratory tests." Paoli, 35 F.3d at 762. In other words, the issue is not whether the physician performed every available medical test or reviewed every available medical record, but whether the failure to perform a particular test or to review a particular record renders the opinion unreliable.
First, the argument that Dr. Penny's report does not "fit the facts," misconstrues the "fit" requirement articulated in Daubert and Paoli. As stated in Paoli, fit refers to "`the proffered connection between the scientific research or test result to be presented and [the] particular disputed factual issues in the case.'" Paoli, 35 F.3d at 743 (quoting United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985), and noting that the "fit" requirement of Downing was explicitly adopted in Daubert). The question is one of relevance and requires that the evidence "assist the trier of fact to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 1591. The factual dispute here concerns the cause of plaintiff's stroke and, clearly, Dr. Penny's opinion, based on his examination of the plaintiff just seven days after the accident, would assist the trier of fact on the issue of causation. Thus, the "fit" prong is not at issue here.
Second, as to whether consideration of the Canadian Journal study at the time of examination would have altered Dr. Penny's opinion, the Canadian Journal's findings leave room for a stroke to be caused by vertebral artery dissection without complaints of headache or neck pain in 12% of the patients. Thus, even if Dr. Penny had reviewed the records of December 3, 1999 and December 7, 1999, his conclusions about the cause of plaintiff's stroke would not necessarily have been precluded by the Canadian Journal study. In addition, the onset of neck pain and headache in 53% of the patients studied occurred "one day to two weeks before the onset of their stroke" according to the Canadian Journal. Thus, the fact that the reports of December 3, 1999 and December 7, 1999 fail to mention headache or neck pain do not preclude Dr. Penny's causation opinion because consistent with the Canadian Journal study, these symptoms could have presented themselves after December 3rd or December 7th, the dates of the allegedly unreviewed reports, but before December 10, 1999, the date of stroke.
In fact, Dr. Penny's report of December 10, 1999 does indicate that plaintiff complained of "some neck pain." Even assuming, arquendo, that Dr. Penny's report is inconsistent with the teachings of the article published in the Canadian Journal, this would be "contrary evidence" and would go to the weight of the evidence rather than its admissibility.
Finally, defendant argues that Dr. Penny's opinion on causation is not reliable. Unreliability may be shown where the defendant points to a plausible alternative cause and the doctor offers "no explanation for why he or she has concluded that was not the sole cause." Paoli, 35 F.3d at 759 n. 27 (emphasis added). Here, defendant has not pointed to a single plausible alternative cause that Dr. Penny has failed to explain away. Thus, defendant has failed to rebut the prima facie evidence of reliability based on the fact that Dr. Penny performed the standard tests, physically examined the plaintiff and reviewed pertinent medical histories. Id. at 759.
Defendant does make brief reference to atherosclerotic disease in the renewed motion in limine and for summary judgment, but fails to explain why this is a plausible alternative. In any event, Dr. Penny indicated in his deposition that atherosclerotic disease was considered, but ruled out based on the results of the tests he ordered. Penny, Dep. Tr. at 81-82.
3. The publications cited by Dr. Penny in his June 9, 2003 report.
In his June 9, 2003 report, Dr. Penny relied upon several publications in support some of his conclusions. Defendant argues that citations to these publications is flawed because the cited authorities do not "rule out" other causes of the stroke. Instead, defendant argues that authorities cited only "rule in" vertebral artery dissection. Defendant characterizes the cited references as teaching the following:
1. Neck pain prior to onset of neurological defects, a symptom reported in 88% of patients with vertebral artery dissection and in over half as a warning sign;
2. Vertebral artery dissection is recognized as a cause of circulation stroke;
3. 50% of brain stem strokes have been attributed to dissection;
4. Smooth tapered vessels or ultraluminum thrombosis may be seen on an angiogram where there are no showing of dissection, and this may be consistent with dissection; and
5. There are cases of normal angiograms with proven vertebral artery dissection at autopsy.
Def. Ren. Mem. Summ. Judg. at 10.
Of these references, defendant argues that the second, third, fourth and fifth citations only show that vertebral artery dissection can cause stroke and that a vertebral artery dissection may not show up on an angiogram. According to defendant, these authorities do not "rule in" vertebral artery dissection and they do not "rule out" other potential causes.
Defendant does acknowledge that the only authority that "rules in" vertebral artery dissection is the article in the Canadian Journal, which claims that 88% of patients have neck pain prior to the onset of neurological deficits and that it is a warning sign in half of those cases. However, because none of the references relied upon by Dr. Penny "rule out" other potential causes, defendant argues, again relying onTurner, that Dr. Penny's methodology is improper.
As noted above, in this circuit, physicians need not "cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness." Heller, 167 F.3d at 155. "[E]xperience with hundreds of patients, discussions with peers, attendance at conferences and seminars, detailed review of a patient's family, personal, and medical histories, and thorough physical examinations are the tools of the trade, and should suffice for the making of a differential diagnosis even in those cases in which peer reviewed studies do not exist to confirm the diagnosis of the physician."Id. Thus, the court finds that it is unnecessary to delve into the teachings of the cited publications, particularly in light of the undisputed fact that Dr. Penny performed "standard diagnostic techniques." Paoli, 35 F.3d at 759.
Indeed, the court in Turner turned to the publications and examined them to determine if they "rule[d] in" and "rule[d] out" potential causes only after determining that the methodology used by the proffered expert was not proper. Turner, 229 F.3d at 1208. In contradistinction, Dr. Penny's methodology has been found to be reliable in this case.
In short, "an expert opinion must be based on reliable methodology and the facts at issue — but it need not be so persuasive as to meet a party's burden of proof or even necessarily its burden of production."Heller, 167 F.3d at 152. The fact that Dr. Penny allegedly failed to consider certain specific medical reports concerning the plaintiff and even assuming that his conclusions are partially inconsistent with a peer-reviewed publication, these circumstances do not render his expert opinion unreliable or not relevant to the case. As discussed above, the Third Circuit does not require that an expert review every medical report available to him or her and does not require that a physician make citations to publications to support his medical conclusions. At most, the shortcomings alleged by defendant render Dr. Penny's opinion "shaky", but admissible nonetheless. "MV]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. . . .'" Id. (quoting Daubert, 509 U.S. at 596).
III. CONCLUSION
For these reasons, defendant's motion in limine to exclude the report and testimony of Dr. Penny is denied and defendant's motion for summary judgment, based on the contention that Dr. Penny's opinion and report should be excluded and that causation cannot be established without Dr. Penny's opinion, is denied.
The court has issued a separate order, entered on December 2, 2003, requiring that plaintiff produce documents and materials in accordance with a request made by defendant's pursuant Fed.R.Civ.P. 26(a).
An appropriate order follows.
ORDER
AND NOW, this ___ day of December 2003, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that defendants' renewed motion in limine to preclude expert report and testimony and for summary judgment (doc. no. 88) is DENIED.
AND IT IS SO ORDERED.