United States District Court, M.D. Florida, Jacksonville Division
RICHARD A. TRIOLO, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Plaintiff's Motion
for Partial Summary Judgment as to Causation of Injury (Doc.
23; Motion), filed on September 5, 2019. Defendant filed a
response in opposition to the Motion on September 19, 2019.
See Defendant's Response in Opposition to
Plaintiff's Motion for Partial Summary Judgment as to
Causation of Injury (Doc. 27; Response). In addition, on
October 8, 2019, Defendant filed Defendant's Amended
Daubert Motion to Exclude Opinions of
Plaintiff's Non-Retained Expert Witnesses (Doc. 34;
Motion to Exclude). Plaintiff filed a response in opposition
to the Motion to Exclude on November 1, 2019. See
Plaintiff's Response to Defendant's Amended Daubert
Motion to Exclude Opinions of Plaintiff's Non-Retained
Expert Witnesses (Doc. 39; Response to Motion to Exclude).
Accordingly, this matter is ripe for review.
February 11, 2017, a United States Postal Service vehicle
operated by Marsha Rentz, within the scope of her employment
with the Postal Service, collided with a Ford Mustang
operated by Plaintiff Richard A. Triolo in Jacksonville,
Florida. See Amended Complaint (Corrected) (Doc. 6;
Am. Compl.) ¶¶ 7-13; Answer and Affirmative
Defenses (Doc. 7) ¶¶ 5, 7, 9-13. In the Motion,
Triolo moves for partial summary judgment on the issue of
whether the motor vehicle collision caused permanent injuries
to Triolo's lumbar spine. See Motion at 5. In
support, Triolo submits the affidavits of his pain management
doctor, Reynaldo Pardo, M.D., and his treating orthopedic
surgeon, Raymond F. Topp, M.D. See Motion at 2-3, 4,
Exs. A-B. Below, the Court summarizes the entirety of the
contents of these affidavits.
asserts that he has treated Triolo since July 11, 2017.
See Motion, Ex. A: Affidavit of Reynaldo Pardo, M.D.
(Doc. 23-1; Pardo Aff.) ¶ 4. According to Pardo, he has
“performed several pain management procedures and
prescribed medication” to Triolo in an effort to
relieve the pain in his lumbar, thoracic and cervical spine
regions. Id. ¶ 6. Pardo opines that:
the impact from the automobile accident dated February 11,
2017 caused the following injuries to Mr. Triolo's lumbar
a. 2 mm protruding disc herniation indenting the anterior
thecal sac with spinal canal narrowing at T12-L1
b. Annular bulge encroaching upon foraminal at T 2-3
c. Mild facet joint arthropathy, predominately on the right
side at T 3-4
d. Bilateral facet joint arthropathy at T 4-5
e. Circumferential disc bulge resulting in bilateral
foraminal stenosis in combination with anterior L5
subluxation encroaching upon the L5 nerve roots bilaterally.
See id. ¶ 7. Pardo does not explain how or why
he came to hold these opinions, and provides no information
or analysis in support of them. Nonetheless, Pardo also
maintains that these injuries “are permanent in nature,
” “did not pre-exist” the February 11, 2017
accident, and will require “future pain management
treatment for the remainder of [Triolo's] life . . .
.” Id. ¶¶ 8-9, 11. In addition,
Pardo states that Triolo sustained temporary injuries to his
cervical spine, including muscle spasms, sprain and strain,
as a result of the February 11, 2017 automobile accident.
Id. ¶ 10. Pardo maintains that all of these
opinions are based on his “training and specialization
as a Board Certified Anesthesiologist and pain management
doctor as well as [his] treatment of Richard Triolo, ”
and are held “within a reasonable degree of medical
probability.” See id. ¶¶ 3, 7-11.
affidavit is based upon his “training and
specialization as a Board Certified Orthopedic Surgeon as
well as [his] treatment of and surgery on [Triolo] . . .
.” See Motion, Ex. B: Affidavit of Raymond
Topp, M.D. (Doc. 23-2; Topp Aff.) ¶ 3. Topp began
treating Triolo on approximately November 8, 2017, when
Triolo presented to his office “with complaints of
lower back pain radiating into right lower extremities after
unsuccessfully attempting to obtain relief from conservative
treatments such as chiropractic and pain management
modalities and procedures.” Id. ¶¶
4-5. Topp asserts that “[o]n March 22, 2018, [he]
performed a posterior lumbar interbody fusion surgery
(‘PLIF') at ¶ 5-S1 on Mr. Triolo due to
constant pain radiating posteriorly down his thigh and
sometimes anteriorly to the hip flexor.” Id.
¶ 6. Topp holds the opinion that the February 11, 2017
accident caused the injury to Triolo's lumbar spine which
necessitated the surgery. Id. ¶ 7. Topp also
asserts that the impact from the accident caused the same
injuries to Triolo's lumbar spine listed above, as well
as “SI joint dysfunction secondary to surgery.”
Id. ¶ 8. According to Topp, these injuries are
“permanent in nature, ” “did not pre-exist
the date of this accident, ” and will require
“future orthopedic treatment for the remainder of
[Triolo's] life . . . .” Id. ¶¶
9-11. Topp states that he holds all of these opinions
“within a reasonable degree of medical
probability.” Id. ¶¶ 7-11. Notably,
Topp provides no explanation or analysis as to how or why he
reached these opinions, nor does he identify the information
in Triolo's medical records that purportedly support