Hasan v. Cottrell, Inc. et al
Filing
136
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 8/21/2014. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EMAD HASAN,
Plaintiff,
v.
COTTRELL, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
No. 10 C 5534
MEMORANDUM OPINION AND ORDER
This is a products liability suit in which plaintiff, who
was working as the driver of a “car hauler” manufactured by
defendant, was injured when he fell from the top of a rig he
claims
was
defectively
designed.
Plaintiff
liability, negligence, and contract claims.
asserts
strict
Defendant moved for
summary judgment, or, in the alternative, to bar plaintiff’s
expert from offering opinions to support plaintiff’s theory of
liability. 1
1
Defendant’s motion does not specify which of plaintiff’s multicount complaint it targets in its motion. Counts I and II of
the complaint are labeled “Strict Liability” and “Negligence,”
respectively, while Counts III and IV are labeled “Breach of
Implied Warranty” and “Wilful and Wanton Conduct.” Although
defendant’s arguments are directed to plaintiff’s tort claims,
the contractual claim in Count III depends, on its face, on
plaintiff’s ability to establish the existence of a design
defect. Accordingly, although the theories of liability in
these claims is distinct, the viability of all of plaintiff’s
claims turns on this issue.
Before
me
is
Magistrate
Judge
Rowland’s
Report
and
Recommendations, which recommends denying defendant’s motion in
full.
Defendant
timely
objected
to
the
Report
and
Recommendations, which I review de novo pursuant to 28 U.S.C.
' 636.
While I conclude that certain of defendant’s objections
have merit, I accept Judge Rowland’s ultimate recommendation for
the reasons explained below.
I.
The
events
culminating
in
plaintiff’s
injury
are
straightforward: While lying down in the course of securing an
SUV to the “number one” deck position of the car hauler, i.e.,
the position above the rig’s sleeper cab, plaintiff fell to the
ground and suffered a serious injury to his foot.
claims
his
fall
was
defective design.
report
of
engineering
his
the
result
of
the
car
hauler’s
As evidence of defect, plaintiff proffers the
expert,
with
direct
Plaintiff
Dr.
Gerald
substantial
Micklow,
expertise
in
a
professor
the
areas
of
of
mechanical and aerospace engineering, and a frequent provider of
expert reports and testimony on behalf of plaintiffs alleging
defects in car haulers.
In this case, Dr. Micklow has provided a report setting
forth eleven, individually numbered opinions. 2
2
The substance of
The report is captioned “Preliminary Report Regarding Injuries
Related to Slips and Falls When Loading/Unloading Vehicles on
2
these opinions overlaps and can be organized into three general
categories:
First,
Dr.
unreasonably
protection
Micklow
dangerous
mechanisms
opines
unless
such
as
that
they
car
include
handholds,
carriers
adequate
“catwalks,”
increasing material, and/or flexible safety netting.
are
fall
friction
He further
opines that the car carrier from which plaintiff fell did not
have these features.
Micklow Rep., Pl.’s Resp. to Obj., Exh. B
at ¶¶ 1, 2, 3, 6, 7. 3 [DN 131-2].
Second,
Dr.
Micklow
opines
that
the
risk
of
injury
to
workers on car haulers has long been well known in the industry
and
by
defendant
specifically,
and
that
injuries
such
as
plaintiff’s are foreseeable in the absence of fall protection
mechanisms such as those discussed in his report.
Dr. Micklow
further opines that plaintiff’s injury was directly caused by
the absence of such features from defendant’s car hauler. Id. at
¶¶ 3, 4, 6, 8, 9, 10, 11.
Third, Dr. Micklow opines that feasible alternative designs
exist and have existed “for some time.” Specifically, he states
that:
Car Carriers.” Although described in its title as
“preliminary,” Dr. Micklow has not, so far as the record
reveals, made any changes to his report.
3
The paragraph numbers here refer to the numbered list set off
by the text, “My opinions are as follows:”. The pages of Dr.
Micklow’s report are not numbered.
3
Examples of such feasible alternative designs are
depicted in the photos of the European trailers
obtained by Linda Weseman, the photos of European
trailers, the photos of the Delavan trailer handrails,
photos of the Cottrell upper deck handrails and the
designs created by myself, Linda Weseman, Dr. Nigel
Ellis and Sure Footing Safety Systems.
Linda Weseman
is a person well known to me and with whom I have
conferred about this issue.
She installed handrails
on the specific trailer.
I have reviewed the patent
of Dr. Nigel Ellis and his drawings as well as his
correspondence to Cottrell.
Such designs by myself,
Linda Weseman and Dr. Ellis are very much feasible as
the same design concepts have been used on trailers
for years around the world in other countries.
They
satisfy the Federal Size Regulations for Commercial
Vehicles related to width restrictions. They are used
in Europe with narrower width limits.
Id. at ¶¶ 5 (quoted text), 8.
Defendant’s
lead
argument
in
its
motion
before
Judge
Rowland was that it is entitled to summary judgment, even if Dr.
Micklow’s testimony is considered, because plaintiff relies on
the “risk-utility” method of proof to establish the car hauler’s
design
defect,
yet
Dr.
Micklow’s
opinion
fails
to
address
certain of the factors relevant to the risk-utility analysis
under
Illinois
Micklow’s
report
law.
and
Accordingly,
testimony
do
defendant
not
amount
evidence that the car carrier was defective.
insisted,
to
prima
Dr.
facie
See Mikoljczyk v.
Ford Motor Co., 901 N.E. 2d 329, 352 (Ill. 2008) (explaining
that
“risk-utility”
is
a
method
of
establishing
the
“unreasonably dangerous” element of the design defect theory);
4
Show v. Ford Motor Co., 697 F. Supp. 2d 975, 908 (N.D. Ill.
2010) (same).
Defendant’s
second
argument
in
its
motion
was
that
Dr.
Micklow’s report is inadmissible under Fed. R. Evid. 702 and
Daubert
v.
Merrell
Dow
Pharmaceuticals,
Inc.,
509
U.S.
579
(1993), because: a) Dr. Micklow is not qualified to offer the
opinions expressed in his report, and b) his opinions are not
reliable or relevant.
Dr.
Micklow’s
On the first point, defendant argued that
expertise
in
aerospace
engineering
does
not
qualify him as an expert in “fall protection” or the “ergonomics
associated with such fall protection.”
On the second, defendant
assailed Dr. Micklow’s opinions respecting feasible alternative
designs and causation, insisting that they lacked support in the
record and failed to consider either the cost of his proposed
alternatives or whether those alternatives would have prevented
plaintiff’s injury in this case.
Judge Rowland recommended denying defendant’s motion in its
entirety.
Taking defendant’s arguments in reverse order, she
began by analyzing Dr. Micklow’s credentials and found that he
was qualified to offer the opinions in his report, thus denying
defendant’s request to bar his testimony.
Judge Rowland then
turned to defendant’s summary judgment arguments and concluded
that Dr. Micklow’s opinions about feasible design alternatives
5
presented sufficient evidence under the risk-utility framework
to entitle plaintiff to a trial on his design defect theory.
Defendant
objects
that
Judge
Rowland
conducted
a
flawed
Daubert analysis by examining only one prong of the required
three-prong inquiry, failing to address either the reliability
or the relevance of Dr. Micklow’s proposed testimony.
Defendant
then revisits the arguments it previously made on these points,
asserting that Dr. Micklow’s report is unreliable and irrelevant
because he did not test the alternative designs he identified in
his
report;
because
he
had
never
seen
two
of
his
proposed
alternatives—the “Sure Footing” design and the “Rail Grabber”
design—in practice and did not know if they were commercially
available
or
what
they
cost;
and
because
he
did
not
review
plaintiff’s deposition testimony or examine the car hauler from
which plaintiff fell before preparing his report in this case.
These flaws, defendant argues, render his opinions—particularly
those
relating
to
feasible
alternative
designs—hopelessly
unreliable and inadmissible under Jablonski v. Ford. 955 N.E. 2d
1138 (Ill. 2011).
Defendant also argues that Judge Rowland failed to address
its further
argument
that
Dr.
Micklow
should
be
barred
from
testifying based on discovery violations, namely, his refusal to
answer certain questions during his deposition and his failure
6
produce
certain
information
prior
to
that
deposition,
as
required by a court order.
II.
At the outset, I agree with Judge Rowland that Dr. Micklow
is qualified to offer the opinions he articulates in his report.
Dr. Micklow’s expertise as a mechanical and aerospace engineer
is not in dispute, and nothing in the record suggests that in
the present context, “fall protection design” or the “ergonomics
associated
with
such
fall
protection”
require
such
a
highly
specialized analysis that an engineer of Dr. Micklow’s training
and background is not qualified to answer the questions he may
be asked on those issues.
“The notion that Daubert…requires
particular
an
unsound….
credentials
expert
witness
is
radically
Anyone with relevant expertise enabling him to offer
responsible
opinion
qualify
an
as
for
testimony
expert
helpful
witness.”
Tuf
to
judge
Racing
or
Prods.,
jury
Inc.
may
v.
American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000).
See also Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010)
(“[o]rdinarily, courts impose no requirement that an expert be a
specialist in a given field, although there may be a requirement
that he or she be of a certain profession, such as a doctor.”)
These principles are wholly consistent with defendant’s cited
authority, Ty, Inc. v. Pub. Int’l, Ltd., No 99 C 5565, 2004 WL
2359250, at *5 (N.D. Ill. Oct. 19, 2004) (Zagel, J.).
7
Defendant’s reliance on Ty is, indeed, somewhat perplexing.
There, the court denied the defendant’s motion to exclude the
plaintiff’s expert—a publisher with extensive experience “in the
general
field
of
non-fiction
publishing”
whose
testimony
was
proffered to “assist the jury in determining the profits driven
by” the defendant’s alleged use of infringing photographs.
Having
previously
required”
on
determined
this
issue
that
was
the
“specific
“demonstrated
Id.
expertise
experience
in
valuation,” the court acknowledged that the expert’s skills and
background were not “ideal,” but nevertheless concluded that his
general
qualifications
provided
his proposed testimony.
a
“sufficient
foundation”
for
Id. at 5-6. So too, in this case, Dr.
Micklow’s general engineering expertise renders him qualified to
offer testimony on the specific issue of whether the car hauler
at issue was defectively designed.
It
expert
is
true,
cannot
nevertheless,
waltz
into
that
the
a
courtroom
“supremely
and
qualified
render
opinions
unless those opinions are based upon some recognized scientific
method and are reliable and relevant under the test set forth by
the Supreme Court in Daubert.”
Lewis v. CITGO Petroleum Corp.,
561 F.3d 698, 705 (7th Cir. 2009).
I
must
determine
whether
established
that
the
sufficient
facts
or
the
proposed
data,”
In my role as “gatekeeper,”
proponent
expert
whether
8
of
the
testimony
it
is
is
“the
expert
has
“based
on
product
of
reliable principles and methods,” and whether those principles
and
methods
case.”
have
been
“reliably
Fed. R. Evid. 702.
consulted
reliable
sources
applied…to
the
facts
of
That is, I must decide “whether he
and
provided
reasoned
explanations
connecting the source material to his conclusions.”
Lees v.
Carthage College, 714 F.3d 516, 524 n. 3 (7th Cir. 2013).
agree
with
defendant
the
that
Judge
Rowland’s
report
I
and
recommendations overlooked this portion of the analysis.
District courts have “latitude in determining not only how
to measure the reliability of the proposed expert testimony but
also whether the testimony is, in fact, reliable.”
McCoy, 593 F.3d 610, 616 (7th Cir. 2010).
Gayton v.
Moreover, the test
for reliability is “flexible”:
A Daubert inquiry is not designed to have the district
judge take the place of the jury to decide ultimate
issues of credibility and accuracy.
If the proposed
expert testimony meets the Daubert threshold of
relevance and reliability, the accuracy of the actual
evidence is to be tested before the jury with the
familiar
tools
of
“vigorous
cross-examination,
presentation
of
contrary
evidence,
and
careful
instruction on the burden of proof.”
Lapsley
v.
Xtek,
Inc.,
689
F.3d
802,
805
(7th
Cir.
2012)
(quoting Daubert, 509 U.S. at 596).
Defendant
insists
that
Dr.
Micklow’s
opinions
about
feasible alternative designs are unreliable because he did not
test the designs he identified, had never seen them in person,
and
had
done
no
measurements
9
to
determine
whether
the
alternatives were compatible with the car hauler at issue.
these
are
precisely
the
type
explored on cross-examination.
208
F.3d
581,
586-87
of
shortcomings
that
But
can
be
See Walker v. Soo Line R.R. Co.,
(“the
factual
underpinnings
of
expert
testimony may be subject to counter-attack”); see also Bonner v.
ISP
Tech.,
Inc.,
259
F.3d
924,
929–30
(8th
Cir.
2001)
(the
“factual basis of an expert opinion goes to the credibility of
the
testimony,
not
the
admissibility,
and
it
is
up
to
the
opposing party to examine the factual basis for the opinion in
cross-examination”).
Defendant makes much of the fact that Dr. Micklow did not
test any of his proposed design alternatives.
While it is true
that testing is one factor that may bolster the reliability of
an
expert’s
opinion,
Indeed,
as
one
require
court
physical
testing
in
testing
is
this
of
an
not
required
in
every
case.
observed,
“[t]o
district
has
expert’s
opinions
before
the
expert is permitted to testify would mean the elimination of
product
liability
suits
by
ordinary
non-corporate
citizens.”
Traharne v. Wayne/Scott Fetzer Co., 156 F. Supp. 2d 697, 713
(N.D. Ill. 2001) (Rosemond, MJ), aff’d 156 F. Supp. 2d 717 (N.D.
Ill. 2001).
Louisville
That the Seventh Circuit concluded, in Bielskis v.
Ladder,
Inc.,
663
F.3d
887
(7th
Cir.
2011),
and
Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001),
that on the facts of those cases, the district court had not
10
abused its discretion in excluding untested expert theories does
not mean that testing is required in all circumstances.
Indeed,
the court in Bielskis found it a “close question,” reiterating
that “the district court’s admissibility determination is not
intended
to
generally,
subject
supplant
even
to
the
“shaky
attack
on
adversarial
expert
process,”
testimony
cross-examination.”
(quotation marks and citation omitted).
the
challenged
may
design
nor
the
be
663
and
that
admissible,
F.3d
at
894
In this case, neither
proposed
alternatives
incorporating various additional safety features are complex.
am
satisfied
that
even
without
testing
to
demonstrate
I
how
specific alternatives would have prevented plaintiff’s accident,
Dr.
Micklow’s
understanding
of
how
certain
alternatives
have
been used in practice provides a minimally sufficient foundation
for his testimony.
Similarly, the fact that Dr. Micklow has not seen the Sure
Footing or Rail Grabber designs in person does not necessarily
render
his
unreliable.
opinion
that
they
were
feasible
alternatives
An expert “is not always required to personally
perceive the subject of his analysis,” NutraSweet Co. v. X-L
Engineering Co., 227 F.3d 776 (7th Cir. 2000).
In NutraSweet,
the court rejected the argument that an expert’s opinion was
unreliable on the ground that it was based on data he obtained
from others.
Id. at 789-90.
So, too, in this case, Dr. Micklow
11
states that he formulated his opinions about alternative designs
based on his review of photographs and patents depicting and
describing
alternative
designs,
and
on
his
discussions
with
other individuals who have installed such designs in the field.
Micklow Rep. at ¶ 5.
Further, Dr. Micklow testified that the
Sure Footing design “looks identical” to a design he created
himself.
designs
Any insufficiency in Dr. Micklow’s knowledge of these
goes
to
admissibility.
I
thus
the
weight
of
his
testimony,
not
its
NutraSweet, 227 F.3d at 789.
turn
to
defendant’s
argument
it
is
entitled
to
summary judgment even if Dr. Micklow’s testimony is considered.
Defendant again argues, as it did before Judge Rowland, that Dr.
Micklow’s
opinions
do
not
amount
to
competent
design defect under the risk-utility framework.
evidence
of
a
In Jablonski,
the Illinois Supreme Court distilled the risk-utility analysis
into a non-exhaustive list of factors, which include:
[E]vidence of (1) the availability and feasibility of
alternate designs at the time of the product’s
manufacture; or (2) that the design used did not
conform to the design standards in the industry,
design
guidelines
provided
by
an
authoritative
voluntary organization, or design criteria set by
legislation
or
governmental
regulation.
…
Other
factors that may be relevant include the utility of
the product to the user and to the public as a whole,
the safety aspects of the product including the
likelihood that it will cause injury and the probable
seriousness of the injury, and the manufacturer’s
ability to eliminate the unsafe character of the
product without impairing its usefulness or making it
too expensive to maintain its utility.
12
955 N.E. 2d at 1154-55 (citations omitted).
The Jablonski court
explained that the relevant factors “may vary depending upon the
unique
court
facts
must
and
circumstances
initially
balance
of
each
factors
case,”
it
and
finds
that
relevant
determine if the case is a proper one to submit to a jury.”
“the
to
Id.
at 1155.
Defendant first contends that Dr. Micklow “admitted” he did
not conduct a risk-utility analysis.
supported by the record.
But this argument is not
The portion of Dr. Micklow’s testimony
on which defendant relies is:
Q: Okay. I assume you haven’t done any analysis of the
relative risks of this product versus utility?
A: For which product?
Q: For the auto transport trailer with regard to fall
protection.
A. With a particular fall protection device?
No, I have not.
Correct.
Micklow Dep., Def.’s L.R. 56.1 Stmt., Exh. D at 241.
On its
face, however, Dr. Micklow’s answer appears to confirm that he
did
not
conduct
a
risk-utility
analysis
of
a
particular
alternative design, not of the actual car hauler involved in
plaintiff’s accident.
Defendant next attacks Dr. Micklow’s putative failure to
consider the “cost” or “expense” of alternative designs.
13
But an
expert
is
not
required,
under
Jablonski,
to
discuss
every
possible factor in his risk-utility analysis, see 955 N.E. 2d at
1155, and in any event, as Judge Rowland noted, Dr. Micklow
explained during his deposition that his opinions on this issue
did
take
cost
into
account.
Dr.
Micklow
testified
that
he
believed the cost of one of the alternatives he identified to be
“a fraction of 1 percent of the value [of the vehicle] to put it
along
the
entire
upper
deck,”
and
he
began
to
explain—until
being cut off by defendant’s counsel—that the basis for this
estimate was his belief that inexpensive, “chrome-moly tubing”
could
be
used
in
the
design.
12/19/2012
Micklow
Dep.,
at
165:14-166:4 [DN 129-1].
Defendant
viable
also
alternative
argues
that
designs
Dr.
existed
Micklow’s
“lacks
opinion
support
in
that
the
record,” since his deposition testimony revealed that he could
not
say
for
certain
whether
the
Sure
Foot
or
Rail
Grabber
systems were commercially available at the time the allegedly
defective car hauler was manufactured.
But his opinion that
feasible alternative designs existed does not require proof that
any of these designs was commercially available, or even that
they had been built.
See Baley v. Federal Signal Corp., 982
N.E. 2d 776, 796 (Ill. App. Ct. 2012) (“there is no requirement
that
the
Moreover,
feasible
Dr.
alternative
Micklow
was
not
design
asked
14
at
actually
his
be
built.”)
deposition
about
other alternative designs mentioned in his report, such as the
European
design
Dr.
Micklow
states
he
has
seen
in
practice.
Accordingly, Dr. Micklow’s testimony about alternative designs
is prima facie evidence of design defect, which plaintiff is
entitled to present to a jury.
Finally,
while
defendant
is
correct
that
Judge
Rowland
failed to address its argument that Dr. Micklow should be barred
for non-compliance with her February 12, 2013, Sanction Order 4
and other misconduct, these arguments do not entitle it to the
relief it seeks.
In its motion before Judge Rowland, defendant
identified two putative violations of the Sanction Order.
The
first was that plaintiff’s counsel tendered certain documents to
the
wrong
attorney
at
defendant’s
counsel’s
delaying defendant’s receipt of the production.
firm,
allegedly
Even assuming
that plaintiff’s counsel should have known to send the documents
to a different attorney, however, this error is not so egregious
as to warrant the draconian sanction of precluding Dr. Micklow’s
testimony.
Second, defendant argued that Dr. Micklow failed to bring
the “Ryder report” to his second deposition, which Dr. Micklow
identified during his first deposition as containing accident
statistics
supporting
his
opinions
4
in
this
case.
Having
I follow defendant’s lead in referring to Judge Rowland’s
February 12, 2013 Report and Recommendations, which Judge
Nordberg adopted on April 25, 2013, as her “Sanction Order.”
15
thoroughly reviewed the record and the parties’ submissions on
this point, however, I am unable to conclude that Dr. Micklow
violated the Sanction Order.
At the outset, it is unclear from the record whether the
“Ryder report” refers to a single document, or, instead, to the
“boxes and boxes of accident report data” from which Dr. Micklow
culled and summarized accident statistics.
occasionally
Dr.
Micklow
himself)
While defendant (and
appears
to
refer
to
a
particular document, Dr. Micklow’s testimony suggests that the
statistics
informing
his
opinion
are
calculations
compiled himself, based on the accident data.
Micklow
Dep.
at
190:13-15
(Q:
I
want
to
that
See
know
he
12/19/2012
where
the
statistics that you’re referring to exist in those reports.
A:
Well, they give you a number of accidents, and then myself and
Linda
Wiesman
compile
the
statistics.”)
[DN
129-1].
On
its
face, the Sanction Order appears to be directed to the latter:
“Although he had a summary of those statistics, he did not have
the
underlying
ten
boxes
compiled the statistics.”
added).
of
accident
reports,
from
which
he
Sanction Order at 6 [DN 89] (emphasis
The parties do not dispute that Dr. Micklow tendered
these accident reports at his second deposition, albeit in a
disorganized
and
unhelpful
fashion.
Accordingly,
while
defendant’s frustration with Dr. Micklow’s presentation of the
16
material is understandable, I am not persuaded that he violated
the Sanction Order.
Moreover, as Judge Rowland explained in that Order,
the absence of the documents that Plaintiff should
have produced prior to Micklow’s deposition had
minimal impact on Cottrell’s seven hour examination of
Dr. Micklow. Defendant was able to fully explore Dr.
Micklow’s assessment of the car-carrier in this case,
his
work
in
related
car
carrier
cases,
his
understanding of the processes of securing different
types of cars to the carrier, his opinion regarding
the need to lay (sic) down to secure a car to the
over-cab
position
of
the
carrier,
his
opinion
regarding the center of gravity shift precipitating
Plaintiff’s fall, various related safety standards,
his interview with Mr. Hasan, and his billing rates,
among other topics.
Id. at 8-9 (record citations omitted) [DN 89].
Observing that
striking Dr. Micklow’s testimony entirely would be tantamount to
entering judgment in defendant’s favor, Judge Rowland concluded
that that sanction was not proportionate to the infraction.
Id.
at 9 (citing Salgado by Salgado v. General Motors Corp., 150
F.3d 735, 740 (7th Cir. 1998) and Melendez v. Illinois Bell Tel.
Co., 79 F.3d 661, 672 (7th Cir. 1996) (sanction must be one that
informed and reasonable jurist would find proportionate to the
infraction).
I agree with Judge Rowland’s assessment, and I
conclude that even assuming Dr. Micklow’s tender of an unwieldy
confusion
failed
to
of
accident
comply
report
data
substantially
17
with
at
his
her
second
Sanction
deposition
Order,
his
conduct likewise does not warrant precluding his testimony in
its entirety.
Finally, defendant argued that Dr. Micklow should be barred
for refusing to answer certain questions at his deposition on
the ground that they related to his work on a different matter.
In the portion of Dr. Micklow’s deposition to which defendant
pointed, Dr. Micklow explained that while inspecting car haulers
at a truck stop, he performed some work relating to the present
case and some work relating to another case.
While Dr. Micklow
answered questions about his work on this case, he refused to
answer
questions
about
his
work
on
the
other
case,
citing
ethical concerns and the need to speak with the attorney on the
other case before making any statements.
03/22/2013 Micklow
Dep. 20-29.
While I agree that Dr. Micklow’s refusal to answer these
questions was without apparent legal justification, it is not
clear that defendant suffered any prejudice as a result.
To the
extent defendant believes that any testimony plaintiff seeks to
elicit from Dr. Micklow at trial relates to, or is based upon,
matters Dr. Micklow has previously refused to discuss, defendant
may raise those objections at trial.
18
III.
For
Rowland’s
the
foregoing
recommendation
reasons,
that
I
accept
defendant’s
Magistrate
motion
for
Judge
summary
judgment or to bar Dr. Micklow be denied.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: August 21, 2014
19
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