Stratemeyer v. Northstar Construction Management Company, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-CV-80147-ROSENBERG

SARAH ANN STRATEMEYER,

Plaintiff,

v.

NORTHSTAR CONSTRUCTION

MANAGEMENT COMPANY, INC.,

et al.,

Defendants.

_______________________________/

ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE

THIS CAUSE comes before the Court on Defendants’ Motion in Limine at docket entry

32. The Court has reviewed Defendants’ Motion [DE 32], Plaintiff’s Response [DE 37],

Defendants’ Reply [DE 47], and the record, and is otherwise fully advised in the premises. For

the reasons set forth below, Defendants’ Motion in Limine is GRANTED.

I. BACKGROUND

This is a personal injury action arising out of a rear-end collision that occurred on or about

August 7, 2019. DE 1-1 at ¶¶ 6-8. Plaintiff brings negligence claims against Defendant Kyle

Thomas Pliler and his employer, Defendant Northstar Construction Management Company, Inc.

on theories of direct and vicarious liability. Id. at ¶¶ 9-15. Plaintiff alleges damages for her bodily

injuries and, among other harm, her “loss of earnings, loss of ability to earn money, and

aggravation of a previously existing condition.” Id. at ¶ 12.

At the time of the incident, Plaintiff was enrolled as a nursing student at Renaissance Health

Institute. DE 32 at 1. Over two years later, in January 2022, Plaintiff “failed her nursing school

exit exam, a necessary step to becom[ing] a nurse.” Id. at 3. Plaintiff “relates that failure to the

mild traumatic brain injury that she [allegedly] suffered” as a result of the incident. DE 37 at 6. In

support of her case, Plaintiff has disclosed that she intends to call two experts, Dr. Craig H.

Lichtblau and Dr. Julianne Frain, to testify at trial. DE 32 at 2. Dr. Lichtblau is a physical medicine

and rehabilitation doctor who is expected to testify about Plaintiff’s future medical costs,

disabilities, and life expectancy due to the crash. Id. Dr. Frain is a vocational rehabilitation expert

who is expected to testify about the limitations on Plaintiff’s ability to work in the future due to

her injuries. Id. Defendant contends that both experts are also expected to testify that the subject

incident caused Plaintiff to fail her exit exam. Id. at 3.

On December 8, 2023, Defendants filed a motion in limine to “preclude Dr. Lichtblau and

Dr. Frain from offering opinions regarding the Plaintiff’s alleged inability to pass her nursing

school exit exam and from being permitted to relate her test failure in January 2022 to the subject

accident in August 2019.” DE 26 at 3. While Defendants relied solely on Rule 403 in their motion,

they directly challenged the reliability of Plaintiff’s experts. See generally id. The Court therefore

construed the motion as invoking Federal Rule of Evidence 702 and the standard set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc. See DE 31 at 4; 509 U.S. 579 (1993). On January

30, 2024, the Court denied Defendants’ motion in limine without prejudice, directing the parties

to brief the Daubert and Rule 702 inquiry. DE 31 at 5. On February 6, 2024, Defendants filed the

Motion in Limine at issue addressing Daubert. DE 32. Plaintiff timely responded [DE 37], and

Defendants timely replied [DE 47].

II. THE PARTIES’ ARGUMENTS

In their Motion, Defendants request that the Court prohibit Dr. Lichtblau and Dr. Frain

from testifying about Plaintiff’s pre-incident intellectual and cognitive functioning and Plaintiff’s

inability to pass her nursing school exit examination as a result of the 2019 accident. DE 32 at 3.

Defendants attack the testimony on three bases: (1) neither expert is qualified to opine on these

matters; (2) the experts’ testimony is ipse dixit, unreliable, and unsupported by facts or evidence;

and (3) the testimony would confuse the jury. Id. at 5-13.

In her Response, Plaintiff argues that: (1) the threshold to be a qualified expert is low, and

Dr. Lichtblau and Dr. Frain meet that threshold; and (2) the questions Defendants raise as to

reliability go to the weight of the evidence, rather than admissibility. See DE 37 at 3-4, 6, 9.

Plaintiff points to other cases in this district in which Dr. Frain and Dr. Lichtblau have faced

Daubert challenges and survived. Id. at 8. Plaintiff does not directly address the two narrow topics

of testimony that Defendant seeks to exclude.

In their Reply, Defendants argue that Plaintiff mischaracterizes Defendants’ argument. DE

47 at 1. Defendants agree that Dr. Frain and Dr. Lichtblau are qualified in their respective fields.

Id. However, Defendants argue that both experts “should be prohibited from offering opinions

outside of [their] scope [of expertise], such as the Plaintiff’s pre-accident intellectual or cognitive

functioning or, specifically, whether the Plaintiff would have failed Kaplan Exit Exam but for the

subject incident.” Id.

III. ANALYSIS

The Court analyzes the Daubert inquiry as it applies to the Defendants’ narrow request that

the Court prohibit Dr. Lichtblau and Dr. Frain from testifying as to (1) Plaintiff’s pre-accident

intellectual or cognitive functioning and (2) whether the 2019 accident caused Plaintiff to fail her

exit examination. First, the Court summarizes the Eleventh Circuit’s interpretation of the Daubert

standard. Next, the Court examines each expert’s testimony. For the following reasons, the Court

GRANTS the Motion in Limine to exclude portions of each expert’s testimony.

A. Admissibility Under the Daubert Standard

The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which

provides:

A witness who is qualified as an expert by knowledge, skill, experience, training or

education may testify in the form of an opinion or otherwise if:

(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.

Under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., expert testimony is admissible

only if it is both reliable and relevant. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir.

2005); see 509 U.S. 579 (1993). Expert testimony is admissible, i.e. reliable and relevant, under

Rule 702 if “(1) the expert is qualified to testify regarding the subject of the testimony; (2) the

expert’s methodology is sufficiently reliable as determined by the sort of inquiry mandated in

Daubert; and (3) the expert’s testimony will assist the trier of fact in understanding the evidence

or determining a fact at issue.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1304

(11th Cir. 2014) (internal quotation marks and citation omitted). These criteria are known as

“qualification, reliability, and helpfulness.” United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004).

Trial courts must act as “gatekeepers” to ensure that expert opinions meet the standards for

admissibility and that “speculative and unreliable opinions do not reach the jury.” McClain v.

Metabolife Int’l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005). The proponent of expert testimony

bears the burden of establishing qualification, reliability, and helpfulness by a preponderance of

the evidence. Hendrix ex rel. G.P. v. Evenflo Co., Inc. (Hendrix II), 609 F.3d 1183, 1194 (11th

Cir. 2010).

B. Dr. Frain

Dr. Frain is a vocational rehabilitation expert. DE 32 at 6. Defendant concedes that Dr.

Frain is an expert in her field but seeks to prohibit her testimony as to Plaintiff’s pre-accident

intellectual functioning and as to the argument that but for the 2019 accident, Plaintiff would have

passed her exit examination. DE 47 at 1. Here, however, the Court need not conduct a Daubert

inquiry. As a threshold matter, two procedural issues bar Dr. Frain from testifying as to Plaintiff’s

pre-accident intellectual functioning and that but for the accident, she would not have failed the

exit examination: (1) failure to disclose the testimony under Federal Rule of Civil Procedure

26(a)(2)(B)(i); and (2) failure to properly refute Defendants’ arguments.

i. Failure to Disclose

Under Federal Rule of Civil Procedure 26(a)(2)(B)(i), an expert witness’s report must

include “a complete statement of all opinions the witness will express and the basis and reasons

for them.” In other words, “a party will not ordinarily be permitted to use on direct examination

any expert testimony not so disclosed.” Fed. R. Civ. P. 26 advisory committee’s note to 1993

amendment. Here, Dr. Frain does not offer any opinions as to Plaintiff’s pre-accident intellectual

functioning in her report,1 which is predominantly forward-looking. See generally DE 37-1.

Furthermore, Dr. Frain directly addresses the issue in her deposition testimony, confirming that

she will not opine as to the topic:

Q: Do you know how [Plaintiff] would score on the Wonderlic Scholastic Level

Exam prior to the 2019 accident?

A: I don’t have an independent opinion on that. Obviously, there are opinions

contained in the neuropsychological evaluation as to premorbid intellectually

1 Dr. Frain does address Plaintiff’s pre-accident earning capacity, but this is a distinct topic. See DE 37-1 at 24.

functioning, and I would defer to that expert for that area. I typically don’t testify

with regards to that.

DE 32-6 at 38:16-24 (emphasis added). Later in the deposition, Dr. Frain again states that “like I

said before, I’m not offering opinions really on premorbid intellectual or cognitive functioning.”

Id. at 54:15-18 (emphasis added). Therefore, the Court finds it proper to prohibit Dr. Frain from

testifying on this topic.

Additionally, while Dr. Frain’s report does address the accident as a contributing factor in

Plaintiff’s inability to finish her nursing program (i.e., failing the examination), she only offers it

as an assumption underlying her analysis and does not opine as to causation. Specifically, Dr.

Frain states that “it can be assumed that [Plaintiff] would have likely completed the nursing

program she was enrolled in had the accident on August 7, 2019 not occurred because of her

reported difficulty with concentration and other TBI symptoms she is experiencing.” DE 37-1 at

24 (emphasis added). Furthermore, in her deposition testimony, Dr. Frain states that she does not

have independent causation opinions connecting the accident to Plaintiff’s loss of earning capacity:

Q: . . . . Are you, yourself, offering independent opinions as to whether the 2019

accident caused a limitation in Ms. Stratemeyer’s ability to earn income, or are you

relying on her physician’s conclusions in that regard with whom she’s treated since

the 2019 accident?

A: Sure. So obviously, that’s a little bit complicated, because I am offering

independent opinions with regards to her earning projection and her loss of earning

capacity, however, from a medical standpoint, I do not have independent causation

opinions. I’m relying on the medical records that have been issued by treating

doctors and medical experts involved in this case and what’s clearly documented

as injuries or diagnoses and corresponding limitations that are specific to the

August 2019 accident.

Q: Okay. So just so I’m clear, you are not offering an independent medical

causation opinion, you’re relying on plaintiff’s treating doctors since 2019 in order

to basically rely on your analysis on her loss of earning capability; is that fair to

say?

A: Correct.

DE 32-6 at 26:1-22 (emphasis added). Dr. Frain later admits that that she cannot say whether “but

for” the accident, Plaintiff would have passed the examination:

Q: Okay. And you will not concede to me that she may not have passed this test,

even if she was not involved in the 2019 accident, despite giving the opinion that

she likely failed it because of the accident?

A: I can concede that it’s possible or that she may not have, sure. I mean, I can’t

say what would have happened if the accident didn’t happen, because the accident

did happen.

DE 32-6 at 83:23-84:6 (emphasis added). However, later in her deposition, Dr. Frain opines that

the 2019 accident was a “contributing factor” in Plaintiff’s failure to pass the exit examination,

given her medical issues, and that the accident “likely” caused Plaintiff to fail the exit examination.

See id. at 65:14-21, 80:22-81:11.

As Dr. Frain’s report does not disclose any opinions on whether the 2019 accident caused

Plaintiff to fail her exit examination, she may not testify on that topic pursuant to Federal Rule of

Procedure 26.2 Given that Dr. Frain is prohibited from testifying on causation on this topic, the

Court also excludes any opinions by Dr. Frain related to whether the 2019 accident was a

“contributing factor” or “likely” caused Plaintiff to fail the exit examination. Finally, the Court

excludes any opinion about whether the 2019 accident “might have” caused Plaintiff to fail the

exit examination, as this is impermissibly speculative. The Court notes that Dr. Frain may still

testify as to the assumption she used in her analysis—that the 2019 accident caused Plaintiff’s

medical injuries.

ii. Failure to Refute

Even if Dr. Frain’s report sufficiently disclosed an opinion on both topics discussed above,

Plaintiff’s Response [DE 37] to Defendants’ Motion does not adequately respond to Defendants’

2 Because Dr. Frain does not disclose an opinion on this topic, it necessarily follows that she has not demonstrated

how such an opinion was a product of reliable principles and methods.

arguments. In her eleven-page Response, Plaintiff spends just four pages on argument. See

generally DE 37. Of those four pages, she spends one page on other witnesses’ testimony and half

a page on unrelated cases in which either expert has defeated Daubert challenges. Id. at 6-8.

Plaintiff makes the following arguments in the remaining two and half pages: (1) that both experts

are highly qualified and have used accepted methodology in their fields; (2) that Defendants seek

to introduce “irrelevant and speculative matters” like the exam passage rate; and (3) that if the

experts failed to include variables or relied on incorrect assumptions, those issues affect the weight

of the evidence, not admissibility. DE 37 at 6-7, 9. The Court notes that Defendant agrees that

both experts are, as a general matter, qualified. DE 47 at 1. Plaintiff’s remaining arguments are

simply incorrect, as the Court determines that Defendants’ arguments do impact admissibility in

this case.3

Plaintiff’s Response does not address the two topics that Defendants seek to exclude. In

fact, Plaintiff’s Response arguably mischaracterizes Defendants’ Motion as broadly requesting to

exclude Dr. Frain’s entire testimony. See id. (“Defendants’ Motion seeks to exclude, as ‘unfairly

prejudicial’ testimony by Julianne Frain, Ph.D., a vocational rehabilitation expert who has

evaluated the Plaintiff and reviewed all of her medical records . . . .”). However, Plaintiff’s

Response is wholly silent as to why, under the Daubert standard, Dr. Frain should be permitted to

testify specifically about the two topics in Defendants’ Motion. As Plaintiff fails to refute

Defendants’ arguments, the Court finds that she has failed to appropriately respond. E.g., Carter

v. BPCL Mgmt., No. 19-CV-60887, 2021 WL 7502562, at *1 (S.D. Fla. Sept. 22, 2021) (failure to

refute opposing arguments “operates as a waiver of those arguments and is akin to a failure to

3 Only once an expert’s opinion has satisfied the Daubert reliability standard for admissibility is the Court restricted

from “exclud[ing] the opinion simply because it believes that the opinion is not – in its view – particularly strong or

persuasive.” Seamon v. Remington Arms Company, LLC, 813 F.3d 983, 990 (11th Cir. 2016). Finally, assumptions

based upon conjecture are inadmissible. Rink, 400 F.3d at 1292.

respond”); see also Local Rule 7.1(c) (permitting a court to grant a motion by default when a

respondent fails to respond). Therefore, for this reason, Defendants’ Motion in Limine is similarly

GRANTED as to Dr. Frain’s testimony on both topics.

C. Dr. Lichtblau

The Court begins by examining Dr. Lichtblau’s testimony through the disclosure

requirement of Federal Rule of Civil Procedure 26 and Plaintiff’s Response. The Court then turns

to the Daubert standard.

i. Failure to Disclose

Like Dr. Frain, under Federal Rule of Civil Procedure 26(a)(2)(B)(i), Dr. Lichtblau’s report

must include “a complete statement of all opinions the witness will express and the basis and

reasons for them.” Here, Dr. Lichtblau’s report similarly does not provide Defendants with the

requisite notice that he will opine as to Plaintiff’s pre-accident intellectual functioning and

causation for Plaintiff’s failure of the exit examination.

Dr. Lichtblau is being put forth as an expert in his field of physical medicine and

rehabilitation. DE 32 at 6. In his report, Dr. Lichtblau opines on Plaintiff’s medical functional

capacity and level of impairment. See DE 37-2 at 90-91. Specifically, Dr. Lichtblau notes that

Plaintiff has “the functional capacity to work 8 hours per day on an uninterrupted basis at this

time,” recommending “sedentary light” positions. Id. at 90 (emphasis omitted). Dr. Lichtblau also

notes that Plaintiff’s disability will increase as she ages, and she will suffer from “acute,

intermittent exacerbations of chronic pain and discomfort.” Id. at 91.

Dr. Lichtblau does not directly address Plaintiff’s pre-accident intellectual functioning in

his report. Furthermore, in his deposition, Dr. Lichtblau describes Plaintiff’s injuries and how they

have and may continue to affect her post-accident levels of cognitive functioning. See DE 32-5 at

76:16-77:8. Although Dr. Lichtblau does not say that he will not opine on the topic of Plaintiff’s

pre-accident intellectual functioning, the Court finds that he has not properly disclosed any opinion

on that topic. Therefore, Dr. Lichtblau is prohibited from testifying as to Plaintiff’s pre-accident

intellectual functioning.

As to causation, Dr. Lichtblau’s report seems to state that the 2019 incident is the basis for

many of Plaintiff’s current medical conditions, mentioning repeatedly that Plaintiff’s past medical

issues are “secondary” to the injuries she sustained in the 2019 accident. See generally id.

However, Dr. Lichtblau does not include in his report any opinion as to whether the 2019 accident

specifically caused Plaintiff to fail her exit examination. In his deposition, Dr. Lichtblau similarly

focuses on medical causation, rather than Plaintiff’s exam failure. See, e.g., DE 32-5 at 19:3-11

(“So causation in this case is very simple, because for four years prior to subject incident, she

didn’t have any problems, . . . . After subject incident, . . . she was diagnosed with mild traumatic

brain injury.”). In fact, he declines to comment on the likelihood of Plaintiff passing her exit

examination going forward but says that “it’s going to be a very difficult road for her,” due to her

injuries. Id. at 72:2-16. No part of Dr. Lichtblau’s report or deposition testimony includes an

opinion that the 2019 accident caused Plaintiff to fail her exit examination. Therefore, the Court

finds it proper to prohibit Dr. Lichtblau from testifying on this narrow topic as well.4

ii. Failure to Refute

For the same reasons that Plaintiff has failed to refute Defendants’ arguments as to Dr.

Frain, Plaintiff has failed to refute—and therefore respond to—Defendants’ arguments as to Dr.

Lichtblau. Plaintiff’s Response is similarly silent as to why, under the Daubert standard, Dr.

Lichtblau should be permitted to testify specifically about the two topics in Defendants’ Motion.

4 Dr. Lichtblau may, however, still testify as to medical causation—that is, whether the 2019 accident caused Plaintiff’s

injuries.

Therefore, the Court finds that Plaintiff has failed to appropriately respond, and the motion may

be granted by default. On this basis, Defendants’ Motion in Limine is GRANTED as to Dr.

Lichtblau’s testimony on both topics.

iii. Daubert Analysis

Unlike Dr. Frain, Dr. Lichtblau does not explicitly state that he will not testify as to the two

topics at issue. Therefore, in the interest of thoroughness, the Court, in the alternative, examines

his analysis under the Daubert standard. Here, the Court assumes Dr. Lichtblau meets the Daubert

standard for the qualification5 and proceeds to analyze the second prong, reliability.

To satisfy the second Daubert requirement, a court must assess “whether the reasoning or

methodology underlying the [expert] testimony is scientifically valid and . . . whether that

reasoning or methodology properly can be applied to the facts in issue.” Chapman, 766 F.3d at

1306 (internal quotation marks and citation omitted).

In Daubert, the Supreme Court identified four factors to guide assessment of an expert’s

methodology: (1) whether the expert’s methodology has been tested or is capable of being tested;

(2) whether the theory or technique used by the expert has been subjected to peer review and

publication; (3) whether there is a known or potential error rate of the methodology; and (4)

whether the technique has been generally accepted in the relevant scientific community. Id., 766

F.3d at 1305 (quoting United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir.

2013) (citing Daubert, 509 U.S. at 593-94)). Additionally, an opinion is not reliable when there

is “too great an analytical leap between the [supporting] data and the opinion proffered.” Hendrix

5 An expert must be qualified to testify to meet the first Daubert requirement. An expert may be qualified based on

“knowledge, skill, experience, training, or education.” Fed. R. Evid. 702; Frazier, 387 F.3d at 1261. The standard for

qualification is not stringent, and an expert need only be minimally qualified in his or her field. See Hendrix v. Evenflo

Co., 255 F.R.D. 568, 578 (N.D. Fla. 2009), aff’d sub nom. Hendrix II, 609 F.3d 1183 (11th Cir. 2010). Here, Defendant

concedes that Dr. Lichtblau is an expert in his field. DE 47 at 1. The Court assumes that the testimony Defendants

seek to exclude falls under Dr. Lichtblau’s scope of expertise.

II, 609 F.3d at 1194 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). An “expert

opinion is inadmissible when the only connection between the conclusion and the existing data is

the expert’s own assertions.” McDowell v. Brown, 392 F.3d 1283, 1300 (11th Cir. 2004); c.f.

Joiner, 522 U.S. at 146 (“[N]othing in either Daubert or the Federal Rules of Evidence requires a

district court to admit opinion evidence that is connected to existing data only by the ipse dixit of

the expert.”).6

The Advisory Committee Notes for Federal Rule of Evidence 702 state that experts must

account for obvious alternative explanations. See Eberli v. Cirrus Design Corp., 615 F. Supp. 2d

1357, 1363 n.3 (S.D. Fla. 2009) (citing the advisory committee notes); Cavallo v. Star Enterprise,

892 F. Supp. 756, 771 (E.D. Va. 1995) (“If other possible causes of an injury cannot be ruled out,

or at least the possibility of their contribution to causation minimized, then the “more likely than

not” threshold for proving causation may not be met”); Cooper v. Smith & Nephew, Inc., 259 F.3d

194, 202 (4th Cir. 2001) (holding that expert opinion should be excluded where expert fails to

consider alternative causes).

Here, the Court addresses Plaintiff’s pre-accident intellectual functioning before moving

to causation. Dr. Lichtblau’s testimony as to Plaintiff’s pre-accident intellectual functioning is

devoid of any methodology. Dr. Lichtblau did not test Plaintiff’s pre-accident intellectual

functioning; he only diagnosed her medical condition post-accident. Therefore, there is no

methodology to be tested under the Daubert four-factor reliability test. The lack of methodology

also means that any expert opinion provided by Dr. Lichtblau on Plaintiff’s pre-accident

6 Plaintiff contends that objections based on an expert’s reliance on incorrect assumptions impacts the weight of the

evidence, not admissibility. See DE 37 at 9. As a threshold matter, the Court notes that an expert’s assumptions can

bear on admissibility. E.g., Rink, 400 F.3d at 1292. Only once an expert’s opinion has satisfied the Daubert reliability

standard for admissibility is the Court restricted from “exclud[ing] the opinion simply because it believes that the

opinion is not – in its view – particularly strong or persuasive.” Seamon v. Remington Arms Company, LLC, 813 F.3d

983, 990 (11th Cir. 2016).

intellectual functioning would be ipse dixit and would necessarily include an impermissible

analytical leap. Therefore, it is unreliable and inadmissible.

As to causation on Plaintiff’s exit examination, two issues affect the reliability of Dr.

Lichtblau’s testimony: lack of methodology and failure to consider alternate causes. First, as with

Plaintiff’s pre-accident intellectual functioning, the Court cannot evaluate a methodology under

the four-factor Daubert reliability test because Dr. Lichtblau has not explained any methodology

used to conclude that the 2019 accident caused Plaintiff to fail her exit examination. Second, and

perhaps the most critical flaw in Dr. Lichtblau’s analysis, Dr. Lichtblau does not consider the low

passage rate of the exam as an alternative explanation for Plaintiff’s failure. Dr. Lichtblau states

that this piece of information is irrelevant. See DE 32-5 at 68:24. However, simple logic

demonstrates that the passage rage directly implicates causation. For example, if every person,

including Plaintiff, failed the examination, such a fact would strongly suggest that variables other

than Plaintiff’s injuries caused her failure, and the passage rate of the exam would not be, as Dr.

Lichtblau testified, “irrelevant.” This hypothetical is not far from the truth as the passage rate was

very low, particularly for first-time test takers.7 As Dr. Lichtblau did not take this information into

consideration, the Court finds that any opinion by Dr. Lichtblau on this subject would not be the

product of a reliable methodology. As Dr. Lichtblau’s testimony does not satisfy the reliability

prong of the Daubert standard, Dr. Lichtblau may not testify as to causation related to Plaintiff’s

failure of her exit examination.

7 31 of 48 of all exam-takers failed the exam, a passage rate of 35.4 percent. See DE 47 at 3. Additionally, only four

first-time test takers passed, and the exam results indicate that 29 exam-takers were first-timers, indicating a first-time

passage rate of 13.8 percent. DE 32 at 2; see DE 32-2.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendants’ Motion in Limine

[DE 32] is GRANTED as more fully set forth in this Order.

DONE AND ORDERED in Chambers, at West Palm Beach, Florida this 16th day of

April, 2024.

a oN

Tobe. Feo

HONORABLE ROBIN L. ROSENRE G

United States District Judge

Copies provided to Counsel of Record

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