The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM HARRISON SIMS,
Plaintiff,
v. Case No: 6:22-cv-1685-PGB-UAM
BMW OF NORTH AMERICA
LLC and BAYERISCHE
MOTOREN WERKE AG,
Defendants.
/
ORDER
This cause is before the Court on Defendants’ Motion to Preclude Injury
Causation Testimony of Gordon Horn, Ph.D. (“Dr. Horn”) (Doc. 212 (the
“Motion”)). Plaintiff filed a Response in Opposition. (Doc. 227). Upon
consideration, the Motion is denied.
I. BACKGROUND
The procedural setting and the standard of review under Daubert are
outlined in the Court’s Order denying Defendants’ Motion to Exclude Certain
Testimony of Perry Ponder, P.E. (Doc. 249) and are incorporated here.
II. DISCUSSION1
A. Dr. Horn’s Analysis & Opinions
Dr. Horn is a highly credentialed neuropsychologist with considerable
clinical experience. (Doc. 227-1). Defendants do not question Dr. Horn’s
qualifications or expertise. (Doc. 212, p. 10). Dr. Horn issued two expert reports.
The first expert report was issued following Dr. Horn’s interview with Plaintiff,
after which he administered tests over two days. (Doc. 227-2, p. 1). In his first
report, Dr. Horn documents copious medical records he reviewed as part of
Plaintiff’s neuropsychological examination. (Id. at pp. 1–8). The patient history
portion of Dr. Horn’s report is brief, as is the history obtained from Plaintiff’s
mother. (Id. at pp. 8–9). Next, Dr. Horn documents Plaintiff’s past medical,
neurological, developmental, psychiatric, and surgical histories. (Id. at pp. 9–11).
Dr. Horn discusses results covering a range of neurological assessments and
impairment ratings. (Id. at pp. 11–31). Defendants seem to simply ignore these
tests and the assessment findings, including validity scores.
Dr. Horn summarizes his clinical summary and impressions after subjecting
Plaintiff to a comprehensive battery of tests and examinations. (Id. at pp. 32–33).
Dr. Horn’s findings outline the following neurocognitive impairments: Auditory
and Visual Attention (mild impairment; moderate to severe with visual attention);
1 Dr. Horn’s deposition was taken on August 1, 2024, after the discovery cutoff and without
leave of Court. (See Doc. 212-2). Citation to an unauthorized deposition to support one’s
motion is inappropriate. A party is not free to disregard the Case Management and Scheduling
Order. The Court reserves ruling on whether the unauthorized disposition will be admissible
for cross-examination at trial.
Information Processing (processing mildly impaired, multitasking mildly
impaired); Language (mildly impaired complex instruction following); Memory
(verbal learning and memory for related words moderately impaired, contextual
memory moderately impaired); Visual-perceptual (mild impairment overall,
severe impairment with visual discrimination); and Executive functions (mild
impairment with complex processing, judgment and reasoning). (Id.). Dr. Horn
diagnoses Plaintiff with Depression, Anxiety, and PTSD with pre-existing
Attention Deficit Disorder and with exacerbation of cognitive and behavioral
impulsivity. (Id. at p. 32). Diagnostic impressions are diffuse traumatic brain
injury; frontal lobe and executive function deficit; mild cognitive impairment of
uncertain or unknown etiology; adjustment disorder with mixed anxiety and
depressed mood; and attention-deficit hyperactivity disorder. (Id. at p. 33).
Dr. Horn issued a second expert report following his re-examination of
Plaintiff and after two additional days of testing. (Doc. 227-3). It does not appear
Defendants take issue with Dr. Horn’s methodology or findings outlined in the
updated report. Dr. Horn’s neurological findings and the deficits attributed to
Plaintiff remain unchanged in the 2024 updated report. (Id. at p. 40). Defendants
move to exclude “injury causation” testimony of Dr. Horn. (Doc. 212). They do not
challenge his neuropsychological testing or the results of those tests.
B. Defendants’ Objection to Causation Testimony
Defendants contend, without supporting authority, that because Dr. Horn is
neither a biomechanical engineer nor a biomechanical expert, he is not qualified
to offer opinions about the causation of Plaintiff’s traumatic brain injury. (Doc.
212, p. 1). As the Court has repeatedly remarked in rejecting Defendants’ cursory
and conclusory arguments, “[i]t is axiomatic that arguments not supported and
properly developed are deemed waived.” See W. Sur. Co. v. Steuerwald, No. 16-
61815-CV, 2017 WL 5248499, at *2 (S.D. Fla. Jan. 17, 2017); see also U.S. Steel
Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007). Defense counsel’s
contention that a neuropsychologist is not qualified to offer opinions on causation
is nothing more than counsel’s opinion.
Here, Dr. Horn reviewed medical records replete with evidence that Plaintiff
was injured by shrapnel from his airbag. For example, the Orlando Health records
dated October 24, 2019 report the following:
A CT scan of maxillofacial region obtained on October 24,
2019 revealed fracture of the anterior and medial wall of the
right maxillary sinus as well as the right orbital floor and
medial wall of the right orbit. There was right intracoronal
blood in the right eye with exophthalmos. There was also a
fracture of the anterior wall of the left maxillary sinus. There
was a large foreign body interior to the left zygomatic arch
with small radiopaque foreign bodies anterior to the right
globe. [i.e., inflator shrapnel].
(Doc. 227-2, pp. 1–2). Dr. Horn notes in his conclusions that the results of the
examination were consistent with his injuries noted from the medical notations.
(Id. at pp. 32–33). The battery of examinations conducted by Dr. Horn cause him
to opine that Plaintiff’s “neurocognitive profile shows deficits consistent with
frontal lobe injury associated with the trauma.” (Id. at p. 33). A neuropsychologist
skilled in assessing cognitive impairment secondary to trauma—that is, traumatic
brain injury—is qualified to render an opinion that the brain injury was caused by
trauma.
Defendants also argue that Dr. Horn is not qualified to opine that a
zygomatic fracture was caused by shrapnel from the admittedly defective inflator
because he does not adequately support his opinion that zygomatic fractures result
in a 5–10% probability of TBI. (Doc. 212, pp. 6–7). Defendants ignore the
sentences that come before and after Dr. Horn’s assertion that zygomatic fractures
result in a 5–10% probability of TBI: “[Plaintiff’s] neurocognitive profile shows
deficits consistent with frontal lobe injury associated with the trauma . . . . In
addition, memory was impacted by frontal impairment with working memory and
attention impairment. Behavior was also consistent with this type of injury.” (Doc.
227-2, pp. 32–33 (emphasis added)). Dr. Horn’s opinion that Plaintiff’s frontal
lobe injury was caused by trauma is supported by the neurocognitive examination
administered by Dr. Horn. (See generally id.). Notably, Dr. Horn does not opine
that the shrapnel caused the zygomatic fractures documented on the CT scan.
Defendants appear to connect that dot by themselves.
Defendants’ assertion that “[Dr.] Horn’s opinions rely on inherently
unreliable information (i.e.[,] the [P]laintiff himself)” ignores the fact that Dr.
Horn’s opinions are based on Plaintiff’s medical records and extensive testing.
(Doc. 212, p. 2; see Docs. 227-2, 227-3). Plaintiff’s personal history—which doctors
routinely consider as a part of their evaluation—is not the basis of Dr. Horn’s
findings. The medical records and extensive testing from which Dr. Horn identifies
Plaintiff’s cognitive impairments and limitations support his opinion. This
argument is without merit.
Similarly, Defendants’ perfunctory argument that Dr. Horn’s testimony is
cumulative because Plaintiff has retained a biomechanical engineer and
neurologist misses the point. (Doc. 212, p. 2). Sophisticated counsel, such as those
retained by Defendants, know that expert testimony regarding causation is often
pieced together from multiple sources. Plaintiff will call Dr. Buechel, a board-
certified neurologist, to offer opinions based on his review of medical records and
independent medical examination that the inflator shrapnel caused Plaintiff’s
injuries. (See Doc. 250, p. 5). Plaintiff’s biomechanical engineer, Dr. Bonin, will
offer opinions on the correlation between facial fractures and traumatic brain
injuries and that Plaintiff’s facial fractures are consistent with inflator shrapnel.
(See Doc. 252, p. 4). Unlike Dr. Buechel, Dr. Bonin’s testimony involves an analysis
of the delta-V of 23 in the subject accident as correlating with a 0.18% risk of facial
fracture when the driver is restrained. (Id.). Dr. Bonin will also testify about studies
showing that the risk of diffuse brain injury is low (5.96% and 0.54%) when the
airbag is working properly. (Id.). Unlike these experts, Dr. Horn is a
neuropsychologist skilled in evaluating and measuring cognitive impairment.
Where Dr. Buechel connects Plaintiff’s TBI to inflator shrapnel, Dr. Horn
quantifies the damage caused, and Dr. Bonin rules out causes but for the defective
inflator. Simply put, Dr. Horn’s testimony is not cumulative. It forms part of the
concentric circles of proof.
Ill. CONCLUSION
Accordingly, Defendants’ Motion to Preclude Injury Causation Testimony of
Gordon Horn, Ph.D. (Doc. 212) is DENIED.2
DONE AND ORDERED in Orlando, Florida on February 27, 2025.
/
PAUL G.
UNITED STATES*DISTRICT JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
2 Due to the volume of Daubert motions filed in this litigation, the Court only addressed the
core arguments raised by the parties. Any argument presented and not specifically discussed
herein has been rejected and does not merit further discussion.