Opinion

Sims v. BMW of North America LLC

Court
District Court, M.D. Florida
Filed
Feb 27, 2025
Cited by
0 cases
Authority
More cited than 34.3%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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