Sims v. BMW of North America LLC

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 Plaintiff’s Omnibus Motion in Limine.

(Doc. 264). Defendants BMW of North America, LLC (“BMW NA”) and

Bayerische Motoren Werke AG (“BMW AG”) (collectively, “Defendants”)

submitted a Response. (Doc. 283).

I. LEGAL STANDARD

In a motion in limine, a party may present the trial court with pretrial issues

regarding the admissibility of evidence likely to be presented at trial. Holderbaum

v. Carnival Corp., No. 13-24216-CIV, 2015 WL 12085846, at *1 (S.D. Fla. Mar. 4,

2015) (citing Begualg Inv. Mgmt., Inc. v. Four Seasons Hotel Ltd., No. 10-22153-

CIV, 2013 WL 750309, at *1 (S.D. Fla. Feb. 27, 2013)). “The real purpose of a

motion in limine is to give the trial judge notice of the movant’s position so as to

avoid the introduction of damaging evidence, which may irretrievably affect the

fairness of the trial.” Id.

Notably, “[m]otions in limine are disfavored,” and “[i]n fairness to the

parties and their ability to put on their case, a court should exclude evidence in

limine only when it is clearly inadmissible on all potential grounds.” Id.; United

States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010). For this reason,

when the evidence is not clearly inadmissible, “evidentiary rulings should be

deferred until trial so that questions of foundation, relevancy, and potential

prejudice may be resolved in proper context.” Gonzalez, 718 F. Supp. 2d at 1345

(quoting In re Seroquel Prods. Liab. Litig., 2009 WL 260989, at *1 (M.D. Fla. Feb.

4, 2009)). Importantly, an in limine ruling “remains subject to reconsideration by

the court throughout the trial,” and the parties may renew their objections as

appropriate. In re Seroquel Prods. Liab. Litig., 2009 WL 260989, at *1 (quoting

Stewart v. Hooters of Am., Inc., No. 8:04–cv–40–T–17–MAP, 2007 WL 1752843,

at *1 (M.D. Fla. June 18, 2007)).

II. DISCUSSION

1. IRF & Trust Fund Submission

Plaintiff seeks to exclude evidence, argument, and reference to Plaintiff’s

submission of a claim to the Takata Airbag Individual Restitution Fund (the “IRF”)

and Tort Compensation Trust Fund (the “Trust Fund”). (Doc. 264, p. 2). When

Takata Corporation entered into a plea agreement with the United States in 2017,

two restitution funds were created. See TAKATA AIRBAG INDIVIDUAL RESTITUTION

FUND, www.takataspecialmaster.com (last visited Apr. 2, 2025). The IRF fund was

created to compensate people who have suffered personal injury or wrongful death

as a result of a defective airbag inflator. Id. Takata Corporation’s Chapter 11

Bankruptcy Plan of Reorganization created the Trust Fund, compensating

individuals injured or killed by defective airbag inflators. Id. A claimant may seek

compensation from both the IRF and the Trust Fund.1 Id.

Plaintiff submits that evidence or argument concerning the amount of

money he received from the IRF and Trust Fund violates the collateral source rule.

(Doc. 264, p. 3). Defendants concede the rule bars evidence of the payments

received by Plaintiff. (Doc. 283, p. 3). The Court agrees that the sum of money paid

by the IRF and/or the Trust Fund to Plaintiff is inadmissible under the collateral

source rule.

Plaintiff also seeks to exclude evidence or argument relating to the

submission of the claim form itself, including any attachments. (Doc. 264, p. 4).

Defendants argue that Plaintiff’s application to the IRF and the Trust Fund

“contains a trove of information relevant to Plaintiff’s injuries, the Subject

Incident, and Plaintiff’s claims in this case[,]” “including an itemization of past and

future expenses.” (Doc. 283, p. 3). Defendants also argue that the fact that Plaintiff

sought recovery from the Takata trusts is relevant to rebutting Plaintiff’s claim that

1 Takata Corporation’s guilty plea also created the POEM Restitution Fund for participating

original equipment manufacturers (Honda/Acura and Nissan/Infiniti) where individuals

injured or killed by a defective airbag inflator may seek compensation. See TAKATA AIRBAG

TORT COMPENSATION TRUST FUND, www.takataairbaginjurytrust.com (last updated Feb. 21,

2020).

Takata was not responsible for the design or manufacture of the airbag inflator.

(Id.). However, Defendants’ generalized assertion that Plaintiff’s application

contains a trove of information is unpersuasive. As the Court has noted in previous

orders, Defendants’ failure to develop their argument amounts to waiver. See W.

Sur. Co. v. Steuerwald, No. 16-61815-CV, 2017 WL 5248499, at *2 (S.D. Fla. Jan.

17, 2017) (“It is axiomatic that arguments not supported and properly developed

are deemed waived.”); see also U.S. Steel Corp v. Astrue, 495 F.3d 1272, 1287 n.13

(11th Cir. 2007) (noting that the court need not consider “perfunctory and

underdeveloped” arguments and that such arguments are waived). Aside from the

itemized expenses, Defendants fail to cite a single document submitted in support

of Plaintiff’s claim that is relevant to any issue in dispute.

The Court reviewed Plaintiff’s application to the IRF and Trust Fund and

finds the photographs, medical records, and police reports were available via

conventional discovery requests. Therefore, Defendants need not use the claim file

to present this evidence. The Court also notes that filing a claim with the IRF and

Trust Fund is not evidence tending to show Takata did or did not design the

defective airbag inflators. Defendants cite no evidence establishing that Takata

admits in the claim to having defectively designed the airbag inflator. As such, the

prejudicial effect and likelihood of confusing the jury by the mere suggestion that

filing a claim is synonymous with assigning responsibility for design decisions

outweighs any probative value.

For these reasons, Plaintiff’s Motion in Limine #1 is GRANTED.

2. Plaintiff’s Settlement with Ms. Harris-Jackson

Plaintiff moves to exclude evidence and argument relating to his settlement

demand to and payment from Ms. Harris-Jackson. (Doc. 264, p. 5). The demand

letter to Ms. Harris-Jackson is excluded under Federal Rule of Evidence 408,

which states:

(a) Prohibited Uses. Evidence of the following is not

admissible — on behalf of any party — either to prove or

disprove the validity or amount of a disputed claim or to

impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting,

promising to accept, or offering to accept — a valuable

consideration in compromising or attempting to compromise

the claim; and

(2) conduct or a statement made during compromise

negotiations about the claim — except when offered in a

criminal case and when the negotiations related to a claim by

a public office in the exercise of its regulatory, investigative,

or enforcement authority.

(b) Exceptions. The court may admit this evidence for

another purpose, such as proving a witness’s bias or prejudice,

negating a contention of undue delay, or proving an effort to

obstruct a criminal investigation or prosecution.

FED. R. EVID. 408.

The former Fifth Circuit, in interpreting Rule 408, observed that “[a]

primary reason for excluding evidence of a compromise is to encourage non-

litigious solutions to disputes.” Reichenbach v. Smith, 528 F.2d 1072, 1074 (5th

Cir. 1976); accord Ramada Dev. Co. v. Rauch, 644 F.2d 1097, 1106 (5th Cir. May

1981) (noting that Rule 408 “is designed to encourage settlements by fostering free

and full discussion of the issues”);2 see also FED. R. EVID. 408 advisory committee’s

notes to 1972 proposed amendment (noting that the rule “promot[es] . . . the public

policy favoring the compromise and settlement of disputes”). Accordingly, “the

question under [Rule 408] is whether the statements or conduct were intended to

be part of the negotiations toward compromise.” Ramada, 644 F.2d at 1106

(internal quotation marks omitted); accord Blu-J, Inc. v. Kemper C.P.A. Group,

916 F.2d 637, 642 (11th Cir. 1990).

Defendants again advance a general and unsubstantiated claim that the

demand letter included “hundreds of pages of medical records and other

documents that are directly relevant to the issued to be tried in this case and were

not otherwise available to . . . Defendants.” (Doc. 283, p. 4). We are closing in on

three years of litigation. The Court would assume Defendants could identify the

specific evidence embedded in the demand to Ms. Harris-Jackson that is “directly

relevant” to an issue and is not otherwise available to Defendants. The real reason

Defendants seek to introduce a demand letter that is barred by Rule 408 is to

support their claim that “Plaintiff assigned sole blame for these very same injuries

to Ms. [Harris-]Jackson.” (Id. at p. 5). As Defendants note in their Response, the

demand to Ms. Harris-Jackson is dated October 30, 2019, and the instant lawsuit

was commenced in September 2022. (See id.; Doc. 1). Moreover, the demand was

made by a different law firm and is silent regarding the product liability—

2 The Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions prior to October

1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

enhanced injury—claim presented here.3 Rules 408 and 403 preclude the

admission of, or comment on, the demand made by Plaintiff’s former lawyer to Ms.

Harris-Jackson. Finally, the Court granted partial summary judgment in favor of

Plaintiff on the defective airbag inflator being an intervening cause, rendering Ms.

Harris-Jackson’s alleged responsibility for causing the accident moot. (Doc. 292)

Thus, Plaintiff’s Motion in Limine #2 is GRANTED.

3. Eligibility or Receipt of Other Collateral Source Payments

Plaintiff’s Motion in Limine #3 is GRANTED as unopposed. (See Doc. 283,

p. 5).

4. Plaintiff’s Financial Circumstances & Motivation

Plaintiff moves to exclude evidence and argument regarding his financial

circumstances and perceived financial motivation for filing this lawsuit. (Doc. 264,

pp. 6–7). Defendants ask the Court to reserve ruling on this issue because

Plaintiff’s financial motivation may relate to his credibility and is relevant to his

failure to follow his physicians’ treatment recommendations. (Doc. 283, pp. 6–7).

The Court agrees with Plaintiff’s assertion that his interest in being compensated

for his injuries is not relevant to a motive to fabricate illnesses or physical

limitations.4 That said, Plaintiff’s financial means may be relevant to the issue of

3 See Starbuck v. R.J. Reynolds Tobacco Co., 349 F. Supp. 3d 1223, 1236 (M.D. Fla. 2018)

(holding that counsel’s statements about withdrawing or dropping a claim is not an admission

of fact because the statement involves a legal theory).

4 If Defendants are aware of a statement by Plaintiff where he discloses a motive to misrepresent

his injuries for financial gain, they should have raised it in their Response. Since they did not,

the Court assumes they want to argue that the hope of a significant jury verdict is evidence of

whether he failed to follow his doctors’ instructions regarding treatment or was

financially unable to comply. Defendants may question Plaintiff about whether he

had sufficient funds to obtain treatment following his accident, as recommended

by his doctors. Defendants may not comment on the amount Plaintiff received

from Ms. Harris-Jackson, the IRF or Trust Fund, or the source of those funds. If

Plaintiff denies he had sufficient funds to pay for recommended medical treatment,

counsel may inquire further about the source and amount of payments he received

with leave of the Court. The Court may direct counsel to voir dire Plaintiff

outside the jury’s presence to determine if the questioning leads to relevant

information.

Accordingly, the Court GRANTS IN PART AND DEFERS RULING IN

PART on Plaintiff’s Motion in Limine #4 as stated herein.

5. Traffic Citations & Body Cam Footage

Plaintiff seeks to exclude Defense Exhibits 324 through 334 consisting of

eleven (11) traffic citations Plaintiff received between 2019 and 2024 and related

body cam footage of a subset of these traffic stops. (Doc. 264, p. 7). Defendants

claim the traffic citations are relevant to rebut Plaintiff’s claims that he has trouble

driving at night, suffers from PTSD, and is afraid to drive because of the subject

accident. (Doc. 283, p. 7). Defendants also contend the vehicle identification

deception. The prejudicial effect of such an argument or cross-examination outweighs its

probative value.

number and license plate listed on the citations mean he continued to drive the

subject BMW with an outstanding airbag recall. (Id. at p. 8).

Taking Defendants’ arguments in reverse order, commonsense dictates that

Plaintiff could not have been operating the subject BMW, which is “still currently

subject to a Takata airbag recall.” (Id. at p. 8). The recalled airbag was deployed,

and the defective inflator ruptured. Simply put, there was nothing left to recall after

Plaintiff’s accident. Assuming Plaintiff continued to drive the subject BMW, the

defective airbag inflator would have been replaced, making evidence of an “open

recall” irrelevant.

Defendants do not need to introduce the traffic citations to rebut Plaintiff’s

claim that he has trouble driving at night, suffers from PTSD, and is afraid to drive

because of the subject accident. Defendants may inquire on cross-examination

whether Plaintiff has driven at night since the accident. If Plaintiff denies having

driven his car at night, the Court may permit defense counsel to refresh Plaintiff’s

memory by showing him the traffic citation without disclosing to the jury that the

document used to refresh his memory is a traffic citation. The citation should be

placed in a folder to prevent the jury from recognizing the document as a citation.

Rule 608, cross-referencing Rule 609, provides that except for a felony criminal

conviction or conviction involving dishonesty or false statement, extrinsic evidence

is not admissible to prove specific instances of a witness’s conduct or to attack his

character for truthfulness.5 Traffic citations do not qualify under Rule 609 and are

thus inadmissible under Rule 608. The body cam footage, if admitted, would

circumvent Rule 608. For that reason, and due to the prejudicial effect of these

exhibits, Plaintiff’s Motion in Limine #5 is GRANTED.

6. Surveillance Compilation

Plaintiff moves to exclude Defense Exhibit 337, a video compilation. (Doc.

264, pp. 9–12). Plaintiff avers Defendants will be unable to authenticate the video

at trial and claims it is unfairly prejudicial and misleading. (Id. at pp. 9–10).

Defendants suggest the video footage will help the jury to assess whether Plaintiff

can “lead a normal life” and somehow rebut his claim that the accident has left him

with PTSD, depression, and bouts of anger. (Doc. 283, p. 8). Defendants also

suggest that a video clip showing Plaintiff speaking with a man the defense claims

is his father proves he is lying when he says he does not know his father’s

whereabouts. (Id.).

The Court need not address the authentication issue because the Court has

watched the video, and its prejudicial effect and the risk of confusion outweighs its

probative value. The video compilation shows Plaintiff walking into a store with a

woman who is presumably his mother, shows Plaintiff talking on his cellular

phone, depicts him entering the passenger seat of a car driven by an adult male,

and separately shows him walking with a young woman and entering the passenger

5 Rule 404(b) restricts the admission of prior crimes, wrongs, or acts to proving motive,

opportunity, intent, preparation, plan, etc. That is, to prove an element of a charged crime.

seat of her car. This video compilation does not have a tendency to make any fact

in dispute more or less probable than it would be without the evidence. The defense

fails to explain how the video snippets rebut Plaintiff’s assertion that he suffers

from PTSD, depression, or bouts of anger. The risk of confusion and prejudicial

effect of this footage is evidenced by Defendants’ purported use. Similarly, the fact

that Plaintiff met with his father once does not prove he knew his father’s

whereabouts when asked. The defense would invite the jury to speculate that

Plaintiff must be lying if allowed. Rule 403 precludes such speculation. Plaintiff’s

Motion in Limine #6 is GRANTED.

7. School Shooting Threat

Plaintiff seeks to exclude reference to an alleged school shooting threat that

occurred before the accident. (Doc. 264, pp. 12–13). Plaintiff submits that he was

never arrested, charged, or convicted of a crime related to the incident, and the

prejudicial effect of the alleged threat outweighs its probative value. (Doc. 264, pp.

12–13). Defendants contend the alleged threat is relevant because Plaintiff claims

to suffer from anger issues and sadness since the accident. (Doc. 283, p. 10).

Defendants also argue the alleged threat is relevant to rebut Plaintiff’s claim that

he was an excellent student before the accident. (Id. at p. 10).

The school record at issue contains hearsay within hearsay and is

inadmissible. Moreover, as Plaintiff notes, the subject of school shooting is highly

prejudicial. Plaintiff was not arrested or charged with an offense, and the records

provided to the Court do not indicate that he admitted to making the alleged threat.

The alleged incident occurred in 2016 and is remote in time from the 2019 accident

that caused Plaintiff’s injuries. As such, the probative value—of which there is

none—is outweighed by the risk of confusion and prejudice attendant to the

allegation. If Plaintiff’s academic performance reports are properly admitted, the

defense may inquire about his grades and how they reflect on his likely success in

applying for college. Plaintiff’s Motion in Limine #7 to exclude evidence and

argument concerning an alleged school shooting threat is GRANTED.

8. Exemplar Takata Mailers & Advertisements

Plaintiff moves to exclude Defendants’ Exhibits 381 through 389 consisting

of Takata recall mailers and television advertisements. (Doc. 264, p. 13). Plaintiff

contends he never saw the mailers or advertisements, and, as such, they are not

relevant. (Id.). Plaintiff further argues that Defendants have not identified a

witness who can authenticate the exhibits. (Id.).

Defendants counter that whether Gloria, Darron Sims, or Plaintiff saw the

notices or advertisements is contested. (Doc. 283, p. 11). Defendants assert they

have identified on their witness list a BMW NA employee capable of authenticating

the challenged exhibits. The Court RESERVES RULING on the admissibility of

Defense Exhibits 381 through 389.

9. Seatbelt Usage

Plaintiff moves to exclude evidence and argument that he was not wearing

his seatbelt correctly at the time of the accident as speculative, irrelevant, and

unfairly prejudicial. (Doc. 264, pp. 13–14). Defendants are entitled to cross-

examine Plaintiff’s experts on whether the driver’s side seatbelt was correctly worn

and whether the injuries sustained would have been less severe. Plaintiff’s Motion

in Limine #9 is DENIED.

10. Injury Causation

Plaintiff submits that his biomechanical expert opines it is “very unlikely”

Plaintiff would have suffered the same injuries without the exploding airbag

inflator. (Doc. 264, p. 14). Plaintiff seeks to exclude argument and evidence that

his injuries would have been the same regardless of the inflator shrapnel striking

him. (Id.). Plaintiff notes Defendants did not retain a biomechanical expert to

opine on injury causation. (Id. at p. 15). Plaintiff, however, seeks compensatory

damages for his enhanced injuries, or those caused by the inflator exploding as

opposed to the collision itself. Defendants have challenged via cross-examination

injury causation, and the issue is ultimately for the jury to decide. Plaintiff’s

request is practically speaking a motion for partial summary judgment; however,

injury causation is a material issue of fact. Plaintiff’s Motion in Limine #10 is

DENIED.

11. State-of-the-Art

Plaintiff seeks to exclude argument and evidence that the subject BMW

complied with the state-of-the-art when it was designed and developed. (Doc. 264,

p. 15). The Court has granted partial summary judgment in favor of Plaintiff on

Defendants’ state-of-the-art defense. (Doc. 292). Accordingly, Plaintiff’s Motion in

Limine #11 is DENIED AS MOOT.

12. Compliance with FMVSS 208, 209, 210 & Industry Standards

The Court has granted partial summary judgment in favor of Plaintiff on

Defendants’ state-of-the-art defense. (Doc. 292). Accordingly, Plaintiff’s Motion in

Limine #12 is DENIED AS MOOT.

13. Defendants as “Good Companies”

Plaintiff moves to prohibit Defendants from offering testimony or argument

that Defendants, the BMW entities, are “good companies” or “good corporate

citizens.” (Doc. 264, p. 17). Plaintiff is correct that character evidence of this type

is barred by Rule 404. Defendants’ argument that their commitment to safety is

relevant to rebut Plaintiff’s claim for punitive damages misses the point. (Doc. 283,

p. 15). Rule 404(a) excludes evidence of a person’s character to prove that he or

she acted in conformity with that trait. Defendants may offer evidence to rebut

Plaintiff’s punitive damages claim, but this is limited to evidence specific to the

alleged product defect. Defendants’ overall good character is irrelevant to whether

punitive damages are warranted for the alleged defect at issue here. Plaintiff’s

Motion in Limine #13 to exclude evidence that Defendants are “good corporations”

or “good corporate citizens” is GRANTED. The defense shall advise the Court

before offering evidence or argument regarding Defendants’ specific acts or

precautions relative to the defective airbag inflator to obtain a ruling on

admissibility.

14. Undisclosed Witnesses

Plaintiff moves to exclude three (3) witnesses who were not timely disclosed

under Federal Rule of Civil Procedure 26. (Doc. 264, p. 18). These witnesses are:

(1) Sam Campbell, (2) Wolfang Drössler, and (3) an unnamed representative of

Penske Automotive Group, Inc. (Id.). Defendants respond that disclosure of these

witnesses was not required by Rule 26(e)(1)(A) because the witnesses were made

known to Plaintiff via discovery or in writing. (Doc. 283, p. 15).

a. Penske Automotive Group

Defendants state that a witness from Penske Automotive Group (“Penske”)

will testify concerning Plaintiff’s allegation that BMW of Wilmington turned him

away when he attempted to obtain a recall repair. (Id. at p. 16). Defendants issued

a subpoena duces tecum to Penske, formerly Baker Motor Co., and claim that

because Plaintiff also sent a subpoena duces tecum to Penske, the violation of Rule

26 is harmless. (Doc. 283, p. 16; Doc. 283-18). Federal Rule of Civil Procedure

37(c)(1) is dispositive, and it provides:

If a party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use

that information or witness to supply evidence on a motion, at

a hearing, or at a trial, unless the failure was substantially

justified or is harmless.

FED. R. CIV. P. 37(c)(1).

Defendants did not disclose a representative from Penske in their Rule 26

disclosure and did not supplement their disclosure to include this witness. The

witness may not testify at trial unless Defendants’ failure to do so was substantially

justified or harmless. Defendants contend because Plaintiff issued a subpoena

duces tecum to Penske in 2023, they are not harmed by Defendants’ inclusion of a

witness on the witness list. (Doc. 283, p. 16). The Court disagrees. Had Defendants

identified the “representative”—who has yet to be identified—from Penske in their

Rule 26 disclosure as a potential trial witness, Plaintiff could have deposed the

witness. Plaintiff is not responsible for anticipating witnesses the opposition may

call at trial. The very point of Rule 26 is to prevent surprise. Requesting documents

is not the same as knowing a corporate representative will testify about those

documents.

Plaintiff’s Motion in Limine #14 to exclude the representative from Penske,

pursuant to Rule 37, is GRANTED.

b. Sam Campbell

Defendants state that Mr. Campbell will testify about BMW NA’s knowledge

and investigation of the alleged defect. (Doc. 283, p. 16). Defendants concede they

did not disclose Mr. Campbell under Rule 26, but they submit they produced the

transcript of Mr. Campbell’s deposition in the Takata MDL in September of 2023

and Plaintiff declined to depose him. (Id.). Defendants claim that Plaintiff is not

surprised, especially since Plaintiff lists Mr. Campbell as a witness. (Id.).

It is unclear whether Plaintiff intends to call Mr. Campbell to testify about

the same subject matter as Defendants. Defendants report that Mr. Campbell’s

MDL deposition and that of four other witnesses were produced to narrow the

topics in Plaintiff’s Notice of Deposition. (Id. at p. 16 n.11). The email

correspondence between the parties reveals Defendants identified Mr. Campbell

as responsive to topics 9–12 of Plaintiff’s Rule 30(b)(6) deposition notice. (Doc.

283-19). Defendants refer Plaintiff to Mr. Campbell’s deposition testimony at

pages 122–123. (Id.). Accordingly, Plaintiff did not depose Mr. Campbell.

Defendants do not explain in their Response, and the email communications do

not indicate, what topics 9–12 involve. What is clear, however, is Defendants

disclosed Mr. Campbell’s relevant testimony as limited to pages 122–123.

Defendants may not now offer Mr. Campbell to testify beyond the scope of the

agreed testimony where Defendants failed to disclose him for that purpose.6 If

Plaintiff calls Mr. Campbell to discuss BMW NA’s knowledge and investigation of

the alleged defect, Defendants are free to inquire.

Plaintiff’s Motion in Limine #14 to exclude Mr. Campbell as a defense

witness, pursuant to Rule 37, is GRANTED with the following limitation: If

Plaintiff questions Mr. Campbell about Defendants’ knowledge and investigation

into the defect, Defendants are free to inquire. Additionally, since Mr. Campbell’s

MDL testimony (pages 122–123) was known to Plaintiff, Defendants may call him

to discuss the testimony he provided in the designated portion of the MDL

deposition transcript.

6 Defense counsel wrote: “Testimony from the MDL that covers topics in Plaintiff’s 30(b)(6)

notices includes, but is not limited to, the following: . . . Topics 9-12 . . . Campbell at 122-

123.” (Doc. 283-19, pp. 4–5). Plaintiff responded, “For us to withdraw these areas of

examination, will BMW NA stipulate that the designations made below for Dance and

Campbell are binding on BMW NA in the Sims matter?” (Id. at p. 3).

c. Wolfgang Drössler

Defendant BMW AG disclosed Mr. Drössler in their Rule 26(A)(1) initial

disclosures:

BMW NA is a Defendant in this matter. BMW NA distributed,

sold, and marketed the subject BMW and its representatives

may have knowledge about the subject BMW and other issues

raised in the pleadings.

(Doc. 283-20, ¶ 2). Plaintiff thereafter sought to depose BMW AG’s corporate

representative on the design, manufacture, testing, investigation, etc., of the airbag

but did not take the deposition. Accordingly, Plaintiff’s Motion in Limine #14 to

exclude Mr. Drössler is DENIED.

15. Use of Unauthorized Depositions for Impeachment

Both sides took depositions after discovery closed and without leave of

Court. Plaintiff moves to prohibit the use of expert depositions for impeachment

at trial. (Doc. 264, p. 19). Defendants respond that the unsanctioned depositions

proceeded because Plaintiff’s counsel represented that parties are allowed to

conduct discovery beyond the deadline if both sides agree and the Middle District’s

Discovery Handbook confirms this practice. (Doc. 283, p. 18).

A close reading of the Civil Discovery Handbook (“Handbook”) reveals the

parties’ ability to complete discovery after the “formal completion date”

established by the CMSO relates to written discovery—not depositions. The

Handbook states that, “[f]or example, interrogatories must be served more than

thirty days prior to the completion [of discovery] date to permit the opposing party

to respond before the discovery deadline.” See MIDDLE DISTRICT DISCOVERY 5 (Feb

1. 2021), www.flmd.uscourts.gov/civil-discovery-handbook. The Handbook

further provides that “[u]ntimely discovery requests are subject to objection on

that basis. Counsel, by agreement, may conduct discovery after the formal

completion date but should not expect the Court to resolve discovery disputes

arising after the discovery completion date.” Id. The Handbook, therefore, does not

provide license to take expert depositions after the cutoff established by the Case

Management and Scheduling Order (“CMSO”).

Further, the CMSO entered in this case provides “[t]he parties may not

extend deadlines established in this . . . Order without the Court’s approval.” (Doc.

26, p. 6). Accordingly, depositions taken after discovery closes and without leave

of Court may not be used at trial for impeachment. Plaintiff’s Motion in Limine #15

is GRANTED.

16. Vehicles Driven by Witnesses or Counsel

Plaintiff seeks to exclude evidence and argument concerning vehicles driven

by witnesses and counsel. As to the make or model of vehicles driven by the

attorneys, Motion in Limine #16 is GRANTED. As to the make or model of the

vehicles driven by the witnesses, the Court lacks sufficient context to rule, and

Motion in Limine #16 as to witnesses is DEFERRED.

17. Location of Darron Sims

Plaintiff seeks to preclude Defendants from suggesting and arguing that

Plaintiff or his counsel have obstructed their ability to locate and depose Darron

Sims. (Doc. 264, pp. 20–21). Plaintiff correctly notes that Defendants’ video

surveillance compilation shows Plaintiff entering his father’s vehicle, and yet,

Defendants did not serve Darron Sims with a subpoena. (Id.). Defendants agree

not to suggest that Plaintiff’s counsel has failed to produce Darron Sims for

deposition. (Doc. 283, p. 19). That said, Plaintiff’s counsel had no duty to produce

Darron Sims for deposition or trial. Defendants do, however, want to express

credulity over Plaintiff and Gloria Sims’s inability to locate Darron Sims. (Id.).

Defendants do not cite any legal authority for the proposition that Gloria Sims or

Plaintiff owed Defendants a duty to locate Darron Sims. Delving into whether

Gloria Sims or Plaintiff knew or should have known Darron Sims whereabouts,

with the suggestion being they had something to hide, is likely to confuse the jury

and the mere implication that they hid Darron Sims from Defendants is unduly

prejudicial. Thus, Plaintiff’s Motion in Limine #17 is GRANTED.

18. Loss or Destruction of Evidence

Plaintiff moves to preclude evidence, argument, or suggestion that evidence

has been lost, destroyed, or otherwise spoliated in this case. (Doc. 264, p. 21).

Defendants did not respond to this request, and Plaintiff’s Motion in Limine #18

is thus GRANTED.

19. Use of Pleadings as Evidence

Plaintiff moves to preclude the use of the Third Amended Complaint as

evidence at trial. (Doc. 264, p. 22). The use of pleadings as evidence is not as

freewheeling as Defendants suggest. Parties may read answers to interrogatories

to which there is no unresolved objection(s) and responses to requests for

admission. The Eleventh Circuit, in dicta, observed that “as a general rule[,] the

pleading of a party made in another action, as well as pleadings in the same action

which have been superseded by amendment, withdrawn or dismissed, are

admissible as admissions of the pleading party to the facts alleged therein,

assuming of course that the usual tests of relevancy are met.” Taxinet Corp. v.

Leon, 114 F.4th 1212, 1227 (41th Cir. 2024) (citing Continental Ins. Co. of N.Y. v.

Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971)). Thus, the entire Third Amended

Complaint is not admissible; only relevant factual allegations—as opposed to legal

theories—may be admissible if relevant. This opens the door to the Court

explaining to the jury the concept of notice pleading. The Court RESERVES

RULING on Plaintiffs Motion in Limine #19.

DONE AND ORDERED in Orlando, Florida on April 4, 2025.

/ □□ / s

PAUL G.

UNITED STATES*DISTRICT JUDGE

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Counsel of Record

Unrepresented Parties