Sims v. BMW of North America LLC

Filing 277

ORDER denying 213 Motion to Exclude the Testimony of Dr. Craig Lichtblau or, in the alternative, for Sanctions Regarding Plaintiff's Failure to Present Dr. Lichtblau for Deposition. See Order for further details. Signed by Judge Paul G. Byron on 3/5/2025. (ABD)

Case 6:22-cv-01685-PGB-UAM

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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 Exclude the
Testimony of Dr. Craig Lichtblau (“Dr. Lichtblau”) or, in the alternative, for
Sanctions Regarding Plaintiff’s Failure to Present Dr. Lichtblau for Deposition.
(Doc. 213 (the “Motion”)). Plaintiff filed a Response in Opposition. (Doc. 225).
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.

DISCUSSION
Defendants assert two challenges to the admissibility of Dr. Lichtblau’s

expert opinions: substantive and procedural. (See Doc. 213). Neither argument has

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merit. Defendants do not challenge Dr. Lichtblau’s qualifications. He is a boardcertified physician specializing in Physical Medicine and Rehabilitation and holds
board certification in Brain Injury Medicine. (Doc. 213-1, p. 4). Additionally, Dr.
Lichtblau has a robust clinical practice, maintains staff privileges at five hospitals,
and has impressive credentials in both leadership and academic roles. (Id.).
Defendants contend—once again in a cursory manner—that Dr. Lichtblau’s expert
opinions are irrelevant, inadmissible, and unhelpful. (Doc. 213, p. 2). Defendants’
argument is boiled down to a single paragraph. They contend that Dr. Lichtblau’s
Comprehensive Rehabilitation Evaluation compiles and parrots the opinions of
Plaintiff’s other retained experts. (Id. at p. 11).
Defendants cite a chart, found on pages 74 through 77 of Dr. Lichtblau’s 177page report, where Dr. Lichtblau identifies documentation from Dr. Tarabishy and
Dr. Horn listing future medical services Plaintiff will require. (Id. (citing Doc. 2131, pp. 81–84)).1 Defendants cite nonbinding case law for the principle that the trial
court should exclude expert testimony where the expert parrots another
individual’s out-of-court statements rather than conveying an independent
judgment. (Doc. 213, p. 10 (citations omitted)). There are two points here: first,
Defendants fail to develop their argument. They make the bald assertion that Dr.
Lichtblau is parroting other witnesses and fails to convey independent judgment
without developing the argument. They also fail to cite case law that is either on

1

Dr. Lichtblau’s expert report includes a preamble, causing the report’s pagination to vary from
the scanned document.

2

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point or persuasive, relying instead on generalities untethered to this case. As
previously observed, the Court is not obligated to address arguments that are
unsupported and not properly developed and that such arguments are 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) (noting that the court need not consider “perfunctory and
underdeveloped” arguments and that such arguments are waived).
As Plaintiff correctly notes: “Life care planners prepare comprehensive
projections of future medical care and treatment needs to aid economists in
calculating the present value of future medical care and treatment.” AndersonMoody v. Wilson, 357 So. 3d 1240, 1242 (Fla. 5th DCA 2023) (quoting Olges v.
Dougherty, 856 So. 2d 6, 8 n.1 (Fla. 1st DCA 2003)). “In doing so, they necessarily
rely on physicians’ recommendations.” Id. (emphasis added) (quoting Olges, 856
So. 2d at 8 n.1). And as Plaintiff avers, had Dr. Lichtblau failed to cite the
recommendations of Plaintiff’s physicians, Defendants would have moved to
exclude his testimony as unreliable. See, e.g., Rinker v. Carnival Corp., No. 0923154-CIV, 2012 WL 37381, at *2 (S.D. Fla. Jan. 6, 2012) (excluding life care
planner’s opinion where the expert “admitted that all of the projected medical care
and frequency estimates are simply his opinion” and “there is no evidence to
support many of [the expert’s] estimates for future medical care needs and their
costs”); Trinidad v. Moore, No. 2:15CV323, 2016 WL 5341777, at *8 (M.D. Ala.
Sept. 23, 2016) (excluding life care planner for lack of sufficient factual basis).

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Thus, Dr. Lichtblau correctly cites Plaintiff’s physicians when determining his
future medical needs.
Secondly, Dr. Lichtblau’s expert opinions are predicated on his independent
judgment. Defendants conveniently omit from their Daubert challenge the
comprehensive evaluation and detailed analysis performed by Dr. Lichtblau in
arriving at his opinions. Dr. Lichtblau begins his report by defining the scope of his
work in conducting a Comprehensive Rehabilitation Evaluation:
The methodology to construct a Comprehensive
Rehabilitation Evaluation utilizes a medical model which
includes, but is not limited to, obtaining the history directly
from the patient, performing a physical examination and/or
patient observation, and review of medical records, which
includes all available diagnostic films and videos. This process
is performed by a licensed practicing physical medicine and
rehabilitation physician who utilizes a differential diagnosis to
accurately define the patient’s appropriate diagnosis. The
examining physical medicine and rehabilitation physician will
then utilize knowledge, training, clinical practice experience
as well as peer reviewed published literature to define the
patient’s, impairment, disability, and cost for future medical
care.

(Doc. 213-1, p. 3).
Dr. Lichtblau meets each objective of a comprehensive rehabilitation
evaluation by: (1) summarizing relevant medical records (Id. at pp. 8–12, 15–16);
(2) performing a physical examination with detailed diagnostic impressions and
assessments (Id. at pp. 12–15, 16–20); (3) discussing the link between postconcussion syndrome and mild traumatic brain injury and between myofascial
pain and depression (Id. at pp. 21–24); (4) discussing risk of injury associated with
visual deficits as one ages and the impact on one’s quality of life (Id. at pp. 25–34);

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(5) performing a differential diagnosis (Id. at p. 34); and (6) performing the
following: (a) Medical Functional Capacity Assessment, (b) Medical Functional
Capacity Opinion, (c) AMA Impairment Rating, (d) Functional Assessment, (e)
Continuation of Future Care, (f) Summary Report and Life Expectancy, (g)
Supporting Photographs, (h) Outline of Conversations with Providers, (i)
Documentation of Costs, (j) Peer-Reviewed Literature, and (k) Medical Records
Review. (Id. at pp. 34–77). To say that Dr. Lichtblau compiled and parroted the
opinions of other experts runs perilously close to inviting Rule 11 sanctions. The
Court expects lawyers to comply with their obligation of candor to the tribunal—
and this duty applies equally to lawyers appearing pro hac vice.
Dr. Lichtblau’s opinions are well-grounded in reliable scientific methods
and are relevant and helpful to the jury. As such, Defendants’ Daubert challenge is
denied.
Defendants also seek to exclude Dr. Lichtblau from testifying because he
failed to appear for his deposition. (Doc. 213, p. 11). Not only is this statement
incorrect, but also Defendants ignore that the deadline for completing discovery
was July 1, 2024, and the proposed date for Dr. Lichtblau’s deposition was July 8,
2024—after the discovery cutoff. (See Doc. 244 (the “CMSO”)). Neither party may
notice a deposition after the close of discovery without leave of Court. On May 13,
2024, with the close of discovery approaching, Defendants moved for leave to
expand the ten-deposition per side limit. (Doc. 175). They did not seek leave to
extend the deadline for discovery or dispositive motions. The Magistrate Judge

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granted the motion to expand the number of depositions (Doc. 181), and
Defendants then moved the Court to establish the duration of each expert
deposition. (Doc. 183). The Magistrate Judge granted the latter request the
following day. (Doc. 185). By the time the aforementioned motion regarding time
limits was filed, only ten days remained to complete discovery.
Defendants did not move to compel Plaintiff to make Dr. Lichtblau available
between June 21, 2024 and July 1, 2024. The CMSO provides that “[t]he parties
may not extend deadlines established in this Case Management and Scheduling
Order without the Court’s approval.” (Doc. 244, p. 6 (emphasis added)). The
CMSO also states that “[t]he parties are advised that the Court routinely denies
motions to compel that are filed after the discovery deadline as untimely.” (Id. at
p. 7). Regardless, Defendants requested to depose Dr. Lichtblau on July 8, 2024.
(Doc. 213-2, p. 2). July 8th did not work for Dr. Lichtblau, and Defendants asked
for an alternate date on or before July 16, 2024. (Id. at p. 1). Defendants now argue
that Plaintiff should be sanctioned and Dr. Lichtblau prevented from testifying
because he did not appear for his deposition on July 8th. (Doc. 213, pp. 11–13).
Defendants proposed a date after July 8th, and as such, Dr. Lichtblau could
not have failed to appear at a rescheduled deposition. Regardless, Defendants’
remedy was to either (a) file a motion to extend the deadline for depositions, or (b)
file a motion to compel his deposition before discovery closed on July 1 st. What
Defendants cannot do is wait until August 5, 2024—more than one month after the
close of discovery—to seek sanctions when Defendants never moved to compel Dr.

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Lichtblau’s deposition. Defendants failed to move to compel Dr. Lichtblau’s
deposition before the close of discovery and may not now cry prejudice.
Accordingly, Defendants’ request for sanctions is denied.
III.

CONCLUSION
For the foregoing reasons, Defendants’ Motion to Exclude the Testimony of

Dr. Craig Lichtblau or, in the alternative, for Sanctions Regarding Plaintiff’s
Failure to Present Dr. Lichtblau for Deposition (Doc. 213) is DENIED.
DONE AND ORDERED in Orlando, Florida on March 5, 2025.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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