Note: Today's post comes to us from Judge Stephen Rosen, Judge of Compensation Claims in St. Petersburg, Florida.
Every time I dictate the word “Daubert” into my dictation software, it comes out as “Dogbert.” For those of
you who are familiar with the “Dogbert” comic strip, I find it to be both
satirical yet practical. My dictation software converting the Daubert
evidentiary standard to a satirical comical strip is certainly nothing less
than "déjà vu all over again….".
The expert medical advisor
standard was put into F. S. 440.13 by the Florida legislature quite a few years
ago. As a Judge of Compensation Claims, I am not a fan of that legislative
provision as it takes away the power of a JCC to resolve medical disputes when
there is a conflict in the opinions of 2 healthcare providers which is properly
brought to the JCCs attention or, if necessary, on the JCCs own motion if the
JCC feels he or she needs help in resolving medical conflicts. It is virtually a “must” to appoint the EMA if the medical conflict is
brought to the attention of the JCC in a timely fashion. I almost referred to the
JCC’s requirement to appoint the EMA as a “no brainer” but that would be too
“Dogbert-ish.”
The Daubert evidentiary standard
first appeared in the case of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) and was adopted into the Florida evidence code at F. S.
90.702 by the Florida legislature in 2013. This section now provides that a
witness qualified as an expert by knowledge, skill, experience, training or
education may testify in the form of an opinion or otherwise if:
1. The testimony is based upon
sufficient facts or data;
2. The testimony is the product
of reliable principles and methods, and
3. The witness has applied the
principles and methods reliably to the facts of the case.
The intent of the addition to the
evidence code is to prohibit pure opinion testimony from an expert.
However, when the Legislature
added the expert medical advisor requirement in F. S. 440 .13, it did so with
the existence of F. S. 440.09 which
admits the opinions of authorized treating physicians, independent medical
examiners, and expert medical advisors appointed by a JCC into evidence. The
opinions of authorized treating physicians need no further authentication to be
admitted evidence, while the opinions of independent medical examiners must at
least be authenticated to avoid the hearsay objection to their admissibility.
The undersigned has consistently ruled
that an expert medical advisor appointed by a JCC becomes a witness of the
judge and the opinion of the expert medical advisor may be admitted into
evidence without further authentication. No case law is available on this
issue.
When admitted into
evidence, the opinion of the expert medical advisor is granted the presumption
of correctness. That presumption, of course, can be rebutted, but the rebuttal is
directed to the opinion of the
expert medical advisor, not the admissibility of the expert medical
advisors report.
Giaimo v. Florida Autosport,
Inc, 154 So.3d 385 (Fla. 1st DCA, 2014) is the initial case
applying the Daubert standard to workers compensation cases. The most recent
case is Booker v. Sumter
County Sheriff’s Office, Case No. 114-4812 (Fla. 1st DCA, May 29, 2015 ).
In Booker, the JCC applied the Daubert test and the appellate court
found that the Judge did not abuse discretion in admitting the expert’s
testimony. Neither case involved the opinions of an expert medical advisor
appointed by the JCC.
It is quite clear that the
Daubert standard will continue to be applied in workers compensation cases even
though the stated purpose of the Daubert rule is to allow the gatekeeper
(judge) to screen all opinion testimony to determine if that testimony should
be presented to a jury. Attorneys for all parties in workers compensation claims
are becoming more skilled in preserving their Daubert objections to expert’s
opinions during medical depositions.
Judges of Compensation Claims retain the option of having a separate
hearing on the application of the Daubert standard prior to any hearings on the
merits which will entail presentation of medical opinions
Since the Judge of Compensation
Claims is both the judge and jury in a Worker’s Compensation proceeding, one
could argue that to apply the Daubert evidentiary standard to expert medical
advisor opinions flies in the face of
legislative intent; that the
appointment of the expert medical advisor is to resolve a conflict in the
opinions of two healthcare providers. The purpose of the expert medical
advisor’s opinion is to resolve conflicts, not create them.
One party must spend a maximum of
$2400 for the records review, examination and report, plus possible diagnostic
testing, plus expert witness fees for deposition, transcript costs, etc. only
to raise the possibility of the expert medical advisor’s opinion being ruled
inadmissible for failure to comply with the requirements of F. S. 90.702.
No doubt the District Court of Appeal will have the
opportunity in the near future to issue guidance to Judges and litigants alike
on the application of Daubert to expert medical advisor opinions.