The Florida First District Court of Appeal rendered Cristin v. Everglades Correctional Institution on December 31, 2020 (No. 1D19-1245). The Court strives to provide clarity for the role of trial judge in the function of gatekeeper. The Court reiterated that it has explained "the judge’s role is that of the evidentiary 'gatekeeper,' that is, the one who determines whether the expert’s testimony meets the Daubert test." Daubert is a case that defined/refined an evidentiary standard, which is likely familiar to most; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
For those not familiar, see Daubert's New Day (May 2019), Daubert, We Hardly Knew Ye, Or Do We? (February 2017), Daubert in the Courtroom (August 2019), or Daubert Better Explained (May 2016). Certainly, a lot has been written on Daubert over the years. Essentially, it is a 1993 decision of the U.S. Supreme Court with evidentiary implications on what opinions may be expressed by an expert in the course of litigation. It was adopted as the Florida standard legislatively, rejected by the state's courts, and later embraced.
As the Florida Court of Appeal explains, the trial judge must "ensure an expert 'employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'”
The Court's Cristin decision provides both substantive and procedural guidance for those who would present expert opinion testimony in proceedings. Intertwined in the process is the mandatory provision for the appointment of an Expert Medical Advisor (EMA), as set forth in section 440.13(9)(c), Fla. Stat. The Florida Court has long interpreted that statute as mandating the appointment of an EMA. It has explained that “[t]he statutory language provides no support for the view that the statute is directory only, or that evaluation by expert medical advisors is to be left to the discretion of the judge of compensation claims.” Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1356 (Fla. 1st DCA 1997). When there is a conflict in particular medical opinions, the Judge is obligated to appoint an EMA if one is timely requested.
In a general sense, the Court has consistently held that the credibility of witnesses is a determination for the trier of fact, which in workers' compensation is the judge. Ullman v. City of Tampa Parks Dep't, 625 So. 2d 868, 874 (Fla. 1ST DCA 1993)(“The judge of compensation claims, as the trier of fact, has the right to determine the credibility of witnesses”). However, in the setting of a motion for EMA, the trial judge does not have the discretion to make credibility determinations regarding the opinions that form the purported conflict. Brown v. Vanguard Sec., 7 So. 3d 572, 573 (Fla. 1st DCA 2009)("the denial of an EMA evaluation “cannot be justified on the basis that the JCC disagreed with and rejected the contrary opinion of an expert.") In a general sense, whether an expert is credible is irrelevant in the determination of conflict.
There has historically been some exception to that general rule, as the Court enunciated in Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So.2d 407, 411 (Fla. 1st DCA 2008), and then explained in Brown. For an opinion to competently underlie a "conflict," the physician rendering it must have evaluated and/or examined and/or treated the condition upon which an opinion is expressed. In the absence of such a factual foundation, a Judge might well determine that a particular opinion is insufficient to underlie or support a conclusion of justiciable conflict. That is, in effect, a credibility decision but is factually predicated and thus distinct.
In explaining, the Court has characterized the EMA process and the opinions that emerge from it, as analogous to the "Fruit of the Poisonous Tree" doctrine, an "exclusionary rule" employed when otherwise admissible evidence is "illegally obtained" and thus appropriately excluded from consideration. The effect of the EMA, a "presumption of correctness," on specific issues involved in a case may be undermined by the admission (consideration) of evidence that is not appropriately admissible. This issue bears careful consideration and is explained in Miller Elec. Co. v. Oursler, 113 So. 3d 1004, 1007 (Fla. 1st DCA 2013)("there is reversible error at the trunk of the EMA tree"). Thus, a flaw in the appointment of an EMA may render the opinions expressed by that expert either inadmissible or perhaps merely not entitled to the statutory presumption of correctness.
In a similar vein of thought, with some distinction, the Court has held that a credibility decision regarding certain lay testimony may be grounds for rejecting the opinions of an EMA, see Prather v. Process Sys., 867 So. 2d 479, 480 (Fla. 1st DCA 2004). There, the Court explained that the opinion of the EMA was reliant upon the factual testimony of the injured worker. The Judge, not the EMA, was the appropriate person to determine the worker's credibility, and upon concluding that testimony lacked credibility, the judge appropriately rejected the EMA opinions that were based thereon. Note, however, that this followed the appointment and examination of the EMA, and was not an analysis of whether or not to appoint an EMA. Possibly, such a credibility determination could be made prior to the request for the appointment of an EMA, but that process would be both uncommon and unwieldy in a trial proceeding. Credibility determinations of the factual testimony generally does not occur until the trial, well after the EMA process in many cases.
Similarly, however, the Court in Cristin explained that the evidentiary requirements of Daubert must be met in order for an opinion to qualify in demonstrating that "conflict" to justify or even mandate the appointment of an EMA. In that regard, there are three issues in Cristin worthy of mention and discussion.
First, the party in Cristin seeking an EMA appointment brought the dispute to the attention of the Judge of Compensation Claims (JCC). The other party objected to the conclusion or allegation of conflict on the grounds that one of those conflicting opinions was "pure opinion," and not admissible under the Daubert analysis. The JCC "denied the motion (objection) because the exclusion of the doctor’s testimony, in a bench trial setting, is 'not literally possible' where the JCC is both the trier of fact and the arbiter of the admissibility of the evidence." This may be a procedural posture issue. What is not "possible," clearly, is to make such a decision in a setting of preclusion of evidence. In trial practice, a "Motion in Limine" is used to seek a determination that evidence is not admissible, "that it not be referred to or offered at trial."
This is often seen as an appropriate pre-trial process because the admissibility is determined before the evidence is prepared for trial. It affords the party to present that evidence to a judge, to voice objection, and to prevent thereby its recitation to the jury, or even to other witnesses. Certainly, that is the primary use of such a motion. For such a motion, it is imperative that the evidence in question is presented to the trial judge, as a precursor to preventing a jury from being exposed to it. But, in a setting like workers' compensation, there is no jury.
Possibly, that riddle was the focus of the judge denying the motion in Cristin (perhaps "you want me to review evidence to decide I should not review that evidence"). However, the real point is perhaps that some evidence should not be "referred to." Thus, the exclusion of that evidence from consideration of other witnesses, and the the exclusion of that evidence from the judge's consideration as to the merits of the case. As a side note, it is imperative, however, that even evidence excluded from consideration should still be afforded a place in the record of proceedings as a "proffer." Failure to do so may frustrate effective and efficient appellate review of any such decision. Therefore, the preclusion on "offer" of evidence is perhaps too broadly stated and should instead be to "admission of" or "consideration of" evidence.
The second point is perhaps worthy of discussion in Cristin the decision's discussion of the facts surrounding injury. Just prior to the injury, the worker was invited into a conversation. There were differing opinions as to the tenor of that conversation, with the worker testifying to a perception that others were "very upset" and "condescending." The Court noted that when they entered a room to converse, the "Claimant suddenly slumped against the concrete wall, fell backward, and struck his head on the ceramic tile floor." This collapse and its results were the workers' compensation injury at issue. Potentially, such a description of an accident might engender discussion of the Court's analysis in Sedgwick CMS v. Valcourt-Williams, 271 So.3d 1133 (Fla. 1st DCA 2019). The confines and conclusions of that analysis continue as a topic of discussion in various contexts of workers' compensation. Various authorities expressed in both the majority and dissenting opinions of Valcourt are important reading for those who litigate causation issues.
In Cristin, one expert "testified that no preexisting condition explained Claimant’s syncope (faint) on the day of the accident and that the etiology of the syncopal episode was unclear." Therefore, "having no other explanation," the expert "suspected Claimant passed out due to stressors at work and described stress as a potential cause." Another expert concluded that the "episode" was caused by low blood pressure "associated with substantial weight loss, fatigue, and being on medication for several months prior to the incident in question." The objection to the appointment of an EMA took issue with the second expert, not the one who reached causation because of lacking any "other explanation."
The trial judge nonetheless granted the employer's motion and appointed an EMA. The Claimant objected to the opinions of the employer's IME which the trial judge initially denied on the grounds of insufficient documentation or explanation. The Claimant then filed a motion setting forth contentions as to the employer's IME's qualifications as regards some opinions, asserting that the physician's "testimony was pure opinion testimony based on unreliable methodology." The trial judge overruled those objections and appointed the EMA. By the time the case was tried, a successor judge was presiding. The successor judge accepted the EMA opinion that the "event was more likely related to" the non-work causes.
The Court reminded that "the Daubert standard applies in workers’ compensation cases." (Citation omitted). And, that "a JCC is required to apply the Daubert test . . . to a challenge to the admissibility of an expert opinion." It was in this context that the Court referred again to the trial judge as "the evidentiary 'gatekeeper." In the process of appointment of an EMA, the admissibility of each of the conflicting medical opinions is a relevant question prior to an appointment decision. To some, this may seem very similar to the credibility determinations that the gatekeeper is conversely forbidden to make in this process.
Thus, a Judge may make credibility determinations regarding an EMA, against the "clear and convincing evidence" standard enunciated in the statute, after the EMA determinations are made. The judge may make decisions about the foundational qualifications of a physician expressing a conflicting opinion, prior to the appointment of the EMA. As clearly, the judge is not permitted to consider the credibility (as opposed to qualification) of a physician expressing a conflicting opinion, prior to the appointment of the EMA. But, it is clear that the trial judge may (must) make decisions as to the admissibility of underlying conflicting opinions pursuant to Daubert in the same context as the other admissibility decisions, to avoid the "reversible error at the trunk of the EMA tree."
Essentially, when asked (when the objection is raised), the Judge must make an "admissibility finding based on Daubert" as regards any "objected to" conflicting opinions. That Daubert challenge to such opinion is fundamentally similar to the objection regarding foundational qualifications (the only opinions admissible are those of treating physicians and independent medical examiners, see section 440.13(5)(e), Fla. Stat.; see also Office Depot,
Inc. v. Sweikata, 737 So. 2d 1189, 1191 (Fla. 1st DCA. 1999). In effect, can the provider express a valid opinion to form the conflict? That may come down to the role in a case, Sweikata, or to the process involved in rendering the decision, Daubert. However, in either regard the process seems similar.
With that clarity from the Court, there may nonetheless remain questions. The Court reiterated that "Federal courts have ruled that a trial court has broad discretion in determining how to perform its gatekeeper function" in this regard. To do so, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”
Despite that leeway, it seems that the credibility of the expert her/himself, or the credibility of the process or procedure employed, may simply remain too far afield despite the Cristin explanation. The analysis of the gatekeeper, reiterated in Cristin is an evaluation of the "reliability of the opinion, not merely the qualifications of the expert who offers it.” Perhaps it may seem fair in this context to include "credibility" generally in that category of "qualification?" The Court ended its opinion with reinforcement of its characterization that this is a "reliability" determination to be made as the trial judge deems fit, "provided a meaningful analysis is conducted."
In short, there appear to be a variety of potential analyses that might be suggested in similar challenges. Whether those are each more akin to the credibility of the provider or the opinion will perhaps be challenges for the trial judge. The process, at least from some perspectives, may remain a debatable challenge for the pretrial process.
The Cristin decision is not unanimous. Judge Osterhaus concurred in the Court's explanation of the Daubert procedure and gatekeeper responsibility. However, he explained that the EMA statutory grounds are "beyond whether there is a conflict between medical experts." The Judge identified "other medical evidence disagreements" and concluded that "other undisputed grounds in the E/C's motion supported the appointment of the EMA." Because the objection was narrowly focused, and the disagreements relatively broad, Judge Osterhaus would have affirmed the appointment of the EMA despite the objections raised.
Ultimately, there appears to be a variety of issues that might be raised in the context of a motion to appoint an EMA. The trial judge, as "gatekeeper" will be faced with various factual arguments regarding process and foundational challenges regarding opinions. There is potential for some of these to at least imply credibility, a subject inappropriate for exclusion in the appointment process. It is probable that these issues will continue to challenge practitioners and that future determinations may further refine the process.
