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Use of the Daubert Standard in Florida WC Cases Mandatory, Not Aspirational
In an appeal taken from the workers’ compensation claim of Perry v. City of St. Petersburg, OJCC Case No. 12-027434,Florida’s First District Court of Appeal has confirmed that it does not view Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to be anything but mandatory. Though 20 years after the fact, Florida adopted theDaubert standard in 2013; it is found in Florida Statute §90.702 and pretty much follows the text of the federal rule. One interesting exception: peer review and publication never made it into the criterion of §90.702.
The backstory: Ms. Perry suffered a compensable right hip injury while at work in 2012. She received medical care and ultimately declared to have reached maximum medical improvement with no permanent physical restrictions regarding the hip injury. She exercised her right to an independent medical exam and secured an opinion that she had accident-related perineural cysts of the lumbar spine. The employer/carrier secured their own independent medical exam and the contrary opinion that although there were lumbar cysts they were not caused by or related to the accident. Ms. Perry lodged a Daubertobjection to employer/carrier’s IME report. The employer/carrier, obviously aware of the disparate opinions of the parties’ respective IME opinions, moved to appoint an “expert medical advisor”, essentially Florida’s version of God when it comes to a final medical declaration when there is a conflict in medical opinions that must be resolved. Claimant moved to strike the opinions of employer/carrier’s IME report based onDaubert.
The Judge of Compensation Claims denied the employee’s motion to strike and granted the employer/carrier’s motion for appointment of the expert medical advisor. His reasoning was that the purpose ofDaubert/§90.702 was “to protect a jury from seeing or hearing evidence which is inadmissible because it is not based on scientific reliability. The trial judge, in a jury situation, is the gatekeeper for establishing reliability rather than simply taking the expert’s word for it. However, this is a Workers’ Compensation claim where the [JCC] is both the judge and the jury. The JCC sees and rules on all objected evidence. There is no insulation between the JCC and the opinions of experts.” Having set that up, the JCC went on to note that “[r]ealistically, the vast majority of all medical experts ultimately rely on their experience and training in formulating their opinions in a Workers’ Compensation claim. It is unusual for medical experts in workers’ compensation claims to point to treatises, books, studies, graphs, etc....[they] review past medical records, examine the claimant, review diagnostic studies, and give their opinions based on that evidence. Conceivably, use ofDaubert as a means to reject medical opinion testimony in a Workers’ Compensation case may mean that there may almost never be an admissible opinion of a medical expert in a Workers’ Compensation case.” He then went on to note that under the circumstances of this particular set of facts, all he was doing was judging whether there was an apparent conflict in the opinions of the two independent medical examiners sufficient enough to have the expert medical advisor appointed make the final medical opinion. It seems to me, at least, that the JCC’s point in this particular scenario makes perfect sense.
Florida’s First District Court of Appeal (“1st DCA”) did not agree. It reversed and remanded the case to the JCC to apply theDaubert standard which the JCC had, as described above, declined to do. In its brief opinion, the 1st DCA reiterated the applicability ofDaubert and referred the JCC toBooker v. Sumter County Sheriff’s Office/North American Risk Services, 166 So. 3d 189 (Fla. 1st DCA 2015) for the specifics regarding theDaubert analysis. Given that inBooker the 1st DCA had noted that “[t]he test for admissibility, given its broad application to all manner of expert opinion testimony, must be flexible” and went on to provide “some of the flexible and non-exclusive factors which a judge may consider” (emphasis added), perhaps all the JCC needed to do was say that he consideredDaubert and accepted the employer/carrier’s independent medical examination report as sufficiently trustworthy. It does, nevertheless, appear that the 1st DCA intendsDaubert to be applied in every instance in which an expert’s opinion is not otherwise deemed admissible without its application.