Sunday, July 26, 2015

“Dogbert” (Daubert) and the Expert Medical Advisor in Florida

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. 

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