Sunday, May 29, 2016

Daubert better Explained

The evidentiary revolution that is Daubert has seen significant press. I have written about the Florida legislative transition from Frye to Daubert, and some of the potential implications on Florida workers’ compensation adjudication. It is interesting that the Florida Supreme Court is currently considering whether it will adopt Daubert. Experience has taught us that it is difficult to predict timing of Florida Supreme Court decisions, and the issue has been under its consideration for some months now. It appears that in July the court will schedule an opportunity for oral argument and a great many comments on the proposal have been filed. 

Notably, the Florida legislature creates statutes, and has included the Daubert standard in Chapter 90 (the Florida Evidence Code). However, the Court has adopted a practice of having a parallel set of evidence rules. This is a product of the Court's conclusion that separation of powers in government results in the Court having responsibility for procedural rules regarding how cases proceed. As I teach my Constitutional Law students, the Supreme Court is right because it is last; it is not last because it is always right. The point is that the Court's decision in this context (a state law separation of powers issue) is the last word. It is not something upon which the U.S. Supreme Court would opine, and so when the Florida Supreme Court decides it has the authority to decide whether statutes do or do not apply, it is right. 

Of course, the Office of Judges of Compensation Claims is not a court. It is part of the executive branch. The Florida Supreme Court clarified this a few times over the years, but the clearest expression came in Amendments to the Florida Rules of Workers' Compensation Procedure in 2004. There, the Court explained that it has no "jurisdiction under the Florida Constitution to adopt rules of practice and procedure for an executive branch agency." So, even though it has concluded that it can disregard legislative enactments regarding evidence, by labelling them rules and not adopting them, it cannot, through this rule analysis, adopt evidentiary standards for the OJCC contrary to legislative enactments. 

Thus, if the Court does not adopt Daubert, Frye will remain the evidentiary standard in all of Florida law, except workers’ compensation (and potentially other administrative actions). Some will struggle with such an outcome, and may find it difficult after learning of “separation of powers” in high school civics class (do high schools still teach civics and government?) Many would conclude that the evidence code is a law, and that what it contains would logically be up to the legislature. Many lawyers are confused to learn that there is a Florida Evidence Code (legislature) and then Evidence Rules (court). 

There has been a great deal written already about Daubert, but in December 2015 a very informative opinion was published by the Florida First District Court in Baan v. Columbia County (Case 1D15-0092). It is not a workers’ compensation case, but it provides a substantial factual recitation, followed by legal explanation of Daubert that makes it worthy of study. Worthy, because whatever the decision of the Supreme Court regarding the scope and applicability of the statute, it appears Daubert may be here to stay in workers' compensation and the executive branch. 

In Baan, the Circuit Court judge granted a motion excluding the testimony of an expert witness that was to testify on behalf of the plaintiff. In the area of law called “tort,” or negligence law, a usual issue is whether someone owed someone else a “duty,” or not. The expert in this instance was rendering opinions regarding that duty.

Generally, a duty is the obligation to use reasonable care to avoid injuring others. In instances where allegations are made that some professional has not acted appropriately, a tribunal will hear evidence about what is appropriate performance by such a professional. This is the "duty" of care, and is referred to more specifically as the “standard of care.”

In Baan, there was an infant who experienced difficulty breathing, and 911 was called. Columbia County Emergency Medical Services (EMS)  responded. There was evidence that the EMS crew “did not conduct any examination of him (the infant) and in fact did not even touch” the child. There was some conflicting evidence; an EMS report documented an examination, and listed vital sign findings. It also documented a history of asthma diagnosis, upon which the EMS concluded there had been an asthma attack. The crew demonstrated the use of a nebulizer (medical device for administering medicine), and departed about 10 minutes after arriving. 

About an hour later, EMS received another call, this time the infant "was not breathing at all." EMS arrived the second time to find the child in acute distress. Care was administered, the child was transported and then "airlifted to Shands Hospital," and "was pronounced dead there the next day."

An important issue in this case, in which the County EMS is being sued for its delivery (or non-delivery) of care, is whether the EMS breached its duty of care. This was the question that came before the trial court, and is an issue upon which the family of the infant (plaintiffs) sought to introduce testimony from an expert. 

Dr. Tulsiak is an "emergency room physician retained as an expert." He opined that "EMS breached the prevailing professional standard of care by failing to put the child in the ambulance on their first run and take him to the hospital for evaluation and treatment;" and that “had  the  prevailing  professional standard of care been met by Columbia County EMS, more likely than not," the infant "would have been treated for a lack of oxygen and he would have survived.”

In cases such as this, it is not uncommon for expert opinions to be offered. There are a great many smart people in the world, but they tend sometimes to know a great deal about certain subjects. For example, I do not want my mechanic performing surgery on me, but also do not want my doctor to try and fix my truck transmission.  So, when the question is whether the appropriate steps were taken to repair my transmission, an expert mechanic opinion might help us non-mechanics understand the answer. 

The legal issue came to the fore when "EMS moved to exclude his (Dr. Tulsiak’s) expert testimony, arguing primarily that his testimony was insufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)." The trial court concluded "that Dr. Tulsiak’s opinions were 'premised on speculation based on an ultimate injury and manufactured facts.'" and held his "testimony inadmissible under Daubert." The trial court then dismissed the case against EMS on the "grounds  there was  no  evidence  of  any  negligence  without  Dr. Tulsiak’s testimony."

The First District Court provided a scholarly overview of the evidence process. It noted that "in forming opinions, an expert is entitled to rely on any view of disputed facts the evidence will support," curiously citing the Federal Rules of Evidence instead of the Florida Rules. In this instance, the Court noted that it is not the trial judge's prerogative to disregard evidence that she/he finds unconvincing or unpersuasive. It is the trial judge's responsibility to determine if any of the factual evidence "provides adequate support for" the expert opinion. 

The appellate Court concluded that there was sufficient factual evidence, if believed, to support Dr. Tulsiak's opinion in this case. It explained that under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), "expert opinion testimony is admissible if the expert is qualified and the opinion falls within the witness’s expertise." This seems like a straightforward analysis, and the Court concluded that under Frye Dr. Tulsiak's opinion would be admissible. 

Under Frye, the analysis turns on Dr. Tulsiak's occupation (board certified in emergency medicine), experience ("an emergency medical service medical advisor for over 25 years at two EMS departments in Florida" and "he dedicated 98 or 99 percent of his time to active clinical (emergency) practice and worked regularly at two Florida hospitals") and familiarity with care and treatment ("treated numerous children with a range of respiratory problems, including among other things: asthma, hyperactive airway disease, bronchiolitis, congestion, pneumonia, and upper respiratory tract infections with bronchospasm.")

The Court then turned to Daubert, noting that this standard has been adopted by the Florida Legislature. The Court mentions that a question remains as to whether the Supreme Court will or will not adopt the standard, but applied that standard anyway.  It noted that the purpose of Daubert is “to tighten the rules for admissibility of expert testimony.” Under this standard, "the  trial  court  not  only evaluates  a  putative  expert’s credentials, but also serves as a gatekeeper in 'ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.'"

As an aside, this is particularly interesting in the context of workers' compensation. The point of Daubert is to prevent a jury from hearing "junk science," that is expert testimony that is not founded on science. In Florida workers' compensation we do not have juries. Daubert in Florida workers' compensation allows a judge to hear expert testimony and conclusions in order to determine if the same judge should later listen to those expert conclusions. In a non-jury setting, Daubert makes little if any sense as the judge is the "gatekeeper" for the judge. This distinction will be ironic if the Court elects to leave the legislative Daubert standard effective only in workers' compensation. 

Returning to the analysis, the fact that an expert is experienced and qualified does not mean that the opinion is admissible as evidence. The expert must also be able to "explain how that experience leads to the opinion, why the experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts.” In other words, the expert must still be qualified, but also "must explain the logic and relevance of the expert opinion."

In the context of workers' compensation, some will argue that this is logical and appropriate in light of the evidentiary standard in Fla. Stat. 440.09 requiring that proof of injury and disability be made with "objective medical evidence." Perhaps the steps described above, with the explanations, will make sense in that context?

What is not sufficient under the Daubert analysis? The Court cited an example in which "the expert was asked how he arrived at his opinion and stated 'when I was asked and thought about it, that is the answer that I came up with.’” This fails because the logic is not explained. It is conclusory, the equivalent of what mom used to tell us "because I said so."

Dr. Tulsiak provided an in-depth explanation of the evidence he considered, in terms of medical records and eyewitness accounts of the appearance and responsiveness of the infant (facts that a jury might accept). He explained his logic, from education and experience, as applied to those facts, leading to his ultimate opinions. It does not matter, the court explained, whether the judge believes those facts; the question is whether a jury rationally could. 

Concluding that the explanation of opinions provided in this case by Dr. Tulsiak was sufficient, the Court rejected "EMS’s contention that Dr.  Tulsiak’s opinion  is  unfounded  speculation," and reversed the trial court.  It concluded that "the record makes clear that Dr. Tulsiak’s testimony was 'the product of reliable principles and methods,' and that those principles and methods were applied 'reliably to the facts of the case.'”  

The Court recognized the "importance of evidence-based medicine" (which might also include the workers' compensation "objective medical evidence"). But noted that "much of medical decision-making relies on judgment—a process that is difficult to quantify or even to assess qualitatively." The test for admissibility and persuasiveness of these opinions may therefore be “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." 

In other words, the court sees merit in the presentation of differing views, the application of confrontation and cross-examination, followed by a judge or jury deciding whether to accept or reject the opinions. This decision could be made based upon how well the expert makes that explanation of how education and experience apply to facts she or he finds relevant, and thus the conclusion. The judge or jury could agree or disagree with the chosen facts, the logic of the explanations and therefore the conclusions of the expert. 

Frye may return to Florida courtrooms, that remains to be seen. Time will tell when the Florida Supreme Court makes that decision. But is seems likely at least that Daubert will remain the analysis in Florida workers' compensation hearing rooms. There are those who feel that workers' compensation is no place for Daubert and the arguably more complicated analysis of evidence. But that decision is apparently for the Florida Legislature. For the workers' compensation practitioner, Baan v. Columbia County (Case 1D15-0092) is worthy reading. For the workers' compensation practitioner, the questions posed in that analysis are perhaps a good start for a road map to analyze expert conclusions and analysis.

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