Tuesday, January 15, 2019

Dissing Daubert?

In 2016, I penned To D or not to D? That It appears is the Question. The evolution of constraints on evidence in Florida legal proceedings has been an interesting one. It has come to the fore again recently with consideration of the Florida Supreme Court's recent decision in Delisle v. Crane Co., ___ So.3d ___, 43 Fla.L.Wkly S459 (Fla. 2018). The conclusion of the Court was essentially that the Legislature's adoption of the Daubert" standard for Florida courts was unconstitutional. The Court concluded that it, and not the Legislature, is empowered to determine the procedural processes applied by Florida courts. 

Thus, despite the enactment of the Daubert standard by the elected representatives of Floridians, the Court struck the standard. It was not a unanimous decision. Three of the Justices dissented: Canady, Polston, and Lawson. Some who watch the Court may perceive that these three have joined together in dissent in other previous cases. And, with the recent retirement of Justices Quince, Lewis and Pariente, some observers perceive the potential for different analyses in future decisions. 

Delisle is an intriguing decision, written by Justice Quince. Two of the Justices in the majority, Pariente and Labarga penned separate concurring opinions (agreeing with the outcome and providing explanation of why). Coincidentally, Justice Pariente agreed with Justice Labarga ("concurs"), and Justice Labarga agreed with Justice Pariente (a minor curiosity in itself with multiple judges writing and agreeing with each other). The decision was recently featured prominently in a news report on WorkCompCentral: High Court's Ruling Could Trim Legislature's Plans on Comp Rules, December 27, 2018. 

Notably, Delisle is not the first time that the Florida Supreme Court has considered the Legislature's adoption of the Daubert standard. See In re Amendments to the Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017). And, since Delisle was decided various Florida appellate courts have rendered decisions following that directive. There are only eight states that cling to the Frye standard that Delisle reinstated in Florida (CA, FL, IL, MD, NJ, NY, PA, WA); according to The Expert Institute. The Daubert standard comes from the United States Supreme Court, Daubert v. Merrill Dow Pharmaceutical, 509 U.S. 579 (1993). Some will struggle with how a standard created by the nation's highest court, applied in the vast majority of U.S. states, could be unconstitutional; but, Florida's recent decision is not that the standard is, but that the method of adoption by the Florida Legislature is unconstitutional. 

It is pertinent that in Florida the Judges of Compensation Claims are required to follow the “Evidence Code.” Perry v. City of St. Petersburg, 171 So. 3d 224 (Fla. 1st DCA 2015); See, e.g., Alford v. G. Pierce Woods Mem'l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993). See also, U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 107 (Fla. 2002)(“First, the Florida Evidence Code applies in workers' compensation proceedings.”); State Department of Corrections v. Junod, 217 So. 3d 200 (Fla 1st DCA 2015)(“an EMA opinion also must comply with the Florida Evidence Code”). This evidentiary standard issue is potentially important in consideration of a variety of expert medical opinions in Florida workers' compensation. Despite these iterations, might the appellate courts have meant to say the OJCC is to follow the Court's evidence rules? Would that be consistent with the Court's conclusions regarding its authority over the OJCC?

As discussed in To D or not to D, the Florida Legislature adopted “the Florida Evidence Code.” in 1976. The Florida Supreme Court avoided any debate as to the applicability of those requirements by adopting the "code" as Florida's evidence rules in 1979. There is some tension as to what is or is not "procedural" and thus whether and what the Court or Legislature may define and require respectively. And, since 1979, the Legislature has occasionally made amendments to the Code, many of which the Court has endorsed through similar adoption. Those are detailed in that previous post, and so are not repeated here. 

As an aside, it is interesting that when the appointed Court considers those changes, it relies upon the recommendations of The Florida Bar, an agency interrelated with the Court. Recently, there has been discussion of states requiring lawyers to belong to bar associations, and thereby seemingly endorse or at least finance their positions and recommendations. See Bar Membership Debate. As The Florida Bar took its "majority" position on Daubert, was that the position of each member of the bar? According to the Court, Bar members were split on the issue Daubert adoption, but the Bar adopted a position nonetheless. 

In 2017, the Court returned again to the Florida Evidence Code, regarding the Legislature’s adoption of the Daubert standard. See In re Amendments to the Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017). The Court then “declined to adopt” the “changes to sections 90.702 and 90.704 of the Evidence Code” (The “Daubert Amendment”). And, the Court similarly declined to adopt legislative “amendments to section 766.102.” These decisions were each “to the extent they are procedural.” 

The Court expressed deference to the “case and controversy” foundation. That is, a preference to decide issues of constitutionality in a real case situation, rather than merely in consideration of adoption of a rule. This was not the first time. There are various "In re Amendment" decisions in which the Court has noted that the appropriate process for considering the merits of a statutory change would be in an actual case. In 2017, the Court commented that “the Court does not address the constitutionality of a statute or proposed rule within the context of a rules case” (noting four previous instances of such judicial restraint). 

The Court’s various determinations to decline adoption of elements of the Evidence Code, as Rules of Evidence, have all been upon the foundational conclusion that those are procedural court rules over which the constitutional separation of powers furnishes unfettered and plenary authority to the Court rather than the legislature. There are those, as discussed recently by WorkCompCentral, who see a similar separation of powers argument regarding legislative delineation of rules or procedures in workers' compensation. 

For decades, the Florida Supreme Court promulgated procedural rules for workers’ compensation. In 2004, however, the Florida Supreme Court concluded that “separation of powers,” constitutional constraints, precluded it from doing so. It held “this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for” the OJCC. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474, 478 (Fla. 2004). The Court has plenary power to establish rules for the courts, and no power to establish rules for the OJCC. 

This returns us to the 2018 Florida Supreme Court decision in Delisle v. Crane Co., __ So. 3d __, 43 Fla.L.Wkly S459 (Fla. 2018). There, the Court discussed the distinctions between substantive and procedural law, and noted “the distinction between substantive and procedural law, however, is not always clear.” The Court reiterated the constraints of separation of powers in this regard (Article II, section 3 of the Florida Constitution). It concluded that “the Legislature exceeded its authority in adopting statutes we found to infringe on the authority of this Court to determine matters of practice or procedure.” (Emphasis added). 

Finally, the Court concluded that “Section 90.702, Florida Statutes, as amended in 2013, is not substantive,” but “this statute is one that solely regulates the action of litigants in court proceedings.” That is, the statutory Daubert standard is entirely procedural. On that basis, the Court concluded that the Daubert standard enacted by the legislature, that procedural process, is not constitutional as it is the Legislative branch dictating procedure to the co-equal Judicial branch, contrary to separation of powers. The unconstitutional element is no Daubert, but the fact that the Legislature adopted that procedure for the Courts. 

Admittedly, on this basis, one might conclude that the Daubert standard does not apply to any legal proceedings in Florida, that it is “unconstitutional” as enacted by the Legislature. However, Delisle is a conclusion that the Legislature may not dictate procedure to the Courts. Delisle did not involve workers' compensation, a process and procedure that is clearly not a court, according to the Supreme Court. Though the Court determined the Legislative imposition of Daubert on the Judiciary to be unconstitutional, diligent research has found no such determination regarding the Legislative adoption of that standard in the “code” as opposed to the “rules of evidence.” Nor has research identified any decision that holds the Legislature may not dictate procedure regarding workers' compensation. 

It is noteworthy that all authority of the Florida OJCC is the creation of legislative delegation. The Legislature has authority over a great many facets of Floridian's lives. In various instances, it acts to delegate that authority to some state agency. The same legislative delegation occurs in the federal government. Every state agency must have authority to even exist. Some may be created by the constitution, a delegation by the people, while others are created by the legislature. 

Chapter 440 is a statutory delegation, in which Florida workers' compensation is created, defined, and described by state law; that is by the Legislature. That Chapter includes a variety of procedural processes, processes created by the legislature and different from court processes. An excellent example is Section 440.29(4): 

“All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion. However, such records must be served on the opposing party at least 30 days before the final hearing. This section does not limit any right of further discovery, including, but not limited to, depositions.” (Emphasis added).

This statute directs that certain medical records will be evidence in Florida workers' compensation proceedings. Certainly, that direction must be analyzed mindful of the multiple admonitions of "the Florida Evidence Code applies in workers' compensation proceedings” (see supra) This is not the only example. In another, the Legislature has limited which experts may express opinions in Florida workers' compensation disputes, see Section 440.13(5)(e) 

Thus, it may remain unclear whether Daubert and the duly enacted Florida Evidence Code apply to workers' compensation disputes. It is possible that just as the Legislature may not delegate its authority regarding workers’ compensation rules to the Court, neither can the Court regulate workers’ compensation procedure regarding evidence. However, statutory procedural constraints on workers' compensation proceedings are numerous. And, as yet, there is no decision clearly addressing whether Daubert applies in workers' compensation. Perhaps in time there will be.

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