Tuesday, December 31, 2019

The Experience on our Bench

There have been fluctuations in the experience on the Florida workers' compensation bench. I noted this in April 2018. As the OJCC contemplated the retirement of Judge Lazzara, one of the longest-serving JCCs, the average years of experience decreased to 7.7 years. On January 2, 2020 the Office will re-open from the new years holiday. And, there will not be 32 judges in the system, to which we have become accustomed.

The Statewide Judicial Nominating Commission has advertised two vacancies: in Tampa (to replace Judge Lorenzen, who retired) and in Panama City (to replace Judge Walker, who will transfer to Pensacola to replace Judge Winn later in 2020 when a new Panama City judge is named). When those two new judges are appointed, and each presumably have "0" years judicial experience, the average will be 7.4 years experience. In 2021, the average is expected to again exceed 8.2 years. Each year, we collectively gain 32 more year's experience, but inevitably, seemingly, retire someone with extensive experience as well. 

Looking back, the average judicial experience on our bench has fluctuated significantly over the years. Judges come and go. A very, very few stay for a time that could be considered a career (over 20 years). 

In 2018, the experience average was 8.6 years.
In 2016, the experience average was 11.1 years. 
In 2014, the experience average was 10.7 years. 
In 2012, the experience average was 11.8 years. 
In 2010, the experience average was 10.7 years. 
In 2008, the experience average was 10.1 years (there was a prolonged vacancy in Orlando at that time) 
In 2006, the experience average was 9.6 years. 
In 2004, the experience average was 8.9 years. 
In 2002, the experience average was 7.5 years. 

Thus, the experience on the workers' compensation bench on January 2, 2020 will be the lowest since 2002. That is not to say that our current bench is not exceptional, it is in various ways. There are several judges who serve today that have decades of experience presiding. Notable among them are Daniel Lewis (FTL)(32 years), Diane Beck (SAR)(24 years), Wilbur Anderson DAY)(22 years), and Sylvia Medina-Shore (MIA)(20 years). 

Reaching the 20 year mark is itself exceptional. The OJCC is fortunate to have these "deans" of the bench remaining after such service. Change is inexorable, however, and with each year of gained experience or seniority a jurist moves closer to that inevitable change - retirement. 

It is notable that the nominating commission has recently nominated three attorneys to replace Judge Beck in Sarasota following her retirement in the spring. Her long service, the stability that it has engendered, coming to a close there. Her experience and expertise leaves us. And, a new judge will join this Office bringing new perspective to that district specifically, and a new diversity to us all. 

One of our challenges is to retain judges, and their experience. Coming years will bring retirements of others. Over the history of this Office, as best we can determine, only 20 of the 228 known to have served have reached 20 years of service (less than 20%). Only three have reached 30 years. I am asked periodically whether I anticipate this or that particular judge remaining on the bench in some particular districts. My reply is consistently that I hope for each of the judge's continued service. But, that is not realistic. Retirement will come to us all eventually. Change is the only constant. It is exacerbated in this instance by the effect inflation has effected on OJCC salaries over the last 20 years. See Inflation and Legislative Budgeting

I post today in appreciation of all of our judges, long-serving and relatively new, and to remind that change is inevitable. It is axiomatic that each of the Florida workers' compensation judges once had her/his first day on the job, first trial, first reversal and affirmance by the District Court. And, each will have her or his last of these also. Each is an integral part of this Office. Not one of us is perfect or infallible. Each gains experience and knowledge every day, as the calendar marches onward. I encourage us to remember that similarly, every organization, business, law firm, medical practice, etc. evolves, grows, and transitions.

The new year dawns with our anticipation of change. We know it is coming in 2020 to Panama City, Pensacola, and Sarasota. We harden ourselves against the underlying truth that change is persistent and that the future will eventually come for us all, as it has for just over 200 Florida workers' compensation judges before us. And, in the meantime we remain fortunate to have the assemblage of intellect, experiences, and dedications currently on our bench. 

I am hopeful that the legislature will see fit in 2020 to address the historical salary inequities of our judges and thereby help this system recruit and retain the best adjudicators possible. We will be watching House Bill (HB) 1049 and Senate Bill (SB) 1298 this spring. While neither of these will mandate ongoing future salary parity for the Florida judges, each would provide the funding to alleviate the effects of Twenty-First Century inflation. Each is an appropriate and appreciated effort to recognize the workload and effort of this relatively tiny Office and the essential function that it performs, quietly, persistently, and effectively. Through retention, the experience on our bench should thrive.

Sunday, December 29, 2019

Closing Petitions and Claims

Why did the Judge close a particular workers' compensation case? If a party disagrees with that decision, what is the appropriate method for voicing that disagreement?

The answer regarding "why" is generally a perception on the judge's part that all the pending issues have been resolved or adjudicated. That does not mean that issues may not remain outstanding, but for whatever reason those potential (outstanding) issues are perceived as perhaps not ripe for either a mediation or a hearing. Mediations and hearings are essentially what the Office of Judges of Compensation Claims (OJCC) does. The Florida OJCC is a litigation system. Thus, the dismissal of a petition for a surgical procedure may not mean that surgery is unnecessary. It may just mean that particular dispute is not in need of resolution today. 

Certainly, there are ample opportunities for individuals involved in disputes to escape litigation through resolution, by negotiation or mediation. But, the purpose of this agency is disputes. It is noteworthy that the majority of workers' compensation claims in Florida are likely never in the OJCC system. The majority exist in an administrative environment where desires are expressed by doctors or patients, benefits are provided by employers or carriers, and there is no need for petitions, mediators, or judges. 

Notices of injury are not even filed on all workers' compensation accidents. This reporting is only required for accidents that involve medical care beyond first aid, lost time from work, or death. See Rule 69L-56.401 F.A.C. Thus, many less-serious injuries are treated on-site and do not require a physician's intervention. These are referred to as "first aid cases." 

Some are more serious (They involve injury reports to the Florida Division of Workers' Compensation, the provision of benefits by employers or their insurance carriers, etc.). These may be "medical only" or "lost time," but they remain in the administrative process. There are documents filed with the Division, but the provision of benefits nonetheless proceeds without petitions or formal dispute. 

The Division publishes a System Guide to assist both employees and employers with understanding how that all works. According to the Workers' Compensation Claims Statistics Database, in 2018 there were 52,318 cases "for which a DWC-1, First Report of Injury or Illness was reported." The database will provide a variety of statistics for any set of selected parameters, time, type of accident, etc. 

In 2018 only 30,470 "new cases" were filed with the Florida OJCC. Not all of them involved a date of accident or injury occurring in 2018. Some cases were filed on injuries that occurred in prior years. But, even if all of those 2018 "new cases" involved accidents that occurred that year, then only 58% (30,470/52,318) of those injuries that required the filing of a "First Report" were brought to the attention of the OJCC. That is only 58% became litigated. And, because this comparison of 2018 accidents to 2018 OJCC filings is imperfect, the 58% is likely an overstatement. 

It is also worth noting that some of the 30,470 "new cases" that come to the OJCC each year are not filed because of benefit disputes. There are OJCC cases opened for approval of a settlement, for resolution of discovery disputes, or other ancillary issues. It is therefore likely, overall, that less than half of the accidents serious enough to require filing a "First Report" with the Division are actually ever litigated.

The law requires that petitions include only claims for benefits that are "ripe, due, and owing" at that time. Claims for benefits that may one day become due are premature. Section 440.192, Florida Statutes. So, when a petition for benefits is filed, the matter is scheduled for a mediation. This is the chance for the parties to negotiate an outcome that is likely not completely acceptable to either, but reasonable enough for each to accept as a compromise. If that process is unsuccessful, then there will be a final hearing. Either mediation or hearing can result in resolution of the various issues; by the same token, the parties are free to reach resolution of those issues at any point before trial.

Thus, a fair number of claims are dismissed. When the claims that have been filed are resolved, it will likely appear to the assigned Judge of Compensation Claims (JCC) that closure of the OJCC case is appropriate. That closure does not mean that all potential issues related to an accident have been dealt with, but that the current issues, the ripe issues, that were filed have been. The closure of the OJCC file is not an end to the case; an OJCC case can thereafter be opened again upon the filing of another petition or for further proceedings. Whether to re-activate a case is a decision within the discretion of the assigned judge. If a filing does not result in re-activation, a party could file a motion seeking that with the judge, Rule 60Q6.115

The point of the closure order is two-fold. It informs the case's parties that the judge perceives there are no issues at that moment that require the OJCC services ("ripe," requiring mediation or trial). If that is a misperception, the parties are thus prompted to communicate with the JCC by filing a motion, and move the issues back onto the path for mediation or adjudication. Second, the closure allows the Judges and staff to focus on the other claims assigned to that division, to work on solving other parties' claims, differences, and disagreements.

The appropriate reactions to a close order are therefore acknowledgement (received the close order, there are no pending issues, wait and contact the OJCC later if issues later arise), and objection (there are pending issues, the closure is a mistake, ask for reconsideration). But, there is no purpose served in asking a judge to re-open a case for a prospective, hypothetical, or speculative future need. That is, it is inappropriate to ask the assigned judge to keep the case "active" just in case some future dispute may arise.

It would be equally inappropriate for the OJCC to have a case file for each of the (at least) 42% of reported injuries/accidents that are never litigated. Those cases do not have ripe issues for judicial determination. There is no reason for this Office to have a file or case regarding each of them. When it is time for this Office to have a case, the parties will file a petition or motion. When case is later closed, if further issues arise in the future, the filing of a new petition will similarly reopen the case. If a future dispute necessitates the case activation, then such reactivation will be appropriate. But there is no necessity or logic to the OJCC case remaining open and active in the mean time, just in case.

When a close order is received, it is not the end. It signals the current status perceived. If that is a misperception and adjudication is required, say so. If not, then there is no reason to object to the closure. The OJCC case can be re-activated when the need arises. 

Thursday, December 26, 2019

Right to be Forgotten

We are told that "nothing on the Internet is private." So said an expert quoted way back in 2011. The Internet is a series of inputs from various sources, which may in fact replicate and duplicate as information is spread, saved, shared. There are server farms that collect and preserve vast quantities of data. Until recently, even the Library of Congress worked to preserve "everything." There is therefore a potentially false security when some sites promise or suggest privacy. But, there are examples of old material being restated. The expert above concluded back then "don't post anything online you wouldn't want everyone to see."

How many times do headlines proclaim "in a now-deleted post?" There was an instance just last week where allegations were made "in the passion of the moment," then apologized for. The fact that something was posted is memorialized and rebroadcast. MarketWatch notes that "public figures and brands have scrambled to cover up social media faux pas with varying degrees of success." There is discussion there about deleting postings because of "technical" or grammatical errors/omissions. However, the recommendation for posts later deemed offensive is “own it and let people know you were in the wrong -- honesty says a lot about your character.”

There are undoubtedly times in each of our pasts that we would prefer forgotten. In the age of the Internet, it is increasingly hard to forget perhaps. And that difficulty may itself affect us. If you have no such embarrassing times or instances, congratulations. But, it is likely that most of us have lived less than perfect lives. The pervasiveness of the Internet, and the ease with which information is replicated and propagated, came to mind reading on the British Broadcasting Company (BBC): German murderer wins right to be forgotten

This German was convicted in 1982, about 37 years ago. He "was handed a life sentence for murdering two people." The "life sentence" turned out to be only 20 years, he was "released from jail in 2002." And, he is perturbed that his personal history is following him. He filed a lawsuit to force online archives to constrain people's access to the reporting of his crime, conviction, and release. He is specifically focused on "three reports from 1982 and 1983 which included" his "full name." These were uploaded to a website in 1999 by a magazine. 

When the murderer "became aware of the articles in 2009," he asked the magazine to remove the articles or restrict access; "he claimed they violated his rights and his 'ability to develop his personality.'" In essence, the murdered claimed that his right to privacy should preclude this information from being publicly available. Certainly, such information might affect how one's neighbors, acquaintances, and prospective employers might perceive or view one. 

The German Court recently sided with the murderer. It concluded that publications may be forced to remove archives "if asked." The privacy issue is being referred to as the "right to be forgotten," which the BBC concedes is "controversial." Having a peeked interest from the BBC article, I did what we all do when curious, I Googled "right to be forgotten." Turns out the concept is not as novel as one might initially presume. 

In the European Union, there are written parameters about the archiving of data, the General Data Protection Regulation, or GPDR. This sets up a process and "regulates erasure obligations." According to TechCrunch, the implementation of GPDR came in 2018, following work that began in 2012. The effort was to address changes in technology since the early days of the Internet, believe it or not in 1995, "when Yahoo was the cutting edge of online cool and cookies were still just tasty biscuits."

The stated purpose is "to give citizens back control over of their personal data." The perception at least is that those who possess information have been somewhat relaxed in their approaches to both maintaining and protecting it, and our privacy. TechCrunch noted that the European Union regulation is being codified into individual national laws. Perhaps ironically, the prediction was that Britain would continue to strive toward compliance despite its recent Brexit effort. TechCunch contends that Britain needs to keep "EU-UK data flowing freely in the post-Brexit future." Thus, an inclination to remain cognizant and compliant with GPDR despite its departure from the union. 

The experts contend that similarly that companies throughout the world will perhaps adopt EU-compliant practices as their fundamental business paradigm. This is because the "GDPR does not merely apply to EU businesses." Its requirements instead protect the rights of EU citizens. So, any company in the world that handles "the personal data of EU citizens needs to comply." The argument is therefore that this law "casts the European Union as a global pioneer in data protection," and sets a bar or standard of some privacy modicum. As it is, access to many websites is impossible from a European server as companies consciously avoid the collection of those people's data (cookies, etc.) to similarly avoid the implication of this law. 

The effect of this GPDR standard, therefore, may be that U.S. and other country's businesses will be forced to adopt privacy policies that specifically and solely comply with EU law, or instead "swallow the hassle and expense of fragmenting their data handling processes, and treating personal data obtained from different geographies differently." Or, they may simply continue to foreclose European access to their service or products. The focus on geographies could itself become challenging as humans are mobile; the protection is for EU citizens, who could travel for a Florida vacation and have their data collected when they access a website from their hotel WiFi. There are even some who contend the European regulation could have impacts on the U.S. Government

Some will perhaps see Orwellian, dystopian, implications. Should the news be rewritten to help murderers hide? There may be more sympathy for our right to commercial privacy, and thus a reason to censor commercial speech (how many times do I order from a particular vendor, a particular product, etc.). Should someone's picture posted to social media as a child remain on the Internet forever, no matter how embarrassing or unwanted? Remember that line from Nickleback in Look at this Photograph? The band there focuses upon looking through a photo album, but what if it is instead a picture on the Internet when we similarly question "what the _____ is on Joey's head?"

Even if we conclude that what you personally allow to be posted to the Internet should be subject to your recall or deletion, the application of such a right to erase or conceal someone's violent past is curious and intriguing. This is erasure of news. It is suggested that most would perhaps be interested in knowing if the house next door is now being inhabited by a murderer? There is seemingly the potential for conflict between one person's right to privacy and society's desire to protect the health, safety, and welfare of the broader population. 

Technology evolution continues around us. The Internet broke onto our collective consciousness only about 30 years ago. Various platforms have achieved acceptance or dominance, and faded. The law has struggled to adapt to and interpret the implications of data preservation, access, and sharing. Those struggles will continue. The world itself shrinks through our access to information, our ability to catalog, retrieve, and express information. A great many of us have voluntarily ceded our privacy to belong to a platform, to participate in some online quiz, to access news, or simply to shop. Though we are increasingly aware, many of us continue to persistently divulge personal information online. 

Time will tell how successful government efforts at protecting our privacy may be. Laws and regulations will likely bring more warnings ("by continuing to use this site you accept our use of cookies" or "by being here, you waive some modicum of your privacy"). Time will tell how evolving regulation or restriction in one jurisdiction implicates or influences privacy in another. As the miracle of the Internet shrinks our world, and brings us all closer together, the implications of varying laws and societal norms may continue to drive conversation, conflict, and litigation. The very "world wide" nature of the Internet will facilitate issues of jurisdiction, conflicting laws, and certainly privacy. 

Perhaps none of this is a real change. Perhaps how privacy is or not respected has always come down to societal norms (Nathaniel Hawthorne and The Scarlet Letter, published in 1850). It may or may not be appropriate for us to know our new neighbor was (is?) a murderer. But, what has changed is that the society is increasingly not local. The treatment of Hester Prynne is no longer an issue for one Puritan community in one American state, but a larger, global issue potentially subject to the laws of jurisdictions far away. As a result, the traditional or even constitutional protections for freedom of the press or even public records may come into conflict with laws a world away. 

The one certainty, expressed by the BBC, is "it’s definitely a good time to be a law firm specializing in data protection." And, as time passes, it may be an equally good time to be a lawyer specializing in conflict of laws.

Tuesday, December 24, 2019

Credibility - a Conversation

A recent seminar afforded me the opportunity to engage in an intriguing conversation with a physician. The topic was witness credibility, and the physician's desire to better understand what impacts a judge's perspective. 

At the outset, I disabused the notion that persuasion of the fact-finder is necessarily the critical consideration. There is a misperception among many that cases mostly resolve through adjudication. It has been my experience, to the contrary, that the vast majority of disputes are resolved by the parties, on their own terms, through some form of negotiation or mediation. Thus, how credible one side appears to the other side, the lawyers, and the mediator, may be equally or even more important than how credible one might appear to the finder of fact. Those resolutions are driven in part by how credible a witness is perceived by more than the adjudicator. Credibility permeates disputes, and perceptions or criteria are therefore critical in a far broader context than this particular physician appreciated. 

This physician was in search of a “golden ticket,” or “silver bullet.” The physician wanted to know what “the” path to credibility would be regarding medical opinions. This analysis is flawed at the outset, because there is no singular, identifiable, answer (unless we program a computer to be the finder of fact for everyone, with a singular and measurable set of criteria in some algorithm). What causes a witness' testimony to appear credible is, like beauty, largely in the eye of the beholder. What may drive an attorney to believe in a particular witness may or may not similarly inspire a another attorney, risk manager, adjuster, worker, or judge. 

In that exchange, discussing a hypothetical question regarding a need for a particular surgery, I mentioned that I would find it relevant to know how many times the testifying expert has performed that surgery. This was met with harsh criticism. The objection was this particular physician’s perspective that not all surgeries are necessary, and that such a relevance benchmark might discount the opinions of a physician who is more reticent, analytical, and surgery–averse. In fairness, either of these may or may not be an invalid argument. Read on. 

The tendency is for human beings to search for touchstones regarding credibility. They will have various personal touchstones based upon their personal proclivities, experiences, and biases. Factually all human beings have some inherent bias against which they may resist and struggle. Some people ignore or deny them. They are convinced that they are personally, inherently bias-free. The truth is that we must each recognize that we have them and struggle against them. We all have them

In the end, the credibility of opinions is rarely based upon a particular college attended, or clinic affiliation. There are perhaps some who are impressed with a Harvard degree or a Johns Hopkins fellowship. But generally, credibility is far more dependent upon the witnesses ability to develop and describe a construct, that is a verbal illustration of both process and conclusion. In the immortal words of my third grade mathematics teacher, “show your work." Some of the most credible physicians I have seen testify utilize diagrams, analogies, and models to illustrate points, enhance understanding, and thus establish credibility. 

Asked to solve a problem, many of us can produce an answer. That answer alone did not work in grade school, even though in math an answer is more readily "right" or "wrong." Getting the "right" answer, even when demonstrably correct, did not win the day in third grade, and I would suggest it may similarly not win the day in a more opinion-centric (less demonstrable) setting of expert testimony.

An added challenge in medicine is that the answer may be part scientific (subject to independent objective verification by repetition), and part “art.“ The “art“ portion may be reliant upon the scientific results and data, but may likewise include intuition, perceptions, trial and error, and other more human, flawed, subjective additions to the overall process. Certainly, if the witness is able or willing to only produce the answer, the ultimate conclusion, that may be persuasive. But, it is suggested that the ability to show the work (describe the process and path) is more likely to be so.

Is it really so surprising to hear that credibility determinations are similarly multi-faceted? It should not be surprising that making the listener understand that thought process, it’s probabilities, and how it supports a conclusion will be in most instances more critical than the conclusion itself. It is not necessarily that you have or have not performed the particular surgery some volume of times. It is how logical your explanation is regarding the recommendation in this case. That may, however, include how many times you have performed the surgery, or declined to do so. If that is not an appropriate metric, the witness should be the one to say so and then to explain logically why and how they reach that conclusion.

In the end, the persuasiveness of the testimony comes in large part from the ability to explain the various inputs, empirical or not. What does the science show (objective), what does the patient contribute regarding symptoms (subjective), what does the witness contribute (past experience, study, analysis), what do studies, publications, and other collaborations contribute? How have all factors contributed to this witness' understanding of the medical issues? In the end, the "answer" is important, but providing a clear narrative as to the path which led to that answer is critical. In the end, that path explanation is where the witness gets to illustrate why her/his ultimate "answer" deserved credence.

But, if instead you search for some "golden ticket," an easy, effortless, recitation or touchstone that will bring instant credibility in any circumstance, good luck. If you find it, let me know. There is always a chance there is a unicorn out there. Just because no one has ever found one is perhaps no reason to stop looking. In the meantime, show your work. Tell the story, describe the path, and thus illustrate both that your conclusion (the answer) and your process (the "work") make sense. Credibility comes from a variety of inputs, and the manner in which they are appreciated, described, and considered by the witness that renders that opinion conclusion.

Sunday, December 22, 2019

Florida Occupational Disease Burden

The Florida First District Court issued two decisions on November 27, 2019: School District of Indian River v. Cruce, 1D17-3342 and City of Titusville v. Taylor, 1D17-3814. The trial and appellate judges in each were identical, as was the core issue on appeal: the "standard of proof for toxic exposure" claims in Florida. Each decision included a special concurrence, and each is very explicit regarding the parameters of proof required by Florida's law. 

Industrial exposure claims are often a matter of discussion at workers' compensation gatherings in Florida. I frequently hear lamentations about the heightened burden of proof that is set forth in section 440.151(1)(a), Florida Statutes. Both of the decisions cite section 440.02(1):
"An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee." (Emphasis added).

Taylor also cites section 440.09(1), Florida Statutes:

"In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence." (Emphasis added).
Neither cites to the occupational disease parameters of section 440.151:
" . . . there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. . . . causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence." (Emphasis added).
In the first case, Mr. Cruce was instructed to "move painting supplies and equipment from a storage shed" to a different storage area. His wife testified that Mr. Cruce related the new storage area required cleaning, and that he cleared it of dust, dead pigeons, live bats, and rodents. He repeatedly "came home from work covered in a smelly white dust," which he said was bird feces. After symptoms appeared, he was diagnosed with cryptococcal meningitis and passed away. 

There was conflicting medical testimony regarding the causation of the meningitis, leading the trial judge to appoint an expert medical advisor (EMA). In Florida, the opinion of the EMA is "presumed to be correct unless there is clear and convincing evidence to the contrary." (Emphasis added). The survivors of Mr. Cruce argued that clear and convincing evidence supported the diagnosis and the occupational causation. The trial judge agreed, concluding as sufficient the proof Mr. Cruce was "exposed to pigeons and their droppings at the stadium worksite." 

The Court disagreed. It explained that the language in section 440.02(1) creates a "dose response" analysis. The injured worker must prove "actual exposure (ingestion or absorption); 2) the levels to which one is exposed (dose); and 3) that such levels are capable of causing injury or disability." It noted that the trial judge seemingly acknowledged that the law requires "quantitative testing" (how much one was exposed), but concluded that such a burden was "impossible" because "the employee could not know exactly when the exposure to the fungus occurred."

The Court reversed the conclusion that this exposure was compensable. It noted that the fungus in question "could be found anywhere." But, that the evidence did not support that it was, definitively, present at the workplace. That it could be anywhere does not necessarily mean that it was in the workplace. It also reiterated that the injured worker must prove that the exposure "occurred in the course and scope of the employment." It is not sufficient to prove that conversely "there was not evidence of non-workplace exposure." 

In a concurrence, another judge reiterated the absence there of "the quantitative level of exposure." That is, "how much was the person exposed to in the workplace."

In Taylor, the injured worker was exposed to Cryptococcus gattii (C. gattii), and similarly contracted fatal meningitis. His occupation involved various tasks with equipment ranging from backhoe to shovel. In 2015 he was engaged in clearing a wooded area, which involved moving dirt. A physician that never examined the Mr. Taylor concluded the work in the woods "could create an environment" in which he might inhale the spores. He similarly noted "no convincing evidence that Claimant may have been exposed to C. gattii anywhere other than the workplace." This doctor opined that testing the workplace served no purpose because of the time that had passed since the exposure. He concluded that Mr. Taylor “'likely acquired' the exposure at the workplace."

The Employer/Carrier's Independent Medical Examiner (IME) concluded that this fungus is not usual in Florida (only one other case previously reported here). The incubation for this illness, he concluded, could be "from two months to years." The IME "could not reach a conclusion within a reasonable degree of medical certainty as to where Claimant was most likely exposed."

The Court reiterated that circumstantial evidence is not sufficient. That the work performed might be "an ideal environment for exposure to C. gattii spores" did not satisfy the statutory burden. It noted that the trial judge concluded "the experts could not specify the level of Claimant’s actual exposure," and that testing of the environment is futile because since the (alleged) exposure the environment will have changed. 

The Court concluded that "clear and convincing" means "the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." It held that the trial judge had misapplied the law. It concluded that the employee had the burden of proving the presence, not likelihood, of the C. gattii in the workplace. The inference and implication that it was there the employee was exposed was insufficient under the law. "To hold otherwise, would be to ignore the heightened causation standard implemented by the Legislature."

Finally, the Court noted "that workers’ compensation is a statutory matter and the Legislature has broad discretion in crafting the parameters of benefits due." That is, the definition of what is or is not compensable under the law is determined by the legislature and codified for all to see. There are those who perceive the constraints  or definitions of workers' compensation as fairness for each worker and each employer in each case. Others see the question of fairness as a system-wide analysis, an overall fairness, that will therefore sometimes effect results an individual employer or employee may lament. 

In a separate concurrence, another judge expressed being "constrained to concur" based upon previous decisions of the Court (stare decisis). But, noted that the statutory "direct proof of the level of" exposure is not available "in a great number" of cases, the judge expressed doubt therefore "that workers’ compensation is a viable alternative to the tort system." Therefore, the judge stated, "either the court system or the Legislature must deal with this problem."

It is notable, perhaps, that no constitutional issues were raised by the parties in Taylor. In Cruce, the Claimants raised an argument of "an 'impossibility of proof' which violated the constitutional rights of equal protection, due process, and access to courts." However, those arguments were "abandoned . . . on appeal."

There will likely be ongoing discussion of these cases. Some will focus on the equity of the outcomes, survivors left with no recovery. One might lament that the expanse of workers' compensation is therefore not expansive enough. They might argue that there is no room for lines or barriers, and that anyone that has a job and becomes ill or injured should have that burden shouldered by the employer. In 1960, the Florida Supreme Court held “the fundamental purpose of workmen's (sic) compensation is to relieve society of the burden of caring for an injured employee by placing the burden on the industry involved.” Sullivan V. Mayo, 121 So. 2d 424 (Fla. 1960). Some might argue this can be accomplished only by shifting any and all potential for disability or death to the employer. 

Others might argue that perhaps it is not appropriate for industry to shoulder the implications of "any and all" without proof of causation. They would likely concede that causation of the disease in these cases was clear (something specific was inhaled, caused illness and death). But, they might argue that the evidence did not establish where the something was inhaled. They would perhaps support that if "something" could be inhaled anywhere, an employee should have to prove that "something" was employed at work to prevail. 

In some part, the decisions illustrate the broader grand debate that rages recently in conferences and gatherings regarding workers' compensation and its grand bargain. There are those who argue that workers' compensation covers too little and others contend it covers too much. In the macro sense, the fact that there are definitions and parameters will mean that some are included and others are not. 

In that analysis, there will be some that perhaps argue the macro system is over-inclusive, and other under-inclusive. As a system, examined in a macro perspective, will solace be found in a coverage of some quantity or population in the center? Or, will the two parties for which workers' compensation exists, employers and employees, be more concerned with the outliers, the exceptions, the instances in which an employer pays for injuries it questions or in which an employee receives nothing for an injury she/he is convinced was caused by work? The discussions will undoubtedly continue, and perspectives will disagree.

Thursday, December 19, 2019

Defamation, Courts, Conflict, and More

Often, what is occurring around the country in workers' compensation provides curiosity that drives this and other blogs. The WorkCompCentral article High Court Finds Doctor Can't Sue for Defamation After Fraud Accusations caught my eye recently. It is simply not uncommon for those involved in litigation to have less-than-nice things to say about others involved. Some would likely be shocked at some of the insults that are casually delivered at trial. But, this situation provides a backdrop for a discussion of defamation. 

An insurance company accused an orthopedic surgeon of insurance fraud, and denied some billing. The State's investigators eventually cleared the surgeon "of any wrongdoing." But, "by that time, the one-year statute of limitations for a defamation suit had long since expired." The physician's attorney therefore turned to a law "intended . . . to protect whistle blowers and patients." People sometimes forget that lawyers are supposed to be imaginative, creative, and persistent. 

The physician, and lawyer, in this case seized upon a "good faith" requirement in that statute, and alleged that the insurance company "had acted in bad faith" in its denial of billings. There was appellate authority cited, in which another court had "found that a plaintiff had a private right of action under" that statute. However, there was conflicting analysis from another state appellate court. The physician was seeking adoption of, concurrence with, the appellate court that agreed with his statutory interpretation. Such instances or conflicting appellate decisions is not uncommon in litigation. 

This type of conflict is generally grounds, in Florida, for a party to seek review by the state's highest court. It is referred to as "conflict jurisdiction" in Florida. See Florida Constitution, Article V.(3)(b)3.("that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court"). The Florida Constitution similarly grants the Supreme Court jurisdiction to "review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals." 

This recent case illustrates both of these legal paradigms. It was filed in state court, but "removed" to federal court. A defendant can ask for this "removal" after being served with a lawsuit. Thus, the first choice regarding courts goes to the plaintiff, but if the jurisdictional requirements are met, a defendant can remove the case to federal court. In this instance, a tort case, that is what occurred. But, as an aside, a workers' compensation case could not be similarly "removed" because the jurisdiction for that type of dispute is exclusively a state matter. 

The federal court has jurisdiction over federal matters, such as a violation of a federal law such as the Americans with Disabilities Act (ADA) or the Fair Labor Standards Act (FLSA), etc. The federal courts also have jurisdiction in cases between residents of different states, when the "matter in controversy" is more than $75,000. 28 U.S. Code § 1332. This is called "diversity" jurisdiction.

Thus, in this genre of federal civil jurisdiction, the federal courts are asked to preside over state law disputes. To do so, the federal court must understand state law, and may require context to do so. If a state's highest court has not rendered an opinion regarding some question of state law, the federal court may request an interpretation from that court. That occurred in this instance, with the federal court turning to the New York Court of Appeals, that state's highest court. 

Defamation is a tort (a civil wrong) in which an intentional, false statement results in damages. It is critical that the definition of this tort requires all four elements: intent, falsity, communication, and damages. The one with which students often struggle is the communication (you can say anything you want in your head or to your mirror), but once it is said out lout to someone else, it has been communicated. Defamation comes mainly in two forms, the written and the spoken. In order to remember the distinction, remember that "spoken" and "slander" each start with "s." The "written" form has no similar reminder to tie it to "libel," but you can just remember that the "s" words go together and sort the "libel" out as the "other one." 

Since the statute of limitations had run on the tort of defamation, the doctor here sought recovery for the bad faith he alleged resulted in his bill denial and in the several years of investigation. The federal court was thus interpreting a state law, which had been differently interpreted by two New York appellate courts. The Federal District Court noted the conflict, and certified the legal question to New York's highest court. That court concluded "that the New York Legislature had not intended for the law to used as a vehicle for defamation torts by physicians."

Some will note that there is no discussion of what should be the first analysis: "does the law say there is a right of action for defamation by physicians?" The first question should always be "what does the statute say." It is curious when a decision does not address that before beginning a discussion of what a legislature intended. Legislatures bring predictability when their work (laws) say precisely what they mean. Courts bring predictability when they follow what laws say. Once the effort begins at deciphering what was or was not intended, a slippery slope may well be what is found. 

The purpose of the law here, the Court concluded, was to encourage "fraud reporters" to come forward. Reading a private right of action into the statute, that would then create a way for a physician to sue such "reporters" "would undermine the law's statutory purpose by increasing the fraud reporters' exposure to liability." In light of that logic, and the absence of a legislatively stated right of action for such physicians, the New York court concluded no such right of action for physicians is created by that law. The proposed interpretation would frustrate the stated purpose of the law.

The case outcome is perhaps not earth-shattering in any particular corner of workers' compensation outside of New York. But, the lessons of "diversity," "conflict," "statutory interpretation," and interaction of courts is educational and informative.

Tuesday, December 17, 2019

Waking to be Productive

In grade school, I was surprised to learn of the Spanish tradition of Siesta. I recall this as part of a discussion of cultural diversity back in the day. The idea came back to me when I recently read Should workers be allowed to nap at work?

There is little doubt that people sleep at work. And, the older we get, perhaps the more common it becomes? The news has reported one jurist sleeping at the bench. We have all seen someone in an audience nod off. Perhaps we have each been that nodding audience member at least once? This is not a new topic, see When Justice Sleeps, Feigning Sleep, I'm Tired, You Tired? and Risks for Attorneys. We seem to enjoy discussing sleep as much as we enjoy getting it.

Photo courtesy CNN.

Should workers be allowed to nap at work? notes that sleeping at work is not favored, and often forbidden by employers. However, it contends that "experts say it's time they reconsider." It notes that the U.S. government has recently been cracking down on sleep in the workplace, for reasons not readily apparent to the author. That is not unique, states have experienced issues with sleeping workers as well. One California worker was found to sleep up to three hours daily. 

There is the mathematical expression of "x" hours in the office, multiplied by "y" volume of work potentially accomplished in an hour, and thus the time spent not working is a "cost" of "x" times "y." This is a linear examination of productivity that does not factor in these expert's contention that with more rest, the volume of production, "y" might increase across the time spent working, and thus increase productivity overall. 

There is a cost associated with sleeping workers. The article notes the decrease in productivity with that California worker. And, that "her colleagues (had) to cover for her and pick up her slack." Despite that, the worker was not punished because the supervisor feared some "health problem . . . was causing the drowsiness." This expresses a fear of legal involvement and implication of the Americans with Disability Act, and all that entails. Though that anecdotal example illustrated decreased productivity, the advocates for napping say it would facilitate "increasing productivity not diminishing it."

Their contention is based on a conclusion that some "70 million Americans suffer from a sleep disorder." In a recent study from one of the academic centers of the Universe (Ball State University, eat your heart out Harvard), there is an increasing volume of Americans self-reporting (subjective) getting less sleep. It was particularly notable among "police officers and healthcare workers." But, anecdotally, I hear a great many complain of diminished sleep, increased stress, and feelings that work responsibilities are insurmountable.

Reportedly, "all that sleep deprivation can take a toll on people's health - and the economy." There are studies linking sleep deprivation to "a myriad of health problems": "obesity, diabetes, heart disease, and strokes, along with mental health issues such as anxiety and depression." That is a compelling list. Any of those conditions could perhaps contribute to stress and thus to further issues with sleeping. In that regard, this could be a situation in which the result becomes a cause, aggravating the result, etc. etc. 

Thus, there is a major impact on the individual. But. there is a major impact on society and the businesses that exist therein. According to Rand Corporation, "sleep-deprived workers" have a $411 billion annual impact "on the US economy." Remember Everett Dirkson, Illinois Congressperson and his "a billion here, a billion there, and pretty soon you are talking about real money." The cumulative effect is similar here, with many workers' suffering effect, and the overall impact being significant by most.

This comes from underperforming at work because of lack of rest. But, they also "have more health problems." There is also an allegation of an impact more critical to the workers' compensation industry. The article notes that tired employees "have a higher risk of workplace accidents." In recent times, the occurence of work accidents in the U.S. are down, as noted by IA Magazine. It is therefore not apparently that our lack of sleep is increasing the rate of accident, but that perhaps the decrease in frequency could be more pronounced if the workforce were better rested? Upon their contention that rest would decrease frequency, the quoted experts encourage the U.S. to re-examine the "stigma around napping."

There is anecdotal evidence of U.S. companies joining the Siesta paradigm. The article cites companies that have "set up nap rooms to make it easier to snooze." One has a limit on naps: 20 minutes. There is a long history of hospitals having such rooms for staff to recharge. Some refer to the concept as "power napping." I knew an attorney once who took lunch breaks on a bench in a nearby park. She confided that "drifting off" was a usual, if not daily, part of those breaks.

While there are indicators that employees partake of the napping opportunity, some reportedly perceive a stigma attached. One company spokesperson described aversion to being known as one who naps: "not a lot of people like to admit that they use" the nap room. But, others admit to using the room and claim "it is a nice break, and I do feel more productive" after. Others described the result of a quick nap as "awesome." It is safe to say that the jury appears to still be out on the napping at work idea even in workplaces that have destigmatized it.

There are also businesses popping up that rent beds or "energy pods" on a very short term (minutes) basis. I have noticed these in a few airports in my travels. The appeal of these has escaped me frankly, but there must be customers that find value there or these would close? There is thus indicia of some volume of workers seeking the chance for a few minutes of rest in the midst of an otherwise busy day. Some with the acceptance or even encouragement of their employer, others perhaps more surriptisiously. 

The debate will continue. There will be those adamant on each side, and the less decisive in the middle. In the end, it is likely that each of us is different in both our sleep habits and need for sleep. But, in a society that has regulated equality and accomodation, business may be ill-equipped to deal with managing the individuality. Some may thus accomodate anyone that wants to nap, regardless of need. Others may simply preclude anyone from napping, with similar disregard of need. And, at the academic centers there will be continued consideration of both the pro and con arguments. 

Those that require more rest, for the time being and at most employers, will simply need to find the time to rest away from work. That may evolve to greater U.S. acceptance of the workplace nap, but that is unlikely to become widespread soon. You contemplate it. I am going back to bed. 

Sunday, December 15, 2019

Why do we Recuse?

In a recent conversation about other issues, an attorney posed an intriguing question:"why does a judge recuse her/himself," and when there is no stated reason in the order is it permissible to ask why?" Of course, the easy answer is the same one that mom loved (and that we did not so much): "because I said so." To some extent, that answer is an embodiment of the process. 

There are responsibilities imposed by the Code of Judicial Conduct. One in Canon 3 notes that the judge is obligated to "hear and decide matters." Canon 3, B. (1). That is this job and responsibility. When the judge is removing her/himself from that responsibility, certainly there should be some reason. 

A disqualification (technically) is where someone asks the judge to remove her/himself. In that context, there will be a motion. Florida Rule of Judicial Administration, Rule 2.330: ("any party, including the state, may move to disqualify the trial judge assigned"). The Motion will "specifically the facts and reasons upon which the movant relies as the grounds for disqualification." It is worth reminding that the Rules of Judicial Administration apply to courts, not to Judges of Compensation Claims. This particular rule applies because it was specifically incorporated, see Rule 60Q6.126

In disqualification therefore, the reason is perhaps known, or at least perhaps discernible from the motion. It is possible that a party might allege multiple reasons, and perhaps an order granting disqualification would not identify or discuss each specifically. But, the reason would likely lie within the constellation of reasons in the motion. 

When a judge voluntarily removes her/himself from a case, a "recusal," it is much less likely that the litigants will discern the reason. One might consult the Florida Code of Judicial Conduct for possible reasons. In Canon 3, E. Disqualification (below, at end of post) the Code defines various instances in which a judge "shall disqualify himself or herself." There are various situations noted: where "the judge has a personal bias or prejudice," the judge knows that he or she (or a family member) . . . has an economic interest in the subject matter," or the matter involves "a lawyer with whom the judge previously practiced law" in certain circumstances. These are merely examples. 

There are various other prohibitions, some more specific than others, throughout the Code of Judicial Conduct. In the end, the judge's decision to recuse her/himself is likely to be based upon one of those specificities, or perhaps the broad and overarching caution in Canon 2
"A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities," and

"shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
The "appearance of impropriety standard concerns many adjudicators. There, the focus shifts from what "is" to what "might appear" inappropriate. From that foundation, a judge might recuse in an abundance of caution, if s/he perceives the potential for such an appearance. Of course such decisions must be weighed and considered carefully, more so because the definition of "appearance" lends an element of subjectivity and perhaps therefore doubt. 

In the end, the "because I said so" may well be the best, most informative answer that the parties receive. It appears to be a subject that may recur. That said, it is unlikely a subject that is appropriately dwelt upon. If one judge removes her/himself, the OJCC will assign another judge. There is not any reason to believe that such decisions are a statement of any kind about the parties or counsel of a case. It merely means there will be a different judge. In that regard, the second question "can I ask" might best be answered with a gently "no." There is neither reason nor purpose in such a request. If the judge wished to provide a reason, the order would state the reason. I see no benefit or purpose in such an inquiry. 

Canon 3, B. Adjudicative Responsibilities. (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.

Canon 3, E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows that he or she individually or as a fiduciary, or the judge's spouse, parent, or child wherever residing, or any other member of the judge's family residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding;

(e) the judge's spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge.

(f) the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to:

(i) parties or classes of parties in the proceeding;

(ii) an issue in the proceeding; or

(iii) the controversy in the proceeding.

Thursday, December 12, 2019

Internet, Evidence, and Admissibility

At a seminar in November, I got an earful about social media. The presentation claimed that each second of the day there are: 9,000+ tweets sent, 50,000+Google searches, 2,000,000+ emails sent, 2,000+ Instagram pictures uploaded, and 1,500 Skype calls. I found each of those intriguing. I am particularly curious as to how many of those pictures are of someone's dinner. It has been claimed that some choose their holiday meal for photogenic reasons. 

The presenters in November noted that the prevalence of such media has led these platforms to become a part of everyday law practice and litigation. There are innumerable instances in which electronic data may become interwoven into the proofs and defenses of litigated claims. One cited case concluded that such evidence will evolve from merely common today to predominant in our near future. 

There was discussion of many challenges that lawyers may face with such evidence. Mention was made of relevance (section 90.401, F.S.), authenticity (sections 90.901 and 902), and hearsay (sections 90.801-90.805). The presenters skipped in that regard to the identification of some "exception to hearsay." I was struck by that, as it is consistent with my experience on the bench. Lawyers are too quick to concede that something is "hearsay" (section 90.801) and move on to search for an exception (sections 90.803 and 804). 

In fact, a great many statements are not intended to "to prove the truth of the matter asserted," and thus are simply not hearsay under the definition. If it is not hearsay, why look for an exception? That is lazy litigating. The analysis should begin instead with why is this evidence being introduced. If a picture from my Instagram account is introduced to prove I was water skiing (when perhaps I have testified I cannot), then there is a hearsay problem. If that picture is instead introduced to explain why I was placed under surveillance, that is what effect that picture had on the viewer, then it is arguably not hearsay and no exception is needed. It may not be a simple analysis, but the point is to take the analysis in appropriate order. 

Another point that the presenters skipped is the age-old adage that each objection stands on its own. that is, if there are objections to relevance, authenticity, and hearsay then the proponent party needs to effectively address all three. Demonstration that something is not hearsay or that there is a statutory exception allowing the evidence over a hearsay objection, despite it being hearsay, does not mean that the thing is authentic or relevant. The response must meet and overcome all three objections, not merely one. 

This presentation proceeded rapidly to the discussion of authentication. The presenter was quick to remind us that such a hurdle is quickly cleared if that picture of me skiing is shown to me and I admit that it is me, and that the picture is an accurate representation. The problem, instead, is when the witness denies either of those points. Then outside evidence is needed to authenticate that photograph. This can include firsthand witness testimony (if not me, perhaps the person who took the photo, or was at least present when it was taken), extrinsic evidence, or the "silent witness theory." 

The point of these rules is two fold. First, they each establish parameters regarding what will and will not be evidence. Parameters give us predictability and allow us to structure and plan our arguments. Second, as the parties are all part of that process, there is a fulfillment there of our commitment to due process. What will be viewed by the judge or jury in making a decision will be viewed only after all parties are aware of it, and have had an opportunity to both object to it and obtain contrary evidence to rebut it. 

In the extrinsic evidence category, there is the simple example of someone testifying that they were also present when a photo was taken. They would testify that the photo is a true and accurate representation of what occurred (section 90.901). But, that extrinsic evidence in the context of a social media or other internet data might also be someone from the social media company (live or by affidavit) providing testimony that establishes that the photo exists, when it was posted, and by whom (tied to an email address or an internet protocol [IP] address of the person that uploaded it). Simple "screenprints" found on the world wide web are unlikely to be accepted on their own (without substantiating testimony, beyond that of the person taking the screen-shot). 

Proving that the internet media "account" is in someone's name or contains their picture is unlikely to be sufficient. The person that seeks to introduce that evidence will need to either elicit an admission of account ownership or prove it. This often comes down to IT experts and the metadata that is associated with the information on the Internet. 

One tool they use is called "hash values," an examination of numbers that are assigned by computer algorithms in the creation and upload processes. As these are computer-generated, they are seen by many experts as unlikely to be duplicated. In that distinction, much like with DNA, there lies implied credibility of authenticity. Thus, while there is a clear process to follow, it may be expensive and laborious to authenticate and admit Internet evidence. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546–47 (D. Md. 2007).

An interesting case in which the procedure for obtaining such IP addresses is Doe v. Cahill, 884 A. 2d 451 (DE 2005). The complaining party there obtained the IP addresses from the company that hosted a website upon which comments were made, traced the ownership of the IP address, and from there to the subscriber to whom the IP had been assigned. This lawsuit resulted from Cahill's efforts to make the owner of the IP disclose the identity of that subscriber, "Doe." 

The case is interesting as it describes the Internet as "unique democratizing medium unlike anything that has come before." The Court concluded that "speech over the internet is entitled to First Amendment protection." And, in reversing the trial court that ordered Doe be unveiled, the Court held disclosure of Doe in this setting would effect a "chilling effect on anonymous First Amendment internet speech." Noting the competing interests of discovering the identity and the protection of free speech, the Court enunciated a "summary judgement" standard, meaning that to discover the anonymous poster identity, the plaintiff "must support his defamation claim with facts sufficient to defeat a summary judgment motion." An interesting and instructional read. 

There are a number of courts that have characterized internet postings with "inherent unreliability." Picture Me Press v. CPI Images, ___ F.Supp.2d ___, 2009 WL 2252879 (U.S. Dist. Ct. E.D. OH 2009); Jaime Lynn Marketing v. Clark IV Family Trust, ___ F.Supp.2d ___, 2012 WL 400961 (U.S. Dist. Ct. N.D. IL 2012); There are also a number that have noted that "inherent unreliability" "is not clear." Alfa Corp. v. OAO Alfa Bank, 475 F.Supp.2d. 357 (U.S. Dist. Ct. S.D. NY 2007). Thus, there is discretion with the trial judge and perhaps little predictability for the litigants. The party seeking to introduce such evidence may face a significant challenge. 

The court in Jamie Lynn noted that some sources "such as Wikipedia and others, are often unreliable." However, other courts have noted that "The Internet has become a source of reliable information both for courts and experts." Member Services Inc. v. Se. Mut. Life Ins. Co. of New York, ___ F.Supp.2d ___, 2009 WL 2252879 (U.S. Dist. Ct. N.D. NY 2010). The court noted that "Countless contemporary judicial opinions cite internet sources, and many specifically cite Wikipedia.” It remains curious that a college student citing Wikipedia is likely to suffer grade degradation, but judges pursuing non-record support for their outcomes cite it without apparent concern for accuracy or reliability. 

Some would argue instead that judges should make decisions based upon the record evidence adduced by the parties. This is a due process argument that would be seemingly popular. But the growing reliance on judicial Internet surfing may belie that. If a judge would rely on Wikipedia in their own sleuthing, perhaps a party might have higher expectations of successfully introducing Internet evidence before that judge? That, of course, ignores that judges performing such independent research is shaky ground in the broader context of due process. 

What is certain is that the Internet is not going away, at least in most countries. Therefore, there will continue to be references to, questions about, and evidentiary rulings regarding the Internet and its vast assortment of writings, images, and videos. And, if you cannot find the image, article, or tweet you want, wait a few seconds, more is uploaded every second of every day. I just added this post to the melange.