The Battle Over Reliable Expert Testimony: Florida Courts May Stop Using Daubert, But Not in Workers’ Compensation

By Jennifer C. Jordan, Esq., General Counsel, MEDVALL, LLC

On December 4, 2015, the Florida Bar Board of Governors approved 33-9 the Code and Rules of Evidence Committee’s (CREC) recommendation to use the Frye standard for evaluating expert testimony rather than the Daubert standard adopted by the state legislature in July 2013. In Florida, the legislature controls the sustentative aspects of the law whereas the procedural aspects remain under the control of the state’s Supreme Court. Bar committees review legislative enactments and generally recommend the court approve them to the extent that they are procedural. However, if the committee recommends otherwise, it is because it believes the legislature crossed the line into a procedural issue. And that is the case here. The CREC will likely file its proposal with the board’s recommendation to the Florida Supreme Court on February 1st but even if accepted, the proposed change would not take effect until January 1st of next year.

But for those Florida workers’ comp practitioners excited about even the possibility of getting rid of Daubert, keep reading. As it turns out, the Florida Office of the Judges of Compensation Claims (OJCC) is not an article V court and instead is considered an executive department of the state. As such, the Florida Supreme Court does not have constitutional authority to promulgate rules of practice and procedure for it. Accordingly, even if the state Supreme Court elects to go back to Frye, that decision will have no impact on the OJCC. So the irony here is while Daubert has proven particularly problematic in workers’ compensation cases because a treating physician’s pure opinion is frequently needed to establish apportionment or major contributing cause, the OJCC will be stuck with the legislative change even if the state courts get to go back to Frye.

The Problem with Daubert

In an effort to keep junk testimony away from the jury, the United States Supreme Court created a higher standard to test the admissibility of an expert’s opinion against factual evidence before the court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Judges were to serve as gatekeepers to ensure that an expert’s testimony admitted into evidence is both relevant and reliable. This shifted the focus to principles and methods utilized in reaching the opinion rather than accepting the expert’s opinion based solely upon personal experience. And in 1999, the Supreme Court expanded the application of Daubert in Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), holding that it applied to any expert witness testimony.

In 2013, the Florida legislature adopted the Daubert standard into its rules of evidence. Effective July 1, 2013, Section 90.702 of the Florida Statute was amended to read:

90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1)The testimony is based upon sufficient facts or data;
(2)The testimony is the product of reliable principles and methods; and
(3)The witness has applied the principles and methods reliably to the facts of the case.

Because there is no precise scientific measurement for amount of disability associated with an injury or perhaps a wearable device (yet if recent stories by industry bloggers come to fruition) to measure the same, physician opinion is sometimes all we have to establish apportionment in a workers’ compensation award. If all opinion testimony is prohibited, then apportionment permitted under Florida workers’ comp law doesn’t exist. Worse, Daubert was meant to turn the judge into the gatekeeper to keep junk testimony away from the jury; but in the case of Florida workers’ comp, the JCC is both judge and jury. Daubert simply allows the JCC to completely avoid consideration of apportionment because really there is no reliable scientific method to measure degree of disability.

Florida courts determined long ago that the evidence code applies to workers’ compensation proceedings even though the OJCC is not a state court. In Odom v. Wekiva Concrete Products (1983 Fla. App. LEXIS 25321 (Dec. 28, 1983), the court stated that:

Although Section 440.29(1), Florida Statutes (1981), provides, in part, that in compensation hearings “the deputy commissioner shall not be bound by technical or formal rules of procedure, except as provided by this chapter,” neither that section nor any other section of Chapter 440 or the Workers Compensation Rules excepts workers compensation hearings from the applicability of the rules of evidence.

Prior to Daubert, the State of Florida used the Frye standard to determine expert testimony admissibility. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court stated that “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” If not based on new or novel theories, admissibility was tested with a pure opinion analysis, supported through the expert’s experience and training. That remained the standard for 70 years until the United States Supreme Court held in Daubert that Frye was inconsistent with the Federal Rules of Evidence. However, it was not until 2013 that the Florida legislature decided to catch up to the federal courts.

The first Daubert-affected workers’ compensation case to work its way up to the Court of Appeals of Florida was Giaimo v. Florida Autosport, Inc., 2014 Fla. App. LEXIS 19498 (Nov. 26, 2014). In Giaimo, despite the court acknowledging that apportionment was appropriate because the claimant’s pre-existing condition was aggravated by his work accident, the apportionment testimony was deemed inadmissible because the neuro-surgeon’s testimony was found to be pure opinion. Although the authorized treating neurosurgeon was deemed “well qualified, and familiar with the claimant’s prior and current medical condition,” when asked how he arrived at the percentages attributable to the pre-existing and work injury, the physician explained that he “thought about it, [and] that is the answer that [he] came up with.” Accordingly the court found that there was a lack of reliable principles and methods and therefore no reliable application of them, meaning that the testimony failed the second and third components of the Daubert test implemented by the state legislature.

In the following months, practitioners learned how to navigate around the Daubert pitfalls and more carefully presented the basis for expert testimony. Unfortunately legitimately getting opinion testimony in served as grounds for appealing the judge’s discretion in allowing the opinion testimony. In Booker v. Sumter Cnty. Sheriff’s Office, 2015 Fl. App. LEXIS 8284 (May 29, 2015), the Court of Appeals of Florida ruled that the judge did not abuse her discretion in rejecting the Daubert objection because she found that the physicians relied on multiple published medical studies generally accepted within the medical community as well as their examinations of the claimant and his medical record. Unlike the testimony of the physician in Giaimo who stated for the record that his opinion was based solely upon his thoughts on the matter, this was found sufficient to meet parts two and three of the test.

And the difficulty of applying Daubert to medical testimony isn’t limited to comp. Just last month, the Court of Appeals reversed and remanded a negligence case, finding that the doctor’s testimony in question was the product of reliable principles and methods applied reliably to the facts of the case. In Baan v. Columbia Cnty., 2015 Fla. App. LEXIS 18340 (Dec. 8, 2015), 911 was called for an infant in respiratory distress and the county Emergency Medical Services (EMS) personnel left within 10 minutes after advising the child’s aunt how to use a nebulizer. 50 minutes later, 911 was again called, this time reporting the child was not breathing at all. Despite medical efforts at the scene and finally transporting him to the hospital, the child was pronounced dead the next day. Because expert medical testimony of an extensively credentialed emergency room physician retained to demonstrate that EMS breached the prevailing professional standard of care when it did not transport the child to the hospital following the first call was disallowed as pure opinion testimony, the Circuit Court granted summary judgment in favor of EMS. Despite eventually being reversed, the case still stands for how detrimental strict application of Daubert can be to any personal injury case where there is no tried and true scientific way to measure or validate your expert’s conclusions.

So What Are Florida Workers’ Compensation Practitioners to Do?

Even should the Florida Supreme Court approve the recommendation to return to Frye, that will not apply to workers’ compensation cases. Unless and until the state legislature also amends the evidence code to alleviate the state administrative agencies of the burden of Daubert, workers’ comp practitioners simply need to play by the new rules as best they can. The Court of Appeals in Perry v. City of St. Petersburg, 2015 Fla. App. LEXIS 11817 (Aug. 7, 2015), directed the JCC in that case to its opinion in Booker in which it stated the necessary steps for application of the Daubert test.

To begin with, be cognizant of the timeliness of the motion because failure to raise a Daubert challenge in a timely manner may result in the court refusing to consider the motion. Federal case law demonstrates that the parties have an obligation to object in a timely manner so that the opposing party has an opportunity to address the issue. Once determined that the objection was timely, the sufficiency of the motion must be considered. The opposing party cannot simply state the testimony is pure opinion but should include the specific basis for the objection, such as presenting conflicting medical literature. And then, finally, insight into what principles and/or methods were used to reach the opinion must be presented. The court cites United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001), to provide some flexible and non-exclusive factors that a judge may consider to make this determination:

1.  If it can be tested, has it?
2.  Has it been subjected to peer review and/or publication?
3.  If error rates can be determined, have they?
4.  Are there standards controlling the technique’s operation; if so, have they been maintained?
5.  Is the methodology generally accepted as reliable within the relevant scientific community?

An additional suggestion made by a panel of practicing comp attorneys at the WCI annual conference in Orlando last August was the use of differential diagnosis to opine on causation. By ruling in all scientifically relevant and plausible causes, then ruling out the causes that do not apply, the most likely cause will likely remain. And case law supports the idea that a reliable differential diagnosis can form a valid foundation for an expert’s opinion (Westberry v. Gislaved Gummi AB (178 F. 3d 257, 262-263 (4th Cir. 1999)).

To conclude, Daubert continues to present challenges to many Florida practitioners but that soon may change for some. If the court decides that it needs to hold hearings regarding the CREC’s recommendation, those would take place in May or June and as noted above, any action to revert to the Frye standard would need to be implemented by January 1, 2017. What is unfortunate about this apparent battle between the legislature and the judiciary over separation of powers is that Daubert likely benefited other areas of law such as product defect where such scientific evidence could be produced and could now be subjected to unnecessary opinion testimony of experts with resumes that meet the Frye test. Guess time will tell who the winners and losers are in this battle.

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