Thursday, January 19, 2017
1st DCA Rejects Challenge to Use of 'Daubert Standard' in Comp Cases
By Sherri Okamoto
Florida's 1st District Court of Appeal this week summarily denied a challenge to the use of the "Daubert" evidentiary standard in workers' compensation cases.
This standard derives from a 1993 U.S. Supreme Court case called Daubert v. Merrell Dow Pharmaceuticals. It requires trial judges to assess the scientific validity of an expert's opinion before the opinion will be admissible.
While the U.S. Supreme Court's decision in Daubert technically applies only to evidentiary rulings in the federal court system, many states have rules of evidence that mirror the Federal Rules of Evidence. The vast majority of jurisdictions have embraced the Daubert standard.
Florida's legislature amended Evidence Code Sections 90.702 and 90.704 in 2013 to incorporate the Daubert standard – but the Florida Supreme Court has not yet adopted them.
The court usually makes changes to its Rules of Evidence to conform to legislative amendments to the Evidence Code, so the rules and the code basically parallel each other.
But that doesn't always happen. The Florida Supreme Court has previously refused to implement legislative changes to the Evidence Code that were procedural in nature because the Florida constitution provides the Florida Supreme Court has sole authority to establish court procedures.
The Florida Bar has taken the position that the 2013 amendments to Sections 90.702 and 90.704 are also procedural in nature – and the Florida Supreme Court heard oral argument on the matter in September.
Krys Godwin, director of legal publications for the the Florida Bar, said they are still "waiting for an opinion by the Florida Supreme Court on whether this standard will be adopted, to the extent that it is procedural."
Until the Florida Supreme Court rules, claimants' attorney Michael Winer said Wednesday, the use of the Daubert standard is "far from settled-law."
Accordingly, Winer had objected to a decision by Judge of Compensation Claims Mark A. Massey to use the standard to exclude a medical expert's opinion evidence in his client's comp case.
Unfortunately for him, the 1st DCA on Monday issued a per curiam decision that affirmed Massey's decision without a written opinion. In an unusual move, Judge Kent Wetherell II wrote a concurrence to the decision, berating Winer's argument as “frivolous.”
Wetherell said the 1st DCA's 2014 decision in Giaimo v. Florida Autosport established that the Daubert standard applies in workers' compensation cases.
Wetherell said the Giaimo decision had been based on the Florida Supreme Court's 2002 decision in U.S. Sugar Corp. v. G.J. Henson, which decreed that “the Florida Evidence Code applies in workers’ compensation proceedings,” and the fact that the Daubert standard is now a part of the Evidence Code.
The JCC was therefore bound to follow Giaimo—and the plain language of Section 90.702, Wetherell opined.
Wetherell further posited that even if the Florida Supreme Court declines to adopt the Daubert standard into the Rules of Evidence, that wouldn't stop the Daubert standard from applying to Winer's case since "it is well established that the Court does not have the authority to establish procedural rules for executive branch quasi-judicial proceedings."
But Winer on Wednesday said the Florida Supreme Court "has always set forth the evidentiary standards to be applied in workers' compensation proceedings." Indeed, he said, that's exactly what the court did in the U.S. Sugar Corp. case.
Winer said he doubted he'd be able to get the Florida Supreme Court to review the 1st DCA's decision though, since per curiam affirmances are not precedential.
George Kagan, a defense attorney with Miller, Kagan, Rodriguez & Silver, served as amicus counsel in the U.S. Sugar case.
His argument to the court had been that the Evidence Code should apply to comp cases – but that had been the predecessor-standard to Daubert.
Kagan said he had never been a huge fan of the Daubert standard, and trying to apply it to comp cases is akin to fitting "a square peg into a round hole."
The problem, he said, is that there are many things that comp attorneys rely on doctors to establish for which there is no accepted medical standard, such as the proper way to determine the major contributing cause of a condition.
Fellow defense attorney Rogers Turner of Hurley, Rogner, Miller, Cox & Waranch said he considered the Daubert standard a bit of a double-edged sword.
While he can use it to challenge the opinion of a claimants' expert, he said, he has to be sure his own expert's opinion can satisfy the requirements of Sections 90.702 and 90.704.
The statutes require that a judge screen an expert's proffered opinion to ensure it is based upon sufficient facts or data and that it is the product of reliable principles and methods that have been reliably applied to the facts of a given case.
Thus, Turner said it is "valuable to prevent a jury from relying on opinions that don't have a sufficient scientific basis," but it "doesn't make a lot of sense at a bench trial."
David Langham, the deputy chief judge of the Florida Office of Judges of Compensation Claims, said the point of the Daubert standard is to "control the evidence heard by the finder-of-fact," and have a judge decide what evidence a jury will hear.
"But the thing about comp is, we have no juries," he said.
That means the judges of compensation claims have to hear whatever expert opinion that a party wants to exclude from evidence when there is a Daubert challenge – even though the judge is also going to be the ultimate finder-of-fact on the case, Langham explained.
At the end of the day though, Langham said, the judges of compensation claims have to follow the Evidence Code.
If the Supreme Court winds up excluding the Daubert standard from the Rules of Evidence, Langham said that would mean the standard wouldn't apply in the judicial system – but the judges of compensation claims will still have to use it as long as it remains in the Evidence Code.
"So we'll have it where we need it the least," Langham opined.
William Large, the president of the Florida Justice Reform Institute, said his organization had backed the effort to have the Daubert standard adopted.
Large said the change "was meant to address the admissibility of pure opinion testimony and the limited opportunity to challenge the validity of scientific and technical evidence" under the pre-existing process being used by the courts. Monday's ruling from the 1st DCA "stands for the proposition that Daubert applies to workers' compensation cases," he said.
To read the court's decision, click here.
Reprinted courtesy of WorkCompCentral.