The inCreASing iMpOrTAnCe OF A prOper DAuBerT OBJeCTiOn
Workers ’ Compensation Section Chair : Anthony Cortese – Anthony V . Cortese , Attorney at Law
A sustained Daubert objection to expert testimony can preclude appointment of an expert Medical Advisor .
In Cristin v . Everglades Correctional Institution , 1 the First District Court of Appeal ruled that a sustained Daubert objection to expert testimony can preclude appointment of an Expert Medical Advisor ( EMA ) on the issues and testimony in question . Because a successful Daubert 2 objection can preclude an EMA , it has added significance , because an EMA ’ s opinion on issues and opinions where there is disagreement is considered presumptively correct .
The Daubert rule was adopted and codified by the Florida legislature in 2013 with an amendment to the Florida Evidence Code in Section 90.702 . It requires that an expert ’ s testimony not be pure opinion , that it be based on sufficient facts , and that it be the product of reliable principles properly applied to the facts of the case . Where a Judge of Compensation Claims ( JCC ) subsequently apportioned benefits based on the opinion of an expert that was pure opinion , the First District Court of Appeal reversed and remanded the decision on the basis that a Daubert objection was properly raised , and that pure opinion violated the standard . 3
In Booker v . Sumter County ’ s Sheriff ’ s Office , 4 the First District noted that a Daubert objection must be timely and sufficiently specific . To be timely , the objection in that case should have been filed on receipt of the opposing expert report , or promptly thereafter , or at least at the time of the expert ’ s deposition . 5 To be sufficiently specific , the objection should put opposing counsel on notice to have the opportunity to address any perceived defect in the expert ’ s testimony such as citing conflicting medical literature or expert testimony . 6 Despite the lack of timeliness and specificity , the JCC evaluated and denied the Daubert objection after reviewing the evidence , finding that the experts were well acquainted with the relevant medical history and condition , relied on medical studies generally accepted and applied those studies to the facts of the case in reaching opinions on causation , and the First District affirmed . 7
In Cristin , the JCC held that the claimant ’ s Daubert objection had been properly raised but denied it on the grounds that , in a bench trial , the exclusion of the doctor ’ s testimony is not literally possible and because striking testimony is considered a drastic remedy . Based on the disagreement between the claimant ’ s Independent Medical Evaluation ( IME ) and the employer / carrier ’ s IME ( which had been objected to based on Daubert ), the JCC then appointed an EMA . When the EMA sided with the employer / carrier ’ s IME , the JCC denied benefits based on the presumption of correctness of the EMA opinion . The First District held it was reversable error to fail to rule on the Daubert objection , and the case was remanded for proper evaluation of the Daubert objection and proper handling thereafter based on the outcome of the Daubert objection . This ruling increases the importance of a timely and specific Daubert objection in cases where such an objection may be appropriate .
1
1D19-1245 , 2020 WL 7779002 ( Fla . 1st DCA , Dec . 31 , 2020 ).
2
Daubert v . Merrell Pharmaceuticals , 509 U . S . 579 ( 1993 ).
3
Giamo v . Florida Autosport , No . 1D14-0077 , 154 So . 3d 385 ( Fla . 1st DCA , 2014 ).
4
166 So . 3d 189 ( Fla . 1st DCA 2015 ).
5
Id . at 192 .
7
Id . at 193 .
8
Id .
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Author : Anthony Cortese – Anthony Cortese At Law
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