Case Law Update January 2021
Cristin v. Everglades Correctional Inst./Div. of Risk Mgmt., (Fla. 1st DCA 12/31/2020)
Medical Evidence/Daubert/EMAs
| The DCA reversed and remanded the case for the JCC to rule on Claimant’s Daubert objections to the opinion testimony of the E/C’s IME. The parties each obtained IMEs following the E/C’s denial of compensability. The central issue was whether the claimant/correction officer’s workplace syncope, fall and seizures were due to a pre-accident treatment regimen for prostate cancer (the “Gerson regimen,” which included a vegan diet, supplements and two or more daily coffee enemas). The E/C’s IME Dr. Fischer testified the syncope was due to a combination of the treatment, weight loss and dehydration and a prior diagnosis of hypertension. The claimant’s IME, Dr. Nedd, testified the cause of the syncope episode was unclear but likely due to workplace stressors (an alleged altercation) prior to the episode. He disagreed with Dr. Fischer’s testimony. During Dr. Fischer’s testimony, the claimant asserted a Daubert objection, alleging the doctor provided only “pure opinion testimony”. The E/C subsequently sought appointment of an EMA. The claimant again objected under Daubert, but the JCC ruled the claimant needed to perfect or clarify the motion. The JCC denied a subsequent Daubert motion, finding as gatekeeper and fact-finder, he could not exclude the testimony. A different JCC presided at the merit hearing. He found the EMA’s (Dr. Suite) opinion that the pre-existing condition/Gerson regimen caused the event was presumptively correct, and that no clear and convincing evidence existed to reject that opinion. The DCA found the claimant objected at all relevant points. They found the JCCs erred in not considering/ruling upon the claimant’s Daubert objections, and whether those objections would have served to disqualify Dr. Fischer’s opinions, and ultimately whether an EMA would have been appointed. The DCA noted that analysis should take place at the JCC, not DCA level, and could require additional evidence or a hearing on remand. A dissent noted the errors seemed harmless as sufficient additional conflicts (which did not have Daubert objections) existed to appoint an EMA. Click here to view Opinion |
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