Does Daubert Apply to EMA Evidence in Fla.?

Case File

In a matter of first impression a Florida appellate court found that Florida statutes' governing procedures for workers' compensation mediation and hearings precluded a challenge to the admissibility of expert medical advisor opinions under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Simply Research subscribers have access to the full text of the decision.

Case

Sedgwick Claims Management v. Thompson, No. 1D2023-0193 (Fla. Dist. Ct. App. 09/23/25)

What Happened

A correctional officer claimed that the constant turning of his head to survey the grounds caused repetitive trauma injuries to his neck and left shoulder. The claim was initially accepted by the employer/carrier as compensable under Florida's "pay and investigate" statute.

Later, the E/C denied the claim in its entirety, reasoning that the officer had not sustained a compensable injury caused by work activities.

Prior to the final hearing, the officer filed a notice of conflict in medical opinions between his independent medical examiner and the E/C's. The E/C's IME determined that work activities would not have caused the officer's injuries because there was no whipping motion involved.

With this evidence in hand, the E/C moved to strike the testimony of the officer's IME because his opinions weren't based on sufficient information to pass muster under the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

The Judge of Compensation Claims denied the E/C's motion, certified a conflict in medical opinions, and appointed an expert medical advisor to "break the tie" regarding the causation issue.

The EMA opined that the officer's injuries could have resulted from anything, even a sneeze in the car, but that in the absence of any other scenario or explanation, the officer's work activities were the major contributing cause of the neck injuries.

The E/C filed a motion to strike the EMA report, raising a Daubert objection. In response, the officer argued that Florida law dictated that the EMA opinion was presumed to be correct unless there was clear and convincing evidence to the contrary.

Workers' Comp 101: In Florida, an EMA physician is a "tiebreaker" whose rule is to assist JCCs within the advisor's area of expertise and to provide peer review or expert medical consultation, opinions and testimony to a JCC in connection with resolving disputes related to reimbursement and differing opinions of health care providers. The opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary. To become an EMA, an applicant must correctly answer 95% of EMA Tutorial review questions, hold valid licensure issued by the Florida Department of Health with "clear active" status, be board certified or have board eligibility applicable to the specialty, demonstrate experience in assignment of permanent impairment ratings within two years of application, have experience performing IMEs with documented proof, and have completed 20 hours of continuing medical education within two years of application.

The JCC denied the E/C's Daubert challenge, determining that the EMA's opinions were the product of reliable principles and methods applied reliably to the facts of the case and found that repetitive movement at work was the cause and major contributing cause of the officer's neck and left shoulder injury.

The E/C appealed to court.

Rule of Law

The Daubert ruling spelled out that courts must assess the reliability and relevance of the of expert witness testimony and must consider:

(1) Whether the technique or theory in question can be, and has been tested;

(2) Whether it has been subjected to publication and peer review;

(3) Its known or potential error rate;

(4) The existence and maintenance of standards controlling its operation; and

(5) Whether it has attracted widespread acceptance within a relevant scientific community.

Under Florida law that codified the Daubert ruling into statute, 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.

However, Florida statute 440.25 directs that a "report or testimony of the expert medical advisor shall be admitted into evidence in a proceeding."

What the Court Said

In the court's view, Florida law supported the officer's argument that although Daubert applies generally in Florida workers' compensation cases, nothing about Daubert or Florida statutes applies to an EMA. Instead, the "shall be admitted" language from 440.25 precluded a Daubert challenge.

So, while the JCC erred in applying the Daubert standard to determine the admissibility of the EMA testimony and report, the court found that error harmless because the EMA opinion was ultimately admitted and properly considered by the JCC.

Verdict: Affirmed and remanded, since the case was bifurcated for initial litigation of compensability.

Takeaway

The Daubert standard doesn't apply to the admissibility of EMA evidence in Florida.

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