The Florida First District recently rendered Godwin v. Hillsborough County School Board, No. 1D18-1788 (August 29, 2019). The decision discusses two issues that will be familiar to regular readers, ex parte communication and disqualification of trial judges. There is also mention of the expert medical advisor (EMA) statute and a reminder that errors or objections must be preserved at trial.
In this instance, the assigned judge appointed an EMA. The EMA is discussed in The Striking of an EMA, A Constitutional Challenge Denied, and Not with a Bang but with a Whimper. Thereafter, the judge "conferred with the expert medical advisor (EMA) without counsel present." Over the approximately two decades that the EMA has been in the Florida statute, there has been ample discussion of the EMA role. I have often heard it referred to as the "court's expert." That is fallacious in two aspects.
First, the judges of compensation claims are not a court. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004)("the Office of the Judges of Compensation Claims (OJCC) is not a court of this State"). There is a persistence in the community in referring to this Office as a "court" whether through design or complacency. But, that is misplaced and inappropriate. Worse, it causes confusion among the community members we serve.
Second, there is no "court expert" in the Florida workers' compensation statute, defined or implied. The expert medical advisor effectively becomes an arbiter of medical dispute. The Court has explained that "An expert medical advisor's opinion is presumed to be correct and may only be rejected on the basis of clear and convincing evidence." Walgreen Co. v. Carver, 770 So. 2d 172 (Fla. 1st DCA 2000). The doctor is imbued with responsibility for expressing opinion, but the Judge remains the finder of fact. The judge may accept the opinion, or may reject it upon appropriate findings. The expert and judge are not collaborators in investigating or diagnosing. The judge remains the adjudicator, independent and impartial. The Judge may reject the EMA opinion.
In Godwin, the EMA performed as ordered and rendered a report. One recommendation was for another medical test to be performed. The assigned judge then spoke "with the expert medical advisor (EMA) without counsel present." There is nothing in the Court's opinion to suggest that this communication was inadvertent or unintended. Ex parte communication is prohibited by the Florida Code of Judicial Conduct. It has been discussed here in What is Ex Parte, Judicial Behavior and Ex Parte Communication, and The Judicial Witness.
The prohibition on ex parte communication is in the Florida Code of Judicial Conduct, Canon 3:
"7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that . . ."
The key language there in this instance is "consider ex parte communications" or even "consider other communications made to the judge outside the presence of the parties." In communicating with the EMA, outside the presence of the parties, the judge either "initiated, permitted, or considered."
The assigned judge, "later that day . . . informed the parties about his conversation with the EMA." Whenever there is ex parte communication, such disclosure is appropriate. As an aside, this periodically arises when a party or counsel inadvertently makes contact in the modern age of electronic communication. While an email cannot be "unread," the best course for the judge in such situations is immediately making such communication known to all other parties.
The Court in Godwin noted that even after the disclosure, "at no point below did Claimant raise any questions about, or objections to, the JCC's conduct." This is an issue of preservation of error. When a party perceives an issue or complaint with process, procedure, evidence, or otherwise, it is incumbent upon that party to make an objection. It is the objection that alerts the trial judge to a perception of a problem. Alerted, the trial judge may be able to rectify the error or to at least ameliorate its impact and effect. Parties may not generally quietly acquiesce in error at trial and later raise that error in the appellate court.
The Court noted that "Claimant maintains that he had no recourse below; thus, seeking review in this court was his only path for relief." The Court was not persuaded. It reminded of the process and rule for judicial disqualification; it reminded of the applicability of the Code of Judicial Conduct. The Court concluded "we see no reason why Claimant could not have addressed his concerns below."
The Court concluded with mention that the trial judge could have avoided the ex parte communication by involving the parties in discussion upon receipt of the EMA report. It suggested the judge could have "apprised the parties of his intention to contact the doctor before" doing so. The judge could have discussed the report with counsel in the status conference first, and perhaps all parties would have agreed to some proposed written inquiry from the judge to the EMA (with copies to all parties). Or, possibly, the doctor could have been called during the status conference when all were present. There are a myriad of possible courses.
Some will note that coordinating a status conference or hearing can be cumbersome when multiple attorney calendars and the judge's calendar are congested with the day-to-day. That is fair. Admittedly, that may be even more of a challenge when the EMA doctor's calendar is added to the complexity. Certainly, that is likely. However, due process is necessary even when it may not be convenient.
Ex parte communication is simply not a good idea, and everyone involved needs to remain aware of what it is. Everyone needs to strive to avoid it. When it occurs, everyone involved should strive to identify it, ameliorate it, and hopefully rectify it. Litigants need to remember their responsibility to preserve error at the trial level.
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