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Florida's 1st District Court of Appeal

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1st DCA rejects challenge to evidence standard in workers’ comp case

An intermediate state appeals court refused Monday to let a workers’ compensation claimant introduce a second medical opinion, in a case testing an evidence code provision the Legislature adopted in 2013.

Baricko v. Barnett Transportation Inc. turned on the applicability of the Daubert evidentiary standard. The Florida Supreme Court heard arguments in September about whether it should embrace the standard, but has yet to rule.

A three-judge panel of the 1st District Court of Appeal rejected an attack on Daubert filed on behalf of David Baricko, a truck driver seeking to introduce evidence that sitting for long periods caused his embolism.

Michael Winer of the Law Office of Michael J. Winer in Tampa argued that a judge of compensation claims had impermissibly applied Daubert in advance of its approval by the state high court.

The appellate panel did not explain its thinking, but Judge Kent Wetherell II said in a concurring opinion that the appeal was “frivolous.” The 1st DCA had ruled in 2014 that Daubert applies in workers’ compensation cases, he wrote.

In any event, he added, “it is well established that the (Supreme) Court does not have the authority to establish procedural rules for executive branch quasi-judicial proceedings such as those under chapter 440, Florida Statutes” — the workers’ compensation code.

Even if the justices decline to enforce the new evidentiary standard in trial courts, “that decision will have no impact whatsoever on the applicability of the Daubert test in workers’ compensation proceedings,” Wetherell wrote.

The 4th District Court of Appeal rejected a similar claim in November, Wetherell added.

“He just couldn’t be more wrong about his conclusion,” Winer said in a telephone interview. In suggesting the Supreme Court lacks jurisdiction to set evidentiary standards in workers’ compensation courts, Wetherell “ignores precedent,” Winer said.

He plans to seek a written ruling by the 1st DCA panel to clarify the court’s thinking.

The U.S. Supreme Court adopted the evidence standard at issue in 1993, in Daubert v. Merrell Dow Pharmaceuticals Inc. The standard prevails in federal courts and in courts in other states.

Judges apply the test when weighing whether proposed expert testimony is generally accepted by the scientific community.

Written By

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

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