US Sugar Corp. v. Henson

Decision Date06 June 2002
Docket NumberNo. SC01-1127.,SC01-1127.
Citation823 So.2d 104
PartiesUNITED STATES SUGAR CORPORATION, Petitioner, v. G.J. HENSON, Respondent.
CourtFlorida Supreme Court

Parker D. Thomson and Carol A. Licko of Thomson, Muraro, Razook & Hart, P.A., Eduardo E. Neret of Akerman, Senterfitt & Eidson, P.A., Miami, FL; and David G. Peltan, U.S. Sugar Corporation, Clewiston, FL, for Petitioner.

Nina A. Sachs of Findler & Findler, P.A., and Randy D. Ellison, West Palm Beach, FL, for Respondent.

H. George Kagan and Elaine L. Thompson of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, FL, for Florida Fruit & Vegetable Association; Florida Citrus Mutual; American Chemistry Council; Florida Fertilizer & Agrichemical Association; Gulf Citrus Growers; and American Crop Protection Association, Amici Curiae. Philip D. Parrish, Miami, FL, for The Academy of Florida Trial Lawyers, Amicus Curiae.

LEWIS, J.

We have for review a decision of a district court of appeal on the following question, which the district court certified to be of great public importance:

IS A JUDGE OF COMPENSATION CLAIMS REQUIRED TO APPLY THE STANDARDS OF FRYE V. UNITED STATES, 293 F. 1013 (D.C.Cir.1923), PRIOR TO ADMITTING EXPERT OPINIONS CONCERNING NOVEL SCIENTIFIC PRINCIPLES OR METHODOLOGIES IN A WORKERS' COMPENSATION PROCEEDING?

United States Sugar Corp. v. Henson, 787 So.2d 3, 11 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Facts and Procedural History

Respondent G.J. Henson worked for petitioner U.S. Sugar as an agricultural mechanic for twenty-eight years, ending in 1996 when he became disabled. During his employment, the respondent spent most of his day in the field repairing broken or malfunctioning equipment. Over the course of his employment history with U.S. Sugar, Henson was regularly exposed to pesticides1—through physical presence in the fields when aerial application was occurring or had recently occurred, or by actually touching the liquid and solid forms of pesticides during his work on equipment and machinery. According to respondent, he was told that the pesticides would not harm him, and he was not given any particular training on safety precautions for handling the poisonous substances or the equipment upon which the substances came to rest. While U.S. Sugar provided Henson with leather and latex gloves, the leather gloves were unwieldy for his work and the latex gloves were quickly torn by the equipment that the petitioner was required to service and maintain.

While the respondent has suffered from shortness of breath, nausea, gastritis, and muscle weakness since 1977, and from that date until 1996 he had been seen in petitioner's medical clinic regarding these conditions, in February 1996 he began seeing his own physician for weakness, dizzy spells, and shortness of breath. After being referred to a pulmonologist, Henson was diagnosed with a paralyzed phrenic nerve. This nerve condition has resulted in a partial collapse of one of the respondent's lungs, leaving him virtually confined to a wheelchair and dependent upon a ventilator.

Henson asserted before the Judge of Compensation Claims (JCC) that he is permanently and totally disabled, and that his disability was caused by pesticide exposure in the workplace. As is typical in workers' compensation cases, the respondent's causation evidence was presented to the JCC by introduction of the deposition testimony of four experts.2 These physicians opined that the cumulative effect of respondent's pesticide exposure was the cause of his phrenetic nerve mononeuropathy. The nontreating experts based their opinions upon well-settled biological conclusions published in scientific literature regarding the effects of insecticides upon humans. Additionally, the treating physicians based their determinations upon both broadly accepted scientific literature and differential diagnosis—an established scientific methodology in which the expert eliminates possible causes of a medical condition to arrive at the conclusion as to the actual debilitating factor.

Despite a "section 90.702 objection"3 during the expert depositions, and the petitioner's motion in limine, filed one day before the pretrial hearing, which objected to the respondent's expert testimony based upon a lack of general acceptance for his theory of causation under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), the JCC accepted the testimony of the respondent's experts into evidence without conducting a separate evidentiary hearing. Following the final hearing, the JCC held that Henson is permanently and totally disabled, and that his disability was caused by pesticide exposure during his employment with U.S. Sugar.

On appeal, the First District affirmed. In its analysis, the court determined that the JCC should have applied the standard enunciated in Frye, to ascertain the admissibility of the expert opinion testimony presented by Henson to explain the causative link between pesticide exposure and his medical condition. See Henson, 787 So.2d at 10-12

. As a result of this conclusion, the court engaged in a de novo review of the respondent's experts' opinions, as required by this Court's decision in Brim v. State, 695 So.2d 268 (Fla.1997), finally concluding that their deductions were based upon scientific precepts generally accepted in the scientific community. See id. at 16-21. Therefore, the court concluded that the testimony was properly admitted under Frye, and affirmed the JCC's holding, while also certifying the question related to this determination to us for consideration. This review has followed.

Analysis

It is well-settled in Florida that in the arena of determining the admissibility of novel expert opinion testimony, it is of paramount importance that the court "not permit cases to be resolved on the basis of evidence for which a predicate of reliability has not been established. Reliability is fundamental to issues involved in the admissibility of evidence." Hadden v. State, 690 So.2d 573, 578 (Fla.1997). Focusing upon the prerequisite of scientific dependability, this Court has remained committed to the use of the admissibility standard first detailed in the opinion of the District of Columbia Circuit Court of Appeals in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Brim v. State, 695 So.2d 268 (Fla.1997)

; Murray v. State, 692 So.2d 157 (Fla.1997); Stokes v. State, 548 So.2d 188 (Fla.1989). As stated in the D.C. Circuit's original opinion, the Frye standard requires that "the thing from which the [expert's] deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014.

While this case may present the issue of whether the Frye standard must be satisfied in workers' compensation proceedings to this Court for the first time, many legal questions in the workers' compensation area which are relevant to the resolution of the instant case have already been addressed. We recognize that the present question has not received a uniform answer in all jurisdictions. First, the Florida Evidence Code applies in workers' compensation proceedings. See Alford v. G. Pierce Woods Mem'l Hosp., 621 So.2d 1380, 1382 (Fla. 1st DCA 1993)

; Martin Marietta Corp. v. Roop, 566 So.2d 40, 42 (Fla. 1st DCA 1990); see generally Charles W. Ehrhardt, Florida Evidence § 103.3 (2001 ed.). Additionally, as stated in the opinion of the court below, "Frye's application in workers' compensation cases has been implicitly recognized by the Florida Supreme Court." Henson, 787 So.2d at 11.

In Domino's Pizza v. Gibson, 668 So.2d 593 (Fla.1996), we addressed whether section 440.09(3), Florida Statutes (1991), precluded the admission of expert testimony "converting blood alcohol content from a percentage of blood serum to a percentage of whole blood." Id. at 596. The question arose from a workers' compensation claim in which the employer had defended the claim on the basis that the employee was intoxicated at the time of his injury. See id. at 594. Pertinent to the instant case, in determining that section 440.09(3) did not preclude the admission of the employer's proffered expert testimony, this Court stated:

Serum blood alcohol tests meet the Frye standard of general scientific acceptance and have been accepted by other courts to establish blood alcohol levels. Thus, we answer the certified question in the negative: the statute does not preclude expert testimony converting blood alcohol content from a percentage of blood serum to a percentage of whole blood. Id. at 596 (footnote and citation omitted). It is certainly implicit from our Domino's Pizza holding that the Frye standard applies in workers' compensation proceedings.

The courts of other jurisdictions have split on the question of whether the Frye standard applies in workers' compensation proceedings. Unfortunately, the decisions do not provide clear guidance here, because the procedural rules governing workers' compensation proceedings vary widely from jurisdiction to jurisdiction. In Nebraska and Kansas, states in which courts have held that admission of expert opinions in workers' compensation proceedings is not subject to the strictures of the Frye standard, the admission of evidence in the workers' compensation arena is not governed by any formal rules of evidence, unlike the situation in Florida. See Armstrong v. City of Wichita, 21 Kan. App.2d 750, 907 P.2d 923, 929 (1995); Sheridan v. Catering Mgmt., Inc., 5 Neb. App. 305, 558 N.W.2d 319, 327 (1997).

In Indiana, workers' compensation proceedings are subject to rules of evidence, just as in Florida, and expert opinion is inadmissible there unless it meets the Frye standard. In K-Mart Corp. v. Morrison, 609 N.E.2d 17 (Ind.Ct.App.1993), the Indiana Court of Appeals (Third District) stated:

[W]e believe that in hearings before the workers' compensation board, novel scientific evidence must have been found to be
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