Cristin v. Everglades Corr. Inst.

• Decision Date: 31 December 2020
• Docket Number: No. 1D19-1245,1D19-1245
• Parties: Joseph CRISTIN, Appellant/Cross-Appellee, v. EVERGLADES CORRECTIONAL INSTITUTION and Division of Risk Management, State of Florida, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

310 So.3d 951

Joseph CRISTIN, Appellant/Cross-Appellee,

v.EVERGLADES CORRECTIONAL INSTITUTION and Division of Risk Management, State of Florida, Appellees/Cross-Appellants.

No. 1D19-1245

District Court of Appeal of Florida, First District.

Date of Accident: April 30, 2014.

December 31, 2020

Rehearing Denied February 3, 2021

Kenneth B. Schwartz, Boca Raton, for Appellant/Cross-Appellee.

Jerry M. Hayden of Vernis & Bowling of Miami, P.A., North Miami, for Appellees/Cross-Appellants.

Jay, J.

In this workers’ compensation case, Claimant seeks reversal of the Judge of Compensation Claim's (JCC's) order denying compensability of his workplace fall based on his acceptance of the opinions of an expert medical advisor (EMA). Claimant raises multiple issues on appeal, but we find merit regarding only one: Whether the JCC erred by finding that, as both gatekeeper of the evidence and factfinder, he could not address Claimant's Daubert¹ objection to the medical opinions of the Employer/Carrier's (E/C's) independent medical examiner (IME), which allowed for the appointment of the EMA. We conclude that the JCC's refusal to perform its gatekeeping function—based on the assumption that its factfinding function precluded it from doing so—is legal error constituting an abuse of discretion. The error is not harmless, because the appointment of the EMA was primarily based on a conflict between the Claimant's IME and the opinion subject to the Daubert challenge. Moreover, the error was not harmless because even if there were enough basis to still appoint an EMA—as the dissent asserts—an erroneous admission of some of the IME's opinion would affect the conclusive presumption given to the EMA's opinion by the JCC.

We in turn reverse the compensation order and remand for proper consideration of the Claimant's Daubert objection to the opinion testimony of the E/C's IME. On the cross-appeal, the JCC did not abuse its discretion in denying without prejudice the E/C's motion to strike the Claimant's Daubert objection (which was followed by the Claimant's motion to exclude). We otherwise do not need to reach the correctness of the E/C's timeliness and specificity objections because the JCC did not address those in its denial of the motion to exclude.

I.Facts

On April 30, 2014, Claimant, a correctional officer, fell at work, sustaining a serious head injury

. On the way to the hospital, he suffered a seizure. He was hospitalized for ten days for subarachnoid and subdural hematomas, and a right cerebellar contusion with associated seizure disorder. He did not return to work for several months. In November 2014, after his anti-seizure medication was discontinued, he had a seizure at home and was taken to the emergency room.

When the E/C denied the occurrence of a compensable workplace injury, Claimant filed a petition for benefits, seeking a determination of compensability together with past and future medical expenses and other associated benefits. As their major defenses, the E/C asserted that Claimant's employment was not the major contributing cause of his injuries, and that his original fall and subsequent seizure were the result of an idiopathic or preexisting condition and did not otherwise arise out of his employment. Claimant asserted that he lost consciousness before he fell, and the cause of this loss of consciousness or syncopal episode is in dispute, but ultimately unknown. And, because he was in the course and scope of his employment at the time of his fall, the accident is presumed compensable.

The JCC found that the evidence showed Claimant was diagnosed with prostate cancer

approximately two years before his fall at work. Claimant rejected his doctor's traditional treatment recommendations and opted to undergo an alternate holistic treatment known as Gerson therapy. This therapy is a regimen of a specific vegan diet, a large number of nutritional supplements, and two or more daily coffee enemas. According to the monitoring physician's records, Claimant lost almost thirty pounds under the Gerson regimen and complained of low energy and fatigue. But Claimant later testified that he actually "felt like superman" with "energy all the time."

On the day he fell at work, Claimant performed his usual morning routine under the Gerson regimen. Later that morning, he was teaching a class of correctional officer recruits, when Warden Acosta and Colonel Lugo, a senior correctional officer, came into the classroom for what the warden described as a routine visit that also included a discussion of the use of cell phones with the new recruits. When the warden began addressing the recruits, Colonel Lugo asked Claimant to step outside with him. Colonel Lugo testified that the purpose of his request was to have a friendly conversation with Claimant—not to reprimand him. He stated he did not recall any disciplinary problems with Claimant. In contrast, Claimant testified that the warden was very upset, that Colonel Lugo's manner was condescending, and that he felt responsible for the breach of the rules on cell phone use. The two walked down the hall to an empty classroom. Once inside this classroom, Claimant suddenly slumped against the concrete wall, fell backwards, and struck his head on the ceramic tile floor.

Medical Opinion Evidence

Dr. Nedd, Claimant's independent medical examiner (IME), is a board-certified neurologist who concentrates on closed-head trauma

. Dr. Nedd testified that no preexisting condition explained Claimant's syncope (faint) on the day of the accident and that the etiology of the syncopal episode was unclear. Having no other explanation, Dr. Nedd suspected Claimant passed out due to stressors at work and described stress as a potential cause. He dismissed Claimant's adherence to the Gerson regimen as a cause.

In contrast, Dr. Fischer, the E/C's IME neurologist, opined that Claimant had "a vasodepressor syncopal episode, caused within reasonable medical probability by a hemodynamic state of volume depletion that was caused, in turn, by his use of frequent enemas, associated with substantial weight loss, fatigue, and being on medication for several months prior to the incident in question and which would engender a syncopal episode." As Dr. Fischer further explained, the "hemodynamic state" here was an instance of low blood pressure induced by volume depletion/dehydration related to the use of enemas—i.e. , the Gerson regimen treatment, which, according to Dr. Fischer, is not FDA-approved—and the medication prescribed by Claimant's primary physician for a prior diagnosis of hypertension

. Dr. Fischer acknowledged that syncope can be the result of psychophysiological problems, but stated "that was not his problem."

Claimant's Daubert Objections

Dr. Fischer's deposition, initiated on May 1, 2017, was continued and completed on August 14, 2017. At the end of the May 1 proceeding, before the conclusion of the doctor's direct examination and the commencement of cross-examination, Claimant's attorney stated: "I just want to make note that I do have an objection to the reliability of the testimony, all the Daubert Objection across the board." One week after the continued deposition on August 14, Claimant filed an amendment to the pretrial stipulation objecting to Dr. Fischer's testimony as "pure opinion" testimony that did not otherwise comply with section 90.702, Florida Statutes, or the standard of admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

In September 2017, the E/C filed a motion for the appointment of an EMA under section 440.13(9)(c), Florida Statutes (2015), based on the disagreement in the medical opinions between Dr. Nedd and Dr. Fischer. Two weeks later, the E/C filed a motion to strike Claimant's Daubert objections to Dr. Fischer's deposition testimony. Following a hearing on the motion, JCC Spangler denied the motion without prejudice, and found that the

Daubert objection is preserved. However, claimant has not perfected the objection properly by filing an appropriate motion to limit or strike the allegedly objectional testimony which sets forth the basis of the objection. Unless same is filed the [ Daubert ] objection does not set forth sufficient grounds to sustain.

In March 2018, Claimant filed a motion to exclude Dr. Fischer's opinions. In the motion, Claimant argued that (1) Dr. Fischer, as a neurologist, was not qualified to testify as to dehydration or volume depletion; and (2) Dr. Fischer's testimony was pure opinion testimony based on unreliable methodology. Following a hearing, JCC Spangler denied the motion because the exclusion of the doctor's testimony, in a bench trial setting, is "not literally possible" where the JCC is both the trier of fact and the arbiter of the admissibility of the evidence. He also noted that the exclusion or striking of evidence is considered a drastic remedy under Florida Administrative Code Rule 60Q-6.125(1).

Expert Medical Advisor (EMA)

On April 3, 2018, JCC Spangler entered an order appointing Dr. Suite, a neurologist, as the EMA and requested that he respond to specific questions, including what caused Claimant's syncope on the day of his fall. Although Dr. Suite's written response indicated that Claimant had a vasovagal event (faint) likely caused by stress, in deposition, as found by JCC Anderson (the successor JCC), the doctor opined that this event was more likely related to the Gerson regimen.

Final Hearing and Final Order

At a hearing held in November 2018, Claimant renewed his motion to exclude Dr. Fischer's testimony "preserving ... objections for appeal, of course." JCC Anderson instructed Claimant that he would have to specify his objections to any depositions at the time of their submission. When the E/C submitted Dr. Fischer's deposition testimony at the February 6, 2019, final hearing, Claimant renewed his arguments "just [to] make sure that that is all preserved for appeal," and requested that his prior ...