Is opposing counsel talking your ear off with respect to the Daubert case, or the "Daubert Rule", and how it is a game-changer?

Wyland & Tadros is proud to announce that partner Jerry McKim obtained a two-part victory for clients in proceedings held April 9th. In preparation for the Final Hearing which took place before the Judge on April 9, counsel for the Claimant filed a Motion in Limine which sought to strike as evidence at the Final Hearing testimony rendered by the Employer/Carrier's key medical witness, authorized physician Dr. Alexander Lenard. The Motion in Limine was predicated on F.S. 90.702, otherwise known as the "Daubert Rule", which precludes from evidence at trial any expert scientific testimony which does not satisfy standards for reliability and objectivity as enumerated by the statute.  In other words, the statute seeks to prevent the use of "junk science" in deciding disputed legal issues.  The Daubert Rule has long been invoked in civil proceedings as a means to strike the testimony of expert witnesses but only recently has the doctrine been employed in workers compensation proceedings to attack opinion testimony rendered by treating and evaluating physicians.  Responding to and rebutting the assertions made in the Claimant's Motion, Mr. McKim cited to a long line of case law which holds that Judges have considerable discretion in applying the standards for reliability set forth in F.S. 90.702.   Having established these boundaries of judicial latitude applicable to the admissibility question, Mr. McKim cited to excerpts from Dr. Lenard's sworn testimony which established the objectivity, sound medical and scientific foundation, and fundamental reliability of the doctor's conclusions consistent with the 90.702 standards.  This showing having been made, the JCC denied the Claimant's Motion in Limine, thus setting the stage for the Final Hearing on April 9th.

The claims ripe for adjudication on April 9 centered on the Claimant's ongoing entitlement to medical care, particularly care with Dr. Lenard, as well as authorization of an MRI recommended by Dr. Lenard.  The Claimant's entitlement to these benefits had been denied by the E/C based on major contributing cause principles deriving from an intervening, and non-compensable, motor vehicle accident in which the Claimant had been involved.  In an effort to defeat this "MCC" line of defense raised by the E/C, counsel for the Claimant argued before the Judge a series of estoppel-based legal doctrines, including but not limited to the "120-day rule", the "3-day rule", and the "10-day rule", as well as preclusive principles arising from the seminal case of Bergstein v. Palm Beach County School Board. 

Citing with approval case law precedent argued by Mr. McKim in writing through the E/C's Trial Memorandum of Law, as well as orally at the Final Hearing, the JCC summarily rejected each of the theories advanced by Claimant counsel in support of his pending claims, resulting in a denial of all pending claims and a complete victory for employer Cheney Brothers, Inc. and carrier Travelers.

In light of the fact that issues surrounding the major contributing cause of the Claimant's ongoing need for medical care were implicated in the April 9th proceedings, the E/C's victory on those issues has the practical effect of eliminating further exposure on the file for the E/C by stripping the Claimant of his ability to bring a sustainable claim for benefits against the E/C moving forward.   Making this victory all the more satisfying for the E/C is the fact that the claims asserted by Claimant counsel for attorney fees and costs were denied as part and parcel of the merit claim denials, as well as the fact that the E/C, by virtue of their having prevailed in proceedings conducted before the JCC, will now be able to seek recovery of all of their litigation costs from the Claimant.