District Court Holds that Daubert Evidentiary Challenges Do Not Apply to Expert Medical Opinions under Florida’s Workers’ Compensation Act

In this matter of first impression, Florida’s First District Court of Appeal addressed whether Florida Statutes Section 440.25(4)(d) precludes Daubert challenges to Expert Medical Advisor (EMA) opinions. Put simply, Daubert requires that expert opinions result from an analysis of reliable facts, use of reliable principles and methods, and reliable application of those principles and methods to the facts of the case. In the opinion written by Judge M.K. Thomas, the court held that the plain language of the statute in conjunction with the ever-evolving changes to Florida’s Workers’ Compensation Act mandates that Daubert cannot be used to exclude EMA opinions. 

The claimant alleged a repetitive trauma injury to his neck and shoulder while working as a correctional officer. The employer/carrier initially accepted the claim as compensable under the “pay and investigate procedures” of Section 440.20(4). Ultimately, however, they denied compensability and discontinued further benefits. The claimant then filed a petition for benefits in response to which the employer/carrier again denied compensability. 

Both the claimant and the employer/carrier secured opinions of independent medical examiners (IMEs) under Section 440.13(5). Predictably, the employer/carrier’s expert determined that the claimant’s condition was not work-related, whereas the claimant’s expert opined otherwise. The judge of compensation claims appointed an EMA under Section 440.13(9)(c) to serve as the “tiebreaker.” 

The EMA statute provides: “[t]he opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.” § 440.13, FLA. STAT. (2020).

After the EMA opined that the repetitive trauma was work-related, the employer/carrier filed a motion to strike the EMA’s report and testimony, raising a Daubert objection. In response, the claimant argued that section 440.13(9)(c) dictates that the EMA’s opinion is presumed to be correct unless there is clear and convincing evidence to the contrary. He claimed that no such evidence was introduced. More importantly, however, he asserted that the Daubert standard does not apply to EMAs at all. 

The judge of compensation claims ruled that the Daubert standard does apply to EMAs and that the EMA’s report and opinion in this case met that standard for admission into evidence and was presumptively correct. The First District Court held that the judge reached the correct result, although for the wrong reason under the so-called “tipsy coachman” doctrine. 

Judge Thomas devotes much of the Thompson opinion to explaining why seemingly contrary case law does not control. In one prior District Court case, the court stated: “An EMA opinion also must comply with the Florida Evidence Code, including Daubert.” The court also previously stated: “[t]he 2013 Legislature has made clear that the admissibility of expert opinions requires that the requirements of Daubert be met.”

However, the Thompson majority held that the prior pronouncements were dicta and that the prior cases did not squarely address whether Section 440.25(4)(d) precludes Daubert’s application altogether. Additionally, the District Court distinguished a Florida Supreme Court case holding which found that judges of compensation claims are required to apply the alternative evidentiary admission standard for expert opinions under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The District Court held that the legal landscape has changed over the previous decades, as the Legislature has amended relevant portions of Chapter 440 and the Supreme Court has disclaimed jurisdiction over the rules of workers’ compensation proceedings. 

Ultimately, the court held that Section 440.25(4)(d) is clear and unambiguous; judges of compensation claims have no discretion and no role in determining the admissibility of an EMA’s report or testimony. Section 440.25(4)(d) statutorily mandates that EMA reports and testimony are admissible, full stop. However, an EMA opinion may be challenged as to its weight and credibility and, perhaps, may be argued to be demoted to equal relevance of any other expert medical opinion in evidence.

In summary, while the judge of compensation claims erred in applying the Daubert standard to determine admissibility of the EMA’s testimony and report, the District Court held that the application of Daubert was harmless error. The EMA opinion was ultimately admitted and properly considered by the judge of compensation claims. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 11. November 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}