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What's Hot in Workers' Comp

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

Sedgwick Claims Mgmt. Services v. Thompson, Fla. 1st DCA, No. 1D2023-0193, Sept. 3, 2025

November 1, 2025

by Blake J. Hood

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.

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Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.