Crown Diversified Industries Corp. and Liberty Mutual etc. v. Eileen Prendiville

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4802
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CROWN DIVERSIFIED INDUSTRIES
CORP. and LIBERTY MUTUAL
INSURANCE COMPANY,
Appellants,
v.
EILEEN PRENDIVILLE,
Appellee.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Neal P. Pitts, Judge.
Dates of Accidents: April 26, 2016; June 27, 2016.
December 10, 2018
PER CURIAM.
In this workers’ compensation case, the Employer/Carrier
(E/C) appeal the order of the Judge of Compensation Claims
awarding Eileen Prendiville benefits for her alleged injury caused
by exposure to mold in the workplace. We agree with the E/C’s first
argument and reverse because the JCC admitted the opinion
testimony of Dr. Powers, Prendiville’s independent medical
examiner, which was not competent evidence.
Background
Prendiville worked for several years as an administrator in
her employer’s resort complex in Clermont. In 2015, she developed
symptoms of sinus infection, cough, voice loss (dysphonia),
bronchitis, and swelling of the legs (lymphedema). Prendiville had
never experienced these symptoms before 2015. Due to similar
complaints from a co-worker, an environmental study was
performed in the workplace in August 2015. The study revealed no
elevated microbial spores in the air of the areas tested, but the
surface swabs indicated spores of several different molds,
including Curvalaria. Prendiville subsequently testified that she
smelled and saw what appeared to be mold in her personal office
and other areas of the workplace; she also took photographs.
In 2016, Prendiville underwent allergy testing in which she
reacted positively to various allergens including selected weeds,
trees, grasses, animals, and molds. The molds previously identified
in the 2015 environmental study were among the numerous molds
to which Prendiville had an allergic reaction. She later testified
that she was led to believe that mold exposure at work was the
cause of her medical problems because her symptoms were worse
at work and better when she was away from work. In December
2016, Prendiville filed a petition for benefits. The E/C denied
compensability of any workplace injury and the matter proceeded
to hearing before a JCC.
In the final order, the JCC found that Prendiville satisfied her
burden of proving mold exposure at work as the major contributing
cause of her injury via the testimony of Dr. Powers. Dr. Powers
testified that he is board certified in family practice. He admitted
that he does not generally treat patients who have been exposed to
mold/fungi and that he had never previously treated a patient like
Prendiville whose condition is “more extreme.” He holds no
specialized licensing in mold exposure, infectious disease,
toxicology, or any related field, and he never claimed to be an
expert on mold-related injuries or diseases. Although Dr. Powers
examined Prendiville in July 2016, he did not complete his report
until November 2016 because it “required a lot of research” and he
had never previously researched mold exposure. As a part of his
research, Dr. Powers consulted with Dr. Uppal, an infectious
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disease doctor in New York who specializes in mold exposure, and
reviewed the medical records of Prendiville’s co-worker who had
similar symptoms.
Ultimately, Dr. Powers opined that Prendiville was exposed
to mold in the workplace and that this exposure was the major
contributing cause of Prendiville’s symptoms. During this
testimony, the E/C raised multiple objections along with a general
standing objection “to any of the doctor’s opinions based on
improper predicate and improper foundation, [and] lack of
evidence of actual mold exposure.” At the conclusion of cross-
examination, the E/C placed a general objection on the record
challenging the doctor’s expertise “under . . . section 90.702.” The
E/C also objected to the doctor’s reliance on the co-worker’s medical
records as hearsay.
Approximately a month before the final hearing, the E/C
unsuccessfully moved to strike Dr. Powers’s opinion evidence as
based on a lack of competent substantial evidence. The E/C
asserted that there was no evidence of any kind of exposure,
resulting in a “fallacy leap” in the logic of the doctor’s opinion, and
that the co-worker’s medical records were irrelevant.
Standard of Review
A JCC’s decision to admit evidence is reviewed for abuse of
discretion. See King v. Auto Supply of Jupiter, Inc., 917 So. 2d
1015, 1017 (Fla. 1st DCA 2006) (holding that a JCC’s admission of
evidence is reviewed for abuse of discretion). In addition, the
Florida Evidence Code applies to workers’ compensation
proceedings. See Alford v. G. Pierce Woods Mem’l Hosp., 621 So. 2d
1380, 1382 (Fla. 1st DCA 1993).
Discussion
On appeal, the E/C raise several challenges to the JCC’s
admission of Dr. Powers’s opinion testimony based primarily on
the application of the rules of expert testimony under the Florida
Evidence Code. We conclude that the JCC abused his discretion by
admitting the expert testimony over the E/C’s objections because
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it was based on improper bolstering and lacked a sufficient factual
foundation.
The problems with Dr. Powers’s testimony stem from the
evidentiary requirements set forth in sections 90.704 and
440.09(1). Section 440.02(1), Florida Statutes (2016), provides, in
pertinent part, that an injury or disease caused by exposure to a
toxic substance, such as mold, “is not an injury by accident arising
out of employment unless there is clear and convincing evidence
establishing that exposure to the specific substance involved, at
the levels to which the employee was exposed, can cause the injury
or disease sustained by the employee.” Section 440.09(1) requires
that “[t]he injury, its occupational cause, and any resulting
manifestations or disability must be established to a reasonable
degree of medical certainty, based on objective relevant medical
findings, and the accidental compensable injury must be the major
contributing cause of any resulting injuries.” Dr. Powers testimony
did not supply a sufficient evidentiary basis for concluding that
Prendiville was exposed to mold in her workplace, or that her mold
exposure at work was the major contributing cause of her
symptoms.
The first problem with Dr. Powers’s expert opinion was that it
was improperly bolstered by the professional opinions and reports
of others. In Linn v. Fossum, 946 So. 2d 1032, 1039-40 (Fla. 2006),
the Florida Supreme Court explained that improper bolstering
occurs when an expert is used as a conduit for otherwise
inadmissible evidence, and the expert reaches an opinion by
relying on the opinions and publications of other experts. See also
State Dep’t of Corr. v. Junod, 217 So. 3d 200, 207 (Fla. 1st DCA
2017) (holding an expert medical advisor’s reference to other
experts’ opinions and publications to have rendered his
occupational causation opinion incompetent). Here, Dr. Powers
gave testimony describing several published articles that he found
on the internet. These articles were attached to his deposition
transcript. He “greatly” relied on this literature in reaching his
opinion on workplace causation in this case, and the JCC then
identified articles appended to his deposition as evidence
supporting the final compensation order below.
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Dr. Powers further bolstered his testimony with the opinions
of New York-based infectious disease doctor, Dr. Uppal, who
specializes in mold infections. Dr. Powers did not reach his opinion
independently, but admitted (1) that he had never had a patient
like Prendiville; (2) that he did not reach an opinion until after his
consultation with Dr. Uppal, who was currently treating a similar
patient; and (3) that he adopted Dr. Uppal’s recommendations that
Prendiville needed to see an infectious disease physician, adopting
her specific recommendations for particular blood tests and
recommending that Dr. Uppal be authorized to take over
Prendiville’s care. This was not a situation where Dr. Powers relied
on “his own independent opinion.” See Gutierrez v. Vargas, 239 So.
3d 615, 627 (Fla. 2018). But instead, Dr. Powers gave voice to Dr.
Uppal’s opinion in the absence of the availability of cross-
examination.
Dr. Powers also relied on the inadmissible medical records of
Prendiville’s co-worker to bolster his opinion, which he identified
as “facts and data” forming the basis of his opinion. Although Dr.
Powers did not have a “face-to-face” consultation with the co-
worker’s physicians, it is clear that he treated her medical records
as both evidence and confirmation of his occupational causation
opinion regarding Prendiville.
The second problem with Dr. Powers’s testimony is that it
lacked a sufficient factual foundation to establish occupational
causation. Dr. Powers opined that Prendiville became infected
from “whatever molds or substances were in that building” and
suggested that the most likely substance was Curvularia mold. In
reaching this opinion, Dr. Powers relied heavily on the co-worker’s
medical records which showed that she had been infected with
Curvularia mold. But these records are not clearly applicable to
Prendiville’s medical condition, whereas section 440.02(1) restricts
conclusions that exposure arose out of employment unless there is
clear and convincing evidence establishing that there was
“exposure to the specific substance involved at [harm-causing]
levels.” Prendiville’s apparent infection from a specific mold has
not been demonstrated by diagnostic testing despite the fact that
a blood test would provide objective proof. Even if we were to
assume proper “facts or data” support Dr. Powers’s opinion that
Prendiville was exposed to Curvularia mold at work, Prendiville
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did not establish “that the facts or data are of a type reasonably
relied upon by experts in the subject” to conclude that she actually
contracted any disease or injury from that exposure. Indeed, Dr.
Powers appeared to concede that there was currently insufficient
facts to determine which mold (of the many potential molds that
may be found anywhere in Florida) caused Prendiville’s symptoms.
For these reasons, we find that the JCC abused his discretion
when he admitted Dr. Powers’s occupational causation opinion
testimony into evidence. We, therefore, reverse the order below.
REVERSED and REMANDED.
ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Edward C. Duncan III of Law Offices of Amy L. Warpinski, Fort
Myers, for Appellants.
Wayne Johnson of DeCiccio & Johnson, Maitland, for Appellee.
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