One of the most enriching and personally rewarding aspects of teaching workers’ compensation at Pitt Law School has been my sponsoring and co-coaching of the school’s team of students dispatched to the annual Zehmer Workers’ Compensation Appellate Moot Court Competition in Orlando, FL. The competition was just held from August 20-22, 2016, and the winner this year was from Jackson, MS-based Mississippi College of Law.
This year, our fourth Pitt Law venture, my two co-coaches and I spent much of the summer teaching appellate advocacy skills and assisting the students in figuring out the competition vehicle, a brain-teaser based on a controversial aspect of Florida workers’ compensation law. Pitt didn’t prevail, as foreshadowed above, but the team performed at a 110% level, and the experience for the students (now all 3L’s), will surely be a learning and networking adventure they will always remember.
The vehicle, written by Florida Deputy Chief Judge Dave Langham (blogging at http://flojcc.blogspot.com/), dealt specifically with an ambiguity in the state law’s provision for an “Expert Medical Advisor," or EMA, in litigated cases. Under this reform innovation, the judge faced with a bona fide dispute in the expert medical opinions is obliged to appoint an the impartial EMA, and hence avoid the time-honored spectacle of a purportedly feckless layperson (the judge), choosing between two “dueling doctors.” The judge in Florida is bound by the EMA opinion unless a party opposing the EMA’s opinion can prove, by clear and convincing evidence, that his or her opinion is incorrect. It’s a heavy burden.
This challenging problem was the best vehicle I have encountered, both as a judge of the competition, and more recently as a coach, so Judge Langham is to be commended!
This type of reform has, notably, been around for a while, and states like Colorado, Maine, Utah, and Wyoming have impartial physician provisos. I am pleased to say that Professor Mike Duff, whose law school textbook I use at Pitt, treats this issue nicely, and hence the students and their coach already had the basic concept of EMA’s under our belts.
The innovation of impartials, I believe, was a phenomenon of the cost crises of the 1980’s and 1990’s, and has not been pursued aggressively by the majority of states. Still, the idea of taking most medical disputes away from lay judges, at least in the first instance, is an enduring theme of business-friendly reform efforts. The idea is in fact a staple of the trend of legislatures instituting treatment guidelines, and making review over disputes surrounding application of the same, restricted on appeal. The Louisiana reform is an example.
For more information about the moot court, send me a note and I’ll connect you with the organizers. (They are, notably, soon to initiate a website of their own.)