Domino's Pizza v. Gibson

Full title: DOMINO'S PIZZA AND ALEXSIS, INC., APPELLANTS, v. RICHARD E. GIBSON…

Court: District Court of Appeal of Florida, First District

Date published: May 9, 1995

654 So. 2d 638 (Fla. Dist. Ct. App. 1995)

Opinion

No. 93-2526.

May 9, 1995.

Appeal from the Judge of Compensation Claims, Michael DeMarko.

Millard L. Fretland, of Clark, Partington, Hart, Larry, Bond, Stackhouse Stone, Pensacola, for appellants.

Louis K. Rosenbloum and Mark J. Proctor of Levin, Middlebrooks, Mabie, Thomas, Mayes Mitchell, Pensacola, for appellee.

BARFIELD, Judge.

The employer and carrier appeal the decision of the judge of compensation claims which precludes expert testimony converting blood alcohol content from a percentage of blood serum to a percentage of whole blood. We are constrained by this court's opinion in Florida Tile Industries v. Dozier, 561 So.2d 654 (Fla. 1st DCA), rev. denied, 576 So.2d 286 (Fla. 1990), to affirm. In Florida Tile, this court construed section 440.09(3), Florida Statutes, saying:

This statute requires a test of the employee's whole blood for alcohol content and makes no provision for testing of the employee's blood serum. . . . it does not make any provision for a determination based upon blood serum.

Id. at 655. Because we find no such limitation in section 440.09(3), and indeed find no prohibition against use of properly proved expert scientific evidence that establishes "weight of alcohol in the employee's blood" by converting from an analysis of blood serum, we certify the following question to the Florida Supreme Court:

Does section 440.09(3), Florida Statutes, preclude expert testimony converting blood alcohol content from a percentage of blood serum to a percentage of whole blood?

ALLEN and WOLF, JJ., concur.