13 Fla. L. Weekly Supp. 186a
Insurance — Personal injury protection — Expert witnesses — Striking — Expert is stricken as trial witness where insurer was ordered to produce all underlying data for CPT codes at issue from HMO database relied upon by expert witness to opine on reasonableness of charges as well as all Medicare documents used by expert; insurer did not produce any Medicare or HMO data, but produced only summary of data received by database proprietor without data from which summary was compiled; and provider will be prejudiced because there will be no way to effectively cross-examine expert on summary or confirm summary’s accuracy
SPIRELLI HEALTHCARE OF BROWARD, INC., as assignee of John Coulanges, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-13925 COCE (52). October 20, 2005. Jay S. Spechler, Judge. Counsel: Cris Boyar, for Plaintiff. Anthony L. Tolgyesi, Tolgyesi, Katz, Hankin & Katz, P.A., for Defendant.
ORDER ON PLAINTIFF’S AMENDED MOTION TOSTRIKE DEFENDANT’S EXPERT DARREL SPELL
THIS CAUSE came before the Court, after due notice to the parties, on October 17, 2005, on Plaintiff’s Amended Motion to Strike or Limit the testimony of Defendant’s Expert, Darrell Spell, and the Court having heard argument of counsel, and being other advised in the Premises, it is hereby,
ORDERED AND ADJUDGED as follows:
1. The Plaintiff filed a PIP suit against the Defendant due to reductions and the down coding of certain medical bills. The lawsuit was filed on 9/30/04.
2. The Defendant filed its Answer and Affirmative Defenses on October 20, 2004.
3. The Plaintiff noticed the case ready for trial on November 12, 2004.
4. The Court Ordered the parties to non-binding arbitration on November 18, 2004.
5. The parties arbitrated this case on March 3, 2005.The Defendant moved for Trial De Novo and the Court scheduled this matter for twice trial. The first time the case was scheduled for trial was for a special set trial for August 3, 2005.
6. The Defendant moved to continue the case which was granted by the Court.
7. The case was rescheduled for the trial week of October 24, 2005.
8. The Defendant filed its expert witness list which included Darrel Spell and Carla Gee. Mr. Spell, who is an actuary, prepared a report with his opinions wherein he stated the Plaintiff’s charges exceed what he considered reasonable. Mr. Spell rendered his opinion based on percentiles which came from a data base known as Ingenix. He further supported his opinion in conjunction with a Medicare conversion factor and a survey of HMOs that is propriety to his employer, Milliman. Ms. Gee is an employee for Ingenix.
9. In preparation for trial, the Plaintiff deposed Mr. Spell on May 10, 2005. A copy of the deposition transcript is in the Court file. In his deposition, Mr. Spell admitted: he only subscribed to Ingenix where he would get a computer disk twice a year where he can print out the percentile for the CPT Codes for various geo zips (the first three digits of a zip code); he had no personal knowledge regarding the accuracy of the data; he never saw the underlying data; he never worked for Ingenix; he could not produce the data he looked at due to a confidentiality agreement; he could not explain how Ingenix collects its data and converts the data into percentiles; he did not have any documents that would lead him to conclude that the data from Ingenix was accurate; the information he has regarding Ingenix was based on what someone from Ingenix told him; he never cross referenced the data or confirmed the accuracy of the data; and he did not rely on any other data base or what any other provider in the community charged.
10. On July 27, 2005, the Plaintiff filed its Trial Memorandum in Support of its Motion to Strike or Limit the Testimony of Defendants Expert Darrell Spell.
11. The hearing on the Plaintiff’s Motion took place on September 23, 2005. The Court, after hearing argument and without ruling on the substance of the Plaintiff’s Motion, ordered the Defendant to produce all underlying data, for the CPT codes at issue, relied upon by both Mr. Spell and Carla Gee, known as Ingenix, the proprietary HMO data base created by Mr. Spell’s Employer, and all Medicare documents used by Mr. Spell within 10 days subject to a confidentiality order which was signed on the same day.
12. The Defendant did not comply with this Court order. Instead, on October 3, 2005, the Defendant served a Motion for Re-hearing, Motion for Extension of Time and Motion for Protective Order. The Defendant’s Motion addressed Ingenix only. The Defendant’s Motion did not address Medicare or the HMO data or ask for an extension of time relating to Medicare or the HMO data. The Motion was not heard within the 10 day time requirement Ordered by the Court.
13. The hearing for the Defendant’s Motion was heard on October 11, 2005. On this date, the Court once again indulged the Defendant and gave the Defendant until October 12, 2005, at 2:00 PM to provide the Plaintiff with the underlying data referenced in the first Court order described above.
14. It is undisputed that on October 12, 2005, the Defendant produced certain documents to the Plaintiff at a meeting between the parties’ attorneys. The documents can be best described as a summary of the data used by Ingenix in creating its percentiles. At the meeting the attorney for the Plaintiff instructed the Defendant that he wanted all the underlying data used by the Defendant’s experts, including the actual percentiles used by Mr. Spell as discussed in Spell’s deposition. These percentiles are known as a “sliver.” The attorney for the Plaintiff confirmed this demand in writing and gave the Defendant until Thursday, October 13, 2005, to produce the document which would reflect the percentiles. The Defendant never provided the Plaintiff with the sliver or the percentages of the data discussed in Mr. Spell’s deposition. The attorney for the Defendant agreed he requested the information from his client and from the expert but never produced said documents to the Plaintiff or made the documents available for the hearing.
15. On October 12, 2005, the Plaintiff filed an Amended Motion to Strike Mr. Spell based on the original legal arguments and due to Defendant’s failure to comply with the previous Court orders. The hearing took place on October 17, 2005.
16. At the hearing, the Plaintiff argued Mr. Spell should be stricken completely because Mr. Spell’s Opinion were based on Ingenix and supported by Medicare and HMO data only and the Defendant did not produce any the underlying data in violation of the Court orders. The Plaintiff further argued the documents produced by the Defendant which is supposed to represent the underlying data was nothing more than a summary of hearsay documents.
17. The Court finds the Defendant has violated a clear Court order by not producing any data relating to Medicare or HMOs. The Defendant never filed a Motion for the Court to take Judicial Notice of any Medicare numbers. It is undisputed that nothing was produced by the Defendant relating to Medicare and the HMO data. Therefore, this information is stricken as the Defendant did not produce this data or even ask for an extension of time to comply.
18. Next, as it relates to Ingenix, the Court finds the Defendant did not produce the actual underlying data. Since this information is subject to a confidentiality order the Court will only describe this data only generally. The documents that were produced by the Defendant are in excess of 100 pages. Each page has a list of zip codes, a CPT codes, “billed charges”, date of service and the number of occurrences at that price for that CPT code in that zip code. Each page shows a consecutively higher price for the CPT code. The data does not include a single doctor’s name, address, or telephone number. The Court finds these occurrences, which is the number of times Ingenix received a bill for a specific amount in a specific zip code, are nothing more than a summary of data received by Ingenix.
19. The Court considered all of the arguments raised by the Plaintiff, including the hearsay arguments, and Rules 90.604, 90.704, 90.705, 90.706, 90.956, but finds section 90.956 of the evidence code controlling on this issue. This Rule states “When it is not convenient to examine in court the contents of voluminous writings. . ., a party may present them in the form of a. . .summary. . .by calling a qualified witness. The party intending to use such a summary must give timely written notice of his or her intention to use the summary, proof of which shall be filed with the Court, and shall make the summary and the originals or duplicates of the data from which the summary is complied available for examination, or copying or both, by other parties at a reasonable time and place. A judge may order that they be produced in Court.”
20. This Court has ordered the production of the underlying data at least twice. The Defendant has not made the originals or duplicates of the data from which the summary is complied available the for examination, or copying or both, by other parties at a reasonable time and place as ordered by this Court. The data produced was clearly a summary of the data used to create these “occurrences.” The actual documents which would explain or justify the “occurrences” were never produced. The Defendant did not file any affidavits to justify or explain the failure of the Defendant to produce the data.
21. The Court finds the Plaintiff will be prejudiced because there would simply be no way for the Plaintiff to effectively cross examine the Defendant’s experts regarding this summary or even to confirm the summaries accuracy which is a fundamental right of cross examination.
22. Mr. Spell testified by deposition he did not consider any other data base or what any other Individual medical provider charged in the geographical area. The trial for this matter is set for October 24, 2005 and there is simply no time for the Defendant to secure another expert and to allow the Plaintiff to depose the expert, propound expert discovery and otherwise prepare for a trial that has been continued once at the request of the Defendant. The Defendant chose its own expert and assumed any risk thereof.
23. The Plaintiff has been requesting this underlying data since May of 2005. The Defendant has more than enough time to produce this data. The Plaintiff should not be prejudiced any further.
24. Accordingly, based on foregoing, and within the exercise of the court’s discretion, Plaintiff’s Motion to Strike Mr. Spell is hereby granted and he is hereby stricken as a trial witness.
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