16 Fla. L. Weekly Supp. 446a
Online Reference: FLWSUPP 165AMAD2
Insurance — Personal injury protection — Withdrawal of benefits — Medical report issued by peer review physician does not raise issue of material fact to preclude summary judgment as to any bill for treatment pre-dating independent medical examination where there is no factual basis to support opinion, reporting physician did not examine insured or base report on examination of physician who performed IME, and reporting physician failed to set forth basis for opinions expressed — Report is further deficient because it conflicts with affidavit of IME physician, who concluded that further treatment was not necessary but did not opine that pre-IME bills were unnecessary, and because it was obtained in contemplation of litigation
ADRIANA AMADOR, Plaintiff\Appellee, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant\Appellant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 05-06199 SP 25. (Remanded to Trial Court by Appellate Court under Case Nos. 06-232 AP & 06-474 AP). May 7, 2008. Lawrence D. King, Judge. Counsel: Daniel Cruz. Virginia M. Best. Carlos Lopez-Albear.
AFFIRMED at 16 Fla. L. Weekly Supp. 392a
ORDER DETERMINING THAT THE AFFIDAVIT OF DR. DAVID B. GOLDBERG LACKS VALIDITY
THIS CAUSE came on before the Court on March 26, 2008 on Remand from the Circuit Appellate Court directing this Court to determine the validity of the Affidavit of Dr. David B. Goldberg filed by Defendant in Opposition to Plaintiff’s Motion for Summary Judgment [15 Fla. L. Weekly Supp. 320a]. For the foregoing reasons, this Court, sitting in its fact finding capacity, applying the law to the facts as determined by this Court, and further applying the recent opinion rendered by the Third District Court of Appeal styled United Automobile Insurance Company v. Piedad Bermudez, __ So.2d __ , 2008 WL 1883650 (Fla. 3d DCA April 30, 2008) [33 Fla. L. Weekly D1201a] attached hereto as Exhibit A for ready reference, by which this Court is bound, finds that Dr. David B. Goldberg’s Affidavit is not legally and factually valid or sufficient so as to create a material issue of fact to preclude the Summary Judgment entered by this Court.
PRELIMINARY FACTS
1. Plaintiff sustained its burden that the medical treatment was medically necessary, related and reasonable in sum for all pre-IME bills.
2. Plaintiff did not seek payment of any post-IME bills.
3. United Auto raised the IME of Dr. Vicente Lopez concerning the necessity and relatedness of the medical treatment of its insured as the sole remaining affirmative defense. No affidavit of Dr. Lopez was filed to challenge the Plaintiff’s prima facie case at the summary judgment. However, the IME Report that was authenticated, by agreement of the parties, although not filed as opposition evidence to the summary judgment in compliance with Rule 1.510(c) (2005), was addressed at the hearing and utilized by the parties for purposes of applying a cut-off of benefits in accordance with the subsequent IME cut-off letter dated August 27, 2004.
4. Plaintiff agreed to accept the date of the cut-off letter. Final Judgment was entered on the pre-IME bills only up to the August 27, 2004 notice letter. As a result there was no issue of fact to preclude the summary judgment in accordance with U.S. Security Ins. Co. v. Silva, 693 So.2d 593, 596 (Fla. 3d DCA 1997) and Irigoyen v. Aircraft Services, Inc., 544 So.2d 1054 (Fla. 1st DCA 1989) (Comp. carrier estopped from denying payment of bills prior to notification of the IME cut-off to the insured).
5. No defense was raised concerning a paper IME review by Dr. David Goldberg.
6. This Court determined in part that the Defendant had not complied with the requirements of United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998), citing Viles in its Order.
7. The February 15, 2008 Opinion rendered by the Circuit Appellate Court determined that this Court’s reliance on Viles was misplaced, claiming that Viles only applies where an insurer begins to make payment and then withdraws payment as opposed to the facts in the case sub judice where no payment of any kind was ever made by United Auto and where United Auto did not procure a valid medical report prior to withdrawal of treatment authorization as required by F.S. 627.736(7)(a). See Appellate Opinion at pages 4 & 5.
8. The Circuit Appellate Court now has the benefit of the Third District Court’s Bermudez Opinion attached as Exhibit “A” which clearly and unequivocally supports the trial court’s Order and Summary Final Judgment predicated upon Viles which the Third District Court has now reaffirmed as good law.
9. Specifically, the Third District Court has determined that the recent case from the Second District Court of Appeal, i.e. State Farm Mutual Automobile Ins. Co. v. Rhodes & Anderson, D.C., P.A., 2008 WL 786856 (Fla. 2d DCA March 26, 2008) [33 Fla. L. Weekly D839a] misconstrued Viles and has certified conflict with the Second District Court of Appeal to the Supreme Court.
10. Accordingly, in the Third District where the Eleventh Circuit lies, Viles controls and must be applied unless or until the Third District Court of Appeal or the Supreme Court decides otherwise.
11. The trial court therefore is bound by Viles and has otherwise correctly applied Viles to the case sub judice.
THE GOLDBERG AFFIDAVIT
Against this backdrop, Dr. Goldberg’s Affidavit failed to raise a material issue of fact to preclude summary judgment for any pre-IME bill. Based upon a full review of his affidavit and the transcript of the hearing and having reviewed the memoranda and considered the arguments made by respective counsel, and considering the current status of the law, this Court determines that the Goldberg Affidavit is legally and factually insufficient.
The court finds Dr. Goldberg’s Affidavit is legally and factually insufficient for the following reasons:
a) Goldberg’s Affidavit, which mentions Dr. Lopez’s IME report, is not factually supported by Dr. Lopez’s physical examination;
b) It is undisputed that Dr. Goldberg conducted no physical examination and considered any other physical examination;
c) There is no factual basis to support the opinion expressed by Dr. Goldberg’s affidavit or paper IME;
d) The Affidavit is speculative, conjectural and conclusory and there is no showing of Dr. Goldberg’s qualifications to render him a medical billing expert or that he bills insurers for the amounts he claims are reasonable, failing to satisfy Sections 90.704 and 90.705, Florida Statutes (Florida Rules of Evidence);
e) While it is clear that Dr. Goldberg is not required to physically examine the insured but can rely upon the examination of an IME doctor1 as determined by Bermudez, supra, in this case, Dr. Goldberg’s Affidavit is not factually supported by the IME conducted by Dr. Vicente Lopez. While his Affidavit notes that there was an IME performed on 8/9/04 by Dr. Vicente Lopez (opining that upon examination the patient did not display any significant range of motion abnormalities and concluding that no further treatment as of the date of his physical examination of the insured would be justified), Dr. Goldberg did not base his report on the physical examination and findings of Dr. Lopez. Dr. Goldberg did not perform a physical examination of the insured himself. Dr. Goldberg only reviewed medical records. That is, Dr. Goldberg performed a paper IME without ever having seen or examined the insured. Dr. Goldberg, by virtue of mentioning that an IME was performed and noting the conclusion of Dr. Lopez as to no further treatment being justified was clearly aware of the IME performed by Dr. Lopez, but nonetheless never used the IME as the factual support for his report and never concluded that the basis for his report was predicated upon the examining physician’s IME.
If Dr. Goldberg is going to use an IME report from another physician who performed the physical examination, in order to challenge RR&N with evidence that is competent and not purely hearsay upon hearsay that is not based upon personal knowledge, the paper review of the medical records that were not generated by him must be supported by the physician examination of the IME doctor who actually physically examined the insured and rendered an opinion of the present medical condition of the insured he examined. It is the opinion of this Court that the Goldberg Affidavit does not meet the threshold of competent evidence. The Legislature did not intend a doctor to evaluate a medical condition and make a report that is incorporated into an affidavit without having examined the patient and without having personal knowledge of the condition of the insured, or minimally, without predicating his paper review upon a physical examination by an IME doctor who does have personal knowledge.
Moreover, as noted in Bermudez, supra, the Third District has reaffirmed that it is a condition precedent under F.S. 627.736(7)(a) to withdraw, deny or reduce benefits or withdraw treatment authorization based upon reasonableness, necessity or relationship under F.S. 627.736(7)(a) stating at p. 3: “Thus, we reaffirm our holding in Viles that a valid report is required where an insurer attempts to reduce, withdraw, or deny PIP benefits on grounds of reasonableness, necessity or relationship. Viles, 726 So.2d at 321”. The Third District further clarified that Section 627.736(4) deals with timing as to when PIP benefits are properly due and must be paid by an insurer before they are considered overdue but does not deal with challenges to medical treatment on the basis of RR&N. As the Third District Court noted, “Indeed, section 627.736(4) expressly provides that [t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable. . .” §627.736(4)(2006). Instead, we find that a withdrawal of PIP benefits on the basis that the medical treatment received was unrelated, unnecessary, or unreasonable is properly dealt with in accordance with section 627.736(7)(a).”
Additionally, without even considering Viles, which is the law in this District, not only does the Goldberg Affidavit not rely upon the IME of Dr. Lopez, but in fact, the Goldberg Affidavit conflicts with the IME Report of Dr. Lopez and on that basis alone, this Court properly declined to consider the Goldberg “peer review”. Although only authenticated for purposes of applying the IME cutoff date, a perusal of the IME Report of Dr. Lopez immediately reflects to this Court in its fact finding capacity that the report is inconsistent with the prior IME Report of Dr. Lopez, resulting in conflicting expert opinions. At the point in time that the IME was performed by Dr. Lopez who, upon examination, found that the injuries were causally related to the accident in question, $4,795.00 of bills had already been incurred prior to the IME cutoff. Yet, Dr. Goldberg’s “peer review” only allowed for $740.00 of medical treatment and did not allow for a single x-ray bill.
As noted in the well-reasoned Opinion authored by the Honorable Judge Mark King Leban in an appeal with facts strikingly similar to the case at bar involving the same “peer review” doctor, Dr. Goldberg, i.e., Professional Medical Group, Inc. a/a/o Alberto Martinez, Lower Case No. 04-8616 SP 25, Appellate Case Nos. 06-021 AP & 06-029 AP, which was affirmed on appeal as reflected in the attached Exhibit A, the Court entered an Order granting the Plaintiff’s motion for summary judgment, determining that the law governing a case (such as the case at bar) where the insurer procured a “peer review” subsequent to an IME that was inconsistent with the IME required that the “peer review” should be stricken. Judge Leban opined that:
This case is governed by the rule that “a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.” Ellison v. Ander, 74 So.2d 680, 681 (Fla. 1954) [emphasis added]. The Ellison rule has been faithfully followed by Florida’s appellate courts. In particular, the Third District has adhered to the rule since 1959, where, in Kramer v. Landau, 113 So.2d 756, 758 (Fla. 3d DCA 1959), the Court applied the rule to prohibit an affidavit submitted by one of the defendants that conflicted with the deposition testimony of another of the defendants: “[I]t appears that both the appellant and the Appellee, Gilda Focaracci, are in agreement as to the fact that Joe Landau violated the stop sign. The Landau affidavit was the sole instrument offered by the appellant to offset the granting of the motion for summary judgment. As such, it directly conflicted with the position taken by the appellant in her deposition. The appellant cannot take inconsistent positions in order to avoid summary judgment.” [Emphasis added]. The Third District cited Ellison and included the quotation set forth above, expressly emphasizing that portion that prohibits conflicting submissions by the non-moving party “or by that of another,” to create a jury issue.
A corollary to the Ellison rule appears in such cases as Inman v. The Club on Sailboat Key, Inc., 342 So.2d 1069, 1070 (Fla. 3d DCA 1977), where the Third District held: “a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”
In Martinez, much like the case here, United Auto sought to alter the position taken in the IME report of Dr. Musa-Ris by the late submission of the Goldberg “peer review” in order to deny payment for any benefits prior to the IME cutoff notwithstanding that Dr. Musa-Ris (just as was done by Dr. Lopez) acknowledged that Mr. Martinez’s complaints and treatment were causally related to the accident and reached a diagnosis of sprain strain of the lumbosacral spine. United Auto attempted to claim a distinction between an IME and “peer review” which Judge Leban dismissed as unpersuasive, reasoning that
Notwithstanding defendant’s effort to distinguish the “nature” of an IME from the “purpose” of a peer review, this Court must observe that the defendant utilizes both reports for the identical purpose, to dispute the insured’s treating physician’s determination that the services in question were reasonable, related, and medically necessary to treat the insured’s injuries resulting from an accident. The practical effect of what has become known as “the IME cutoff date” is to limit the insurer’s liability to medical services rendered prior to that date, and the insurer appearing in case after case is all too content to pay benefits up to that IME cutoff date. Certainly, the defendant in these myriad of cases would not have this Court believe that it is willing to pay for services that were not reasonable, related, and medically necessary. In the case at bar it is pure sophistry to assert that by the IME doctor’s conclusions that “from an orthopedic standpoint the examiner [Alberto Martinez] has reached maximum medical improvement of the orthopedic injuries that he sustained on his automobile accident of December 17, 2003,” he is opining that the services rendered to him prior to the cutoff date of February 23, 2004, were not reasonable, related, or medically necessary. As observed earlier, substantial medical bills totaling $5,541.00 had been incurred up to that date. In stark contrast, Dr. Goldberg’s peer review report concludes that only nine physical therapy visits at three modalities per visit, totaling a mere $540.00, would be reasonable, related, and medically necessary. Thus, this Court will not indulge defendant’s unabashed fiction that the two reports are utilized for different purposes and “are not contradictory.”
The facts in the present case are analogous to the Martinez case, involving an IME doctor whose report acknowledges injuries sustained by the insured in an amount over $5,000 and a late Goldberg Affidavit procured while in litigation in an attempt to eliminate all pre-IME bills, and like the case sub judice, refusing to allow even X-Ray bills. From an evidentiary perspective, the Affidavit of Goldberg which is in stark contrast to the IME performed by Dr. Lopez is not valid and was properly not considered.2
The Goldberg Affidavit is further deficient and invalid from a legal perspective and was properly not considered. From a statutory perspective, the Goldberg Affidavit is legally invalid because it was obtained in contemplation of litigation; it was not procured PRIOR to withdrawal of treatment authorization and denial of payment of the overdue bills; and most importantly, it was not factually supported by a physical examination as required by the 2001 amendment to F. S . 627.736(7)(a).
As noted above, there was no affidavit from the IME doctor and the IME report was not considered by Dr. Goldberg to factually support his “peer review”. The “peer review” did not comply with F.S. 627.736(7)(a). Prior to the statutory changes in 2001 to (7)(a) of the statute, there was no requirement that there had to be a report by a physician based upon a physical examination stating that the treatment was not reasonable, necessary and related in order to withdraw treatment authorization. The statute was changed in 2001 to specifically require that prior to withdrawal of treatment authorization, there must be a physical examination of the claimant and a report that is factually supported by the physical examination. The subject accident in this case occurred in 2004 and is governed by the 2003 statute which contained the 2001 statutory change in (7)(a) that specifically stated the following:
An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that the treatment was not reasonable, related or necessary. (Emphasis added)
Before withdrawing treatment authorization, an insurer requires a valid medical report which is defined as one that is (1) prepared and signed by the physician examining the injured person or (2) is prepared by one reviewing the treatment records of the injured person AND is factually supported by the examination and treatment records if reviewed and that has not been modified by anyone other than the physician. One of the purposes in the 2001 amendments to F.S. 627.736 was to eliminate the practice of the paper “peer review” which is based solely upon the review of records. The Committee Staff Analysis for the CS/SB 1092, which was later codified as Chapter 2001-271, provides that:
The effect of this provision is to help remedy the current practice of PIP insurers utilizing what are termed “paper IME’s” in which the insurer’s physician merely reviews medical treatment documents of the injured person and write a report stating that such treatment was not reasonable, related or necessary.
The Legislature in 2001 amended the statute to preclude the use of a paper IME to challenge RR&N which is what United Auto attempted to do with the Goldberg Affidavit. The Goldberg Affidavit is legally invalid and contrary to the dictates of the statute.
The Goldberg Affidavit is not competent evidence because 1) there is no factual basis to support the opinion 2) because it violates the express requirements of 627.736(7)(a) because it is not based upon a physical examination. Viles, supra; Bermudez, supra. Moreover, the Goldberg Affidavit fails to satisfy the requirements of the Florida Evidence Code in that it fails to set forth the basis for the opinions expressed (Rule 90.704 and Rule 90.705) and is conclusory and based upon speculation and conjecture. Walters v. State Road Department, 239 So.2d 878 (Fla. 1st DCA 1970) (testimony that is essentially speculative and conjectural is inadmissible).
The Affidavit fails to assert the factual basis for his opinion or that he is qualified as a billing or coding expert, or that he bills insurance companies for these medical treatments. It is therefore legally and factually insufficient and invalid and does not serve as admissible summary judgment opposition evidence. See Carnival Corp. v. Stowers, 834 So.2d 386 (Fla. 3d DCA 2003) citing to Carrier v. Ramsey, 714 So.2d 657 (Fla. 5th DCA 1998); Brito v. County of Palm Beach, 753 So.2d 109 (Fla. 4th DCA 1998); Health Care Associates of South Florida, Inc. a/a/o Zuleida Martin v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 1154a (11th Circuit Appellate, Miami-Dade, September 28, 2006); Newell v. Best Security Systems, 560 So.2d 395 (Fla. 4th DCA 1990) (reversible error to permit expert to render an opinion based on underlying data of which she has no personal knowledge).
In the case of Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So.2d 229 (Fla. 4th DCA 2000), which grappled with the very issue of whether a (7)(a) physician’s report could be based solely on a review of medical records without a physician examination to justify refusal to pay PIP benefits, the same scenario as is relevant to the case at bar, the Fourth DCA answered affirmatively indicating that nowhere in the statute could it find that a physician’s report had to be based upon a physician examination. Within a year of the Nationwide v. Southeast Diagnostic case, the Legislature amended (7)(a) in the 2001 amendments to specifically address the requirement that there be a physical examination and specifically revealed in the Senate Staff Analysis that the change was to correct the illegal paper IMEs that insurers were performing to avoid payment of PIP benefits.
There is no doubt that the Legislature amended the 2001 statute to end the use of paper IMEs. It is this court’s opinion that any recent case from a circuit appellate court that asserts that there is no need for a physical examination is clearly in conflict with the 2001 change and the 4th DCA’s analysis in Nationwide v. Southern Diagnostic. The amendment to (7)(a) in 2001 can only refer to a requirement that there be a physical exam in order to withdraw treatment authorization. The requirement for a physical examination is further supported by (7)(b) which specifically says “If requested by the person being examined, a party causing an examination to be made shall deliver to him or her a copy of every written report concerning the examination rendered by an examining physician, at least one of which reports must set out the examining physician’s findings and conclusions in detail.” Obviously, the “examining physician” must be a physician who has seen and examined the patient and not just reviewed medical records. Further it cannot be the treating physician but must be a physician who is seeking to withdraw treatment authorization in (7)(a). United’s claim that no physical examination is required is belied by the very wording of the statute itself and can be clearly seen by an examination of the 4th DCA’s analysis in Nationwide v. Southern Diagnostic coupled with the 2001 changes to (7)(a) that followed shortly thereafter, within 1 year.
A review of the Goldberg Affidavit clearly supports this Court’s determination that the affidavit is legally deficient and invalid since it was only predicated upon a paper IME and was not factually supported by an IME performed by Dr. Lopez or by Dr. Goldberg himself. The Nationwide v. Southeast Diagnostic case and its analysis was overruled and corrected by the Legislature in 2001 and kept intact by both the 2003 and 2007 amendments to the PIP statute. The Legislature clearly rendered the Nationwide v. Southeast Diagnostic case moot and no longer good law for any post 2001 PIP case by eliminating the practice of insurers denying payment of benefits solely based upon a paper IME.
Since there was such a disparity between the IME report that resulted in a cut-off after nearly $5,000 of bills were incurred and the “peer review” affidavit of Goldberg that clearly did not factually support the IME given that it declined even to authorize payment of the X-ray bills, the Goldberg affidavit was not only an unauthorized paper IME that is specifically forbidden by the 2001 statutory changes as explained by the Senate Staff Analysis, but it could not be considered as factually supporting a physical examination.
Dr. Goldberg, without ever having examined the patient, and without considering Dr. Lopez’s IME report, claimed that x-ray studies are deemed unnecessary, unreasonable and should not be honored. Dr. Goldberg never saw Ms. Amador. He therefore attempted a paper review that was not supported by a physical examination. The Ellison rule states that “a party when met by a motion for summary judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.” Ellison v. Ander, 74 So.2d 680, 681 (Fla. 1954) [emphasis added]. See also Kramer v. Landau, 113 So.2d 756, 758 (Fla. 3d DCA 1959), where the Court followed Ellison and prohibited an affidavit submitted by one of the defendants that conflicted with the deposition testimony of another, finding that the appellant could not take an inconsistent position in order to avoid summary judgment. See also Inman v. The Club on Sailboat Key, Inc., 342 So.2d 1069, 1070 (Fla. 3d DCA 1977) (a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.) United is seeking to alter the position taken in the IME report of Dr. Lopez by the submission of the Goldberg “peer review” in order to deny payment for any benefits prior to the IME cutoff after United contractually, under its policy, advised its insured that it would not pay any of the bills subsequent to the IME cut-off, which inferentially required it to pay all bills up to the IME cutoff in compliance with Silva. The Goldberg affidavit attempts to take an inconsistent position to the notice by United Auto to its insured in the cutoff letter in conflict with Silva and therefore cannot be considered as valid, competent evidence to oppose the summary judgment.
Since this case involves, inter alia, a situation where United Auto seeks to use a defective affidavit that was unsupported by a physical examination and is non-compliant with applicable Rules of Evidence, this Court finds that the Goldberg affidavit is defective both statutorily as well as from an evidentiary basis and cannot as a matter of law create a factual issue to preclude entry of the summary judgment. This Court, having now complied with the Opinion of the Circuit Appellate Court, respectfully requests that the Circuit Appellate Court reacquire jurisdiction for further consideration in accordance with its Opinion.
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. 1In the event that United Auto may attempt to claim that a valid (7)(a) report can be based upon the physical examination by the treating physician and not by an IME doctor, this court would direct the Appellate Court to F.S. 627.736(7)(b) which states
“(b) If requested by the person examined, a party causing an examination to be made shall deliver to him or her a copy of every written report concerning the examination rendered by an examining physician, at least one of which reports must set out the examining physician’s findings and conclusions in detail. After such request and delivery, the party causing the examination to be made is entitled, upon request, to receive from the person examined every written report available to him or her or his or her representative concerning any examination, previously or thereafter made, of the same mental or physical condition. By requesting and obtaining a report of the examination so ordered, or by taking the deposition of the examiner, the person examined waives any privilege he or she may have, in relation to the claim for benefits, regarding the testimony of every other person who has examined, or may thereafter examine, him or her in respect to the same mental or physical condition. If a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.”
Obviously, it is the insurer who is the party seeking an examination of the insured for purposes of cutting off benefits and the insurer is not asking the treating physician to examine his or her own patient nor is the insurer asking the treating physician to render a report setting out his or her findings and conclusions in detail for the benefit of the injured insured. Finally, no injured insured “unreasonably refuses” to go to his or her own doctor. Thus, it is unequivocally clear that the examining physician referenced in Viles and Bermudez is an IME doctor chosen by the insurer.
2It should be further noted that this same logic opined by Judge Leban in his Martinez decision was also utilized by the Honorable Mercedes Bach in the case styled United Automobile Ins. Co. v. Nelson Rojas Perez, Appellate Case 06-022AP that was also affirmed on appeal as reflected in the attached Exhibit B. Therefore, six circuit appellate judges have confirmed the Opinion and argument of the Honorable Judge King Leban.
