16 Fla. L. Weekly Supp. 882a

Online Reference: FLWSUPP 169POWEL

Insurance — Personal injury protection — Coverage — Medical expenses — Necessity — Summary judgment — Severe impeachment — Where insurer has not shown how facts brought out on impeachment of medical expert mean treatment was not necessary, and has only offered speculation that facts might mean treatment was not necessary, insurer has failed to establish severe impeachment of expert sufficient to defeat motion for summary judgment on issue of medical necessity

POMPANO BEACH CHIROPRACTIC CENTER, INC. (a/a/o Juana Powell), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-7323 COCE 53. July 21, 2009. Robert W. Lee, Judge. Counsel: Kenneth Dorchak, North Miami, for Plaintiff. Elizabeth Shaw-Connally, Deerfield Beach, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION AND MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on July 13, 2009 for hearing of Plaintiff’s Motion for Reconsideration or Alternatively Renewed Motion for Summary Judgment on Issue of Reasonableness, Related and Necessity, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities, and having been sufficient advised in the premises, finds as follows:

Background. In this PIP case, the only remaining issue is whether the medical treatment rendered prior to December 2, 2006 was reasonable, related, and necessary. This issue came before the Court on June 17, 2009 upon Plaintiff’s Motion for Summary Judgment. The Court denied the Motion, based on the Defendant’s argument that although it submitted no expert opinion opposing Plaintiff’s own expert opinion, it is able to demonstrate in the record “substantial impeachment” evidence which would allow a jury to disregard the Plaintiff’s expert’s testimony. Subsequently, the Plaintiff filed its Motion for Reconsideration or Alternatively Renewed Motion for Summary Judgment. In this Motion, the Plaintiff argued that the Court misapplied the “substantial impeachment” standard. Upon review of the Motion, the Court set the matter for hearing.

At the hearing, the Defendant acknowledged that it had no evidence to rebut the Plaintiff’s evidence of reasonableness or relatedness. The Defendant, however, pointed out four facts in the existing record which, if shown at trial, would amount to substantial impeachment of the Plaintiff’s expert as to medical necessity. These are: (1) the seven-week delay in initiating treatment from the date of the accident; (2) medical records suggesting that the patient’s condition did not improve during the treatment; (3) the difference between the diagnosis in the initial report and later medical records; and (4) the patient’s failure to appear at an examination under oath.

Conclusions of Law. Under Florida law, a medical diagnosis established by expert testimony can only be contradicted by: (1) “countervailing expert testimony; (2) severe [. . .] impeach[ment of] the proponent’s expert’ or (3) [. . .] other evidence which creates a direct conflict with the proponent’s evidence.” Jarrell v. Churm, 611 So.2d 69, 70 (Fla. 4th DCA 1992).¹ Admittedly, the Defendant has offered no countervailing expert testimony. Additionally, the Defendant has pointed to no record evidence which directly conflicts with the Plaintiff’s expert testimony. The Defendant can therefore hang its hat only on the “severe impeachment” exception.

When a party relies on severe impeachment to get around its own lack of expert testimony, it must show how the facts brought out on impeachment are tied to a conclusion different than the opponent’s expert. Id. at 71. For instance, in the instant case, the Defendant must show why a delay in seeking treatment, or the failure to improve, or a change in diagnosis, or a failure to appear at the EUO mean that the medical treatment was not necessary. The Defendant has failed to do so. Rather, the Defendant has offered only mere speculation that these record facts might mean the treatment was not medically necessary. This is insufficient to constitute severe impeachment. See id. at 70-71. Therefore, upon further reflection, the Court finds that the Plaintiff is entitled to a summary judgment for treatment prior to December 2, 2006. Accordingly, it is hereby

ORDERED AND ADJUDGED that the Plaintiff’s Motion for Reconsideration and for Summary Judgment is GRANTED. As the parties acknowledge that this is the final matter to be resolved in this case, the Plaintiff shall submit a proposed final judgment conforming to the terms of this Order. This case is hereby removed from the Court’s next jury trial docket.

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¹Although Jarrell deals with permanency of injury, the holding of Jarrell has also been uniformly applied to the issue of medical necessity. See Progressive American Ins. Co. v. Virtual Imaging Services, Inc., 16 Fla. L. Weekly Supp. 293 (11th Cir. Ct. 2009) (appellate capacity affirming Judge Myriam Lehr); Stand-Up MRI of Miami v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 352 (Broward Cty. Ct. 2009) (Judge Steven DeLuca); Palm Rehabilitation, Inc. v. United Automobile Ins. Co., 14 Fla. L. Weekly Supp. 888 (Miami-Dade Cty. Ct. 2007) (Judge Lawrence King); Total Health Chiropractic, P.A. v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 505 (Broward Cty. Ct. 2006) (Judge Lisa Trachman); All Family Clinics of Daytona Beach, Inc. v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 90 (Volusia Cty. Ct. 2005) (Judge H. Pope Hamrick); Clinic Center, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 1077 (Miami-Dade Cty. Ct. 2004) (Judge Mark King Leban); Pembroke Pines MRI, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 384 (Broward Cty. Ct. 2005) (Judge Kathleen Ireland); Quintana Chiropractic Center, Inc. v. United Automobile Ins. Co., 12 Fla. L. Weekly Supp. 244 (Miami-Dade Cty. Ct. 2004) (Judge Mercedes Bach); County Line Chiropractic Center, Inc. v. United Automobile Ins. Co., 11 Fla. L. Weekly Supp. 1079 (Miami-Dade Cty. Ct. 2004) (Judge Teretha L. Thomas).