20 Fla. L. Weekly Supp. 937a
Online Reference: FLWSUPP 2009SEARInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Insurer failed to create genuine issue of material fact regarding reasonableness of provider’s charges where insurer’s expert, who opined that charges were unreasonable and that an amount equal to 200% of Medicare Part B fee schedule was the only “reasonable” amount, relied exclusively on undisclosed “underlying data” which insurer failed to produce or make available for inspection
PAN AM DIAGNOSTIC SERVICES, INC. (a/a/o Demetrius A. Sears), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-10218 COCE (53). June 24, 2013. Robert W. Lee, Judge. Counsel: Sean M. Sweeney, Miami, for Plaintiff. Amir Fleischer, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 20, 2013 for hearing of the Plaintiff’s Motion for Final Summary Judgment, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Pursuant to the parties’ stipulation in this PIP case, the only remaining issue is whether the Plaintiff’s charges for services are reasonable, and if not, how much would be reasonable. At the hearing, the issue boiled down to whether the Defendant’s designated expert, John O’Hara, could offer testimony as an expert on the issue of reasonableness. If not, then the Defendant has not presented any evidence to counter Plaintiff’s prima facie case on this issue, and accordingly, the Plaintiff would be entitled to summary judgment.
As a matter of background, the Court notes that the Defendant designated John O’Hara as its expert “on the issue of reasonableness of pricing” by its Notice of Filing Expert Witness Designation filed on April 15, 2013. The Court further notes that this case is in a trial posture, with the pretrial conference being set for June 26, 2013. As a result, the trial would clearly be scheduled after July 1, 2013, the effective date of the statutory amendments to the Florida expert opinion law, Florida Statute §90.702 (2013). Under Rule 1.510(e), a court may consider evidence at a summary judgment hearing only if it “would be admissible in evidence.” Therefore, if John O’Hara would be unable to testify as an expert at trial, his proffered expert opinion cannot be used at the summary judgment hearing in an effort to create a disputed issue of material fact. See State Farm Fire & Cas. Co. v. Champion Chiropractic & Rehab, Inc., 20 Fla. L. Weekly Supp. 482a (17th Cir. Ct. 2013) (appellate capacity). At the hearing, the Court advised the parties that it was taking the matter under advisement.
As noted, the Court finds that the Plaintiff’s summary judgment evidence is sufficient to establish its prima face case on the issue of reasonableness. The Plaintiff further claims, however, that the Defendant’s effort to establish a disputed issue of material fact through the testimony of John O’Hara, the Defendant’s proffered expert, is to no avail. The Court agrees.
Under the amendments to the Florida expert opinion law, a party faces a greater burden in presenting expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” The Defendant did not meet its burden in doing so, because John O’Hara relied exclusively on undisclosed “underlying data,” and the Defendant failed to produce the underlying data or meet its burden to make it available for inspection. See Fla. Stat. §§90.702(1) (2013), 90.956 (2012); Rule 1.510(e).
Throughout this case, the Plaintiff has attempted to have the Defendant provide its underlying data for its opinion that the reasonableness in price should be an amount different than what the Plaintiff billed, but the Defendant has continued to provide (in its responses to discovery, deposition testimony, and filed affidavits) no more than a parroting of the general factors set forth in the statute for determining whether a charge is reasonable. The Court notes that under the PIP statute, an insurer must pay an amount billed if the amount billed is “reasonable.” There is generally not a single amount that is “reasonable,” but rather a range. If the provider’s charge falls within that range, the insurer must pay it, even if there are amounts lower in the range of reasonableness. Conveniently, however, John O’Hara offered an opinion that the amount billed by the Plaintiff was not only unreasonable, but that an amount equaling 200% of the Medicare Part B fee schedule is the only “reasonable” amount that should have been reimbursed. As the Defendant is not permitted to use the “200% of Medicare” methodology unless that amount happens also to be a “reasonable” amount standing on its own, it is crucial that the underlying data to support this conclusion be disclosed. The Defendant has had ample opportunity to do so, and has failed in this regard. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is GRANTED. As the parties have stipulated that there are no other issues remaining for the Court’s determination, the Plaintiff is hereby directed to submit to the Court a proposed final judgment. The pretrial conference set for June 26, 2013 at 10:00 a.m. is hereby canceled.
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