21 Fla. L. Weekly Supp. 432a
Online Reference: FLWSUPP 2105CADEInsurance — Personal injury protection — Expert witnesses — Witness’s thirty years of experience working in insurance industry consulting with numerous medical providers and familiarity with reimbursement levels qualifies witness as expert on issue of reasonableness of charges under Daubert standard — Motion to strike affidavit is denied
HOMESTEAD CHIROPRACTIC CLINIC, INC., (DARLINE CADET), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-9197 SP 23. January 21, 2014. Charles K. Johnson, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., for Plaintiff. David Bender, Matt Hellman, P.A., for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONTO STRIKE AFFIDAVIT OF DARRELL SPELL
THIS CAUSE having come before the Court on November 18, 2013 on Plaintiff, HOMESTEAD CHIROPRACTIC CLINIC, INC. (a/a/o DARLINE CADET), Motion To Strike Affidavit of Darrell Spell, and the Court having reviewed the motion, having heard argument of counsel, having reviewed relevant legal authority, and being sufficiently advised in the premises, finds as follows:Background
This lawsuit arises out of a breach of contract action for Personal Injury Protection (“PIP”) Benefits regarding chiropractic treatment rendered by the Plaintiff. On April 18, 2013, Plaintiff filed its Motion for Final Summary Judgment as to the issues of whether the treatment was reasonable, related, and medically necessary. On November 11, 2013, Defendant filed the Affidavit of Darrell Spell in opposition to Plaintiff’s Motion for Final Summary Judgment. Mr. Spell’s affidavit deals with the issue of reasonableness. In response, Plaintiff filed its Motion to Strike.Conclusions of Law
Plaintiff contends that Mr. Spell is not qualified to testify as to the reasonableness of the charges as he fails to meet the new “Daubert” standard under Florida Statutes §90.702 which states the following:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
The Florida legislature intended to “prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 562 (Fla. 2007) [32 Fla. L. Weekly S750a].” See Florida House Bill 7015 (2013). The Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), held that such testimony was admissible only if the testimony is both relevant and reliable; and that the trial judge must serve as gatekeeper, insuring that an expert’s testimony rests on a reliable foundation and is relevant.
Plaintiff’s objects to the admissibility and admission into evidence of Mr. Spell’s affidavit on the basis that the proffered testimony is conclusory, self serving, legally insufficient, and that Mr. Spell does not qualify as an expert in regards to the reasonableness of charges. Plaintiff also objects to Mr. Spell’s affidavit on the following grounds: comparing PPO and HMO rates where there is no evaluation of non-monetary other considerations (no examinations under oath, independent medical examinations, peer reviews, electronic billing, less paper work, list of approved centers, flow of business, no 35 day limit to bill, guaranteed payment); no valid statistical survey of changes in the geographical area; no understood and accepted meaning of “reimbursement levels;” no trade organizations that police these “experts;” no tests designed to qualify a “reasonableness” expert; no methodology generally accepted for peer review of these opinions; no consideration of any payors that pay the Plaintiff’s bill without reduction, and that Mr. Spell has no personal knowledge of the methods used.
Defendant argues that Mr. Spell’s affidavit is sufficient under Daubert, and that any questions relating to the basis and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration, and that it is the role of the adversarial system, not the Court to highlight weak evidence. See Taylor v. Novartis Pharmaceutical Corp., 2013 WL 85168 (S.D. Fla. 2013).
Mr. Spell’s affidavit states that he has been working in the area of health insurance since 1982, he is experienced in estimated cost levels and the pricing of medical long term care, Medicare supplement, critical illness, and other supplemental products, and he provides clients nationwide with rate filing support. Mr. Spell has provided actuarial support for pricing and costs analysis of medical services for Blue Cross Blue Shield Association and various member plans and major life insurance companies. Mr. Spell has assisted major insurance companies with determining the appropriate amount to charge for insurance premiums (indicating that he has reviewed payments for many different medical treatments). Mr. Spell is familiar with payments accepted by providers for medical services in the entire United States market for health services and in the Florida market, including Miami-Dade and Broward counties. Mr. Spell states that he is familiar with reimbursement levels in the zip code 33030, which is the zip code where the Plaintiff is located.
Under Daubert, the test of reliability is “flexible” and the list of specific factors neither necessarily nor exclusively applies to all experts or in every case. The Court finds that Mr. Spell’s thirty years of experience of working in the insurance industry consulting with numerous medical providers, and his familiarity with the reimbursement levels is sufficient to meet the Daubert standard. Therefore, Plaintiff’s Motion to Strike Affidavit of Darrell Spell is DENIED.
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