21 Fla. L. Weekly Supp. 707a
Online Reference: FLWSUPP 2107TRUOInsurance — Personal injury protection — Expert witness — Insurer’s actuary is not qualified to render opinion on reasonableness of medical provider’s charges
MICHAEL J. COHEN, D.C., P.A. (a/a/o Quynh Truong), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-5528 COCE 53. April 3, 2014. Robert W. Lee, Judge. Counsel: Russel Lazega, Dania Beach, for Plaintiff. Matt Hellman, Plantation, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR DAUBERT HEARING RE: DEFENDANT’S EXPERT WITNESS, DARRELL SPELL
THIS CAUSE came before the Court for consideration of the Plaintiff’s Motion for Daubert Hearing concerning Darrell Spell (Defendant’s listed expert witness). Upon consideration of the Motion, the record, argument of counsel and being sufficiently advised in the premises, the Court hereby
FINDS, ORDERS AND ADJUDGES as follows:
1. This case is in a trial posture, with trial set for May 6, 2014.
2. On January 31, 2014, this Court entered its Order Setting Pretrial Conference, which set Daubert deadlines, advising the parties that all issues arising under Florida Statute §90.702 (2013) (as stated in the order, “all Daubert related issues”) shall be noticed and heard — or agreed to by the parties — no later than April 17, 2014. The parties were further advised that “failure to do so shall constitute a waiver at trial of any Daubert related evidence objection or other issue.”
3. On March 25, 2014, the Plaintiff served its Motion to Strike Defendant’s disclosed expert witness Darrell Spell, claiming that the witness’s testimony cannot meet the standards set forth in Florida Statute §90.702.
4. The record in this case reveals that the Defendant is contesting the reasonableness of the Plaintiff’s charges, and has listed Darrell Spell as an expert as a consulting actuary.
5. In its well-reasoned Motion, the Plaintiff contends, in essence, that Mr. Spell’s opinions are not based on sufficient facts or data, and they are not the product of reliable principles and methods. The Plaintiff further contends that Mr. Spell has not reliably applied the principles and methods to the facts of this case. Finally, the Plaintiff argues that Mr. Spell has routinely been rejected by trial courts throughout Florida as an expert on the issue of pricing of medical services.
6. The Court has afforded the Defendant several hearings on this exact witness pertaining to substantially the same opinions that are proffered in this case, and also involving the same defense counsel. With this same defendant and defense counsel, in a special set Daubert hearing held on January 13, 2014, the Court addressed this exact issue in the case of Pro Imaging, Inc. v. State Farm Mutual Automobile Insurance Company, Case No. 12-1850 COCE 53 [21 Fla. L. Weekly Supp. 590a]. As was the result of the prior hearings, the hearing resulted in the Court’s entering a detailed order on January 15, 2014 disallowing Darrell Spell to testify as an expert witness on the subject of reasonableness of the medical provider’s pricing. Most recently, on March 24, 2014, this Court held another special set Daubert hearing for this same Defendant in another case, Pompano Beach Healing Center v. State Farm Mutual Automobile Insurance Company, Case No. 12-8520 COCE 53. Once again, the hearing resulted in the Court’s entering a detailed order on March 25, 2014 disallowing Darrell Spell to testify as an expert witness on the subject of reasonableness of the medical provider’s pricing.
7. The findings and rationale of this Court in its consistent prior rulings on Darrell Spell are equally applicable in this instant case.
8. Finally, as noted in several prior rulings of this Court, the Court notes the uniformity of trial level decisions finding specifically that Darrell Spell is not competent to testify on the issue of reasonableness of price. See, e.g., New Smyrna Imaging LLC v. State Farm Mutual Auto. Ins. Co., 20 Fla. L. Weekly Supp. 671a (Volusia Cty. Ct. 2013) (Sanders, J.); Pompano Beach Chiropractic Center, Inc. v. State Farm Mutual Auto. Ins., Inc., 19 Fla. L. Weekly Supp. 595b (Broward Cty. Ct. 2012) (Pratt, J.); Nadal Medical Center, Inc. v. Dairyland Ins. Co., 14 Fla. L. Weekly Supp. 895a (Hillsborough Cty. Ct. Nov. 1, 2007) (Fernandez, J.); Millenium Diagnostic Imaging Center, Inc. v. Progressive Auto Pro Ins. Co., 14 Fla. L. Weekly Supp. 795c (Miami-Dade Cty. Ct. 2007) (Gayles, J.); Spine & Rehab Medicine, P.A. v. Dairyland Ins. Co., 14 Fla. L. Weekly Supp. 504a (Hernando Cty. Ct. 2007) (Hitzemann, J.); Mitchell R. Pollak, M.D., P.A. v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 381b (Broward Cty. Ct. 2006) (Lee, J.); Spirelli Healthcare of Broward, Inc. v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 186a (Broward Cty. Ct. 2005) (Spechler, J.). Although these decisions are clearly not binding on this Court, the uniformity of these decisions is persuasive. See Star Casualty v. U.S.A. Diagnostics, Inc., 855 So.2d 251, 253 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2274a]. The Court further notes that in the only reported federal case the Court could locate pertaining to Mr. Spell, State Farm withdrew Darrell Spell as an expert witness when faced with a similar Daubert challenge. State Farm Mutual Automobile Ins. Co. v. Physicians Injury Care Center, Inc., 2009 WL 6357793, *1 & n.2 (M.D. Fla. 2009).
9. For the same reasons as set forth in this Court’s Orders of March 24, 2014 and January 13, 2014 referenced in ¶6 above, Mr. Spell is precluded from testifying at trial in this case.
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