21 Fla. L. Weekly Supp. 590a

Online Reference: FLWSUPP 2106DINGInsurance — Personal injury protection — Expert witness — Insurer’s actuary is not qualified to render opinion on reasonableness of x-ray charges where proposed witness has never worked for or provided billing services for x-ray providers, has no knowledge of what hospitals or other x-ray providers in county charge for x-ray examination and review and, in reaching his opinion, excludes from consideration evidence of usual and customary charges and payment accepted by medical provider and any amounts above 200% of Medicare Part B fee schedule

PRO IMAGING, INC. (a/a/o Eddie Dingle), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-1850 COCE 53. January 15, 2014. Robert W. Lee, Judge. Counsel: Todd Landau, Hallandale Beach; and Gregory E. Gudin, Gregory E. Gudin, P.A., North Miami Beach, for Plaintiff. Matt Hellman, Plantation, for Defendant.

ORDER ON DEFENDANT’S MOTION FOR DAUBERTHEARING RE: DEFENDANT’SEXPERT WITNESS, DARRELL SPELL

THIS CAUSE came before the Court on January 13, 2014 upon the Defendant’s Motion for Daubert Hearing Concerning Defendant’s Expert Witness, Darrell Spell. Upon consideration of the Motion, supporting memorandum of law, the record, argument of counsel and being otherwise fully advised in the premises, the Court hereby

FINDS, ORDERS AND ADJUDGES as follows:

1. This case is set for jury trial on the Court’s trial docket beginning January 28, 2014.

2. On October 21, 2013, this Court entered its Order Setting 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 January 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 November 7, 2013, the Plaintiff filed 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. On November 27, 2013, the Defendant filed its Motion for Daubert Hearing Concerning Defendant’s Expert Witness Darrell Spell. By Order dated December 3, 2013, the Court set the matter for hearing for January 13, 2014. The Court also required the Defendant to submit before the hearing a “clear and succinct statement of: (1) the expert opinion being proffered; (2) the facts and data underlying the proffered opinion; and (3) the method used to select the underlying facts and data.”

5. On January 10, 2014, the Defendant served its Notice of Compliance with December 3, 2013 Court Order, providing the required information.

6. The Plaintiff, in essence, contends 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.

7. In addition to the Defendant’s nine-page Notice of Compliance setting forth Mr. Spell’s proffered expert opinion, the Court has also received the two-page affidavit of Darrell Spell filed on December 12, 2013 and the 22-page affidavit of Mr. Spell filed on November 21, 2013.

8. The admissibility of expert testimony is governed by Florida Statutes §90.702 (2013). The statute provides that:

[i]f 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.

Id. The statute was recently amended by the Florida Legislature to adopt the Daubert standard relating to expert witness testimony. 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.” Pan Am Diagnostics, Inc. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 937a (Broward Cty. Ct. 2013). Indeed, the United States Supreme Court in Daubert v. Merrell Dow, assigned the courts a role as “gatekeeper” to ensure that an expert’s testimony is relevant and reliable. 509 U.S. 579, 590 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The purpose of the gatekeeper is to guard against opinion testimony that is “powerful and quite misleading.” Haeger v. Target Corp., 2012 WL 6213734, *2 (D. Md. 2012). The Daubert Court set forth a non-exclusive list of factors for a court to consider in determining the reliability of the methodology used by the expert, including, i) whether the expert’s technique or theory can be or has been tested; ii) whether the technique or theory has been subject to peer review and publication; iii) the known or potential error of the technique or theory when applied; and iv) whether the technique or theory has been generally accepted in the scientific community. 509 U.S. at 593-95. Finally, it is not the role of the courts to make ultimate conclusions as to the persuasiveness of the proffered evidence. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C366a]. Instead, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

9. The opinions Mr. Spell is proposing to offer at trial based on his affidavits, as well as the Defendant’s Notice of Compliance, are as follows:

a. The price of $150.00 charged by the Plaintiff for a lumbar spine X-ray reading (CPT code 72100), and the price of $200.00 charged by the Plaintiff for a cervical X-ray reading (CPT code 72052) are both unreasonable.

b. Only a price falling between $16.25 to $23.36 for CPT code 72100, and between $27.13 to $38.76 for CPT code 72052 would be reasonable.

10. In formulating his opinions, Mr. Spell relied on the “Truven Health Marketscan” database, as well as the Medicare Part B Physician Fee Schedule, the Florida Workers Compensation Fee Schedule, and what Mr. Spell refers to as “Florida’s Automotive Medical Fee Schedule located at Fla. Stat. §627.736(5)(a)2.” This latter so-called “Fee Schedule” is merely 200% of the Medicare Part B Physician Fee Schedule. Mr. Spell refers to the Truven Health Marketscan database as “one of the largest claimant databases in the industry with over 170 million unique patients since 1995.” According to Mr. Spell, the database “is considered the gold standard for such data in that it contains data from claims that have been fully paid and adjudicated, has complete payment information including the amount of patient responsibility.”

11. While there is no question that Mr. Spell is an experienced and well-spoken consulting actuary with underlying training in mathematics, there is also no question that Mr. Spell has no experience and knowledge concerning the operation of a medical service provider, such as the radiological examination review company involved in this case. See United Automobile Ins. Co. v. Hallandale Open MRI, Inc., Appellate Opinion, Case No. 12-19662 CACE, at 6 (17th Cir. Ct. Dec. 11, 2013) [21 Fla. L. Weekly Supp. 399d]. In the Hallandale Open MRI case, the appellate court found a witness to be “unqualified to render an opinion on whether [the] charge for the subject MRI was reasonable” when the witness (1) had never worked for an MRI provider; (2) had no knowledge what hospitals in Broward County charge for MRIs; (3) had no knowledge as to what other MRI providers located in Broward County charge for the subject procedure; and (4) had never provided any billing or accounting services to MRI providers. Id. The same can be said for Mr. Spell under the facts of the instant case.

12. The Florida Legislature has set forth what may be considered in determining whether a charge for a medical service is reasonable for purposes of personal injury protection benefits arising from an automobile accident. Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”

13. Mr. Spell acknowledges that the Truven information he relies on is compiled solely from the insurance industry. He also notes that it includes claims “under a variety of fee-for-service, fully capitated, and partially capitated health plans, included preferred and exclusive provider organizations, point of service plans, indemnity plans, health maintenance organizations and consumer-directed health plans.” In reaching his opinions, however, Mr. Spell screened out what he terms “inappropriate data,” including capitated claims. Significantly, he is unable to provide any information to what extent any of this data specifically involves automobile accident claims, whether it be PIP or Medpay. Central to the majority of insurance plans providing data to the Marketscan database is payment to medical providers who are under contract to receive a stream of business in exchange for contractual acceptance of a lower fee for services. Under Florida law, no such scheme is in place for PIP claims. Indeed, because there are no contractual providers available under PIP policies, as well as no preapproval procedures, a provider providing treatment to those injured in automobile accidents faces the real risk that the provider may well not be paid — a far more substantial risk than a provider accepting a lower contractual amount under an insurance policy for the non-automobile accident case. Yet, Mr. Spell offers no explanation as to how the differences between automobile accident cases and other types of cases is taken into consideration in reaching an opinion on whether the cost of a medical service is reasonable. Mr. Spell is further unable to provide any information as to those claims that were paid as a result of compromise, settlement, or partial exhaustion of benefits. (Importantly, as this case demonstrates that the full amount claimed by Plaintiff is available for payment, the underlying data should attempt to compare apples to apples to be reliable.)

14. In his affidavit and proffered testimony, Mr. Spell completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, he excludes consideration of any amounts above 200% of Medicare in reaching his ultimate conclusion that an amount up to 200% of Medicare is a reasonable charge. For instance, in the summary provided by Mr. Spell for CPT code 72052 (cervical X-ray review), for 39 of the 165 claims (19.1% of the claims), the insurer allowed an amount greater than that found reasonable by Mr. Spell. Similarly, for CPT code 72100 (lumbar spine X-ray review), 425 of the 3011 claims (14.1%) were paid at a greater amount. And yet, under Mr. Spell’s opinion, these insurers would have paid an unreasonable amount by doing so. Interestingly, Mr. Spell relies on statistics involving payment rates supplied by insurers only, without explaining why this information is reliable for all types of claims and why the Court should find that this methodology of selection is sufficiently reliable for the Court to allow this issue to go the jury. This is all the more noteworthy when one considers that payments from anyone else other than insurers is completely excluded from Mr. Spell’s calculation. It is also fairly common knowledge that many, if not most, insurance plans have a co-payment on the part of the patient, and there is no analysis in Mr. Spell’s affidavits or proffered testimony as to how this co-payment affects the insurer’s decision. Moreover, as noted earlier, Mr. Spell ignores payment of capitated claims,¹ when these type of payments may well result in a higher per-service charge. He sets forth no persuasive explanation as to why the Court should find that the broad-brush “methodology” of selection he employed is sufficiently reliable for the Court to allow this issue to before a jury. See U.S. ex rel. Loughren v. UnumProvident Corp., 604 F. Supp 259, 263-69 (D. Mass. 2009); Brooks v. Lincoln Nat’l Ins. Co., 2008 WL 4355390, *2-*5 (E.D. Tex. 2008). Further contributing to the misleading nature of Mr. Spell’s opinions is his reference to “Florida’s Automotive Medical Fee Schedule,” when there is no such named fee schedule, and further no such fee schedule definitively controlling Florida “automotive” cases.

15. The Court is also persuaded by the recent decision of the Second District Court of Appeal which found that the act of merely tabulating totals and doing math, as Darrell Spell has done in this case, is not the province of an “expert.” See Weaver v. Corey, 111 So.3d 947, 949 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D874d].

16. Finally, 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].

17. As a result, for the foregoing reasons, the Court finds that the Defendant has not demonstrated to this Court that the proffered opinion is based upon sufficient facts or data, nor that the testimony is the product of reliable principles and methods. To the contrary, the opinions proffered are clearly misleading. The Court further finds that, as applied to the issue in this case, Mr. Spell’s opinions are not based upon sufficient facts or data; they are not the product or reliable principles and methods; and the witness has not reliably applied the principles and methods to the facts of this case. Therefore, Mr. Spell is precluded from testifying at trial.

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¹Capitation is a payment arrangement for health care providers such as physicians or nurse practitioners. It pays a physician or group of physicians a set amount for each enrolled person assigned to them, per period of time, whether or not that person seeks care.” Wikipedia, “Capitation (health care)” at http://en.wikipedia.org/wiki/Capitation_(healthcare) (last accessed Jan. 14, 2014). As a result, if few patients seek treatment, the physician’s remuneration per service is much higher.

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