22 Fla. L. Weekly Supp. 964a
Online Reference: FLWSUPP 2208ZHUKInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer is stricken where insurer failed to respond to permissible discovery requests regarding expert witness who is affiant, and failure has prejudiced medical provider’s ability to prepare for trial — Even if not stricken, opposing affidavit does not preclude summary judgment in favor of provider on issue of reasonableness of MRI charge — Opinion that nothing greater than 200% of Medicare fee schedule would ever be reasonable, despite fact that fee schedule was not elected in policy, was not based on sufficient facts or data and was not product of reliable principles and methods
MR SERVICES I, INC., D/B/A C&R IMAGING OF HOLLYWOOD, (Alex Zhukov), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-01260 COCE (53). February 2, 2015. Robert W. Lee, Judge. Counsel: Abdul-Sumi Dalal, Lander Dalal & Associates, P.L., Fort Lauderdale, for Plaintiff. Russell Kolodziej, Office of the General Counsel, UAIC Trial Division, Miami Gardens, for Defendant.
ORDER GRANTING FINAL SUMMARY JUDGMENTON BEHALF OF PLAINTIFF
THIS CAUSE came before the Court on January 15, 2015 for hearing of the Plaintiff’s amended motion for partial summary judgment, and the Court having reviewed the Motion, 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:
Background:
1. This is an action filed by the Plaintiff to recover underpaid personal injury protection benefits for diagnostic services provided to Defendant’s insured. The only remaining issue in this PIP case is the reasonableness of the Plaintiff’s pricing.
2. On July 30, 2014, Plaintiff filed its motion for partial summary judgment as to the issue of reasonableness of the Plaintiff’s pricing.
3. On August 15, 2014, the Plaintiff filed its Notice for Trial that this case was at issue.
4. On August 21, 2014, this Court entered an Order Referring case to Mediation.
5. On or about October 3, 2014, Plaintiff served Defendant with its expert witness interrogatories and supplemental request to produce relating to Defendant’s expert witness. According to the Florida Rules of Civil Procedure, Defendant had until November 7, 2014, to serve responses and/or objections to Plaintiff’s expert discovery. Fla. R. Civ. P. 1.340, 1.350.
6. The parties attended mediation on October 17, 2014 and an impasse was reached.
7. Thereafter, on October 22, 2014, this Court entered its Order Setting Pretrial Deadlines with Referral to Arbitration. Pursuant to the Court’s pretrial Order, Plaintiff was to disclose its expert witness on or before November 11, 2014 and Defendant was to disclose its expert on or before November 21, 2014. This Court also ordered all discovery to completed on or before December 11, 2014.
8. As of November 19, 2014, United had not responded to Plaintiff’s expert witness discovery, therefore Plaintiff in good faith, notified Defendant of the overdue discovery.
9. On November 20, 2014, Defendant served its Expert Witness List identifying Dr. Daniel Cousin, M.D. as its only expert. According to the Defendant, Dr. Cousin is expected to testify that the amount billed by the Plaintiff was unreasonable.
10. On December 11, 2014, Plaintiff filed its Motion to Compel Compliance with the Court’s pretrial order and for sanctions due to Defendant not responding to Plaintiff’s expert discovery requests.
11. On or about December 24, 2014, Defendant served its Notice of Filing Affidavit of Dr. Daniel Cousin, M.D. in opposition to Plaintiff’s Motion for Summary Judgment. The only Exhibit to Dr. Cousin’s affidavit is a copy of his Curriculum Vitae.
12. In his Affidavit, Dr. Cousin testified that he is a licensed medical doctor in New York, Maine, and Florida and that he has been licensed in the State of Florida since 20081. Dr. Cousin testified that his area of practice since 2006 is in the field of Radiology. Dr. Cousin also testified that his experience includes working at Bay View Radiology as a licensed medical doctor in the State of Florida where he allegedly became familiar with setting prices, establishing billing procedures and receiving reimbursements for MRIs in the State of Florida2. Dr. Cousin’s affidavit goes on to state that he “has been working at Delray Imaging Associates3 as a Medical Director, lead radiologist and a consultant in various medicolegal, personal injury, utilization and insurance matters.” Dr. Cousin goes on to state that based upon his experience, the amount charged by the Plaintiff was unreasonable and that 200% of the 2007 Medicare Part B fee schedule is a reasonable reimbursement for “PIP” insurance cases.
The Plaintiff has moved to strike Dr. Cousin’s testimony based upon 1) Defendant’s untimely notice; 2) on the grounds that Dr. Cousin is unqualified to testify as to the issue of the reasonableness of Plaintiff charges because his opinions are not based upon sufficient facts or data, and 3) on the grounds that Dr. Cousin’s opinions are based upon unreliable principles and methods.DiscussionA.
The information that can be obtained from an expert witness is limited by Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii), which was promulgated in response to Elkins v. Syken, 672 So.2d 517 (Fla. 1996) [21 Fla. L. Weekly S159a] (approving Syken v. Elkins, 644 So.2d 539 (Fla. 3d DCA 1994)). Boecher at 995.
Plaintiff timely attempted to secure the pretrial discovery, however, Defendant failed to produce any responses to Plaintiff’s Expert Interrogatories and Plaintiff’s supplemental request to produce. Defendant’s failure to respond to expert discovery undoubtedly prejudices the Plaintiff’s ability to properly prepare its case for trial. Any objections to Plaintiff’s discovery have been waived since the expiration of the deadline for responses. Fla. R. Civ. P. 1.340. Furthermore, Plaintiff’s interrogatories and requests to produce are within the permissible scope of discovery set forth in Florida Rule of Civil Procedure 1.280.
As of the date of this hearing, Defendant has still failed to provide the requested discovery, seek relief from Court Order, or otherwise address the issue of expert discovery. Plaintiff has been prejudiced by Defendant’s conduct since Plaintiff has been prevented from discovering the true extent of the relationship between Defendant and its expert witness, Dr. Daniel Cousin, as well as the sufficiency of Dr. Cousin’s opinions. The Court finds that striking Dr. Cousins is the only available remedy. The law in Florida is clear that if a party cannot provide the expert discovery authorized specifically by the rules, that expert cannot testify. Orkin Exterminating Company, Inc., v. Knollwood Properties, Ltd., 710 So.2d at 698; and Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996) [21 Fla. L. Weekly S159a].B.
However, even if the Court were to consider the Affidavit of Dr. Daniel Cousin, Defendant failed to demonstrate to this Court that the opinions are based upon sufficient facts or data, nor that the testimony is the product of reliable principles and methods.
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.
The Statute was recently amended by the Florida Legislature to adopt the Daubert standard relating to expert witness testimony. 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 (Brow. Cty. Ct. 2013). Pursuant to the Supreme Court in Daubert v. Merrell Dow, the courts have been assigned the role of “gatekeeper” to ensure that an expert’s testimony is relevant and reliable. Daubert v. Merrell Dow, 509 U.S. 579, 590 (1993). Daubert’s general holding — setting forth the trial judge’s general “gatekeeping” obligation — applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge. Fed. Rule Evid. 702. The purpose of the gatekeeper is to guard against opinion testimony that is “powerful and quite misleading.” Haeger v. Target Corp., 2012 U.S. Dist. LEXIS 175752, 2012 WL 6213734 (D. Md. Dec. 12, 2012).
Dr. Cousin’s affidavit was unclear as to the geographic area referenced by Dr. Cousin. For instance, Dr. Cousin referred to the facilities at which he worked, but did not state the type of facility nor where they are located. Because charges and reimbursements for medical services vary widely throughout the State of Florida based upon the location of the provider as opposed to the location of the patient, it is critical for an expert to establish the geographic applicability of the opinion the expert is giving. As stated by the federal court in an analogous area,
[a]n assessment of the relevant geographic market typically includes an assessment, almost necessarily an expert assessment, of whether and of the extent to which a charge in the price {. . .} in one geographic area has a substantial effect on the price or sales in another geographic are.
Clifton-Draper v. Pelam International, Ltd., 2013 WL 5596798, *5 (M.D. Fla. 2013). Therefore, the Court concludes it was incumbent on Dr. Cousin to explain why the data used as the basis of his opinion on pricing would apply to the pricing of medical services in Broward County. This he did not do.
This Court also finds it suspect when an expert testifies that his opinion is based on his experience working at a diagnostic facility, yet fails to divulge what that facility charges. Here, Dr. Cousin testified that he worked at Bay View Radiology and that he is the Medical Director for Delray Imaging Associates, yet he fails to disclose what those facility charge with respect to the CPT code at issue.
Moreover, in his affidavit, Dr. Cousin in essence concludes that nothing greater than 200% of Medicare would ever be reimbursable for imaging services. Because the insurer in the instant case did not properly select the 200% of Medicare methodology, and because before Virtual Imaging and Kingsway, some PIP insurers were incorrectly limiting their PIP reimbursements to 200% of Medicare contrary to these controlling appellate decisions, Dr. Cousin is clearly using a flawed methodology in using these incorrect reimbursements as a basis for why United Automobile’s payment in this case was, in his opinion, reasonable. Moreover, Dr. Cousin’s opinion would, in this Court’s view, render meaningless the decisions in Virtual Imaging and Kingsway.
In sum, Dr. Cousin’s testimony is not “based upon sufficient facts or data,” nor is his opinion the “product of reliable principles and methods,” as required by Florida Statutes § 90.702 (2013).
For all of the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating it Plaintiff charges were unreasonable, which would create a genuine issue of material fact. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment on the issue of reasonableness is GRANTED. Since there are no other remaining issues, summary final judgment in favor of the Plaintiff is proper. Plaintiff shall submit a final judgment.
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1The Florida Department of Health indicates that Dr. Cousins was licensed in the State of Florida on February 9, 2009.
2This Court notes that Dr. Cousin is silent with respect to when and how long he allegedly worked at Bay Imaging and no where in Dr. Cousin’s CV does he list his employment with Bay View Imaging.
3According to Dr. Cousin’s CV, he became employed at DIA in January of 2013.
