23 Fla. L. Weekly Supp. 357a

Online Reference: FLWSUPP 2304HOOKInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavits filed by insurer do not preclude partial summary judgment in favor of medical provider on issue of reasonableness of charges that insurer concedes are necessary and related where affidavits are conclusory and self-serving and rely on Medicare and workers’ compensation fee schedules not elected in policy and negotiated contract rates that are irrelevant under section 627.736(5)(a)1

ALL CARE HEALTH AND WELLNESS CENTER (a/a/o SHARON HOOKS), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-7888 SP 23 (01). February 6, 2015. Myriam Lehr, Judge. Counsel: Robert A. Chitty, Miami Shores; and Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation; and Kyle A. Mixson, for Defendant.

ORDER GRANTING PLAINTIFF’SMOTION FOR PARTIAL SUMMARY JUDGMENT

THIS CAUSE came before the Court on November 3, 2014, on Plaintiff’s Motion for Summary Judgment, the Court having reviewed the Motion for Partial Summary Judgment and purported opposing evidence, having reviewed all pertinent documents, and having heard argument of counsel, GRANTS the Plaintiff’s Motion for Partial Summary Judgment. Accordingly, it is hereby

ORDERED AND ADJUDGED:

that the Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED, as to all CPT Codes that State Farm’s expert, Dr. Michael Mathesie, finds are payable. Those CPT Codes shall be paid at 80% of the charges submitted by All Care, consistent with State Farm’s policy.

This case involves Plaintiff All Care’s claim for Personal Injury Protection (PIP) benefits, as the valid assignee of State Farm’s insured, Sharon Hooks.

After receiving All Care’s claim for medical bills in the amount of $9,844.00, State Farm sent a payment for the bills submitted at 80% of 200% of Medicare Part B, ($4,786.31) after which All Care sued for the difference between that amount and 80% of a “reasonable” charge as determined by §627.736(5)(a)1., Fla. Stat. (2008).

The Plaintiff moved for partial summary judgment on the issue of reasonableness of its bills and the amount that State Farm is obligated to pay pursuant to its policy and the PIP Statute. All Care’s motion relied upon the deposition of State Farm’s adjuster, Flo Anders, and the affidavit of the treating physician, Dr. Bradley Kern.

In opposition, State Farm filed the affidavits of Darrell Spell, a so-called “consulting actuary,” and Dr. Michael Mathesie, who conducted a paper review of the medical records.

At the hearing on Plaintiff’s motion, the Plaintiff stated that summary judgment was sought solely on the CPT Codes and time periods that Dr. Mathesie finds are medically necessary and related. Thus, medical necessity and relatedness are not at issue for purposes of the bills on which Plaintiff seeks partial summary judgment.

As an initial matter, it is undisputed that State Farm has not made a clear and unambiguous election of the reimbursement methodology set forth in §627.736(5)(s)2.f., which would otherwise allow State Farm to utilize the Medicare Part B fee schedules contained in that provision to determine the reasonableness of the Plaintiff’s bills and pay accordingly.

State Farm contends that it did not utilize the permissive reimbursement methodology set forth in §627.736(5)(a)2., Fla. Stat. (2008), to pay 80% of 200% of Medicare Part B, but rather utilized the Medicare Fee Schedules pursuant to §627.736(5)(a)1., Fla. Stat. (2008) on the alleged basis that Medicare is a federal fee schedule that is contemplated in §627.736(5)(a)1., Fla. Stat. (2008) as an evidentiary factor to determine a “reasonable” charge.Evidence of the Plaintiff’s Prima Facie Case

Pertinent to the issue of reasonableness of All Care’s charges, the affidavit of Dr. Kern, on which the Plaintiff relies to prove the reasonableness of its charges, states in relevant part:

1. I, Brad Kern, make this Affidavit upon personal knowledge and belief.

2. I am a licensed chiropractic physician in the State of Florida and was licensed during the treatment period of my patient Sharon Hooks and maintain an active practice in the South Florida community. . . .

7. The Defendant was timely and properly billed $9,844.00 for the medical treatment rendered to Sharon Hooks but the Defendant has paid only $4,786.31. . . .

10. I have been billing as a chiropractor for nearly 30 years and I know what is a standard charge for each CPT code. From May 19, 2008 through October 8, 2008 the chiropractic charges incurred amounted to $9,844.00 and were reasonable and usual and customary for the South Florida Chiropractic community.

The Court finds that Dr. Kern’s affidavit is sufficient to establish the Plaintiff’s prima facie case as to the reasonableness of the Plaintiff’s bills, given his personal experience in billing and his personal knowledge of what is usual and customary charges for this community. Thus, summary judgment may be entered in favor of All Care if State Farm’s opposing evidence does not create any questions of fact.Defendant’s Purported Opposing Evidence

To oppose the Plaintiff’s summary judgment evidence, State Farm filed the affidavits of Darrell Spell and Dr. Michael Mathesie.Darrell Spell

Darrell Spell is a so-called “Consulting Actuary.” Mr. Spell’s opinion states, in pertinent part:

13. My opinions are informed by my review of multiple data sources throughout my career. For this analysis, I have specifically reviewed the MarketScan Research Database, the Medicare Physician Fee Schedule, The Florida Worker’s Compensation Schedule, and the New Jersey Physician Fee Schedule.¹

Mr. Spell’s opinion is without regard to usual and customary charges and payments accepted by the Plaintiff in this dispute or reimbursement levels made to other PIP providers in the community that do not involve Medicare, Workers Compensation or negotiated contract rates, such as HMOs, PPOs, etc.Michael Mathesie, D.C

Dr. Mathesie conducted a so-called “peer review,” and issued an opinion regarding the medical necessity and relatedness of the treatment rendered, and the reasonableness of the charges.

He opined that certain treatment (CPT Codes) was related to the subject accident and medically necessary up to a certain point in time. Those charges are the charges at issue in Plaintiff’s Motion for Partial Summary Judgment.

With regard to All Care’s charges, Dr. Mathesie opined, in relevant part:

8. Pertaining to the reasonableness of reimbursement for charges submitted in this case, it is my opinion that the amount allowed and by State Farm was reasonable. Additionally, given the fact that State Farm’s reimbursement is considered to be at the highest end of reimbursement rates for all health insurance carriers, the charges submitted by this particular provider would not be reasonable. This opinion is based on my clinical practice of 25 years, and my experience with reimbursements from various Health Maintenance Organizations (“HMOs”), Preferred Provider Organizations (“PPOs”), Private Health Insurers, PIP carriers, and consideration to various State And Federal Fee Schedules. In my clinical practice of 25 years, I accept the amount allowed by State Farm as full payment for covered services for patients covered by State Farm Personal Injury Protection, and consider this fee schedule of reimbursement reasonable.

Conclusions of LawThe Fee Schedule Methodology of §627.736(5)(a)2.f.,Fla. Stats. (2008) is Inapplicable

As an initial matter, the Court finds that the provisions of §627.736(5)(a)2.f., Fla. Stats. (2008) do not apply in this case, since State Farm did not elect that alternative methodology as its method for determining the reasonableness of medical bills and paying in accordance therewith. This Court finds that an insurer may not rely on the Medicare Part B Fee Schedules contained within §627.736(5)(a)2.f., Fla. Stats. (2008) unless that methodology has been clearly and unambiguously elected in the policy at issue. See GEICO v. Virtual Imaging Svcs., Inc., 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].

It is State Farm’s contention that it utilized §627.736(5)(a)1., Fla. Stats. (2008) of the PIP Statute when it made payment, and did not utilize §627.736(5)(a)2.f., Fla. Stats. (2008).§627.736(5)(a)1., Fla. Stats. (2008) Does Not ContemplateUse of Medicare Fee Schedules, Worker’s Compensation,Negotiated Contract Rates or Fee Schedules of Other States

Section 627.736(5)(a)1., Fla. Stats. (2008), provides the factors to take into consideration when determining the reasonableness of medical bills if an insurer has not elected the permissive methodology of §627.736(5)(a)2.f., Fla. Stats. (2008).

§627.736(5)(a)1., Fla. Stats. (2008) states, in pertinent part:

(a) 1. . . . With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, 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.

Fla.Stats. §627.736(5)(a)1. (emphasis added).

Consistent with other courts, this Court finds that §627.736(5)(a)1. does not contemplate consideration of Medicare fee schedules, or negotiated contract rates because neither Medicare Part B Fee Schedules, HMO negotiated contract rates, nor PPO negotiated contract rates, or other negotiated contract rates, are relevant in determining whether a particular provider’s charges are reasonable. See e.g., Gables MRA, Inc., (a/a/o Teresa Morales) v. United Auto. Ins. Co., Case No. 11-11687 SP 25 (01) [22 Fla. L. Weekly Supp. 740a]. Nor does §627.736(5)(a)1. allow consideration of other states’ fee schedules.

The Court’s ruling is grounded upon the fact that Medicare is not “insurance,” but rather is a federal entitlement program. See American Risk Assurance Co. v. Benrube, 407 So.2d 993 (Fla. 3d DCA 1981)(§627.736(4)’s non-duplication provision does not provide credit for Medicare payments; “The waiver authority is consistent with prior judicial determinations that Medicare is a social welfare program and not an insurance or reimbursement plan within the original meaning of these terms.”); Atkins v. Allstate Ins. Co., 382 So.2d 1276 (Fla. 3d DCA 1980)(“[T]he issue has been well settled in other jurisdictions that Medicare is social welfare legislation passed by the Congress to aid the general health and welfare of those over 65 years of age and is not an ‘insurance program’ within the ordinary meaning of the words.”); Florida Assoc. of Rehab. Facilities, Inc. v. State of Fla. Dept. Of Health, 225 F.3d 1208 (11th Cir. 2000).

Indeed, this Court is bound by Hialeah Medical Assoc., Inc. (a/a/o Ana Lezcano) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 487b (Fla. 11th Jud. Cir., March 7, 2014), which specifically held that, “Medicare Fee Schedules are not relevant in PIP cases, and should not be used.” Since Medicare Fee Schedules are not relevant to determine the reasonableness of a medical provider’s bill under the PIP Statute, absent a specific election of §627.736(5)(a)2.f., an expert’s reliance on those Fee Schedules is not competent or relevant testimony to oppose summary judgment. See §90.402 (“All relevant evidence is admissible, . . . .”)(emphasis added); Fla.R.Civ.P. 1.510 (“Supporting and opposing affidavits shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”)

To the extent that Florida’s Workers Compensation Fee Schedule, another factor on which Mr. Spell relies, is also a fee schedule contained within §627.736(5)(a)2.f., reliance upon the Workers Compensation Fee Schedule is also misplaced, absent an election of the §627.736(5)(a)2.f. methodology. If the Legislature intended for §627.736(5)(a)1. to include the Medicare and Worker’s Compensation Fee Schedules, there would have been no need for the Legislature to enact §627.736(5)(a)2.f. in 2008.

Additionally, Mr. Spell’s reliance on a New Jersey fee schedule is not allowed by Florida’s PIP Statute. An expert’s reliance on fee schedules that are legislated in other states, like New Jersey, are not relevant to what community standards are in Miami-Dade County. That’s why §627.736(5)(a)1. makes specific reference to “the community.” Id. Reimbursement rates in other communities simply are not relevant.

Therefore, Mr. Spell’s and Dr. Mathesie’s opinions rely on irrelevant fee schedules and neither is competent opposing summary judgment evidence to create a fact question as to the reasonableness of All Care’s bills.HMOs, PPOs and “Tricare”

Mr. Spell’s and Dr. Mathesie’s reliance on negotiated contract rates, like HMOs, PPOs (and Mr. Spell’s reliance on Tricare) also do not provide any competent, relevant evidence to create a fact question because such negotiated rates are not relevant unless the insurer and provider in suit have entered into such a contract. See Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328 (Fla. 2007) [32 Fla. L. Weekly S453a]; see also Virtual Imaging, supra. The irrelevance of negotiated contract rates is evident by the fact that parties to such contracts have provided consideration for the negotiated rates. In exchange for reduced rates, an insurer will waive deductibles or provide additional benefits to their insureds. See Holy Cross, supra. In exchange for accepting such reduced rates, a medical provider enjoys a steady stream of patients provided to it by the insurer. Id. ²Dr. Mathesie’s Affidavit Does Not Create Any FactQuestions to Dispute Reasonableness of Charges

The Court finds that Dr. Mathesie’s affidavit is conclusory.

It is of no import that Dr. Mathesie finds that the “amount allowed and paid by State Farm was reasonable.”

The question is not whether State Farm’s payment was reasonable, but rather the question is whether All Care’s charges were unreasonable. Dr. Mathesie’s affidavit does not demonstrate that All Care’s charges were unreasonable.

Like Mr. Spell, Dr. Mathesie relies on HMOs, PPOs and only generally mentions “various State and Federal Fee Schedules,” without any reference to any specific state or federal fee schedule allowed by §627.735(5)(a)1.

A competent and sufficient opinion must do more than simply regurgitate the factors set forth in §627.736(5)(a)1. Otherwise, the opinion is nothing more than a “net opinion,” obtained for no purpose other than to create a “paper issue.” See Lezcano, supra (“The affidavits were merely an attempt (which succeeded at the trial court level) to create a paper issue and avoid summary judgment, a course of action impermissible under the law. . . . A party may not create ‘paper issues’ merely to avoid summary judgment.”)Mr. Spell’s AffidavitDoes Not Create Any Fact Questions toDispute Reasonableness of Charges

The Court has been presented with, and has reviewed, a number of court orders entered by numerous county court judges in Miami-Dade and Broward, which deal with Mr. Spell’s opinions. Multiple courts have determined that Mr. Spell’s affidavit, and others similar to his, do not create any fact questions with regard to whether a medical provider’s charges are reasonable or not.

The Court finds those orders persuasive and follows the rationale set forth therein. See Florida Wellness & Rehab Center, Inc., (a/a/o Pedro Barrios), v. State Farm Mut. Auto. Ins. Co., Case No. 12-12074 SP 25 (01), (Miami-Dade Cty. Ct., June 19, 2014) [22 Fla. L. Weekly Supp. 627a]; Hallandale Open MRI, Inc. (a/a/o David Cabrera) v. State Farm Mut. Auto. Ins. Co., Case No. 12-004675 (Broward Cty. Ct., December 12, 2013)(“Mr. Spell’s affidavit is insufficient, conclusory and self serving. The fact that Medicare Workers Comp and Health Insurance pay less than the billed amount is insufficient to create a triable issue even where the Plaintiff accepts these payors.”); Miami Medical Group, Inc. (a/a/o Janel Almulna) v. State Farm Mut. Auto. Ins. Co., Case No. 12-24932 SP 25 (2) (Miami-Dade Cty. Ct., March 31, 2014 (“The Court finds that Darrell Spell’s affidavit does not create a genuine issue of material fact to contest the reasonableness of the medical charges.”); Hallandale Open MRI, LLC (a/a/o Richard Ayer) v. State Farm Mut. Auto. Ins. Co., Case No. 13-002964 CONO 73 (Broward Cty. Ct., April 7, 2014) [21 Fla. L. Weekly Supp. 837a](“The fact that Medicare allows less than the amount billed by the Plaintiff in this case is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable as to price.”); DPI of North Broward (a/a/o Aquilina Ligot) v. State Farm Mut. Aut. Ins. Co., Case No. 12-5576 COCE 53 (Broward Cty. Ct., February 29, 2014)(“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.”)³

Although not directly on point because it deals with the affidavit of Nicole Bonaparte, this Court is persuaded by the ruling in Miami Medical Group, Inc. (a/a/o Yamila Fernandez) v. State Farm Mut. Auto. Ins. Co., Case No. 12-17696 SP 25 (01), because Ms. Bonaparte’s affidavit is strikingly similar to Mr. Spell’s affidavit in its deficiencies.

There, the court stated:

In her affidavit and testimony, Ms. Bonaparte completely excludes considerations of evidence of usual and customary charges and payment accepted by the provider. Similarly, she excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Defendant’s expert’s ultimate opinion excludes any data which could cause an increase in the outcome and clearly, without any methodology, cherry picks whatever supports her opinion. Interestingly, Ms. Bonaparte relies on statistics involving payment rates for two insurers’ “out-of-network” claims, without setting forth why she is choosing these two insurers 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. [sic] This is all the more glaring when one notes that Aetna, one of the two “out-of-network” insurers listed, pays less for out-of-network claims than to in-network providers, and there is absolutely no data provided as to the greater amount paid to in-network providers. Moreover, Ms. Bonaparte’s opinion is misleading because it is fairly common knowledge that an insured pays more out-of-pocket to out-of-network providers, and there is no analysis in Ms. Bonaparte’s affidavit as to how this co-payment affects the insurer’s decision. . . .

As noted previously, 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. 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. . . . In addition, the Plaintiff is neither a Medicare, Medicaid, worker’s compensation or a health insurance provider as it pertains to Ms. Bonaparte’s affidavit filed herein.

Fernandez, supra.

This Court finds the rationale set forth in Fernandez to be persuasive.The Daubert Standard

The Court relies on the rationale set forth in numerous other county court orders in which courts have conducted evidentiary hearings to determine that Mr. Spell is not competent to opine on the reasonableness of a medical provider’s charges under the Daubert standard.⁴ See e.g. Pro Imaging, Inc. (a/a/o Eddie Dingle) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 590a (Broward Cty. Ct., January 15, 2014); Coastal Radiology, LLC (Manuel Marono) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 166a (Broward Cty. Ct., August 5, 2014); Roberto Rivera-Morales, M.D. (a/a/o Fabian Mejia-Quintero) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 271b (Miami-Dade Cty. Ct., June 19, 2014); Pembroke Pines MRI, Inc. (a/a/o Ferney Calderon) v. State Farm Mut. Auto. Ins. Co., Case No. 12-21925 COCE 53 (Broward Cty. Ct., October 30, 2013); Hallandale Open MRI, LLC (a/a/o Richard Ayer) v. State Farm Mut. Auto. Ins. Co., Case No. 13-002964 CONO 73 (Broward Cty. Ct., April 7, 2014) [21 Fla. L. Weekly Supp. 837a]. The entirety of court orders striking Mr. Spell as an expert witness, as unqualified to opine on the reasonableness of medical bills, are too numerous to list herein, but it is clear that Mr. Spell’s testimony has been soundly rejected by county courts and such rulings are well-grounded in the law.

In particular, the Court relies on Judge Lee’s well written order in Pro Imaging, Inc. (a/a/o Eddie Dingle) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 590a (Broward Cty. Ct., January 15, 2014), issued after an evidentiary “Daubert” hearing, in which Judge Lee relies on the Second District’s decision in Weaver v. Corey, 111 So.3d 947, 949 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D874d], to find “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’.” Dingle, supra at 4.

Having reviewed Mr. Spell’s affidavit in this case, this Court comes to the same conclusions, and based upon the same rationale as that set forth in Dingle, supra, concludes that Mr. Spell’s opinion is not based on sufficient facts or data, nor is his testimony the produce of reliable principles and methods. “To the contrary, the opinions proffered are misleading.” As in Dingle, supra, this Court finds that Mr. Spell’s “opinions are not based upon sufficient facts or data; they are not the product of reliable principles or methods, and the witness has not reliably applied the principles and methods to the facts of this case.” Dingle, supra at 5.

Accordingly, the Court finds that Mr. Spell’s affidavit creates no question of fact as to the reasonableness of the Plaintiff’s bills because the bases of his opinion are not relevant to prove that the Plaintiff’s bills are not reasonable. Moreover, given that “reasonableness” is a range of numbers, an expert’s opinion does not create a fact question simply because the expert opines that a number lower than that charged by a medical provider is “reasonable.”

In order for a fact question to exist, an insurer must demonstrate with admissible evidence that a medical provider’s bill is not within the range of “reasonable.”

Accordingly, it is hereby

ORDERED AND ADJUDGED:

that the Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED, in part, as to all CPT Codes that State Farm’s expert, Dr. Mathesie, opines are payable. State Farm is obligated to pay 80% of the billed charges because it has not provided any opposing competent, sufficient evidence to demonstrate that those charges are not reasonable.

__________________

¹The “MarketScan” database includes a number of negotiated contract rates. Mr. Spell has acknowledged that the MarketScan information he relies on is complied solely from the insurance industry, and is comprised of only that information that the insurers desire to disclose. See DPI of North Broward (a/a/o Aquilina Ligot) v. State Farm Mut. Aut. Ins. Co., Case No. 12-5576 COCE 53 (Broward Cty. Ct., February 29, 2014).

²“PPO policies are in essence a managed care option to insurance,” in which insurers encourage policyholders to choose a “preferred” provider through economic incentives such as no copayments, lower deductibles, and higher coverage, providing a pool of patients to the preferred provider. Holy Cross, supra at 336, n.5.

³Similar affidavits have likewise been found insufficient and/or incompetent to create any fact questions with regard to the reasonableness of a medical provider’s charges. RDC Imaging Corp. (a/a/o Jean Francis Edner) v. State Farm Mut. Aut. Ins. Co., Case No. 12-17145 COCE 53 (Broward Cty. Ct., September 9, 2014)(“Ms. Bonaparte completely excludes consideration of evidence of usual and customary charges and payments accepted by the provider. Similarly, she 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.”); Miami Medical Group, Inc. (a/a/o David H. Arosteguy) v. State Farm Mut. Aut. Ins. Co., Case No. 12-21787 SP 25 (Miami-Dade Cty. Ct., December 18, 2013)(“The affidavit of Nicole Bonaparte is insufficient to create an issue of fact.”); Palm MRI Diag. Imaging (a/a/o Indira Gomez) v. State Farm Mut. Auto. Ins., Case No. 13-012944 (Broward Ct. Ct., November 21, 2013)(“Ms. Bonaparte does not qualify as an expert and her affidavit is insufficient to create a question of fact for the reasons set forth on the record.”); B&D Chiro., Inc., d/b/a Chiro. Works (a/a/o Isidora Guerrero) v. Lib. Mut. Ins. Co., 19 Fla. L. Weekly Supp. 1091a (Broward Cty. Ct., August 24, 2012)(“The Court finds that the affidavit of Nicole Bonaparte, . . ., is conclusory and self-serving, and does not create a genuine issue of material fact. . . .”).

⁴Although State Farm filed a motion for an evidentiary Daubert hearing, no such hearing is required. See Broussard v. Maples, 535 Fed. Appx. 825 (11th Cir. 2013)(“in carrying out its gatekeeping responsibility, the district court was under no obligation to hold a Daubert hearing or otherwise provide the plaintiffs with an additional opportunity to lay a proper foundation for the admissibility of Dr. Borjas’ report. . .,”), citing Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1107 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C298a](emphasizing that the proponent of expert testimony bears the “burden of laying the proper foundation for [its] admission” be demonstrating that the expert is “qualified to testify competently, that his opinions are based on sound methodology, and that his testimony will be helpful to the trier of fact.”); Placida Prof. Center, LLC v. FDIC, 512 Fed. Appx. 938 (11th Cir. 2013)(no obligation to hold Daubert hearing); Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir. 2006)(same); Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000)(no abuse of discretion in failing to hold Daubert hearing where court already had before it expert reports, deposition testimony, and expert affidavit in response to summary judgment motions).