23 Fla. L. Weekly Supp. 560a
Online Reference: FLWSUPP 2306ABREInsurance — Personal injury protection — Expert witness — Insurer’s actuary is not qualified to render opinion on reasonableness of medical charges where proposed witness has no experience in pricing of medical services and his opinion is based on data that includes factors, such as Medicare and workers’ compensation fee schedules, that are irrelevant to determining whether PIP charges are reasonable
BETTER REHAB CENTER, INC. (a/a/o Roidel Abreu), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-0275 CC 24. August 7, 2015. Donald J. Cannava, Judge. Counsel: Charles Hubley, Patiño Law Firm, Hialeah, for Plaintiff. Jessica Martin, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER ON PLAINTIFF’S MOTIONTO STRIKE/REQUEST FOR DAUBERTHEARING REGARDING DARRELL SPELL
THIS CAUSE, having come before the Court for hearing regarding Plaintiff’s Motion to Strike/Request for Daubert Hearing Regarding Darrell Spell, and the Court, having reviewed the pleadings, evidence, and motions, and being otherwise duly advised, the Court Finds and Orders as follows:
Defendant, in its expert witness disclosure, has listed Darrell Spell as a witness who would render expert testimony as to the reasonableness of Plaintiff’s charges. Plaintiff contends that Mr. Spell does not have the necessary qualifications to render an expert opinion as to the reasonableness of Plaintiff’s charges, as required by Fla. Stat. §90.702. Plaintiff further contends that the purported opinions of Mr. Spell are not based on sufficient facts or data, not the product of reliable scientific methods and not reliably applied to the facts of this case as required by both the evidence code and the Florida Motor Vehicle No Fault Act, Fla. Stat. §627.736(5)(a), which outlines the factors to be considered in disputes over pricing. As such, Plaintiff seeks an Order from this Court precluding Mr. Spell from testifying at trial in this matter.
The admissibility of expert testimony is governed by Florida Statutes §90.702 (2013) which, in July 2013 was amended to adopt the standard established by the United States Supreme Court in Daubert v. Merrel Dow, 509 U.S. 579 (1993). The amended statute, in pertinent part 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 Plaintiff has requested that the Court have a hearing on this matter. While Daubert hearings may be helpful in complex cases with multiple expert witnesses, they are not required. See U.S. v. Hansen, 262 F.3d 1217 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C1186a]. The Court has now had an opportunity to listen to Mr. Spell’s methods and background in two other separate cases (one a Daubert hearing and the other as a proffer or testimony prior to trial) and has had an opportunity to review the information presented by the Defendant in this case including Mr. Spell’s reports. The hearings included extensive live testimony by Mr. Spell for over two (2) hours. As such the Court will rule on Mr. Spell’s qualifications and testimony without an additional hearing.
The statute clearly has a two-step analysis. The first step is to determine whether the expert is qualified by knowledge, skill, experience, training, or education in the particular area. The next step focuses on the expert’s analysis of the data.
First, it is certain that Mr. Spell is not a physician or medical provider. He has no experience in the medical field as it relates to pricing of medical services. He has never been employed by a medical provider. He admittedly has never set pricing of medical services in this community or any other, and has no training or experience in running a medical facility. While he may have training as an insurance actuary, which essentially allows him to calculate and analyze risks for insurance companies, he simply lacks the qualification to testify to usual and customary rates charged and accepted by medical providers in this or any other community. This Court is not alone in finding that Mr. Spell is not able to testify in this manner.
Mr. Spell has been routinely rejected as an expert witness on medical pricing by this Court previously and numerous trial courts throughout Florida. See State Farm v. Florida Wellness and Rehab. Center, Inc. CACE13-022796 (AP) (Fla. 17th Circ. Broward County, Appellate Division, June 3, 2015) [23 Fla. L. Weekly Supp. 88a]. Shenandoah Chiropractic, P.A. v. State Farm Mutual Auto. Ins. Co., Case. No. 12-1439 COCE 53 (Broward Cty. Ct. 2014) (Lee, J.); Coastal Wellness Center, Inc. v. State Farm Mutual Auto. Ins. Co., Case No. 12-1428 COCE 53 (Broward Cty. Ct. 2014) (Lee, J.); Pro Imaging, Inc. a/a/o Eddie Dingle v. State Farm Mutual Auto Ins. Co., Case No. 12-1850 COCE 54 (Broward Cty. Ct. 2014) [21 Fla. L. Weekly Supp. 590a] (Lee, J.); New Smyra 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. Co., 19 Fla. L. Weekly Supp. 595b (Broward Cty. 2012) (Pratt, J.); Nadal Medical Center, Inc. v. Dairyland Ins. Co., 14 Fla. L. Weekly Supp. 895a (Hillsborough Cty. Ct. 2007) (Fernandez, J.); Millenium Diagnostic Imaging Center, Inc. v. Progressive Auto Pro. Ins. Co., 14 Fla. L. Weekly Supp. 795c (Miami-Dade Cty. Ct.) (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.).
Furthermore, Mr. Spell is an actuary, who is who compiles and analyzes statistics for insurance companies. Decisional precedent from Florida’s Second District Court of Appeal has held that the act of merely tabulating totals and doing math is not the province of an “expert” opinion. Weaver v. Corey, 111 So.3d 947, 949 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D874d].
Even assuming that Mr. Spell were to be qualified, his data is not sufficient. When determining the reasonableness of the prices in a No Fault Case, Courts may consider several factors in determining a reasonable price. See Fla. Stat. 627.736(5)(a). The Court may consider the usual charges from this provider, usual amounts accepted by the provider, customary charges in the community, as well as state and federal fee schedules related to automobile and other insurance, and other information the Court may find relevant. It is discretionary with the Court to determine whether the data sources or information to deem relevant.1
From hearings with Mr. Spell and in reviewing his analysis, Mr. Spell’s opinion is based upon data which includes certain factors that this Court, and other courts, have found to be irrelevant in determining whether a personal injury protection charge is reasonable, including Medicare2 and Workers Compensation plans3. As such, Mr. Spell’s complex actuary analysis includes non-relevant factors that are not easily extracted.
Accordingly, the Court hereby strikes Darrell Spell as an expert witness on the pricing of the medical services for the reasons stated above.
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1 Progressive Auto. Pro. Ins. Co. v. Dr.’s Pain Mgmt. (a/a/o Dalon Finley),14 Fla. L. Weekly Supp. 1010a (Fla. 9th Circ. Appellate, 2007), (“The sentence begins, ‘With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given . . . .’ § 627.736(5)(a), Fla. Stat. (2005) (emphasis added). The statute states that the trial court may consider such evidence; not that it must do so.”)
2“Medicare Fee Schedules are not relevant in PIP cases, and should not be used.” 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). American Risk Assurance Company v. Benrube, 407 So.2d 993 (Fla. 3d DCA 1982) (Medicare is a social welfare program and is not an insurance or reimbursement plan within the ordinary meaning of these terms); See also, Atkins v. Allstate Insurance Company, 382 So.2d 1276 (Fla. 1980) (Medicare is a social welfare program enacted by Congress to aid general welfare but cannot be analogized to any type of medical insurance program or medical reimbursement plan).
3“Negotiated rate contracts offer many incentives to medical providers in exchange for accepting lower reimbursements. . . .” McGowan Spinal Rehab (a/a/o Jaynell Cameron) vs. State Farm, 23 Fla. L. Weekly Supp. 52a (Fla. 4th Cir., Shore, J., October 14, 2014). See also Sirker v. State Farm Mut. Auto. Ins. Co., 21 Fla L. Weekly Supp. 1069a (Fla. 17th Circ., May 19, 2014); Craig A. Newman, D.C., P.A. a/a/o Tera Mangan v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1091a (August 13, 2013); and, Manuel V. Feijoo M.D. & Manuel V. Feljoo, M.D.P.A. a/a/o Elias Leoni v. United Automobile Ins. Co., 13-12281 SP 25 (Fla. 11th Circ.).
