23 Fla. L. Weekly Supp. 776b
Online Reference: FLWSUPP 2307HOUSInsurance — Personal injury protection — Evidence — Expert witnesses — Proffered testimony of insurer’s expert on reasonableness of charges is inadmissible where expert’s opinions, which rely on application of Medicare Part B fee schedule and amounts expert accepts from HMOs and PPOs, are not based on sufficient facts or data and are not product of sufficient principles and methods — Proposed expert is stricken
LARRY FISHMAN, L.M.T., P.A., a/a/o LAURA HOUSTON, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-020298 COCE 50. December 14, 2015. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Stillo and Kevan Carbon, for Plaintiff. Lorty Fevry, for Defendant.
ORDER ON DAUBERT HEARING GRANTINGPLAINTIFF’S MOTION TO PRECLUDE TESTIMONY OFDEFENDANT’S EXPERT WITNESS, DR. BRADLEY SIMON
THIS CAUSE came before the Court on October 8, 2015 upon the Daubert hearing and Plaintiff’s Motion to Preclude the testimony of Defendant’s Expert Witness, Dr. Bradley Simon, D.C. Upon consideration of the Motion, supporting memoranda of law, the record, argument of counsel and being otherwise sufficiently advised in the premises, the Court hereby
FINDS, ORDERS AND ADJUDGES as follows:
1. This is an action for PIP benefits pursuant to the No-Fault Law of Section 627.736 of the Florida Statutes.
2. The sole remaining issues in this case are whether the treatment rendered by Plaintiff to Laura Houston were related to the subject automobile accident, whether the services were medically necessary, and whether the charges for said services were reasonable in price.
3. The Defendant listed Dr. Bradley Simon, D.C. as its expert witness in the case sub judice.
4. On August 21, 2015, the Defendant filed an Affidavit of Dr. Bradley Simon, D.C., in which he attests that the Plaintiff’s charges for services rendered in the instant case to Laura Houston were unreasonable.
5. The Plaintiff contends that this Court should preclude any testimony from Dr. Simon regarding the reasonableness of Plaintiff’s charges, as Dr. Simon’s opinion is not based on sufficient facts or data and is not the product of sufficient principles and methods. The Plaintiff further contends that Dr. Simon’s testimony is unreliable and inconsistent, and that Dr. Simon has failed to reliably apply the principles and methods he used to the facts of this case.
6. In the instant case, Defendant contends it reimbursed Plaintiff pursuant to the methodology contained in Fla. Stat. 627.736(5)(a)(1), but given the reason codes listed in the Explanations of Review generated by Defendant in the instant case, coupled with Bradley Simon’s testimony in which he opines that 200% of the covered amount under Medicare Part B Fee Schedule is reasonable, it is more than evident that Defendant actually reimbursed Plaintiff pursuant to the methodology contained in Fla. Stat. 627.736(5)(a)(2), i.e. 200% of the covered amount under the Medicare Part B Fee Schedule.
7. The Defendant seeks to have Dr. Bradley Simon D.C. testify at trial regarding the reasonableness of Plaintiff’s charges involved in the instant case.
8. The trial court must act as gatekeeper of expert testimony to ensure it is relevant and reliable. Kumho Tire Company Ltd., Carmichael, 119 S.Ct 1167 (U.S. 1999).
9. Florida Statutes §90.702 governs the admissibility of expert testimony in Florida. During the 2013 legislative session, the State of Florida codified the Daubert standard for determining the admissibility of expert testimony, as set forth by the United States Supreme Court in Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993).
10. The amended statute, in pertinent part, provides:
“if 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. . .”
11. Fla. Stat. §90.702 then specifies what requirements must be met in order for the testimony to pass muster under Daubert. In order for the expert testimony to be admissible under this standard, the proponent of the testimony must demonstrate that:
(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.
12. Under the standard set forth in Daubert, “[t]he trial judge has a two-part duty to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. The Daubert Court set forth a non-exhaustive list of relevant factors to consider in determining whether the methodology employed is reliable. Id. at 593-94. The factors include whether the methods can be tested, have been subject to peer review, have established or extrapolated error rates, whether standards have been established for the application of the methodology, and whether the methods are generally accepted. Id.
13. The subject of the expert’s testimony must be “scientific knowledge.” Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 498 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b], quoting Daubert at 590. “In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method.” Id.
14. It is well established that testimony comprised merely of “pure opinion” is not admissible under the Daubert standard and Fla. Stat. §90.702. Id. at 497.
15. In the instant case, Bradley Simon, D.C. testifies to the following:
I. that “as it relates to PIP insurers, during the year 2008 nearly all PIP insurers” that he has billed “for chiropractic and diagnostic services, including but not limited to Allstate, State Farm, GEICO, United Auto, USAA, Gainsco/MGA, Progressive and Infiniti, pay these services at a rate that comports to 200 % of the Medicare Part B fee schedule for the year in which the service was rendered, or 2007.”;
II. that “as it relates to HMOs,” he accepts “payments from major general health insurers such as Coventry, Humana, United Healthcare, etc., and they all pay” for his “medical services at a rate that corresponds with less than 100% of the Medicare Part B fee schedule or less for the year in question, or 2007. As it relates to PPOs,” heaccepts “payments from major general health insurers such as Blue Cross, Cigna, Aetna and United Healthcare, and they all pay for” for his “medical services at a rate that corresponds with less than 200% of the Medicare Part B fee schedule for the year in question, or 2007”;
III. that “based on the foregoing,” he is familiar with the “usual and customary charges for the services at issue” as his hispractice “provides these same services
IV. that he is also “aware of reimbursement rates in the community as it relates to all sources of payment in PIP insurers, Medicare, Medicaid, Worker’s Compensation, HMO health insurers, PPO health insurers, self-insured’s and out-of pocket/cash-pay patients”;
V. that he is also “aware of rates of reimbursement from different federal and state medical fee schedules including Medicare, Medicaid, and Worker’s Compensation,” and that “this information and methodology forms the basis both for the charges” of his practice as well the opinions he provides as to the reasonableness of Plaintiff’s charges in the instant case;
VI. that “during the time period at issue in this case,” his “practice voluntarily accepted the rates of reimbursement by the carrier in this case as full and final payment for those services”;
VII. that currently, his “practice charges and accepts payment at the rates paid by the carrier in this case as full and final payment for the same services provided here” and in his opinion those amounts represent a reasonable charge and a reasonable rate of reimbursement;
VIII. that all fees billed and paid should be based on 200% of Medicare Part B 2007, 2010 and Florida Worker’s Compensation Health Care Provider Reimbursement Manual, 2008 Edition.
IX. Dr. Simon worked at facilities which used his name in Box 31 of the HCFA Forms with charges that Dr. Simon testifies to were “unreasonable”
X. Dr. Simon’s own charges at the time the services in dispute were rendered were higher than his opinion of what a reasonable charge is in this case.
XI. Dr. Simon did not consider his own charges because they were “unreasonable”
XII. Dr. Simon did not take into consideration that the Plaintiff does not accept Medicare or health insurance.
XIII. Dr. Simon did not take into consideration 2007 reimbursements which were above 200% of Medicare because the “standard ” changed in 2008 under his interpretation of the no-fault statute.
The following are excerpts from the deposition :
THE COURT : So you worked for a chiropractic firm that charged unreasonable fees ? (page 25, line 11)
DR. SIMON : That seems to be, yes.
Q: You agree that all the insurance carriers were paying over 200 percent of Medicare in 2007 ? (p.54, line 18)
A: That’s correct.
Q: Did you take into account those reimbursements, that data in coming up with your opinion as to what a reasonable charge is ?
A: I don’t recall. I really don’t recall. It’s just confusing. . .
THE COURT : Because if you take into consideration reimbursements that the physician accepted, that’s one of the things you take into consideration in determining the reasonableness of the charge. (p 56, line 2)
DR. SIMON: . . In 2007 ?
THE COURT : Yes.
DR. SIMON: Well, I guess in 2007, it was usual and customary. And then in 2008, it changed.
THE COURT : So the standard changed?
DR. SIMON : Correct.
Q: Because your affidavit references 2008. So you would agree you excluded all reimbursements from 2007 based on what ? (p. 56, line 14)
A: Excluded reimbursements from 2007 based on what ?
Q: You said the standard changed ?
A: Well, the standard changed to fee schedule.
Q: What is your understanding of the standard ?
A: That it’s 200 percent of Medicare.
Q: Are you talking about a statute ? (p 56, line 24)
A: I think that that’s what it was.
THE COURT : Let me ask you this, under the PIP statute, if you know this, under the PIP statute, what is a reasonable charge ?
DR. SIMON : I believe it’s 200 percent of Medicare.
THE COURT : Is there a test for reasonableness under the statute that you know of ?
DR. SIMON : I don’t know the statute that well.
16. Plaintiff seeks to preclude the Defendant’s named expert, Bradley Simon, D.C., from testifying regarding the reasonableness of Plaintiff’s charges at issue in the subject case, as his testimony fails to satisfy the requirements of expert testimony put forth in Daubert and Fla. Stat. §90.702, and for the reasons further explained below.
18. The Defendant has plead that it reimbursed Plaintiff for the charges at issue in the instant case pursuant to the methodology referenced in Fla. Stat. §627.736(5)(a)(1). When determining whether a charge for a particular service is reasonable using this payment methodology, “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.” Hallandale Open MRI, LLC (a/a/o Guerda Pierre) v. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. 17th Circuit, Broward County, Cty. Ct., 2014) (Skolnik, J.) (citing Fla. Stat. §627.736(5)(a)(1)).
19. In the instant case, in reaching his conclusion that Plaintiff’s charges are unreasonable, Bradley Simon fails to take into consideration the usual and customary charges of Plaintiff, or what the Plaintiff accepts for payment for the services it renders.
20. Instead, he merely takes into consideration what hispractice was voluntarily accepting as reimbursement during the year in question and what his practice currently charges and accepts as reimbursement.
21. In determining that the Plaintiff’s charges in the instant case were unreasonable, at no time does Dr. Simon take into consideration what the usual and customary charges in the community are of providers rendering the same medical services as Plaintiff. Similarly, Dr. Simon excluded his own charges and the charges of facilities he worked at.
22. Dr. Simon’s testimony constitutes “pure opinion” testimony that the Perez Court held is expressly prohibited, as it is not based on “scientific knowledge,” and fails to take into consideration the factors outlined in Fla. Stat. §627.736(5)(a)(1).
23. Courts have refused to consider expert testimony similar to that of Dr. Simon’s in the instant case when the testimony lacked evidence that the opinion was either based on sufficient facts or data, the product of reliable principles and methods, or was scientific knowledge. Millenium Radiology, LLC d/b/a Millenium Open MRI, a/a/o Roberto Diaz v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1100a (Fla. 17th Circuit, Broward County, Cty. Ct., 2015) (Zaccor, J.) (Court refusing to consider testimony of Dr. Edward Dauer, M.D. regarding reasonableness of Plaintiff’s charges when affidavit provided for anecdotal evidence based on what he charges, what hospitals charge, and what his peers in the community have told him they charge).
24. Further, various Broward County courts have previously found Dr. Simon’s testimony, on the issue of reasonableness of charges, to be insufficient. See Priority Medical Centers LLC (a/a/o Theresa Sanatass) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 858a (Fla. 17th Circuit, Broward County, Cty. Ct., 2015)(Lee, J.); Xtreme Chiropractic & Rehab Inc. (a/a/o Jeena Park) v. State Farm Mutual Automobile Insurance Company, Case No: 12-5544 COCE (53) (unpublished) (Fla. 17th Circuit, Broward County, Cty. Ct., February 27, 2014)(Lee, J.); Douglas Rapid Rehabilitation, Inc (a/a/o Nicole Bowen) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 816a (Fla. 17th Circuit, Broward County, Cty. Ct., 2014)(Schiff, J.).
25. One reason these Courts have held Dr. Simon’s expert testimony on reasonableness inadmissible is because he relied on the reimbursement amounts of the Medicare Part B and Worker’s Compensation fee schedules, and Defendant has plead that it issued payment pursuant to Fla. Stat. §627.736(5)(a)(1), rather than (5)(a)(2), which would only then implicate the Medicare Part B and Worker’s Compensation fee schedules. Margate Pain and Rehabilitation, Inc. a/a/o Michael Olivera v. State Farm Mutual Automobile Insurance Company, 13-12292 COCE 53 (unpublished decision) (Fla. 17th Circuit, Broward County, Cty. Ct., 2015)(Lee, J.). For the same reason, this Court should exclude the expert testimony of Bradley Simon, D.C. as to reasonableness.
26. In Olivera, the Court held that the expert testimony of Bradley Simon, D.C. regarding reasonableness of charges was inadmissible. In that case, the Honorable Robert Lee held that Dr. Simon’s methodology was flawed, since the policy involved did not incorporate the optional reimbursement methodology contained in Fla. Stat. §627.736(5)(a)(2). In this case, Dr. Simon similarly relies on the optional reimbursement methodology contained in Fla. Stat. §627.736(5)(a)(2), i.e. the Medicare Part B fee schedule reimbursement amount, to reach his determination of what he thinks a reasonable charge should be.
27. The relevant inquiry is the reasonableness of Plaintiff’s charges, not the Defendant’s reimbursements. Id. See also Windsor Imaging a/a/o Roneil Morris v. State Farm Mutual Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Fla. 17th Circuit, Broward County, Cty. Ct., 2011)(Lee, J.)
28. Moreover, this Court has held “it is undisputed that Medicare is not insurance.” Hallandale Open MRI, LLC (a/a/o Guerda Pierre) v. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. 17th Circuit, Broward County, Cty. Ct., 2014) (Skolnik, J.). The fact that Medicare pays less than Plaintiff’s charge “does not mean the Plaintiff’s charge is unreasonable without any additional evidence.” Id.
29. Besides Dr. Simon’s methodology being flawed regarding his reliance on the Medicare Part B fee schedule, he also cites to his knowledge regarding the reimbursement that he accepts from HMOs and PPOs. Courts, including this one, have held that the mere fact that HMOs and PPOs pay less does not mean Plaintiff’s charge is unreasonable. Id. See also Millenium Radiology, LLC d/b/a Millenium Open MRI, a/a/o Roberto Diaz v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1100a (Fla. 17th Circuit, Broward County, Cty. Ct., 2015) (Zaccor, J.) (Court holding that negotiated contract rates, i.e. HMOs and PPOs are not relevant unless the insurer and provider in suit have entered into such a contract).
30. Other Courts have struck experts when the experts failed to consider sufficient facts and data when formulating their opinion, as Dr. Simon has clearly done in this case. See Millennium Radiology LLC. d/b/a Millennium Open MRI (Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward County, Cnty. Ct. 2013)(Lee, J.) (Court struck Adjuster Monica Johnson. Judge Lee stated: “Ms. Johnson completely excludes consideration of evidence of usual and customary payments 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 only whatever supports her opinion.”
31. The Plaintiff has also contended that this Court should preclude Dr. Simon from testifying as to the reasonableness of Plaintiff’s charges because his testimony is unreliable and inconsistent.
32. In Priority Medical Centers LLC (a/a/o Theresa Sanatass) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 858a (Fla. Broward County, Cnty Ct., 2015)(Lee, J.). Dr. Simon, in the form of an affidavit, opined that the maximum reasonable charge was 150% of Medicare Part B fee schedule. Plaintiff’s counsel highlighted the fact that Dr. Simon’s opinion on what constitutes a reasonable charge had varied within the course of a year “an astounding 50% (from 200% of Medicare to 150% of Medicare) and could not possibly be the result of reliable principles and methods.” Id. See Xtreme Chiropractic & Rehab Inc. (a/a/o Jeena Park) v. State Farm Mutual Automobile Insurance Company, Case No: 12-5544 COCE (53) (unpublished) (Fla. 17th Circuit, Broward County, Cty. Ct., February 27, 2014)(Lee, J.) (Dr. Simon opined that 200% of Medicare Part B fee schedule was maximum reasonable amount). Dr. Simon was excluded by Judge Lee as a witness in both cases.
33. Similar to the Plaintiff in Olivera, the Plaintiff in this case was not a Medicare, Medicaid, or Worker’s Compensation provider, and was not a participant in any HMO or PPO managed care plans, unlike Dr. Simon’s office.
34. Therefore, any consideration Dr. Simon gave to these reimbursement methods is not relevant, as it does not relate in any way to Plaintiff’s usual and customary charges.
35. Plaintiff further contends that this Court should preclude Dr. Simon from testifying as to the reasonableness of Plaintiff’s charges because Dr. Simon has failed to reliably apply the principles and methods he utilizes to formulate his ultimate opinion to the facts of this case. Dr. Simon testifies that “fees billed and paid” should be based on 200% of Medicare Part B fee schedule for 2010 or 2007, whichever is greater. Bradley Simon testifies that the Defendant’s reimbursement in this case was reasonable. However, based on his methodology, a reasonable reimbursement from Defendant would be 200% of Medicare Part B fee schedule. Plaintiff billed CPT Code 99201 and CPT Code 97124. The amount that Dr. Simon considers reasonable is the amount Defendant paid, i.e. $81.00 for CPT Code 99201 and $47.18 for CPT Code 97124. This flies in the face of his assertion that all fees billed and paid should be based on 200% of Medicare Part B fee schedule, since 200% of the covered amount under the Medicare Part B Fee Schedule for the year in question (2010) is $81.38 for CPT Code 99201 and $47.44 for CPT Code 97124. Dr. Simon’s testimony is unreliable and cannot be trusted. This is illustrated by his failure to correctly utilize, with any degree of accuracy, the exact payment methodology he is relying on to formulate his expert opinion regarding the reasonableness of Plaintiff’s charges.
36. Plaintiff also argues and the Court agrees that Dr. Simon’s opinion is based on a faulty interpretation of the applicable statute which he testified mandates a standard of “200% of Medicare” to determine reasonableness.
37. As a result, for the foregoing reasons, the Court finds that, as applied to the issue in this case, Dr. Simon’s opinions are not based on sufficient facts or data and are not the product of sufficient principles and methods. Further, the witness has not reliably applied the principles and methods to the facts of this case. For these reasons, Dr. Simon’s proffered testimony fails to satisfy the requirements of Daubert and Fla. Stat. §90.702 regarding the admissibility of expert testimony. Therefore, Dr. Simon is stricken as an expert on the issue of reasonableness of the Plaintiff’s charges.
