23 Fla. L. Weekly Supp. 768a
Online Reference: FLWSUPP 2307RAMOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charges where affiant’s opinion is not based on sufficient facts or data, is not product of reliable principles and methods and is based on hearsay rather than first-hand knowledge and affiant did not apply principles and methods reliably to facts of case
MILLENNIUM RADIOLOGY LLC (a/a/o Lisset Rodriguez Ramos), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 13-12617 SP 23 (4). September 22, 2015. Jason Emilios Dimitris, Judge. Counsel: Yigal D. Kahana, for Plaintiff. Luis Perez, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
This matter came before the Court on September 21, 2015, after due notice to the parties, on the Plaintiff’s motion for Final Summary Judgment. Having read the motion, considered the argument of counsel present, reviewed all the applicable documents in the Court file, and those presented at the hearing by the attorneys, and having reviewed the evidence and case law provided by the attorneys and being otherwise advised in the premises, the Court GRANTS the Plaintiffs Motion for Summary Judgment, finding as follows:
On April 23, 2015, this Court entered an agreed order granting Plaintiff’s motion for summary judgment regarding the medical necessity and relatedness of the MRI studies at issue in this case. The parties also agreed that Defendant made a benefits payment of $1987.89 to Plaintiff for the services at issue. Thus, the only remaining issue for this court to decide is whether the Plaintiff’s charge of $2150.00 for each of two MRIs (CPT Codes 72141 and 73221) provided to the assignor on the date of service, April 4, 2013, in Miami Dade County, Florida, was “reasonable.”Analysis and findings of fact
The Plaintiff filed its medical bills with the affidavit of Mrs. Roberta Kahana, a fact witness, to show that the Plaintiff’s charge was reasonable for the services at issue, where and when they were rendered. The Defendant filed the affidavit of Dr. Edward Dauer, to show that Plaintiff’s charge was not reasonable for the services at issue, where and when they were rendered.
Pursuant to Fla. Stat. §90.702(1)(2013), the party presenting expert opinion must demonstrate to the court that the expert’s opinion is based upon sufficient facts or data, and the testimony is the product of reliable principles and methods which the witness has applied reliably to the facts of the case. See Pan Am Diagnostic Services, Inc. vs. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 200a (Broward County, 2013).Findings of law
The affidavit of Roberta Kahana, with its accompanying attachments, shows a substantial connection with Miami Dade County and is admissible evidence that the Plaintiff’s charge was reasonable, for the services at issue where and when they were rendered. The Plaintiff has carried its burden of proof in this case.
The affidavit of Dr. Dauer had no attachments and fails to show sufficient nexus to Miami Dade County, and fails to establish that he has any experience or qualifications in the geographic region in which the services at issue were rendered, Miami-Dade County. Because charges and reimbursements for medical services vary widely throughout the State of Florida based on the location of the provider, it is crucial for an expert to establish the geographic applicability of the opinion the expert is giving. Therefore, the Court concludes it was incumbent on Dr. Dauer to explain what data he relied upon, and how any data used as the basis of his opinion on pricing could apply to the pricing of medical services in Miami-Dade County when the services at issue were provided. This he did not do. As such, the court rejects his “expert” opinion and his opinion will be considered as that of a lay witness by this court. As a lay witness, Dr. Dauer provided no evidence of having firsthand knowledge of MRI charges in Miami Dade County, and his affidavit cites only to hearsay regarding charges for MRI services in Miami Dade County.
Dr. Dauer’s affidavit fails to meet the requirements of admissibility. His opinion is not based upon sufficient facts or data, is not the product of reliable principles and methods, he did not apply any principles and methods reliably to the facts of this case, and he based his opinion on hearsay, not firsthand knowledge. This court finds that, based on Dr. Dauer’s affidavit, there is simply no competent admissible evidence to create a triable issue that the charged amount was unreasonable. A conclusory affidavit of a party is insufficient to create a disputed issue of fact. Master Tech v. Mastec, 49 So.3d 789, 791 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2381a]. A party does not create a disputed issue of fact by merely stating factual conclusions. Id. Dr. Dauer’s testimony is not “based upon sufficient facts or data,” and is not the “product of reliable principles and methods,” as required by Florida Statutes §90.702 (2013). For the reasons stated above, Defendant has not come forward with any admissible evidence demonstrating that the Plaintiffs charge for the MRIs provided to the assignor was unreasonable, so there is no genuine issue of material fact in this case. Therefore it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED. Final Judgment be and the same is hereby entered in favor of the Plaintiff, MILLENNIUM RADIOLOGY, LLC., as assignee of Lisset Rodriguez Ramos, against the Defendant, State Farm Mutual Automobile Insurance Company, whose address is One State Farm Plaza, Bloomington, IL 61710, in the total amount of $1,452.11 ($2,150 x 2 = $4,300; $4,300 @ 80% = $3,440.00, less prior payment of $1,987.89 = $1,452.11), plus applicable prejudgment and post judgment interest, for which let execution issue forthwith.
The Court hereby expressly reserves jurisdiction of those issues related to prevailing party attorney’s fees and costs in favor of Plaintiff.
ORDERED AND ADJUDGED:
That Plaintiffs Motion for Final Summary Judgment is GRANTED.
