23 Fla. L. Weekly Supp. 371a
Online Reference: FLWSUPP 2304CHARInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Affidavit filed by insurer in opposition to motion for summary judgment is rejected where affiant failed to establish his relationship to geographical area at issue, referred to table not attached to affidavit, rendered opinion on reasonableness of charges that directly contradicted his opinion in another PIP suit, used flawed methodology, and opined that charges were irrelevant
NORTH MIAMI THERAPY CENTER, INC. (A/A/O NIKITA CHARLES), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-009935 COCE (53). July 17, 2015. Robert Lee, Judge. Counsel: Susan Guller, The Law Offices of Justin G. Morgan, P.A., Weston, for Plaintiff. Omar Giraldo, Cole, Scott & Kissane, P.A., Plantation, for Defendant.
ORDER ON PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE CAME BEFORE THE Court on June 29, 2015, upon Plaintiff’s Motion for Final Summary Judgment, and the Court having reviewed the pleadings, having heard argument of counsel, and being otherwise duly advised in the premises, it is hereby:
ORDERED AND ADJUDGED, as follows:
1. The Court defers ruling on said Motion until after the deposition of Dr. Robert Gordon. After said deposition on the sole issue described below, the Court will only consider only Dr. Gordon’s deposition testimony.
2. The affidavit of Dr. Bradley I Simon, D.C. filed in opposition to Plaintiff’s Motion for Summary Judgment is hereby rejected in its entirety for the following reasons:
a. Dr. Simon fails to establish any geographical relationship to Miami-Dade County or set forth a foundation that he may have to opine as to charges in Miami-Dade County since Miami-Dade County is considered a separate geographical area, for purposes of medical charges, than Broward County, the only County Dr. Simon attests to have knowledge.
b. Dr. Simon refers to a table that is not attached to his Affidavit in Opposition to Plaintiff’s Motion for Final Summary Judgment.
c. Dr. Simon opines that 200% of Medicare Fee Schedule is reasonable, which directly contradicts his prior testimony that a maximum cap of 150% of Medicare Fee Schedule in another case in which he filed an Affidavit in 2015 in another PIP suit before this Court in an attempt to defeat a Plaintiff’s Motion for Final Summary Judgment, that being the case of Priority Medical Centers, LLC (a/a/o Theresa Sanatass) v. State Farm Mutual Automobile Insurance Company, Case No. COCE 13-00508 (53) [22 Fla. L. Weekly Supp. 858a].
d. Dr. Simon’s testimony that 200% of Medicare Fee Schedule is the maximum charge is rejected.
e. Dr. Simon’s methodology is flawed in that it relied upon the fact that for years many providers accepted 200% of Medicare Fee Schedule prior to the Supreme Court of Florida holding that they were not required.
f. Dr. Simon is not opining that the charges of Plaintiff are unreasonable but that they are irrelevant. However whether Plaintiff’s charges are reasonable is the question that would be presented to a jury in this PIP suit and the jury will be instructed on the charges of Plaintiff as to their reasonableness or lack thereof.
3. The deposition of Dr. Robert Gordon shall take place before July 31, 2015, the date of the mandatory pre-trial conference, with the only issue as to his charges for the services as compared to the charges that occurred in this case. If Dr. Gordon’s charges are different than Plaintiff’s charges, then and only then can Defendant inquire as to reimbursements of Dr. Gordon.
4. Plaintiff is hereby ordered to reset Plaintiff’s Motion for Summary Judgment at least ten (10) days after the deposition of Dr. Robert Gordon.
5. This Honorable Court will not consider any other issues at Plaintiff’s Continued Motion for Summary Judgment.
6. The continued hearing on Plaintiff’s Motion for Summary Judgment shall be rescheduled no sooner than ten (10) days following Dr. Gordon’s deposition.
