23 Fla. L. Weekly Supp. 60a
Online Reference: FLWSUPP 2301PANInsurance — Personal injury protection — Expert witness — Insurer’s actuary is not qualified to render opinion on reasonableness of MRI charge where actuary has no experience and knowledge concerning operation of medical provider and his opinions will not assist trier of fact, are not relevant to ultimate resolution of issues in case, are not based on sufficient facts or data, and are not product of reliable principles and methods
PAN AM DIAGNOSTIC SERVICES INC., Plaintiff(s), vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-005921-O. April 16, 2015. Tina L. Caraballo, Judge. Counsel: Crystal L. Eiffert, Eiffert & Associates, P.A., Orlando, for Plaintiff. Brooke Boltz, for Defendant.
ORDER ON DAUBERT HEARING REGARDINGDEFENSE EXPERT WITNESS DARRELL SPELL
THIS MATTER came before the Court on April 8, 2015, upon Plaintiff’s Motion to Strike Defendant’s Expert Witness Darrell Spell. Upon consideration of the competing motions, testimony, argument of counsel and being otherwise fully advised, the Court hereby
FINDS, ORDERS AND ADJUDGES as follows:
1. The Plaintiff, in essence, contends that Mr. Spell’s opinions are not based on sufficient facts or data, and they are not the product of reliable principles and methods. The Plaintiff further contends that Mr. Spell has not reliably applied the principles and methods to the facts of this case. Finally, the Plaintiff argues that Mr. Spell has routinely been rejected by trial courts throughout Florida as an expert on the issue of pricing of medical services.
2. The admissibility of expert testimony is governed by Florida Statutes §90.702, which 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, 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 statute was recently amended by the Florida Legislature to adopt the Daubert standard relating to expert witness testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under the amendments to the Florida expert opinion law, a party faces a greater burden in presenting expert opinion than it did under the former law. Under the new law, the proponent of the opinion must demonstrate to the court that the expert’s opinion is “based upon sufficient facts or data.” Id. The trial court’s role is “gatekeeper” to ensure that an expert’s testimony is relevant and reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). The Daubert Court set forth a non-exclusive list of factors for a court to consider in determining the reliability of the methodology used by the expert, including, i) whether the expert’s technique or theory can be or has been tested; ii) whether the technique or theory has been subject to peer review and publication; iii) the known or potential error of the technique or theory when applied; and iv) whether the technique or theory has been generally accepted in the scientific community. Daubert, 509 U.S. at 593-95. Finally, it is not the role of the courts to make ultimate conclusions as to the persuasiveness of the proffered evidence. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C366a](citations omitted). Instead, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
3. The opinions Mr. Spell is proposing to offer at trial based on his affidavit are in essence that Plaintiff’s billed amount far exceeds the allowed medical payments as a percentage of Medicare, worker’s compensation medical claims and New Jersey’s fee schedule. He further opines that the amount State Farm Mutual Automobile Insurance Company reimbursed Plaintiff exceeds the reimbursement levels of Medicare. Defendant argued that Mr. Spell is being offered solely to inform the jury on the reimbursement rates paid by Medicare in concert with its other proposed expert that will opine directly on the PIP provider rates.
4. In formulating his opinions, Mr. Spell relied on his experience in working in the insurance industry since 1982 and a review of multiple data sources including specifically, the MarketScan Research Database, the Medicare Physician Fee Schedule, the Florida Worker’s Compensation Schedule, and the New Jersey Physician Fee Schedule.
5. While there is no question that Mr. Spell is an experienced and well-spoken consulting actuary with underlying training in mathematics, there is also no question that Mr. Spell has no experience and knowledge concerning the operation of a medical service provider, such as the MRI provider involved in this case and that his opinions will not assist and are not relevant to the ultimate resolution of the issues in this case.
6. The Florida Legislature has set forth what may be considered in determining whether a charge for a medical service is reasonable for purposes of personal injury protection benefits arising from an automobile accident. Pursuant to Fla. Stat. §627.736(5)(a)(1), in determining a reasonable charge, “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.”
7. Mr. Spell acknowledges that the information he relies on is compiled solely from the insurance industry. He also notes that it includes claims “under a variety of fee-for-service, fully capitated, and partially capitated health plans, including preferred and exclusive provider organizations, point of service plans, indemnity plans, health maintenance organizations and consumer-directed health plans.” In reaching his opinions, however, Mr. Spell screened out what he terms “inappropriate data,” including capitated claims. Significantly, he is unable to provide any information to what extent any of this data specifically involves automobile accident claims, whether it be PIP or Medpay. Central to the majority of insurance plans providing data to the Marketscan database is payment to medical providers who are under contract to receive a stream of business in exchange for contractual acceptance of a lower fee for services. Under Florida law, no such scheme is in place for PIP claims. Indeed, because there are no contractual providers available under PIP policies, as well as no preapproval procedures, a provider providing treatment to those injured in automobile accidents faces the real risk that the provider may well not be paid — a far more substantial risk than a provider accepting a lower contractual amount under an insurance policy for the non-automobile accident case.
8. Mr. Spell relies on statistics involving payment rates supplied by insurers only, without explaining why this information is reliable for all types of claims 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. This is all the more noteworthy when one considers that payments from anyone else other than insurers are completely excluded from Mr. Spell’s calculation. It is also fairly common knowledge that many, if not most, insurance plans have a co-payment on the part of the patient, and there is no analysis in Mr. Spell’s affidavits or proffered testimony as to how this co-payment affects the insurer’s decision.
9. The act of tabulating totals and doing math, as Mr. Spell has done in this case, is not the province of an “expert.” See Weaver v. Corey, 111 So. 3d 947, 949 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D874d].
10. As a result, the Court finds that the Defendant has not demonstrated to this Court that the proffered opinion is based upon sufficient facts or data, nor that the testimony is the product of reliable principles and methods. To the contrary, the opinions proffered are clearly misleading. The Court further finds that, as applied to the issue in this case, Mr. Spell’s opinions are not based upon sufficient facts or data; they are not the product or reliable principles and methods; and the witness has not reliably applied the principles and methods to the facts of this case.
Therefore, Mr. Spell is precluded from testifying at trial.
