23 Fla. L. Weekly Supp. 488a
Online Reference: FLWSUPP 2305LONGInsurance — Personal injury protection — Evidence — Expert witnesses — Where insurer’s proposed expert regarding reasonableness of charges considered only what he personally accepts from insurer that pays him pursuant to Medicare and health insurance fee schedules in forming his opinion, expert’s opinion is not based on sufficient facts or data and not product of reliable principles and methods — Proposed expert is precluded from testifying
RANDY ROSENBERG, D.C., P.A. a/a/o Louis P. Longobardi, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 13-5882(72). July 9, 2015. Honorable Jill K. Levy, Judge. Counsel: Benjamin G. Partlow, Topkin & Partlow, P.L., Deerfield Beach, for Plaintiff. Kyle Mixon, Matt Hellman, P.A., Plantation, for Defendant.
ORDER ON PLAINTIFF’S DAUBERT MOTION
THIS CAUSE having come before the Court on Plaintiff’s Daubert Motion to determine the admissibility of Dr. Michael Mathesie’s expert testimony, and the Court having heard argument of counsel, having reviewed Mr. Mathesie’s affidavits and deposition testimony filed in this cause, and otherwise being fully advised in the premises, makes the following findings:
1. A Daubert hearing was held on May 15, 2015 on Plaintiff’s Daubert Motion to determine the admissibility of Dr. Michael Mathesie’s expert testimony concerning the reasonableness of the charges. Plaintiff contends that Dr. Mathesie’s opinion is not based upon sufficient facts or data. The Plaintiff further contends that Dr. Mathesie has not reliably applied the principles and methods to the facts of this case and further that his opinion is not relevant.
2. The Court reviewed Dr. Mathesie’s seventeen (17)-page affidavit filed on August 13, 2014, his three (3)-page clarifying affidavit filed on September 8, 2014 as well as Dr. Mathesie’s deposition filed on April 1, 2015.
3. The admissibility of expert testimony is governed by Florida Statute §90.702 (2013), Daubert v. Merrell Dow, 509 U.S. 579 (1993). The statute states:
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 amended by the Florida Legislature to adopt the Daubert standard relating to all expert witness testimony. Kumho Tire v. Carmichael, 526 U.S. 137 (1997). The proponent of the evidence has the burden to show that the evidence is relevant and reliable by a preponderance of the evidence. Lewis v. Citgo, 561 F.3d 698 (7th Cir. 2009). Under the amendments, a party faces a greater burden in presenting expert opinion that it did under the former law. See F.S. §97.704 (2013). In adopting the Daubert standard, the legislature expressed its intent to “prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007) [32 Fla. L. Weekly S750a].
4. Under the Daubert analysis, the court should first consider (1) whether the expert is qualified. Courts should consider the knowledge, skill, experience, training and expertise. Chavez v. State, 12 So.3d 199 (Fla. 2009) [34 Fla. L. Weekly S383a]. (2) Whether the evidence is relevant and (3) whether the evidence is reliable. The U.S. Supreme Court in Daubert set forth a non-exclusive list of factors for a court to consider in determining the reliability or methodology used by an expert. The list includes, 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 at 596. Id. The court’s role as a “gatekeeper” is to ensure that an expert’s testimony is relevant and reliable. Daubert at 590, Kumho at 147. Id.
5. Dr. Mathesie opined in both his affidavits and deposition that “it is his opinion that the amount allowed and paid by State Farm (Defendant) was reasonable.” His “opinion is based on his clinical practice of 24 years (as a chiropractor), and his experience with reimbursements from various Health Maintenance Organizations (HMO’s), Preferred Provider Organizations (PPO’s), Private Health Insurers, PIP carriers, and consideration given to various State and Federal Fee schedules. In his clinical practice of 24 years, he accepts the amount allowed by State Farm as full payment for covered services for patients covered by State Farm personal injury protection, and considers this fee schedule of reimbursement reasonable.” (Dr. Mathesie affidavit p.8 and clarified affidavit p.3)
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 out of an automobile accident. Pursuant to F.S. §627.736(5)(a)(1), in determining a reasonable charge, “consideration may be given of the 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. While it is this Court’s opinion that Dr. Mathesie qualifies as an expert and his testimony is relevant, this Court is of the opinion that the methodology by which Dr. Mathesie reached his conclusions is not “based upon sufficient facts or data” and not “the products of reliable principles and methods” as required by F.S. §90.702 (2013). The only consideration Dr. Mathesie gave in forming his opinion is what he personally accepts as reimbursement from the defendant who pays him per the Medicare and health insurance fee schedule. Since he accepts payment per the fee schedules, the Plaintiff’s charges are not reasonable. None of the factors listed in F.S. §627.736(5)(a)(1) were considered other than the Medicare and health insurance fee schedules. State Farm v. Imaging Center of Pensacola, Inc., 21 Fla. L. Weekly Supp 979a (Fla. Cir. Ct. 1st Jud. Circuit 2014), Precision Diagnostic Inc. v. State Farm Mutual Auto Ins. Co., 22 Fla. L. Weekly Supp. 481a (Fla. 17th Jud. Cir. Oct. 14, 2014). As such, the Court finds that Dr. Mathesie’s opinion testimony is not admissible. It is therefore,
ORDERED AND ADJUDGED that Dr. Michael Mathesie is precluded from testifying at trial on reasonableness.
