23 Fla. L. Weekly Supp. 626a
Online Reference: FLWSUPP 2306ELBAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude partial summary judgment in favor of medical provider on issue of reasonableness of charge where affidavit provided anecdotal evidence based on what affiant charged for services at his facilities and what his peers told him they charge and did not not satisfy requirements of section 90.702 or Daubert standard
RONALD J. TRAPANA, M.D., P.A., a/a/o, David Elbaz, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 08-000831, Division 54. October 30, 2015. Stephen J. Zaccor, Judge. Counsel: James D. Underwood, Florida Advocates, Dania Beach; and Rafael I. Katz, Katz & Katz, PA, Ft. Lauderdale, for Plaintiff. Russel Kolodziej, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
This cause came before the court on October 26, 2015 on Plaintiff’s Motion for Partial Summary Judgment. This case involves orthopedic care provided by Ronald J. Trapana, M.D., P.A., (hereinafter the Plaintiff) to David Elbaz (hereinafter the Claimant) from June 13, 2007 through August 16, 2007. The Plaintiff submitted bills for the services to United Automobile Insurance (hereinafter the Defendant) who either failed to pay or paid less than the amount submitted.
After reviewing the pleadings, affidavits, and depositions, including those of Dr. Ronald J. Trapana, and Dr. David Goldberg, the evidence, the rest of the record, and after hearing argument of counsel for the parties, the court finds no issue of material fact as to the reasonableness of the charges submitted, and hereby grants Partial Summary Judgment in favor of the Plaintiff.
ANALYSIS AND FINDINGS OF FACT
The Plaintiff moves for Summary Judgment based on an affidavit of Dr. Ronald Trapana a medical doctor who is the owner of the Plaintiff facility and the person who performed the services at issue. Dr. Trapana maintains the services he provided were for injuries related to a motor vehicle accident, they were medically necessary, and that the total charge of $10,525.20 is reasonable.
Summary judgment is appropriate only when “there is no genuine issue as to any material fact. Mack v. Broward Cnty., 900 So. 2d 718, 719 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1078a]. Once the moving party carries its burden that there is no genuine issue of material fact, the burden shifts to the nonmoving party. Id.
If the movant sustains his initial burden, the opponent has the burden to come forward with counter-evidence revealing a factual issue. The movant need not exclude every possible inference that the opposing party might have other evidence available to prove his case. Should the opponent not come forward with any affidavit or other proof in opposition to a motion for summary judgment, the movant need only establish a prima facie case, whereupon the court may enter such judgment.
Page v. Staley, 226 So. 2d 129, 131 (Fla. 4th DCA 1969).
The Plaintiff satisfied its burden in this case. Dr. Trapana’s affidavit is accompanied by the billing ledger and the Health Insurance Claim Forms. It contains the basis for the charges and that other payors have authorized the same amounts for the services rendered.
A plaintiff’s prima facie showing of the reasonableness of its charges can be established by merely presenting the medical bill produced for the service at issue, along with testimony that the patient received the treatment in question. See A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e]; Iowa Mutual Nat’l Insurance. Co. v. Worthy, 447 So.2d 998, 1000 n.5 (Fla. 5th DCA 1984); Polaco v. Smith, 376 So.2d 409, 409-10 (Fla. 1st DCA 1979); State Farm Mutual Auto. Insurance. Co. v. Multicare Medical Group, Inc., 12 Fla. L. Weekly Supp. 33a, 33 (11th Cir. Court. 2004) (appellate capacity). As noted by the Fourth DCA, “[A] medical bill constitutes the provider’s opinion of a reasonable charge for the services.” A.J., 677 So.2d at 937. In the alternative, a Plaintiff may also present lay testimony from a fact witness with firsthand knowledge as to why the charge for the service was set at the rate at which it was billed. Multicare, 12 Fla. L. Weekly Supp. at 33a. A Plaintiff may, but is not required to, produce an expert witness to establish the reasonableness of its charges. Sea World of Florida, Inc. v. Ace American Insurance. Co., Inc., 28 So.3d 158, 160 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D361a]; Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2485a]; A.J., 677 So.2d at 937-38; East West Karate Assn., Inc. v. Riquelme, 638 So.2d 605, 605 (Fla. 4th DCA 1994); Multicare, 12 Fla. L. Weekly Supp. at 33a; Kompothrecas v. Progressive Consumers Insurance. Co., 8 Fla. L. Weekly Supp. 505a, 506 (Sarasota Cty. Court. 2001).
Coastal Radiology, LLC (a/a/o Jenesis Ramirez) v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 167a (Fla. Broward Cty. Ct. 2014). Dr. Trapana’s affidavit and attachments establish a prima facie case that the Plaintiff’s charges are reasonable. The Plaintiff having met its burden, it now shifts to the Defendant to bring forth admissible evidence establishing a genuine issue of material fact.
In opposition to the Plaintiff’s motion, the Defendant relies on the affidavit and deposition of Dr. David Goldberg. As Dr. Goldberg is offering his expert opinion as to the reasonableness of the Plaintiff’s charges, his testimony must satisfy Section 90.702, Florida Statutes (2013), 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.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). This Court finds Dr. Goldberg, a board certified doctor of Internal Medicine, who previously owned medical facilities and set prices for medical services, is qualified by knowledge, experience, and education. Whether he can give expert testimony regarding the reasonableness of the medical services charges turns on whether sub-sections (1), (2), and (3) are satisfied. More specifically, “the subject of an 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. In other words, Dr. Goldberg’s testimony must be genuinely scientific rather than “unscientific speculation offered by a genuine scientist.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) [25 Fla. L. Weekly Fed. C416a].
This Court finds the Defendant has not established Dr. Goldberg’s testimony satisfies Section 90.702 Florida Statutes or Daubert and its progeny. His testimony lacks evidence of sufficient facts or data, reliable principles and methods, or “scientific knowledge.” Dr. Goldberg’s affidavit provides for anecdotal evidence based on his experience, to wit: what he charged for identical services at his facilities, and what his peers in the community told him they charge. Notably, Dr. Goldberg makes no reference in his affidavit to what no-fault carriers reimburse providers in the appropriate geographic areas. This is not the sort of testimony which qualifies under Section 90.702 Florida Statutes. To the contrary, this is more akin to the “pure opinion” testimony which has been rejected by the legislature. Perez at 497; Giaimo v. Florida Autosport, Inc., 154 So.3d 385 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2484a](The Legislature’s adoption of the Daubert standard reflected its intent to prohibit “pure opinion” testimony.).
The Defendant maintains the United States Supreme Court’s decision in Kumho Tire Company, LTD. V. Carmichael allows for a more flexible application of the Daubert criteria, and that Dr. Goldberg’s opinion testimony is therefore admissible. 526 U.S. 137 (1999). Kumho Tire held all expert testimony (whether scientific, technical, or knowledge based) is subject to the Daubert criteria and the trial court has flexibility when applying the criteria as part of its gatekeeping function. Id. Kumho Tire re-iterated that the objective of Daubert analysis is to “ensure the reliability and relevancy of expert testimony.” Id at 152. It is the reliability of Dr. Goldberg’s testimony that is of concern for the court because of the methodology employed by him. His opinion testimony is grounded in his personal experience, buttressed by hearsay, more specifically informal, undocumented conversations with other health-care providers whom he cannot remember nor identify.
Additionally, Dr. Goldberg’s opinion is based upon hearsay within hearsay. He recalls his office manager attending meetings with other medical office managers who were part of a professional association. In turn, his office manager relayed to him what other office managers said they charged.
Dr. Goldberg’s testimony is not being rejected because he is not competent to testify as to what he charged for the medical services at issue and why he charged that amount. His testimony is being rejected because it lacks the reliability required by Daubert and Kumho to qualify as an Expert opinion on the reasonableness of somebody else’s charges.
Accordingly, Dr. Goldberg’s testimony cannot be considered and does not create the existence of a material fact in issue as to the reasonableness of the charges and the Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED.
