23 Fla. L. Weekly Supp. 785a
Online Reference: FLWSUPP 2307MOREInsurance — Personal injury protection — Evidence — Expert witnesses — Proffered testimony of insurer’s expert on reasonableness of charges is inadmissible where expert’s opinions, which are not based on factors set forth in section 627.736(5)(a)1, are not based on sufficient facts or data and are not product of sufficient principles and methods — Proposed expert is stricken
TOTAL HEALTH CARE OF FLORIDA, INC. a/a/o SANDRA MOREFIELD, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-020942 COCE 50. December 14, 2015. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Roland Stillo and Kevan Carbon, for Plaintiff. Michael B. Chackman, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TOPRECLUDE TESTIMONY OF DEFENDANT’S EXPERTWITNESS, DR. DAN GERSTENBLITT, M.D.
THIS CAUSE came before the Court on December 7, 2015 upon the Plaintiff’s Motion to Preclude the testimony of Defendant’s Expert Witness, Dr. Dan Gerstenblitt, M.D. Upon consideration of the Motion, supporting memoranda of law, the record, argument of counsel and being otherwise sufficiently advised in the premises, the Court hereby,
FINDS, ORDERS AND ADJUDGES as follows:
1. This is an action for PIP benefits pursuant to the No-Fault Law of Section 627.736 of the Florida Statutes.
2. The issues in this case are whether the treatment rendered by Plaintiff to Sandra Morefield were related to the subject automobile accident, whether the services were medically necessary, and whether the charges for said services were reasonable in price. Additionally, Defendant contends it is entitled to a setoff for a return payment request for Date of Service May 4, 2010, and that Plaintiff’s claim is barred due to Sandra Morefield’s alleged failure to appear at three Compulsory Medical Examinations.
3. The Defendant listed Dr. Dan Gerstenblitt, M.D. as its expert witness in the case sub judice.
4. On September 24, 2015, the Defendant filed an Affidavit of Dr. Dan Gerstenblitt, M.D., in which he attests that the Plaintiff’s charges for services rendered in the instant case to Sandra Morefield were unreasonable.
5. On October 8, 2015, this Court conducted a Daubert hearing regarding the proffered expert testimony of Dr. Dan Gerstenblitt, M.D., a transcript of which has been filed with the Court.1 (hereinafter referred to as “Gerstenblitt Daubert hearing, Oct. 8, 2015”)
6. The Plaintiff contends that this Court should preclude any testimony from Dr. Gerstenblitt regarding the reasonableness of Plaintiff’s charges, as Dr. Gerstenblitt’s opinion is not based on sufficient facts or data and is not the product of sufficient principles and methods. The Plaintiff further contends that Dr. Gerstenblitt has failed to reliably apply the principles and methods he used to the facts of this case.
7. In the instant case, Defendant contends it reimbursed Plaintiff pursuant to the methodology contained in Fla. Stat. 627.736(5)(a)(1), but given the reason codes listed in the Explanations of Review generated by Defendant in the instant case, coupled with Dr. Gerstenblitt’s testimony in which he opines that 200% of the covered amount under Medicare Part B Fee Schedule is reasonable, it is more than evident that Defendant actually reimbursed Plaintiff pursuant to the methodology contained in Fla. Stat. 627.736(5)(a)(2), i.e. 200% of the covered amount under the Medicare Part B Fee Schedule.
8. The Defendant seeks to have Dr. Gerstenblitt D.C. testify at trial regarding the reasonableness of Plaintiff’s charges involved in the instant case.
9. The trial court must act as gatekeeper of expert testimony to ensure it is relevant and reliable. Kumho Tire Company Ltd., Carmichael, 119 S.Ct 1167 (U.S. 1999).
10. Florida Statutes §90.702 governs the admissibility of expert testimony in Florida. During the 2013 legislative session, the State of Florida codified the Daubert standard for determining the admissibility of expert testimony, as set forth by the United States Supreme Court in Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993).
11. The amended statute, in pertinent part, 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. . .”
12. Fla. Stat. §90.702 then specifies what requirements must be met in order for the testimony to pass muster under Daubert. In order for the expert testimony to be admissible under this standard, the proponent of the testimony must demonstrate that:
(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. Id.
13. Under the standard set forth in Daubert, “[t]he trial judge has a two-part duty to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. The Daubert Court set forth a non-exhaustive list of relevant factors to consider in determining whether the methodology employed is reliable. Id. at 593-94. The factors include whether the methods can be tested, have been subject to peer review, have established or extrapolated error rates, whether standards have been established for the application of the methodology, and whether the methods are generally accepted. Id.
14. The subject of the 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.
15. It is well established that testimony comprised merely of “pure opinion” is not admissible under the Daubert standard and Fla. Stat. §90.702. Id. at 497.
16. In the instant case, Dr. Gerstenblitt, M.D. has testified to the following:
I. that he has “worked in private practice and as a medical director for various hospitals and facilities including Osceola Regional Medical Center, Family Medical Centers, and Orlando Clinic”;
II. that he “presently works in Orlando, Florida”;
III. that while he “worked in private practice” he accepted “Medicare rates and various doctors throughout Orlando, Florida, accept Medicare rates”;
IV. that “Plaintiff’s charges are unreasonable and a reasonable charge for the services in this case would be 160% of Medicare rates, as Dr. Gerstenblitt opines that Fla. Stat. 627.736 recommends that payments are for 80% of 200% of Medicare allowable amounts;
V. that he bases his opinion on what a reasonable charge is by looking up the Medicare and Worker’s Compensation schedules for 2010;
VI. that Plaintiff was paid far above what the average doctor accepting Worker’s Compensation who was in private practice in Orlando would make for caring for patients with medical problems;
VII. that he is unaware of what medical providers charge PIP insurers, and what PIP carriers reimburse medical providers;
VIII. that he does not bill PIP carriers, is unaware of the inherent risks involved in billing PIP carriers, and does not know what the charges were in 2010 at Osceola Regional hospital where he was employed at the time as a medical director; and
IX. that he gives no opinion as to the reasonableness of the chiropractic services rendered by Plaintiff.
17. Plaintiff seeks to preclude the Defendant’s named expert, Dr. Gerstenblitt, M.D., from testifying regarding the reasonableness of Plaintiff’s charges at issue in the subject case, as his testimony fails to satisfy the requirements of expert testimony put forth in Daubert and Fla. Stat. §90.702, and for the reasons further explained below.
18. The Defendant contends that it reimbursed Plaintiff for the charges at issue in the instant case pursuant to the methodology referenced in Fla. Stat. §627.736(5)(a)(1). When determining whether a charge for a particular service is reasonable using this payment methodology, “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.” Hallandale Open MRI, LLC (a/a/o Guerda Pierre) v. United Automobile Ins. Co., 21 Fla. L Weekly Supp. 709a (Fla. 17th Circuit, Broward County, Cty. Ct., 2014) (Skolnik, J.) (citing Fla. Stat. §627.736(5)(a)(1)).
19. In determining that the Plaintiff’s charges in the instant case were unreasonable, Dr. Gerstenblitt fails to take into consideration the factors in Fla. Stat. §627.736(5)(a)(1), as he has testified that he does not have knowledge regarding those factors nor knowledge about billing PIP carriers. Dr. Gerstenblitt does not know what the usual and customary charges were in the community in 2010 for medical providers providing similar services, nor what providers were billing PIP carriers, nor what the PIP carriers were reimbursing the providers for those services. Dr. Gerstenblitt has testified that he did not look specifically at PIP when formulating his determination that the Plaintiff’s charges rendered in the instant case were unreasonable. Dr. Gerstenblitt cannot take into consideration factors delineated in Fla. Stat. §627.736(5)(a)(1) which, by his own admission, he is without knowledge of.
20. Dr. Gerstenblitt’s testimony constitutes “pure opinion” testimony that the Perez Court held is expressly prohibited, as it is not based on “scientific knowledge,” and fails to take into consideration the factors outlined in Fla. Stat. §627.736(5)(a)(1).
21. Dr. Gerstenblitt has testified that he was the medical director as Osceola Regional hospital, but when asked by Plaintiff’s counsel if he is aware of what charges were at Osceola Regional in 2010 he responded: “No.” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.36:24). Plaintiff’s counsel asked Dr. Gerstenblitt: “Have you reviewed any other charges of medical PIP providers that you can identify by name.” He responded: “No.” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.37:11-13). Plaintiff’s counsel, in an attempt to decipher whether Dr. Gerstenblitt has any knowledge regarding the risks involved in billing PIP carriers, gave a hypothetical involving a patient failing to appear for a sworn statement, and therefore jeopardizing the doctor’s ability to get paid, and asked Dr. Gerstenblitt: “You are not aware that that’s one of the risks in PIP when you bill PIP?” He responded: “I don’t have knowledge of that.” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.39:5-13). Plaintiff’s counsel then asked Dr. Gerstenblitt if he submits bills to insurers for PIP claims, and he responded: “No. We bill for worker’s compensation auto accidents.” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.39:20-23). Plaintiff’s counsel questioned Dr. Gerstenblitt regarding his knowledge of the usual and customary rates in Orlando during 2010, the year during which the services were rendered in the instant case. In response, Dr. Gerstenblitt indicated that while he worked as the national medical director for Auto Injury Solutions, this involved “looking at charges, pretty much, nationally as opposed to specific to Orlando.” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.40:18-21). Plaintiff’s counsel reiterated that what is relevant in the instant case are the usual and customary rates in Orlando during 2010. Dr. Gerstenblitt responded to this as follows: “Right. And again, my focus is more global than it is specific. . .” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.40:25 and p.41:1). Plaintiff’s counsel inquired as to whether Dr. Gerstenblitt, when formulating his opinion regarding the reasonableness of Plaintiff’s charges, took into consideration any information besides that involved in Non PIP claims, and Dr. Gerstenblitt testified: “I agree I did not look specifically at PIP. . .” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.52:6-7).
22. Courts have refused to consider expert testimony similar to that of Dr. Gerstenblitt’s in the instant case when the testimony lacked evidence that the opinion was either based on sufficient facts or data, the product of reliable principles and methods, or was scientific knowledge. Millennium Radiology, LLC d/b/a Millennium Open MRI, a/a/o Roberto Diaz v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1100a (Fla. 17th Circuit, Broward County, Cty. Ct., 2015) (Zaccor, J.) (Court refusing to consider testimony of Dr. Edward Dauer, M.D. regarding reasonableness of Plaintiff’s charges when affidavit provided for anecdotal evidence based on what he charges, what hospitals charge, and what his peers in the community have told him they charge).
23. Further, various Broward County courts have previously found similar testimony, on the issue of reasonableness of charges, to be insufficient. See Priority Medical Centers LLC (a/a/o Theresa Sanatass) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 858a (Fla. 17th Circuit, Broward County, Cty. Ct., 2015)(Lee, J.); Xtreme Chiropractic & Rehab Inc. (a/a/o Jeena Park) v. State Farm Mutual Automobile Insurance Company, Case No: 12-5544 COCE (53) (unpublished) (Fla. 17th Circuit, Broward County, Cty. Ct., February 27, 2014)(Lee, J.); Douglas Rapid Rehabilitation, Inc (a/a/o Nicole Bowen) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 816a (Fla. 17th Circuit, Broward County, Cty. Ct., 2014)(Schiff, J.).
24. One reason these Courts have held Dr. Simon’s, as well as testimony of other “experts” on reasonableness inadmissible is because the experts relied on the reimbursement amounts of the Medicare Part B and Worker’s Compensation fee schedules, and Defendant has plead that it issued payment pursuant to Fla. Stat. §627.736(5)(a)(1), rather than (5)(a)(2), which would only then implicate the Medicare Part B and Worker’s Compensation fee schedules. Margate Pain and Rehabilitation, Inc. a/a/o Michael Olivera v. State Farm Mutual Automobile Insurance Company, 13-12292 COCE 53 (unpublished decision) (Fla. 17th Circuit, Broward County, Cty. Ct., 2015)(Lee, J.). For the same reason, this Court should exclude the expert testimony of Dr. Dan Gerstenblitt, M.D. as to reasonableness.
25. In Olivera, the Court held that the expert testimony of Bradley Simon, D.C. regarding reasonableness of charges was inadmissible, and the purported expert testimony in that case was very similar to the purported expert testimony of Dr. Gerstenblitt in the instant case. In Olivera, the Honorable Robert Lee held that Dr. Simon’s methodology was flawed, since Dr. Simon was utilizing the Medicare fee schedule allowable amounts when the policy involved did not incorporate the optional reimbursement methodology contained in Fla. Stat. §627.736(5)(a)(2). In this case, Dr. Gerstenblitt similarly relies on the optional reimbursement methodology contained in Fla. Stat. §627.736(5)(a)(2), i.e. the Medicare Part B fee schedule reimbursement amount, to reach his determination of what he thinks a reasonable charge should be. During the Daubert hearing on October 8, 2015, after Dr. Gerstenblitt opined that Plaintiff’s charges were unreasonable, Plaintiff’s counsel asked the witness: “What is that opinion based upon?” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.23:9). In response to Plaintiff’s counsel’s question regarding how he came up with his opinion that Plaintiff’s charges were unreasonable, Dr. Gerstenblitt indicated that he “plotted out the charges of the doctor, the amount that the doctor was paid” and then “went and looked at the Medicare and Worker’s Compensation schedules for 2010 when the services were being rendered.” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.23:10-14). Dr. Gerstenblitt has testified that he utilized the Medicare Part B fee schedule payment methodology because Fla. Stat. §627.736 provides this methodology. However, when Plaintiff’s counsel asked which version of the statute Dr. Gerstenblitt had taken that methodology from, he responded “I don’t remember. . .” (Gerstenblitt Daubert hearing, Oct. 8, 2015 at p.41:12). In this case, Dr. Gerstenblitt should similarly be precluded from rendering expert testimony regarding the reasonableness of Plaintiff’s charges, since Defendant has not plead it reimbursed Plaintiff pursuant to the (5)(a)(2) payment methodology, and Defendant’s policy does not allow it to do so.
26. The relevant inquiry is the reasonableness of Plaintiff’s charges, not the Defendant’s reimbursements. Id. See also Windsor Imaging a/a/o Roneil Morris v. State Farm Mutual Auto. Ins. Co., 19 Fla. L. Weekly Supp. 215b (Fla. 17th Circuit, Broward County, Cty. Ct., 2011)(Lee, J.)
27. Moreover, this Court has held “it is undisputed that Medicare is not insurance.” Hallandale Open MRI, LLC (a/a/o Guerda Pierre) v. United Automobile Ins. Co., 21 Fla. L. Weekly Supp. 709a (Fla. 17th Circuit, Broward County, Cty. Ct., 2014) (Skolnik, J.). The fact that Medicare pays less than Plaintiff’s charge “does not mean the Plaintiff’s charge is unreasonable without any additional evidence.” Id.
28. Dr. Gerstenblitt also testified that sometimes one even has to take less than 100% of Medicare from private carriers in order to bring patients into the office.” This is also irrelevant, given that Courts, including this one, have held that the mere fact that HMOs and PPOs pay less does not mean Plaintiff’s charge is unreasonable. Id. See also Millennium Radiology, LLC d/b/a Millennium Open MRI, a/a/o Roberto Diaz v. United Automobile Ins. Co., 22 Fla. L. Weekly Supp. 1100a (Fla. 17th Circuit, Broward County, Cty. Ct., 2015) (Zaccor, J.) (Court holding that negotiated contract rates, i.e. HMOs and PPOs are not relevant unless the insurer and provider in suit have entered into such a contract).
29. Other Courts have struck experts when the experts failed to consider sufficient facts and data when formulating their opinion, as Dr. Gerstenblitt has clearly done in this case. See Millennium Radiology LLC. d/b/a Millennium Open MRI (Melvin Galdamez) v. United Auto. Ins. Co., 20 Fla. L. Weekly Supp. 1097a (Fla. Broward County, Cnty. Ct. 2013)(Lee, J.) (Court struck Adjuster Monica Johnson, Judge Lee stated: “Ms. Johnson completely excludes consideration of evidence of usual and customary payments accepted by the provider. Similarly, she excludes consideration of any amounts above 200% of Medicare in reaching her ultimate conclusion that an amount equal to 200% of Medicare is a reasonable charge. In essence, Defendant’s expert’s ultimate opinion excludes any data which could cause an increase in the outcome, and clearly, without any methodology, cherry picks only whatever supports her opinion.” Dr. Gerstenblitt, in the instant case, does not even have knowledge regarding usual and customary charges and reimbursements accepted by providers in the PIP context, and instead formulates his opinion based on private practice workers compensation payments, and for this reason should be struck as an expert as to the reasonableness of the Plaintiff’s charges.
30. The Plaintiff has also contended that this Court should preclude Dr. Gerstenblitt from testifying as to the reasonableness of Plaintiff’s charges because Dr. Gerstenblitt has failed to reliably apply the principles and methods he used to formulate his opinion to the facts of the case.
31. Similar to the Plaintiff in Olivera, Plaintiff’s Orlando treatment facility in this case was not a Medicare, Medicaid, or Worker’s Compensation provider, and was not a participant in any HMO or PPO managed care plans2, unlike Dr. Gerstenblitt’s office.
32. Therefore, any consideration that Dr. Gerstenblitt gave to these reimbursement methods is not relevant, as it does not relate in any way to Plaintiff’s usual and customary charges.
33. As a result, for the foregoing reasons, the Court finds that, as applied to the issue in this case, Dr. Gerstenblitt’s opinions are not based on sufficient facts or data and are not the product of sufficient principles and methods. Further, the witness has not reliably applied the principles and methods to the facts of this case. For these reasons, Dr. Gerstenblitt’s proffered testimony fails to satisfy the requirements of Daubert and Fla. Stat. §90.702 regarding the admissibility of expert testimony. Therefore, Dr. Gerstenblitt is stricken as an expert on the issue of reasonableness of the Plaintiff’s charges.
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1The transcript from the October 8, 2015 Daubert hearing was filed with the Court on December 1, 2015.
2See Plaintiff’s Verified to Defendant’s Interrogatories pursuant to Court Order of September 16, 2014, filed with this Honorable Court on or about October 14, 2014.
