24 Fla. L. Weekly Supp. 437c
Online Reference: FLWSUPP 2406HUYNInsurance — Personal injury protection — Coverage — Medical expenses — Provider’s motion for summary judgment with respect to reasonableness, relatedness, and necessity of treatment and charge is denied — Affidavit in support of motion failed to establish affiant’s scientific, technical, or other specialized knowledge and provided insufficient facts and data to establish basis for affiant’s ultimate opinion — Further, although affiant opined on issue of reasonableness, affidavit failed to state where affiant was employed, where he was employed in the past, or the basis for his knowledge of plaintiff’s billing process — Where expert is relying primarily on experience, expert must explain how that experience leads to expert’s opinion, why experience is sufficient basis for opinion, and how that experience is reliably applied to facts, which affiant failed to do
CHIRO GROUP, LLC a/a/o Nhong Huynh, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-18538SP23 (06). June 27, 2016. Spencer Multack, Judge. Counsel: Todd A. Landau, Todd Landau, P.A., Hallandale Beach, for Plaintiff. Lorty G. Fevry and Rachel Minetree, Conroy Simberg, P.A., Hollywood, for Defendant.
ORDER DENYING PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on May 11, 2016, for hearing on Plaintiff’s Motion for Summary Judgment with respect to the reasonableness, relatedness, and necessity of the Plaintiff’s treatment and charge. The Court having reviewed the motion and the relevant portions of the Court file; heard argument of counsel; reviewed relevant legal authorities; and being sufficiently advised on the premises, finds as follows:
FINDINGS OF FACT
This matter originates from a car crash involving Nhong Huynh (“Patient”) on or about October 17, 2011. As a result of the injuries sustained in the crash, the Patient was treated at Chiro Group, LLC (“Plaintiff”) from October 31, 2011, through November 16, 2011. The treating doctors were Dr. Khahn Le and Dr. Christian Rivera. The Plaintiff submitted bills to State Farm Mutual Insurance Company (“Defendant”) in the amount of $3280.00 and alleges1 $525.65 remains due and owing.DR. DEAN ZUSMER’S RRN ANALYSIS
In support of its motion, the Plaintiff has filed the affidavit of witness Dean M. Zusmer, D.C. and the medical records of the patient. As Dr. Zusmer2 offers an opinion as to the reasonableness, relatedness, and necessity of treatment, his testimony must be scrutinized under sec. 90.702 Fla. Stat. (2013).
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).
First, the court finds that Dr. Zusmer’s affidavit fails to establish his scientific, technical, or other specialized knowledge. The affidavit states that Dr. Zusmer has been a chiropractic physician in the State of Florida since 2005. Although he graduated from Life University in 1997, there is no indication as to Dr. Zusmer’s experience between 1997 and 2005. The affidavit was not accompanied by a curriculum vitae. The Court is left to establish Dr. Zusmer’s specialized knowledge based on the statement that he is chiropractic doctor and has been previously designated an expert3. The affidavit fails to indicate any specialized certifications held, courses taken or taught, or positions Dr. Zusmer has held to specialize his knowledge on which he is opining. From a review of the submitted medical records, it seems that Dr. Zusmer is one of the Plaintiff’s treating doctors as his name appears on the Plaintiff’s letterhead. This fact is omitted in his affidavit.
Second, the affidavit is lacking sufficient facts and data to establish as a basis for Zusmer’s ultimate opinion. The affidavit states that the patient complained of, “. . .severe neck pain and stiffness with moderate pain in her right parietal region where stitches had been removed (emphasis added). ” The affidavit is absent as to any details as to why the patient received stitches. Were the stitches from a prior surgery? The car crash? The Court is left only to guess. Based upon these complaints, the patient was subject to activator adjustment along with therapeutic exercises, ultrasound, radiologic examinations, manual therapy, chiropractic manipulations, mechanical traction, cold laser, electric muscle stimulation, cold laser, mechanical traction, massage therapy, and other modalities. Not only are the descriptions of the modalities absent from the affidavit, but Dr. Zusmer also fails to offer any explanation as to why each one of these treatments were necessary and why the duration for each treatment lasted for as long as it did. The Court finds the affidavit lacks an explanation of reliable principles and methods and how Dr. Zusmer concludes that each treatment was both necessary and related to the patient’s injuries.
Based upon the lack of information the Court received regarding Dr. Zusmer’s qualifications, the Court cannot find that he has the scientific, technical or other specialized knowledge to assist the trier of fact in understanding the evidence. Furthermore, Zusmer’s analysis of the provided treatment fails to articulate the application of the reliable principles and methods he employed when reaching his opinion. The court finds that this the exact type of “pure opinion” testimony that the codification of Daubert seeks to avoid. See Perez v. Bell South Telecommunications Inc., 138 So.3d 492 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D865b].
Additionally, Dr. Zusmer opines on the issue of reasonableness. As stated above, the affidavit fails to state where Dr. Zusmer is employed and where he has been employed in the past. It is evident that he is familiar with the billing process of the Plaintiff, however the affidavit fails to establish this basis of knowledge. He states:
Based on my experience as a chiropractic physician for the past 15 years and based on what other chiropractic providers charge in the community, and what other insurers reimburse for substantially similar services, it is my opinion that the charges depicted in the attached records are reasonable and usual and customary as it relates to the services rendered to Nhong Huynh in Miami-Dade County in 2011.
And
Based upon my years of extensive training and experience with billing and pricing, and based upon my consistent analysis of what other chiropractic providers charge for similar services in the community, in the same community and/or county, to inquire as to the prices for the same CPT codes or services at issue in this matter, it is my opinion that the charges are depicted in the attached records are reasonable in price and usual and customary as it relates to the services rendered to Nhong Huynh in Miami Dade County in 2011.
The Court finds that both of these statements are unsupported by any data offered by the Plaintiff. For instance, What is Dr. Zusmer’s experience with pricing? What is his training? What is his “consistent analysis”? The most convincing piece of evidence submitted by Dr. Zusmer are the various explanations of benefits from other insurance companies indicating payment of 80% of the full charge. However a majority of the records4 are hearsay and inadmissible, as they do not comply with the business record exception. Weisenberg v. Deutsche Bank Nat. Trust Co. 89 So.3d 1111 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1401b] (“Business records may be admitted under section 90.803(6) if the proponent of the evidence demonstrates the following through a records custodian or other qualified person:(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.”) The Court further notes that while Zusmer claims that $987.65 is owed to the Plaintiff, the Plaintiff’s complaint only recognizes $525.65 due and owing.
Under the Daubert standard, when an expert is relying primarily on experience, the expert must explain how that experience leads to his or her opinion, why the experience is a sufficient basis for his or her opinion, and how that experience is reliably applied to the facts. United Automobile Insurance Company v. Professional Medical Group, Inc. a/a/o Mercedes Valientes, FLWSUPP 2401VALI (11th Circuit appellate capacity) [24 Fla. L. Weekly Supp. 20a]; State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr. Inc., 2009 WL 6357793 (M.D. Fla. 2009). Dr. Zusmer fails to articulate how his experience leads to his opinion, why his experience is a sufficient basis for his opinion, and how that experience is reliably applied to the facts.
Summary judgment is only appropriate “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]. The burden is on the party moving for summary judgment to prove a “complete absence of a triable issue of material fact, and the proof must be such as to overcome all reasonable inferences which could be drawn in favor of the non-moving party.” Aagaard-Juergensen, Inc. v. Lettelier, 540 So.2d 224 (Fla. 5th DCA 1989) (citing Landers v. Milton, 370 So.2d 368 (Fla. 1979)). Additionally, the moving party must disprove or establish as legally insufficient the non-moving party’s affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2089b]. Since “summary judgments deprive the losing party of his or her day in court,” such motions should be granted only when there are no genuine issues of material fact to be resolved by the trial court. Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So.2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b].
Based upon the above analysis, the Plaintiff’s submitted evidence fails to establish a complete absence of triable issues of material facts, it is hereby ORDERED AND ADJUDGED the Plaintiff’s Motion for Summary Judgment is DENIED.
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1The Plaintiff’s complaint of November 26, 2014 states $525.65 is owed by the Defendant.
2Dr. Zusmer was not the patient’s treating doctor.
3Significantly, it is unknown if Dr. Zusmer has been qualified as an expert post-Daubert. This is noteworthy to the Court as the change in F.S. 90.702 has resulted in a more stringent analysis of expert testimony.
4Many of the records are from doctors with no stated association to Dr. Zusmer, such as Dr. Jeffrey Closter in West Palm Beach, Dr. Steven Cohen in West Palm Beach, Dr. Davin Barbanell in North Miami Beach, and Dr. Garrett Weinstein in Pompano Beach.
