24 Fla. L. Weekly Supp. 871a

Online Reference: FLWSUPP 2410POSAInsurance — Personal injury protection — Summary judgment — Insurer is entitled to summary judgment on issues of whether medical services were actually rendered to insured and whether services were related to accident and medically necessary — Opposing affidavit of medical provider’s alleged records custodian is stricken for lack of trustworthiness and lack of personal knowledge — In absence of authentication, attached medical records cannot be considered — Affidavit that was written in English, although affiant did not speak or understand English, violated section 117.107(6) — Moreover, affiant denied being records custodian in her deposition testimony

DORAL HEALTH CENTER, P.A. (a/a/o Maria Posada), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No.: 2013 1257 SP 24 (01). October 13, 2016. Donald J. Cannava, Judge. Counsel: Richard Patino, The Patino Law Firm, Miami, for Plaintiff. John S. Leinicke, ROIG Lawyers, Deerfield Beach, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT

THIS CAUSE having come before the Court on Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’S (“State Farm”) July 20, 2016 Motion for Summary Judgement. This matter was heard by the Court on September 23, 2016. After considering the written submissions of the parties, arguments of counsel, summary judgment evidence, and otherwise being duly advised in premises, the Court finds and decides as follows:UNDISPUTED FACTS

1. The instant action is a PIP lawsuit filed on May 22, 2013. Plaintiff DORAL HEALTH CENTER, P.A. a/a/o Maria Posada (“Doral Health”) alleges that State Farm owes Doral Health PIP benefits for medical services rendered to State Farm insured Maria Posada for injuries Posada allegedly sustained in an August 12, 2011 car accident. Specifically, the medical services at issue are represented by one CPT code (98943) allegedly provided to Posada by Doral Health’s president and sole owner, Dr. Hermann Diehl, DC on September 1, 2011.

2. State Farm made $0 payment on CPT code 98943.

3. Doral Health was sold to Medial Professional Collections, Inc. on or about June 5, 2014. Medical Professional Collections, Inc. is owned by Nickolas Salles.

4. Doral Health was administratively dissolved by the Florida Department of State, Division of Corporations, on or about September 25, 2015.

5. Dr. Diehl was deposed in this matter on November 4, 2015. In his sworn deposition, Dr. Diehl asserted his Fifth Amendment privilege to the following questions: “Isn’t it true that you, Hermann Diehl, personally were responsible for the creation of fabricated patient files and medical records for Maria Posada with the intended purpose of knowingly defrauding State Farm?” (page 28, line 19); “Is it true that you, Hermann Diehl, either yourself, or through your instruction to others, fabricated or backdated the patient files of Maria Posada for the intended purpose of knowingly defrauding State Farm? (page 32, line 25); “Isn’t it true that the services encompassed by Exhibit E for Maria Posada submitted to State Farm under claim number 59A839880 were not medically necessary?” (Page 50, line 4); “Is it accurate to say that the services represented by the CPT codes in Exhibit E did not prevent, diagnose or treat any illness, injury, disease or symptom of Mrs. Posada?” (Page 50, line 19); “Is it true that there are no facts, documents, information or evidence which would support that the services were provided in accordance with generally accepted standards of medical or chiropractic practice?” (Page 50, line 24); “Is it true that the services identified in Exhibit E for Mrs. Posada were clinically inappropriate in terms of type, frequency, extent, site and duration?” (Page 51, line 5); “Isn’t it true that patient Maria Posada was not injured in an automobile accident which occurred on August 12th, 2011?” (Page 63, line 6); “Isn’t it true that none of the treatment allegedly rendered to Maria Posada on behalf of Doral Health Center, P.A. was medically necessary?” (Page 63, line 10); “In fact, isn’t it true that no treatment at all was rendered to Maria Posada by agents of Doral Health Center, P.A.?” (Page 63, line 14).

6. Plaintiff filed with the Court two affidavits executed by Olga Villarraga (“the Villarraga Affidavits”). The June 11, 2014 affidavit attests to timely mailing of the bills to State Farm personally by Villarraga. The July 14, 2015 affidavit is a “records custodian” affidavit, and has attached to it purported copies of Doral Health’s business records and medical records for Posada.

7. Both affidavits are entirely in English. Villarraga, by her own admission in her deposition taken June 3, 2016, speaks and reads no language other than Spanish. (page 9, line 10). There is no evidence of Spanish versions of the Villarraga Affidavits.

8. Although Villarraga was put forward by Plaintiff Doral Health as its “records custodian,” Villarraga testified that the entirety of her duties at Doral Health consisted of “greeting patients, refiling the medical records, making coffee and answering the phone and doing the scheduling for patients.” (page 29, line 20). Villarraga denied any other responsibilities, and specifically testified that the regarding the medical records “The doctor [Dr. Diehl] had the responsibility over them. They weren’t mine. . .” (page 35, line 17).

9. In response to the question “Was Dr. Diehl ultimately responsible for maintaining those paper records?” Villarraga testified “Yes sir.” (page 35, line 22)

10. In response to the question “And that wasn’t part of your job duties as an employee of Doral Health Center, was it, to maintain those files?” Villarraga testified “No.” (page 35, line 25 through page 36, line 4)

11. In response to the question “Was it ever your responsibility to mail anything to the insurance companies on behalf of Doral [Health]?” Villarraga testified “No, no.” (Page 48, line 13)

12. Villarraga further testified that she was not present when the purported copies of Posada’s records were created (page 45, 70); that she has never done a side-by-side comparison of the original file with the purported copies to compare for accuracy (page 45, 47); that there are numerous parts of the patient records files that she has not seen or is not aware of (page 47); that she compared the purported copies attached to her July 14, 2015 “records custodian” affidavit only to what was on a computer at the Patino Law Firm and not the original documents (page 55, 68); that she does not know who actually created the computer version of the purported medical records attached to her July 14, 2015 affidavit and that she was not present when it happened (page 69); and that she has no specific recollection of any patient of Doral Health (page 41).The Summary Judgment Standard

The purpose of a motion for summary judgment is to determine if there is sufficient evidence to justify a trial upon the issues made by the pleadings. Odham v. Foremost Dairies, 128 So.2d 586 (Fla. 1961). Summary Judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions, filed together with affidavits, if any, show that there is no genuine issue of material fact in dispute. Fla. R. Civ. Pro. 1.510(c). A party who moves for summary judgment bears the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Colon v. Lara, 389 So.2d 1070 (Fla. 3d DCA 1980). The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden is not shifted to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). Any doubts and inferences as to the existence or nonexistence of material facts must be resolved against the movant. Id.

Once a party tenders competent evidence to support a summary judgment motion, “the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue.” Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) “It is not enough for the opposing party merely to assert that an issue does exist.” Id. The raising of purely paper issues cannot forestall the granting of relief, where the pleadings and evidence before the trial court show that the issues are without substance in fact or in law. Reflex, N.V. v. UMET Trust, 336 So.2d 473 (Fla. 3d DCA 1976).

The nonmoving party may not rely upon conclusory, self-serving or incompetent testimony or evidence to defeat a motion for summary judgment. Any documents submitted to demonstrate the existence of a triable fact must be authenticated or supported by affidavit or other evidentiary proof. First North American Nat’l Bank v. Hummel, 825 So.2d 502, 504 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D2010a] (ruling that unauthenticated documents that were not supported by an affidavit or other evidentiary proof could not be considered to deny a motion for summary judgment).

CONCLUSIONS OF LAW

Defendant argues in its Motion for Summary Judgment that no genuine issue of material fact exists as to the following issues: (1) no evidence exists which could show that the September 1, 2011 medical services were actually rendered to Posada; (2) no evidence exists that could show that the September 1, 2011 medical services allegedly rendered to Posada are related to the August 12, 2011 car accident; and; (3) no evidence exists that the September 1, 2011 medical services Doral allegedly rendered to Posada were medically necessary. Defendant argues that based upon Dr. Diehl’s deposition testimony, even when viewed in a light most favorable to the Plaintiff as the non-moving party, establishes that there is no genuine issue of material fact to the above issues. Defendant further argues that the Villarraga Affidavits are inadmissible, as are all attachments, not only because the affidavits were obtained in violation of Fla. Stat. § 117.107(6)¹, but because Villarraga lacked the required personal knowledge to make said statements as demonstrated by her deposition testimony. In short, Defendant argues that it has met its prima facie burden to prove the negative as pled and is entitled to summary judgment in its favor.

Plaintiff relies upon the Villarraga Affidavits, the documents it purports to be copies of Posada’s medical records, and the deposition of Dr. Diehl to support its opposition to the motion for summary judgment. Plaintiff argues that Villarraga’s June 11, 2014 affidavit attesting to timely mailing of the bills and the copies of medical records are sufficient to create a genuine issue of material fact. Plaintiff also argues that because Dr. Diehl asserted his Fifth Amendment privileges to each and every question material to the treatment of Posada, this must be treated as a “non-statement” and also creates a genuine issue of material fact.

After careful review and consideration, the Court disagrees with Plaintiff Doral Health’s position, and finds that Defendant State Farm is entitled to summary judgment as a matter of law. The Villarraga Affidavits and the evidence indicating a lack of compliance with Fla. Stat. § 117.107(6) sufficiently call into question the authentication, and therefore admissibility, of the Villarraga Affidavits for the purpose of a motion for summary judgment.

Additionally, the Villarraga Affidavits also fail to comply with Florida Rule of Civil Procedure 1.510(e), which requires:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify as to the matters stated therein.”

As the above synopses of the affidavits and deposition of Ms. Villarraga indicate, all of Ms. Villaraga’s testimony is untrustworthy and defective in that none of the sworn statements sufficiently establishes that Ms. Villarraga’s conclusions were based on actual personal knowledge and must be stricken. When the circumstances under which an affidavit is prepared indicate a lack of trustworthiness, it is proper for the Court to strike same and declare it inadmissible. Bradley v. Brotman, 836 So.2d 1129 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D516a]; McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA) [25 Fla. L. Weekly D111a]. Self-serving, contradictory affidavits which fail to reconcile and/or provide any explanation for the contraction are subject to being stricken. Baker v. Airguide Manuf., LLC, 151 So. 3d 38, 40 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2272b] (finding no error in striking litigant’s affidavit in opposition to summary judgment as a sham where she “curiously, nearly four months after deposition and only two days before the summary judgment hearing” filed a contradictory affidavit and errata sheet).

Under well-established Florida law, trial courts may entirely disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony. “As the Florida Supreme Court put it, a party should not be permitted to ‘baldly repudiate [his/her] previous deposition so as to create a jury issue.’ ” Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 2d 329, 335-36 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D643a]. “[I]t is well established that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony.” Ellison v. Anderson, 74 So.2d 680 (Fla. 1954). See also Baker v. Airguide Manuf., LLC, 151 So. 3d 38, 40 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D2272b] (finding no error in striking litigant’s affidavit in opposition to summary judgment as a sham where she “curiously, nearly four months after deposition and only two days before the summary judgment hearing” filed a contradictory affidavit and errata sheet).

Any documents submitted to this Court to defeat a motion for summary judgment must be accompanied by an affidavit of a records custodian or other proper person attesting to their authenticity and correctness. Bifulco v. State Farm Mutual Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a] (ruling that documents unaccompanied by an affidavit of a records custodian or other proper person attesting to their authenticity and correctness was inadmissible evidence that would not be relied upon by the trial court at a summary judgment hearing) As the Villarraga Affidavits have been stricken, the attached purported copies of medical / business records of Doral Health are not authenticated, and thus, cannot be considered by this Court for purposes of defeating summary judgment. Nichols v. Preiser, 849 So.2d 478 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1671a] (holding that attaching unsworn and uncertified documents to a motion for summary judgment did not satisfy procedural requirements); DeMesme v. Stephenson, 498 So.2d 673 (Fla. 1st DCA 1986)(ruling that documents offered by plaintiff in opposition to motion to summary judgment could not be considered by the trial court since they were not properly authenticated).

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s July 20, 2016 Motion for Summary Judgment is GRANTED.

__________________

¹“A notary public may not take the acknowledgment of a person who does not speak or understand the English language, unless the nature and effect of the instrument to be notarized is translated into a language which the person does understand.”

__________________FINAL JUDGMENT

The Plaintiff DORAL HEALTH CENTER, P.A. a/a/o Maria Posada shall take nothing by this action and the Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY shall go hence without day. The Court retains jurisdiction for the purpose of determining any motion by the Defendant to tax attorney’s fees and costs and to consider any further motions. This is a final order.