24 Fla. L. Weekly Supp. 311a
Online Reference: FLWSUPP 2404LAZOInsurance — Personal injury protection — Expert witness — Motion to strike insurer’s expert on reasonableness of charges is denied where expert has sufficiently explained his knowledge regarding range of charges and reimbursement amounts for MRIs in relevant communities and correctly applied his knowledge to facts of case
MILLENNIUM RADIOLOGY, LLC a/a/o Nicole Lazo, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 13-005271 SP 23 (01). June 21, 2016. Myriam Lehr, Judge. Counsel: Gary Marks, Marks & Fleischer, Ft. Lauderdale, for Plaintiff. Sean M. Sweeney, House of Counsel — Trial Division, Miami, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TOSTRIKE AFFIDAVIT OF PETER MILLHEISER, M.D.
This matter involves a PIP action to determine the Reasonableness of Plaintiff’s charges as determined pursuant to Florida law 627.736 (5)(a)1. The specific motion before the Court is Plaintiff’s Motion to Strike the affidavit of Peter Millheiser, M.D., one of many pieces of summary judgment evidence submitted by Defendant to contest the Reasonableness of Plaintiff’s charges at summary judgment hearing. After extensive argument, based on the totality of the summary judgment evidence submitted by Defendant at prior summary judgment hearing, this Court has already determined that a material issue of fact exists and the issue of Reasonableness is to be submitted to the trier of fact. Plaintiff now brings Plaintiff’s Motion to Strike the affidavit of Peter Millheiser, M.D. addressing only that specific summary judgment evidence of Defendant.
After having considered the argument of counsel, having reviewed all of the applicable documents and exhibits in the Court file, and after having reviewed all of the case law provided by the attorneys and with the Court otherwise being fully advised of the issues, facts and law, the Court finds that, in this specific case, Dr. Peter Millheiser, M. D. has been properly presented as an expert witness on the issue of the Reasonableness of medical charges in the context of the specific law governing this case, 627.736(5)(a)1, and his expert testimony is admissible.
In order for expert testimony to be deemed admissible, the testimony must comply with the 2013 amendments to the Evidence Code wherein the legislature adopted the Daubert standard. See §90.702, Fla. Stat. (2015). In 2013, the Florida legislature expressly amended section 90.702 of the Florida Evidence Code “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)” and as “reaffirmed and refined” by both General Electric Co. v. Joiner, 522 U.S. 136 (1997) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). See Ch. 2013-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). Under the Daubert standards as “reaffirmed and refined” by General Electric, supra, and Kumho Tire, supra, and their subsequent progeny not all experience testimony is barred and not all expert testimony is subject to every limitation imposed by the Daubert standard.
On July 1, 2013, the revisions to section 90.702 went into effect, changing Florida from a Frye jurisdiction to a Daubert jurisdiction. The Evidence Code now provides that an expert may testify 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.
As recently noted by the 11th Circuit, sitting in an appellate capacity, applying the above changes to the evidentiary code to a PIP case determining Reasonableness pursuant to 627.736(5)(a)1 “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 Co. vs. Professional Medical Group, Inc. a/a/o Mercedes Valientes, 11th Cir. Miami Dade County Case No. 13-345 AP, March 21, 2016 [24 Fla. L. Weekly Supp. 20a], citing to State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 2009 WL 6357793 (M.D. Fla. 2009) and Charles W. Ehrhardt, I West’s Fla. Proc. Evidence § 702.3 (2015 ed.).
In this case, Dr. Millheiser testified that in his professional practice as a medical doctor over the last several decades he has treated hundreds of his own patients injured in automobile accidents and reviewed and evaluated medical records and bills for his own patients who were injured in automobile accidents. He further testified that he has ordered, received and reviewed medical treatment and diagnostic studies, including MRIs and the bills and reimbursements for MRIs, for his own patients injured in automobile accidents.
Dr. Millheiser also testified that in his professional practice as a medical doctor over the last several decades, he has treated his own patients suffering from work place or sports related injuries and degenerative conditions. He further testified that he has reviewed and evaluated medical records and bills for his own patients suffering from work place or sports related injuries and degenerative conditions. He has also testified that he has ordered, received and reviewed hundreds of medical treatment and diagnostic studies, including MRIs and the bills and the reimbursements for MRIs, for his own patients suffering from work place or sports related injuries and degenerative conditions.
Dr. Millheiser further testified that in his professional practice as a medical doctor over the last several decades, he has provided expert testimony in the form of peer reviews of hundreds of other doctors’ treatment records of their patients suffering from automobile accident, work place or sports related injuries and degenerative conditions. In conjunction with performing peer reviews, Dr. Millheiser has reviewed and evaluated both the medical records and the bills of other physicians for their patients suffering from automobile accident, work place or sports related injuries and degenerative conditions. In conjunction with performing peer reviews of the medical records and the bills of other physicians regarding their care of their patients suffering from automobile accident, work place or sports related injuries and degenerative conditions, Dr. Millheiser has received and reviewed hundreds of bills for MRIs and the reimbursements for MRIs for the patients of other physicians.
The vast majority of the above referenced activities of Dr. Millheiser were in connection with Miami Dade County, Florida, and Broward County, Florida, patients and medical services. Via the above referenced activities Dr. Millheiser has obtained extensive knowledge regarding the usual and customary charges and reimbursement amounts for MRIs in Miami Dade County, Florida, and Broward County, Florida, and has extensive personal knowledge and expertise regarding the range of charges and reimbursement amounts for MRIs in the communities of Broward County, Florida, and Miami-Dade County, Florida.
In this specific case, Dr. Millheiser has filed an affidavit attesting to the above knowledge and applying it to the facts and data specific to this case. His method is the product of reliable principles and methods utilizing both his extensive experience and the extensive attachments to his affidavit. He has applied his principles and methods reliably to the facts of the case to demonstrate that there exists a material issue of fact as to the Reasonableness of Plaintiff’s charges.
Further, Dr. Millheiser’s expert testimony is consistent with the specific methodology enumerated in §627.736(5)(a)(1), Fla. Stat., which is the law to be applied in the instant case. He has utilized numerous factors in the 627.736(5)(a)1 methodology and provided the requisite facts and data to support his opinions and conclusions. Dr. Millheiser has specifically testified to and attached to his affidavit evidence of previous reimbursements accepted by Plaintiff from Defendant for MRIs at dollar amounts significantly less than the amount Plaintiff has currently sued for and at amounts less than the amount Defendant tendered to Plaintiff in response to the MRI bill at issue. Dr. Millheiser has also testified to and attached as exhibits to his affidavit evidence of Plaintiff’s acceptance of reimbursement amounts from Worker’s Compensation, Medicare, HMO insurance and cash patients at dollar amounts significantly less than the amount Plaintiff has currently sued for and even less than the amount Defendant tendered to Plaintiff in response to the MRI bill at issue. Dr. Millheiser has even testified to and attached to his affidavit evidence of charges by other MRI providers greater than, equal to and significantly less than Plaintiff’s charges for the MRI at issue in this case. Dr. Millheiser has further testified to and attached to his affidavit evidence of reimbursements to these same other MRI providers in the community at dollar amounts significantly less than the amount Plaintiff has currently sued for and even less than the amount Defendant tendered to Plaintiff in response to the MRI bill at issue. In addition, Dr. Millheiser has testified to and attached to his affidavit evidence of reimbursement levels in the community for MRIs as reimbursed by Medicare, Worker’s Compensation, Champus Tri Care, HMOs and numerous automobile insurers at dollar amounts significantly less than the amount Plaintiff has currently sued for and equal to or even less than the amount Defendant tendered to Plaintiff in response to the MRI bill at issue. In response to Plaintiff’s charges of $2150 per MRI, Dr. Millheiser has opined that Plaintiff’s charge is unreasonable.
Based on the facts and data provided by Dr. Millheiser via his affidavit testimony, this Court finds that Dr. Millheiser has, in this case, sufficiently explained his knowledge and correctly applied his knowledge to the facts of this case. His testimony is admissible as an expert regarding Reasonableness in conjunction with 627.736.
