24 Fla. L. Weekly Supp. 71c
Online Reference: FLWSUPP 2401ROJAInsurance — Personal injury protection — Coverage — Medical expenses — Evidence — Scientific opinion — Testimony of physician cannot be considered expert testimony on reasonableness of MRI charges where physician’s opinion is based on his own experience and what his own facilities charge — Motion to strike witness is granted
PRO IMAGING INC. a/a/o Jennifer Rojas, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-02963 SP 23. February 11, 2016. Spencer Multack, Judge. Counsel: Gregory E. Gudin, Gregory E. Gudin, P.A., Coral Springs, for Plaintiff. Rachel Minetree, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKEWITNESS DR. EDWARD DAUER
THIS CAUSE having come before the Court on February 3, 2016, for hearing on Plaintiff’s Motion to Strike Witness Dr. Edward Dauer, and 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:The Service Provided
The Defendant has listed Dr. Edward Dauer to testify as to the reasonableness of the Plaintiff’s professional radiological service charges submitted by Dr. Norbert Dombrowsky (Pro Imaging, Inc.) on June 11, 2009. Dr. Dombrowsky is the chiropractic radiologist who read and diagnosed the MRIs of the patient taken by Martinez Chiropractic Center on June 9, 2009. Although Dr. Dauer opines as to both the technical services performed by Martinez Chiropractic Center and professional services provided Pro Imaging Inc., the Court’s ruling only pertains as to the Plaintiff, Pro Imaging, Inc.Dr. Edward Dauer’s Opinion as to Reasonableness
Dr. Dauer’s ultimate opinion is that the charges billed by Pro Imaging Inc. are excessive and are significantly higher than the reasonable charges for the services provided to the patient, as they are in excess of 200% of Medicare.
As Dr. Dauer is providing his expert opinion on the issue of reasonableness, his testimony must withstand the scrutiny of 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. Dauer, a board certified Radiologist by trade and owner of diagnostic centers, is qualified by knowledge, experience, and education in the field of Radiology. Whether he can give expert testimony regarding the reasonableness of the charges turns on whether sub-sections (1), (2), and (3) of F.S. 90.702 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. Dauer’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].
The first three sentences of Dr. Dauer’s affidavit reads:
1. My name is Edward Dauer, M.D. I am over the age of 18 and sui juris. This affidavit is based on my personal knowledge, skill, experience, training and education.
2. My testimony is the product of reliable principles and methods; and I have applied the principles and methods reliably to the facts of this case.
3. My testimony is based upon sufficient facts and data.
Dr. Dauer’s affidavit attempts to address the prongs of the Daubert criteria, however this Court finds that the attempt fails, as his opinion is not based on sufficient facts or data, nor does it identify the reliable principles and methods it is based on. Dr. Dauer’s affidavit is general in nature and provides anecdotal evidence based on his own experience, to wit: what he charges for identical services at his facilities. The opinion is rooted in the conclusory statements, “any payment in excess of 200% of Medicare is unreasonable,” and, “in the medical community Medicare is considered to be an objective benchmark or gold standard for a reasonable charge” and, “100% of the Medicare fee schedule has been adopted as the base level of reimbursement by most insurance companies” (emphasis added). Other than referring to his own insurance contracts, Dr. Dauer offers no background, facts, or data to establish these conclusions.
In this matter the technical radiological (the actual MRI) and professional radiological (reading the MRI) services were billed separately. Evidently, in some circumstances the services are billed together. Surprisingly, when analyzing the services provided in this matter, Dr. Dauer does not include the actual prices that Plaintiff charged. Dr. Dauer further admits that the diagnostic centers he operates do not bill the in the same manner as the Plaintiff. He speculates that, “Were my diagnostic center to bill separately for technical and professional components of the diagnostic services we provide, I would never charge in excess of $16.00 for the professional component of CPT code 72020. . . ” (Emphasis added). This would lead to the unrealistic conclusion that Dr. Dombrowsky’s services for reading the MRIs of the patient are valued at a total of $48.00 (compared to the $450.00 total stated on the submitted Health Insurance Claim Form). Dr. Dauer offers no reliable principles or methods to rationalize the disparity in pricing.
Additionally, Dr. Dauer does not attempt to set apart the PIP industry from the “medical community” when rendering his ultimate opinion. Rather than sampling the prices that providers in the community charge and are reimbursed for, Dr. Dauer focuses on what the insurance industry determines to be a reasonable charge, and gives no leeway to anything exceeding 200% of Medicare. Simply put, Dr. Dauer’s affidavit in this matter is not the sort of testimony which qualifies under Section 90.702 Florida Statutes (2013). To the contrary, this is more akin to the “pure opinion” testimony which has been rejected. Perez at 497; Giaimo v. Florida Autosport, Inc., 154 So.3d 385 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D2484a]. Therefore, Dr. Dauer’s testimony cannot be considered as expert testimony to address the reasonableness of the Plaintiff’s charge.
It is ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Witness Dr. Edward Dauer is GRANTED.
