24 Fla. L. Weekly Supp. 750a
Online Reference: FLWSUPP 2409PLOUInsurance — Personal injury protection — Expert witnesses — Reasonableness of charges — Where proffered expert on reasonableness of charges fails to take into consideration usual and customary charges of medical provider or community or reimbursement amounts accepted by provider and merely opines that reasonable amount is up to 135% to 145% of covered amount under Medicare Part B fee schedule, testimony constitutes prohibited pure opinion testimony — Further, expert’s opinions based on fee schedules alone are not based on sufficient facts or data and are not product of sufficient principles and methods to satisfy admissibility requirements for expert testimony
SIX DOCTORS MEDICAL CENTER, INC. a/a/o VILIA PIERRE LOUIS, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-009169 COCE 50. August 26, 2016. Peter B. Skolnik, Judge. Counsel: Emilio Roland Stillo, Nathan J. Avrunin, and Kevan Carbon, for Plaintiff. Russell S. Kolodziej, for Defendant.
ORDER ON DAUBERT HEARING GRANTINGPLAINTIFF’S MOTION TO PRECLUDETESTIMONY OF DEFENDANT’SEXPERT WITNESS, DR. DONMORRIS, D.C.
THIS CAUSE came before the Court on August 26, 2016 upon the Daubert hearing and Plaintiff’s Motion to Preclude the testimony of Defendant’s Expert Witness, Dr. Don Morris, D.C. 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 sole remaining issue in this case is whether the Plaintiff’s charges for the services at issue in the instant case were reasonable in price.
3. The Defendant has indicated that it intends to call Dr. Don Morris, D.C. as its expert witness at trial in the case sub judice. Dr. Morris is expected to testify at trial on the issue of reasonableness.
4. On June 24, 2016, the Defendant filed a Peer Review of Dr. Don Morris, D.C., in which he attests that the Plaintiff’s charges for services rendered in the instant case to Georges Pierre Louis were unreasonable.
5. The Plaintiff contends that this Court should preclude any testimony from Dr. Morris regarding the reasonableness of Plaintiff’s charges, as Dr. Morris’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. Morris’s testimony is unreliable and inconsistent, and that Dr. Morris has failed to reliably apply the principles and methods he used to the facts of this case.
6. 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 Don Morris’s testimony in which he opines that 135% to a maximum of 145% 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 or Worker’s Compensation Fee Schedule in the event a particular service was not covered under Medicare.
7. The Defendant seeks to have Dr. Don Morris, D.C. testify at trial regarding the reasonableness of Plaintiff’s charges involved in the instant case.
8. 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).
9. 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).
10. 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. . .”
11. 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.
12. 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.
13. 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.
14. 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.
15. During the July 25, 2016 Daubert hearing, it was established that Dr. Morris:
I. Determines the reasonableness of the prices at issue in the case sub judice by taking 135% to 145% of Medicare;
II. Does not currently work in Broward County and has not worked in Broward County since approximately 2011;
III. Cannot name a single facility in Broward County that was billing 145% of Medicare during 2010;
IV. Cannot name a single facility in Broward County that is currently billing 145% of Medicare;
V. Did not take into consideration the reimbursement levels with regard to the Plaintiff’s facility;
VI. Has no knowledge of the reimbursement levels with regard to Plaintiff’s facility;
VII. Cannot name a single PIP insurance company that was reimbursing 135% to 145% of Medicare in Broward County during 2010;
VIII. Was employed in Miami-Dade County during 2010 at a facility that generally charged more than 135% of Medicare in PIP cases;
IX. Cannot recite the PIP statutory definition of “reasonableness”;
X. Opines that for the services at issue in the instant case, no charges over 145% of Medicare can be considered reasonable;
XI. Fails to render an opinion regarding the reasonableness of CPT Code 98941 or CPT Code 97124;
XII. Uses the Florida Worker’s Compensation reimbursement manual to determine reasonable charges whenever a code is not covered under Medicare;
XIII. Incorrectly utilized the Florida Worker’s Compensation reimbursement amount for CPT Code 97010.
16. Below are excerpts from the Daubert hearing conducted on July 25, 2016:
MR. STILLO: Can you state under oath, one facility that you are sure was billing 145 percent of Medicare in Broward County in 2010? (page 32, line 22)
DR. MORRIS: Not with PIP. . .
MR. STILLO: What is your understanding of the definition of reasonableness? What are you giving an opinion on? (page 36, line 19)
DR. MORRIS: To be precise, I would have to — I would — I refer to the actual wording. The reasonable is in the context of what I’m doing, but here — a reasonable charge would be that which is not usual and customary, but is within the realm of what a reasonable chiropractor or other practitioner would charge for the same service and the same area at the same time and it takes into consideration a great deal of factors. . .
MR. STILLO: You didn’t consider the amounts reimbursed to Six Doctors in this particular case? (page 39, line 16)
DR. MORRIS: I did not know the amount they were reimbursed. I still do not know.
MR. STILLO: Can you — well, let’s start off first of all, can you give a name of one facility in Broward County that charges what you think is reasonable; 135 to 145 percent of Medicare? (page 40, line 10)
DR. MORRIS: At this time I don’t know one. I don’t remember what’s being charged in Broward. . .
MR. STILLO: So I’m asking you, can you give — name one PIP insurance company that was reimbursing for PIP claims in Broward County in 2010 what you say a reasonable charge is, 135 to 145 percent of Medicare? (page 43, line 1)
DR. MORRIS: It’s strange, my knowledge in memory. I can’t — I cannot.
MR. STILLO: Are you aware that the PIP statute has a statutory definition as it relates to reasonableness? (page 50, line 14)
DR. MORRIS: I have reviewed it many times, though I could not quote it at the moment.
THE COURT: In this case, you were asked to provide an opinion whether the services were reasonable or not, correct or the charges? Were you asked to provide an opinion whether the charges are reasonable? (page 51, line 19)
DR. MORRIS: Yes, Judge. I was asked for the reasonableness of the charges.
THE COURT: Now, when you’ve made that determination, what did you determine? (page 52, line 1)
DR. MORRIS: Charges were overall unreasonable and it needed to be reduced to a reasonable level, which I did —
THE COURT: When in making that determination, did you use the statutory definition of reasonableness —
DR. MORRIS: I did.
THE COURT: And what is that?
DR. MORRIS: Fortunately, I often have to review definitions, but as another reasonable conscientious, I can’t think of the proper word there. Practitioner what they should be charging in that situation. I’m sorry.
THE COURT: What about in this case? It’s not possible for any of these codes to ever be charged over 145 percent of Medicare and be considered reasonable; is that your testimony? (page 54, line 16)
DR. MORRIS: Not in this case or these records I’ve reviewed.
17. Plaintiff seeks to preclude the Defendant’s named expert, Don Morris, D.C., 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 maintains 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 the instant case, in reaching his conclusion that Plaintiff’s charges are unreasonable, Dr. Morris fails to take into consideration the usual and customary charges of Plaintiff, or the reimbursement amounts accepted by Plaintiff.
20. Instead, he merely opines that a reasonable charge is up to, but no more than, 135% to 145% of the covered amount under the Medicare Part B Fee Schedule.
21. In determining that the Plaintiff’s charges in the instant case were unreasonable, at no time does Dr. Morris take into consideration what the usual and customary charges in the community are of providers rendering the same medical services as Plaintiff.
22. Dr. Morris’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).
23. Courts have refused to consider expert testimony similar to that of Dr. Morris’ 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. See Millenium Radiology, LLC d/b/a Millenium 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.); 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 courts in Broward County have held other experts’ testimony on reasonableness inadmissible is because they 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 Don Morris, D.C. as to reasonableness.
25. 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.)
26. 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.
27. Other courts in Broward County have struck experts when the experts failed to consider sufficient facts and data when formulating their opinion, as Dr. Morris 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.”
28. Similar to the Plaintiff in Olivera, Plaintiff 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 plans.
29. Therefore, any consideration Dr. Morris gave to these reimbursement methods is not relevant, as it does not relate in any way to Plaintiff’s usual and customary charges.
30. As a result, for the foregoing reasons, the Court finds that, as applied to the issue in this case, Dr. Morris’ 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. Morris’ proffered testimony fails to satisfy the requirements of Daubert and Fla. Stat. §90.702 regarding the admissibility of expert testimony. Therefore, Dr. Morris is precluded as an expert on the issue of reasonableness of the Plaintiff’s charges.
