24 Fla. L. Weekly Supp. 20a
Online Reference: FLWSUPP 2401VALIInsurance — Personal injury protection — Scientific evidence — Abuse of discretion to find that opinion of treating physician concerning reasonableness of charges was expert witness testimony that satisfied Daubert standard where physician relied primarily on his own experience in formulating opinion and did not explain how his experience led to his opinion, why his experience was sufficient basis for his opinion, or how his experience was reliably applied to facts
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o MERCEDES VALIENTES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-345 AP. L.T. Case No. 07-9501 CC 25 (04). March 21, 2016. An Appeal from the County Court for Miami-Dade County, Saenz, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company Trial Division, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A.; and Armando A. Brana, Armando A. Brana, P.A., for Appellee.
(Before KORVICK, SARDUY, and RUIZ COHEN, JJ.)
(RUIZ COHEN, Judge.) This is an appeal from a final summary judgment1 in a breach of contract for personal injury protection benefits. The issue on appeal is whether the trial court abused its discretion when it found that the opinion of Progressive Medical Group Inc.’s treating physician, concerning the reasonableness of the medical charges after November 9, 2006, was expert witness testimony that satisfied the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) standard under section 90.702, Florida Statutes (2013), and whether the trial court abused its discretion when it found that the treating physician’s methodology of usual and customary charges in the medical community satisfied the catch-all factor provision of section 627.736(5)(a)1, Florida Statutes (2006). Because we find that the trial court abused its discretion in making those findings, we reverse the final summary judgment below and remand for the trial court to determine whether or not the opinion of Progressive Medical Group Inc.’s treating physician was fact or lay witness testimony regarding the reasonableness of the medical charges.
The treating physician merely testified that he is familiar with the amounts charged and that based on his thirty-two years of experience, the charges were reasonable. 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. State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 2009 WL 6357793 at *1, *19 (M.D. Fla. 2009); Charles W. Ehrhardt, 1 West’s Fla. Proc. Evidence § 702.3 (2015 ed.). We find that there was no such testimony by the treating physician to meet the Daubert standard.
Progressive Medical Group Inc.’s motion for appellate attorney’s fees under section 627.428, Florida Statutes (2006) is hereby denied.
REVERSED and REMANDED for further proceedings. (KORVICK and SARDUY, JJ. concur.)
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1The record establishes that the final summary judgment below was entered by Hon. Nuria Saenz but the two day final summary judgment hearing was heard by the Hon. Lourdes Simon.
