25 Fla. L. Weekly Supp. 753a
Online Reference: FLWSUPP 2508PUENInsurance — Personal injury protection — Expert witnesses — Insurer’s expert is qualified to testify as expert on issue of reasonableness of MRI charge where expert relies on other charges and reimbursements to insurer for same service that are less than what medical provider charges, and expert has experience as radiologist and experience regarding medical charges
MILLENNIUM RADIOLOGY, LLC, a/a/o Sergio Puentes, Plaintiff vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 13-139 SP 23 (06). September 27, 2017. Spencer Multack, Judge. Counsel: Gary Marks, for Plaintiff. Sean Sweeney, for Defendant.
ORDER ON PLAINTIFF’S CHALLENGE TOTHE ADMISSIBILITY AND EXPERTISE OF DR. DAUER
This matter was before the Court on August 9th, 2017 on Plaintiffs request for a Daubert hearing to determine whether Dr. Edward Dauer’s proposed expert testimony would be admissible following the scrutiny required under Fla. Stat.§ 90.702. After hearing the arguments of counsel, reviewing the case law provided, reviewing the court record, and being fully advised of the premises thereof, the Court finds as follows:
This is an action for the recovery of PIP benefits pursuant to Fla. Stat. §627.736. Plaintiff’s Complaint alleges that the charge(s) for its service(s) were reasonable and the parties represented that the only issue remaining in this lawsuit is the reasonableness of Plaintiffs charges. The Defendant listed Dr. Edward Dauer as an expert witness on the issue of the reasonableness of the Plaintiff’s charge.
As Defendant proffers Dr. Dauer to provide 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.
Unlike a Plaintiff’s Motion for Summary Judgment, which places the burden on the Plaintiff to negate any questions of material fact and confines the court to the face of the affidavits before it, the party seeking to introduce expert testimony bears the burden of satisfying these criteria by a preponderance of the evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
The Defendant has submitted the affidavit of Dr. Edward Dauer, dated October 12th, 2015, to opine on the reasonableness of the charge for an MRI (CPT code 72141). The affidavit and submissions are nearly identical to the affidavit and submissions submitted in Millennium Radiology, LLC a/a/o Robert Barretti II v. United Auto. Ins. Co. 2012-11287SP23 (Miami-Dade County)1 [24 Fla. L. Weekly Supp. 989a], which this Court has previously found meets the necessary criteria under F.S. 90.702. In the instant matter, Dr. Dauer’s affidavit contains a scrivener’s error; the patient and case number on the first page of the affidavit are incorrect; the named insured in the submitted affidavit is Leonides N. Suarez, with corresponding case 2012-16563SP23. The actual patient in this matter is Sergio Puentes2. Regardless, the Plaintiff is the same in both cases, the Health Insurance Claim Form corresponds to the correct patient, Sergio Puentes, and the submitted charge analyzed by Dr. Dauer is for an MRI.
The Court finds that Dr. Dauer’s affidavit submitted in this matter3 satisfies the rigors of F.S. 90.702. Particularly, Dr. Dauer relies on other charges and reimbursements4 to the Defendant, for the same service, that appear to be less and in some instances half of what the Plaintiff charges. The Court finds the examination of this data to be sufficient, the analysis thereof to be reliable, and its application to this matter acceptable on which to form an opinion. This evidence, coupled with Dr. Dauer’s experience as a radiologist, and experience regarding medical charges, qualify him to testify as an expert witness.
Further, the Court finds the recent 11th Circuit Appellate case of State Farm vs. Health & Wellness Assoc. a/a/o Karlene Scott, 25 Fla. L. Weekly Supp. 220a, (11th Cir. App. May 24, 2017), to be persuasive on this issue.
THEREFORE, The Plaintiff’s Challenge to Admissibility of Dr. Dauer, is DENIED, the Defendant may call Dr. Dauer as a witness in these proceedings to opine on the reasonableness of the Plaintiff’s charge.
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1The Barretti affidavit is also dated October 12, 2015.
2 The Court notes that all three of these case (Barretti, Suarez, and Puentes) have been filed by the same Plaintiff (Millennium Radiology) for one date of service for CPT code 72141 billed at $2150.
3 The Court has reviewed and ruled on several previous affidavits of Dr. Dauer, in other cases, resulting in the striking of the affidavits for failure to comply with 90.702. The Court reviews each affidavit independently and, as such, has found that this particular affidavit meets Daubert criteria for the specific set of facts in this matter.
4Submitted as Exhibit C of the affidavit.
