25 Fla. L. Weekly Supp. 120a
Online Reference: FLWSUPP 2501MCCAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonable of charges — Related and necessary treatment — Expert testimony — Affidavits of treating physicians submitted by provider in support of motion for summary judgment were sufficient to establish prima facie case that treatment rendered was medically necessary and related to motor vehicle accident — Opposing affidavits failed to meet three-pronged test set forth in section 90.702 — Plaintiff presented prima facie case that its charge for treatment was reasonable through affidavit of treating physician, and affidavit of defendant’s expert was legally insufficient to raise disputed issue of fact — Provider’s motion for summary judgment granted
SPINAL HEALTH AND REHAB OF PUNTA GORDA, INC., (a/a/o Kaitlin McCausland), Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-07617CONO (70). February 12, 2017. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cinday A. Goldstein, P.A., Coral Springs, for Plaintiff. Kirwan Spellacy & Danner, P.A., Fort Lauderdale, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINALSUMMARY JUDGMENT AND FINAL JUDGMENT
THIS CAUSE having been reviewed by the Court on January 25, 2017 on Plaintiff’s Motion for Summary Judgment and the Court having reviewed the motions, the exhibits, the Court file, relevant legal authorities; the Court having heard oral arguments; and the Court otherwise being advised in the premises, the Court hereby makes the following findings:
Kaitlin McCausland was injured in a motor vehicle accident on June 22, 2011. At the time of the accident, she was insured by Defendant under a PIP policy with a $1,000 deductible. Following the motor vehicle she was examined and treated by Plaintiff several times between the dates of June 22, 2011 until December 8, 2011. Plaintiff submitted bills to Defendant for dates of service falling within this time period. Defendant did not properly plead that its policy contained an election to pay according to the “schedule of maximum charges” contained in §627.736(5)(a)2, Fla. Stat. (2011). However Defendant nevertheless reduced several of Plaintiff’s initial bills to the amount equal to the “schedule of maximum charges”. Defendant subsequently applied the fee schedule reduced amount against the deductible. Defendant further disclaimed liability for the outstanding bills relying on a Peer Review obtained from Dr. Jeff Ronser dated October 19, 2011. Based on Defendant’s denial of many of the subject bills, Plaintiff filed the instant lawsuit seeking $8,429.81. The Court finds the foregoing facts were undisputed based on the record at the time of the hearing.
The issues remaining for the Court’s determination were the Reasonableness of Plaintiff’s charges as well as the Relatedness and Medical Necessity of the treatment. Plaintiff, as the movant, has the initial burden of tendering sufficient evidence to demonstrate the nonexistence of genuine issue of material fact. If Plaintiff meets its prima facie burden, Defendant, as the opposing party, “must come forward with counterevidence sufficient to reveal a genuine issue”. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). “A trial court cannot consider inadmissible evidence in determining the disposition of a motion for summary judgment.” Rose v. ADT Sec. Servs., 989 So. 2d 1244 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2162b]. Furthermore, §90.702, Fla. Stat. provides a three prong test whereby an otherwise qualified expert may only offer expert opinion testimony 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.
Accordingly, a Court may only consider proffered expert testimony that complies with the three prong admissibility test of §90.702, Fla. Stat. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Perez v. Bell South Telecomms., Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]; Cook v. Sheriff of Monroe County, 402 F.3d 1092 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C298a]. The Court’s role is that of gatekeeper and “should affirmatively prevent imprecise, untested scientific opinion from being admitted.” Crane Co. v. Delisle, 2016 Fla. App. LEXIS 16761 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2532a].
I. Relatedness and Medical Necessity
In support of its contention that the medical care and service performed on Ms. McCausland was medically necessary and related to her June 22, 2011 motor vehicle accident, Plaintiff relied on the testimony of two treating physicians: Dr. Kevin Van Nostrand and Dr. Bradly Ceurvels. The affidavits provided by these treating physicians, collectively or individually, are sufficient to meet Plaintiff’s prima facie burden regarding Medical Necessity and Relatedness.
In an attempt to demonstrate that a material issue of general fact existed, Defendant relied on two affidavits from Dr. Rosner: one dated January 7, 2016, the other dated March 16, 2016. However, the Court found that there was sufficient enough reason to prohibit Dr. Rosner’s testimony for the reasons discussed on the record. Regardless of this finding, the Court additionally finds that his testimony in both affidavits is wholly inadmissible under the Evidence Code.
For example, in his January affidavit, Dr. Rosner claims his records review was based on various “miscellaneous documents” that he did not deem necessary to identify. Moreover, Dr. Rosner complained that he lacked sufficient documentation to render an opinion. These statements run afoul of prongs 1 and 2 of §90.702, Fla. Stat. He further fails to identify facts underlying his testimony, opines on matters for which he has not established his expertise, deviates from the standards set by the No-Fault statutory scheme, relies on hearsay, offers supposition and speculation, relies on his erroneous and inadmissible opinions as to various statutes, and testifies regarding Defenses that are legally unsupported or not present in the pleadings. For example, Dr. Rosner primarily seems preoccupied regarding the recordkeeping. However, this is not a defense to payment of the claim. See Sevila Pressley Weston v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 306b (Fla. 11th Cir. App. 2013); Martinez Chiropractic Center, Inc. (a/a/o Camilo Mejia) v. United Auto. Ins. Co., 21 Fla. L. Weekly Supp. 820a (Fla. Broward Cty. Ct. 2014); Central Magnetic Imaging Open MRI of Plantation, LTD (a/a/o Evelyn Deshommes) v. State Farm Fire and Cas. Co., 06-17925 COCE (50) (Broward Cty. Ct. March 24, 2016); Wingreen Co. v. Montgomery Ward & Co., 171 So.2d 408 (Fla. 3d DCA 1965). Dr. Rosner further opines regarding his opinions as to Box 31, again fashioning his own legal standards that are contrary to established law. See USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc., 31 So.3d 234 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b]. If it is not pled, the Court may not “inject an affirmative defense on motion for summary judgment”. Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1958).
Dr. Rosner’s March affidavit is primarily composed of his clear mischaracterizations of the testimony of other witnesses and his opinions as to the credibility of other witnesses. Such testimony is irrelevant and inadmissible. See Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977). He thereafter returns to his opinions regarding defenses that are legally unsupported or not present in the pleadings. Tellingly, Dr. Rosner bases his opinion, in part, on an Administrative Code that was repealed more than a year prior to the submission of his affidavit. He ultimately fails to render an opinion on the ultimate relevant issues.
Based on the foregoing, the Court finds that Dr. Rosner’s opinions fail to meet any of the three prongs of required by §90.702, Fla. Stat. and are otherwise inadmissible under the Evidence Code. As Plaintiff met its prima facie burden and as Defendant was unable to show that a genuine issue of material fact existed, the Court finds that all of the medical care and service performed on Ms. McCausland was medically necessary and related to her June 22, 2011 motor vehicle accident.
II.
Reasonableness of Prices
Plaintiff relied on the affidavit of Dr. Van Nostrand in support of its contention that its prices were reasonable. Dr. Van Nostrand has personal experience and knowledge relating to what constitutes a reasonable charge for chiropractic services. The Court finds that Plaintiff met its initial burden in presenting a prima facie case. The court finds the affidavit of Dr. Van Nostrand meets the Plaintiff’s prima facie burden to establish the Plaintiff’s charge is reasonable.
In an attempt to defeat Plaintiff’s motion for summary judgment and show that a material issue of general fact existed, Defendant relied on an affidavit of Dr. Rosner. However the Court finds that Dr. Rosner’s affidavits are legally insufficient regarding price. The Court finds that the affidavits, individually or collectively, do not meet any of the three prongs of admissibility required by §90.702, Fla. Stat. For example, in his January 7, 2016 affidavit, regarding the issue of reasonableness of price, Dr. Rosner’s opinion appears to be solely based on his clearly erroneous and inadmissible belief that it is legally impermissible for the provider’s charges to “exceed the applicable fee schedule”. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., 141 So. 3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] (holding that “a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy”). The Court finds that the pure opinion and conclusory testimony offered in his March affidavit is similarly inadmissible. As Defendant failed to offer admissible counter evidence, the Court finds there is no material issue of fact as to whether Plaintiff’s charges are reasonable.
Accordingly, based on the foregoing, it is hereby ORDERED AND ADJUDGED, that Plaintiff’s Motion for Summary Judgment is GRANTED. Finding no other issues present in the case, the Court enters Final Judgment in Plaintiff’s favor. The Final Judgment amount is $10,732.58 (which consists of $8,429.81 medical benefits and $2,302.77 prejudgment interest accrued through the date of this judgment). The Final Judgment shall bear interest at the legal rate, 4.97% per annum, upon the entire sum of the judgment, for which let execution issue forthwith. Further, the Court finds that Plaintiff is entitled to an award of attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of fees and costs and to enter further orders to enforce this judgment.
