26 Fla. L. Weekly Supp. 978a

Online Reference: FLWSUPP 2612WPERInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer precludes summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit does not consist solely of unsupported speculation or mere subjective belief and demonstrates genuine issue of material fact on reasonableness issue — Pure opinion testimony is permitted under Frye standard reaffirmed in Delisle

MIAMI DADE COUNTY MRI CORP., a/a/o William Perez Jr., Plaintiff, v. UNITED AUTO INS CO, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2013-011966-SP-23. Section ND 06. October 31, 2018. Ramiro C. Areces, Judge. Counsel: Kenneth J. Dorchak, Buchalter, Hoffman & Dorchak, North Miami, for Plaintiff. Karen Trefzger, House Counsel of United Automobile Insurance Company, Miami, for Defendant.

ORDER DENYING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND MOTION TO STRIKEAFFIDAVIT IN OPPOSITION TOMOTION FOR SUMMARY JUDGMENT

THIS MATTER having come before the Court on Plaintiff’s Motion for Summary Judgment and Motion to Strike Affidavit in Opposition to Motion for Summary Judgment and this Court, having read the Motions, the binders of case law provided by both Parties, examined the case file and being otherwise fully advised in the premises it is hereby,

ORDERED AND ADJUDGED:

Plaintiff’s Motion for Summary Judgment and Motion to Strike Affidavit in Opposition to Motion for Summary Judgment are DENIED.

The sole issue here is the reasonableness of Plaintiff’s medical bills under Fla. Stat. §627.736(5)(a). Reasonableness “is a fact-dependent inquiry determined by consideration of various factors.” See Geico Gen. Ins. v. Virtual Imaging Servs., 141 So. 3d 147, 155-56 (Fla. 2013) [38 Fla. L. Weekly S517a]. The Court is satisfied that Plaintiff met its initial burden of making a prima facie showing that its medical bills were reasonable.¹ The issue then is whether Defendant has demonstrated there are genuine issues of material fact to be tried.

Defendant relies exclusively on the affidavit of Ms. Marcia Lay, which was filed in opposition to Plaintiff’s Motion for Summary Judgment. Plaintiff contends Ms. Lay’s affidavit should be stricken. However, Plaintiff’s Motion to Strike was filed, and argument was heard, prior to the Florida Supreme Court’s opinion in Delisle v. Crane Co., wherein the Florida Supreme Court rejected Daubert and reaffirmed that Frye was the test Florida courts must use when determining the reliability of expert testimony. 2018 WL 5075302, at *8 (Fla. October 15, 2018) [43 Fla. L. Weekly S459a]. Plaintiff’s Motion to Strike focuses, almost exclusively, on Daubert and its various factors. Plaintiff’s Daubert arguments are inapposite post-Delisle.

Plaintiff does make an additional argument that “an affidavit of an expert whose opinion relies upon subjective belief, unsupported speculation, and which are pure opinion such as opinion based upon experience only should be rejected.” See Motion to Strike at 3 (citing Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 497 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D865b]). This Court is not persuaded that Ms. Lay’s affidavit consists solely of unsupported speculation or mere “subjective belief.” While Ms. Lay’s affidavit contains statements that may not withstand vigorous cross-examination, the Court finds the affidavit, viewed in the light most favorable to the non-movant, has succeeded in demonstrating there exists a genuine issue of material fact on the matter of reasonableness. See Hernandez v. United Auto Ins. Co., Inc., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a] (on summary judgment, “a court may neither adjudge the credibility of the witnesses nor weigh the evidence”).

Moreover, after Delisle, Plaintiff’s reliance on Perez, as it concerns “pure opinion” testimony, is misplaced. In Perez, the Third District Court of Appeal found that in adopting the Daubert standards, the Legislature had sought to exclude “pure opinion” testimony. 138 So. 3d at 497. However, the Perez Court acknowledged that prior to the Legislature’s adoption of the Daubert standards, Florida courts did permit “pure opinion” testimony. Id. at 496. In fact, one of the cases cited by Plaintiff in support of its Motion pre-dates Daubert and expressly permits the use of “pure opinion” expert testimony. See State of Florida v. Demeniuk, 888 So. 2d 655, 658 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1971a] (“If, however, the opinion is based solely on the knowledge and experience of the expert, it is deemed to be ‘pure opinion’ and is admissible without being subjected to Frye scrutiny.”). In any event, the Court is satisfied that, at least for summary judgment purposes, Ms. Lay has asserted an adequate basis for her opinion that “the charges submitted. . . are unreasonable.” Affidavit of Marcia Lay at §13.

Accordingly, Plaintiff’s Motion for Summary Judgment and Motion to Strike Affidavit in Opposition to Motion for Summary Judgment are denied.

__________________

¹This Court is not convinced that A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e] stands for the proposition that presentation of the bill is sufficient to establish “reasonableness” under §627.736(5)(a). In A.J., the Fourth District Court of Appeal did state “[a] medical bill constitutes the provider’s opinion of a reasonable charge for the services and an offer to settle for that amount.” Id. at 937. However, the Court in A.J. was discussing contract formation in the context of medical treatment, and not the “reasonableness” of a medical bill under a statutory framework that has provided specific factors that must be considered. Nevertheless, this Court need not make a determination on whether A.J. permits a Plaintiff to rely solely on its own medical bill to make a prima facie case, because the Court is satisfied that Plaintiff has otherwise met its initial burden.