27 Fla. L. Weekly Supp. 15a

Online Reference: FLWSUPP 2701ANGUInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court did not abuse discretion in striking opposing affidavit of insurer’s expert and did not err in entering summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit of insurer’s expert sets forth no specific elements that he considered in determining whether charges were reasonable and did not provide opinion on reasonableness of provider’s charges, and affidavit of claims adjuster impermissibly offered opinion testimony from lay witness

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. PROGRESSIVE HEALTH SERVICES, INC. a/a/o Fernando Angulo, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-079 AP. L.T. Case No. 13-2642 SP 24 (01). July 12, 2018. On Appeal from the County Court in and for Miami-Dade County, Florida, Judge Donald Cannava. Counsel: Omar A. Giraldo, for Appellant. Melisa Coyle, and Stuart L. Koenigsberg, for Appellee.

(Before MILTON HIRSCH, VERONICA DIAZ, and MARK BLUMSTEIN, JJ. )

OPINION

(PER CURIAM.) Fernando Angulo (the insured) was involved in a motor vehicle accident on October 13, 2011. He was treated by Progressive Health Services (PHS) and assigned his right to PIP benefits under his State Farm insurance policy to PHS. PHS submitted bills to Appellant State Farm Mutual Automobile Insurance Co. (State Farm) for services rendered through January 20, 2012. The bills totaled $13,450.00, and PHS sought 80% of that amount, which is $10,760.00. State Farm reduced the amount billed to an amount that it determined to be reasonable, and then applied the deductible, resulting in a payment to PHS of $5,343.69.

PHS sued. State Farm stipulated that the treatment provided by PHS to the insured was medically necessary and related to his October 13, 2011 accident, but challenged the reasonableness of the amount charged. PHS eventually moved for summary judgment as to reasonableness. In support of summary judgment, PHS filed a deposition and affidavit of its owner, Dr. Jason Levine. State Farm, in opposition to summary judgment, filed affidavits of Enoch Birt, its claims adjuster, and Dr. Bradley Simon, an expert witness. Initially, the trial court denied summary judgment and a motion for reconsideration, finding that PHS met is prima facie burden, but that State Farm had demonstrated the existence of a genuine issue of material fact.

As the case proceeded, PHS also moved for partial summary judgment as to underpaid benefits, asserting that State Farm improperly applied the deductible. As noted, State Farm determined what it considered to be a reasonable charge, and then applied the deductible to that amount. PHS asserted that State Farm was statutorily required to apply the deductible to the full amount that it charged, before making a reduction to the payment. The trial court agreed with PHS and granted its motion.

PHS filed a motion to strike the opinion of State Farm’s expert on reasonableness, Dr. Bradley Simon. The motion included an argument that Dr. Simon’s opinion did not satisfy the requirements of Daubert.¹ After a hearing, the trial granted the motion to strike, in part, based upon its finding that Dr. Simon’s affidavit did not satisfy Daubert.

PHS then filed a renewed motion to reconsider its motion for summary judgment. The trial court determined that PHS submitted sufficient evidence to meet its prima facie case (consistent with the initial order on summary judgment). However, since it granted PHS’s motion to strike Dr. Simon, and since the “Defendant did not file any other evidence in opposition to the Plaintiff’s Motion for the Court’s consideration,” it determined that State Farm had not presented any admissible evidence demonstrating the existence of genuine issues of material fact as to reasonableness, and therefore granted summary judgment in favor of PHS. It then granted final judgment in favor of PHS. State Farm appeals.

When considering an appeal of an order on summary judgment, an appellate court reviews the evidence de novo, and interprets the evidence contained in the record, including any affidavits submitted, in the light most favorable to the non-moving party. Rakusin Law Firm v. Estate of Dennis, 27 So. 3d 166, 166-67 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D296a]; see also State Farm Mut. Auto. Ins. Co. v. St. Jude Rehab. Ctr., 22 Fla. L. Weekly Supp. 52c (Fla. 11th Cir. Ct. Aug. 6, 2014). However, when considering a trial court’s ruling on the admissibility of an expert opinion, including a ruling based on Daubert, the abuse of discretion standard is applied. Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]; Booker v. Sumter Cty. Sheriff’s Office/North Am. Risk Servs., 166 So. 3d 189 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c]. Thus, in the instant case, the striking of Dr. Simon’s affidavit is subject to an abuse of discretion standard, and the subsequent grant of summary judgment is subject to a de novo standard.

PHS submitted the affidavit of its owner, Dr. Levine, as evidence that the amount charged by PHS was reasonable. No Daubert challenge was made to Dr. Levine’s affidavit. Dr. Levine’s affidavit meets the requirements of Rule 1.510(e): the affidavit is made upon Dr. Levine’s personal knowledge, Dr. Levine is competent to testify as to the matters stated in the affidavit, the facts asserted in the affidavit would be admissible in evidence, and the facts asserted are not conclusory. The facts set forth in the affidavit, as well as his deposition, constitute valid evidence that the amounts charged by PHS are reasonable. The trial court correctly determined that Dr. Levine’s affidavit met PHS’s summary judgment burden of producing evidence that the amounts that it charged were reasonable.

State Farm, however, asserts that even if Dr. Levine’s affidavit is considered sufficient, a genuine issue of material fact was created by the affidavits that it submitted of Dr. Simon and Mr. Birt. As noted, prior to the motion for summary judgment, Dr. Simon’s affidavit was stricken, in part, because the trial court determined that it did not satisfy the requirements of Daubert.

As a preliminary matter, case law indicates that prior to a court applying Daubert to an expert’s opinion, the party challenging the expert’s opinion must timely raise a Daubert objection which sufficiently places the opposing party on notice of the alleged defects in the expert’s testimony so that the opposing party can have the opportunity to address the alleged defects. Rojas v. Rodriguez, 185 So. 3d 710, 711 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D423a] (“it was incumbent upon the defendant, as the challenging party, to timely raise a Daubert objection and request a hearing before the trial court”); Booker, 166 So. 3d at 192; State Farm Mut. Auto. Ins. Co. v. A1A Mgmt. Servs., LLC d/b/a Roberto Rivera-Morales, M.D. a/a/o Muselair, 25 Fla. L. Weekly Supp. 860a (Fla. 11th Cir. Ct. Oct. 25, 2017).

In the instant case, the “Plaintiff’s Motion to Strike Bradley I. Simon, D.C., as Defendant’s Expert on Issue of Reasonableness of Charges” placed State Farm on notice of the alleged defects in Dr. Simon’s affidavit. The motion clearly set forth arguments as to why Dr. Simon’s affidavit did not meet the Daubert standard, including arguments that his opinions were based entirely on what payments his own practice accepts, and that his opinions were not based on sufficient facts or data. The motion was timely, because it was filed (and ruled upon) before the motion for summary judgment was filed. In addition, State Farm had the opportunity to address the alleged defects, through argument at a hearing on the motion to strike. Accordingly, PHS and the trial court properly filed and determined a detailed motion to strike an expert based on Daubert prior to filing and determining the motion for summary judgment.²

Florida’s version of Daubert is set forth in section 90.702, Florida Statutes, which provides:

[i]f 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.

This is the standard which the trial court was required to use below, and which guides this Court in reviewing the trial court. As previously noted, the trial court’s ruling on the admissibility of Dr. Simon’s opinion, based upon Daubert, is subject to an abuse of discretion standard. Bunin, Inc., 197 So. 3d 1109; Booker, 166 So. 3d. 189. We have carefully reviewed Dr. Simon’s affidavit and the trial court’s order striking it. The trial court was correct in determining that Dr. Simon’s affidavit in this case provides no specific data or worksheets as to amounts that insurers have reimbursed, or even amounts that he has accepted, and that the affidavit sets forth no specific elements which Dr. Simon considered in determining whether the charges at issue are reasonable. In fact, in his affidavit, Dr. Simon does not provide an opinion as to whether PHS’s charges were reasonable. We cannot say that the trial court abused its discretion in determining that Dr. Simon’s affidavit does not meet the requirements of Daubert as set forth in section 90.702, Florida Statutes.

In addition to Dr. Simon’s affidavit, State Farm filed the affidavit of its claims adjuster, Enoch Birt, which offers his opinion as to the reasonableness of the charges at issue. However, Mr. Birt was submitted as a lay witness, not an expert. Except under limited circumstances not present here, a lay witness may not present opinion testimony. See Sajiun v. Hernandez, 226 So. 3d 875, 879-80 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1857a] (quoting Fino v. Nodine, 646 So. 2d 746, 748-49 (Fla. 4th DCA 1994)). Although there is an exception which allows medical provider lay witnesses to testify as to the reasonableness of his or her bills, and which allows a patient lay witness to testify that he or she paid medical bills which have been submitted into evidence,³ research has revealed no parallel case allowing for an insurer’s lay witness to testify in opposition to the reasonableness of bills. Accordingly, the affidavit of State Farm’s claims adjuster, Enoch Brit, is insufficient as it solely offers the opinion of a non-medical-provider, non-patient lay witness. As such, his affidavit cannot be utilized in considering the motion for summary judgment.

Since PHS met its burden on summary judgment of bringing forth evidence (in the form of an affidavit by its owner, Dr. Levine) that its charges were reasonable, and since the evidence submitted by State Farm is insufficient (the affidavit of Dr. Simon because the trial court did not abuse its discretion in determining that it did not meet the requirements of Daubert, and the affidavit of Mr. Birt because it offered the opinion of a lay witness), the trial court correctly granted summary judgment on the issue of reasonableness in favor of PHS.

State Farm has also asserted that the trial court erred in determining that it was required to apply the deductible to the amount billed by PHS prior to reducing the amount to a reasonable rate in accordance with section 627.736(5)(a)(1), Florida Statutes. There currently exists an unresolved conflict as to this issue, with conflicting split opinions in the Fifth and Fourth District Courts of Appeal.⁴ This conflict is currently pending resolution before the Florida Supreme Court.⁵ It is not necessary to resolve this issue in the case before us, because our determination that the trial court correctly granted summary judgment as to the reasonableness of the amounts charged below means that State Farm will not be reducing the charges to an amount it determines to be reasonable. Therefore, there is no issue as to whether the deductible should be applied before or after a reduction in the charges billed, since there will be no reduction. As such, the deductible issue is moot.

Accordingly, the summary judgment and final judgment entered below are hereby AFFIRMED. (HIRSCH, DIAZ and BLUMSTEIN, JJ., concur.)

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¹Daubert is a United States Supreme Court case decided in 1993, setting forth requirements for the admissibility of expert witness testimony in Federal courts. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The Florida Legislature, in 2013, decided to adopt the Daubert standard to be used in Florida, to replace the Frye standard, which Florida had used for many years, and which was based on a previous Supreme Court Case. Florida’s version of the Daubert test is found in Florida Statute section 90.702.

²Another issue that arises in relation to Daubert is the effect of the Florida Supreme Court’s decision in In re: Amendments to the Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017) [42 Fla. L. Weekly S179a]. The legislature adopted statutes to change the standard of admissibility of expert evidence from Frye to Daubert, but due to constitutional concerns that were raised, the Florida Supreme Court declined to adopt the Daubert standard to the extent that it is procedural. However, it declined to rule upon the merits of those constitutional concerns until a proper case or controversy presents itself. (Another case, Richard Delisle v. Crane Co., et. al (SC16-2182) is currently pending before the Florida Supreme Court, which may resolve the issue. The Court has not yet issued an opinion on the case, but oral arguments were heard on March 6, 2018. [Opinion date: October 15, 2018, 43 Fla. L. Weekly S459a]) Despite the Florida Supreme Court’s decision not to adopt the statutory amendment to the extent that it is procedural, however, it appears that Daubert still applies. In dicta, in Clare v. Lynch, 220 So. 3d 1258 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1423c], the Second DCA addressed the continued applicability of Daubert in Florida given the Florida Supreme Court’s decision. It stated that “a Florida Supreme Court rules decision to adopt a statutory amendment to the extent it is procedural does ‘not vitiate or overturn the statute’ and ‘the statute remains the law in Florida.’ ” Id. at 1262 (quoting Blivins v. Rogers, 207 F. Supp. 3d 1321, 1326 (S.D. Fla. 2016)). Accordingly, it is proper, in reviewing the trial court’s striking of Dr. Simon’s affidavit, to apply the Daubert standard.

³See Lawton-Davis v. State Farm Mut. Auto. Ins. Co., 2016 WL 7238904, at *2 (M.D. Fla. Apr. 21, 2016) [27 Fla. L. Weekly Fed. D132a] and cases cited therein; Donovan v. State Farm Mut. Auto. Ins. Co., 560 So. 2d 330, 331 (Fla. 4th DCA 1990); State Farm Mut. Auto. Ins. Co. v. Multicare Med. Ctr., Inc., 12 Fla. L. Weekly Supp. 33a (Fla. 11th Cir. Oct. 5, 2004).

⁴See Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr. a/a/o Jonathan Parent, 236 So. 3d 1183 (Fla. 5th DCA 2018) [43 Fla. L. Weekly D318a]; State Farm Mut. Auto. Ins. Co. v. Care Wellness Center, LLC, 240 So. 3d 22 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D573a]; USAA Gen. Indem. Co. v. William J. Gogan, M.D. a/a/o Tara Ricks, 238 So. 3d 937 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D570a]; Progressive Select Ins. Co. v. David A. Blum, MD., P.A. a/a/o Vanessa Moreno, 238 So. 3d 852 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D569c].

⁵Progressive Select Ins. Co. v. Fla. Hosp. Med. Ctr. a/a/o Jonathan Parent, Case No.: SC18-429 and Care Wellness Ctr. LLC v. State Farm Mut. Auto. Ins. Co., Case No.: SC18-429.