27 Fla. L. Weekly Supp. 3a
Online Reference: FLWSUPP 2701NAVAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in excluding opposing affidavit filed by insurer on issue of reasonableness of charges for x-ray services in reliance on Daubert standard that Florida Supreme Court has declined to adopt — Under appropriate standard, affidavit in form of pure opinion testimony and offering opinion based on clinical experience, examination of medical records, analysis of quality and quantity of experience involved, and on research on fee schedules and fee awards was legally sufficient to withstand summary judgment motion
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. A1A MANAGEMENT SERVICES, LLC, d/b/a/ ROBERTO RIVERA-MORALES, M.D. a/a/o Andrea Nava, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-252 AP. L.T. Case No. 13-7525-SP-25. March 19, 2019. An appeal from the County Court of the 11th Judicial Circuit; Gina Beovides, Judge. Counsel: Nancy Gregoire, for Appellant. Matthew D. Hellman, for Appellee.
(Before PETER LOPEZ, LAURA STUZIN, and MARCIA DEL REY, JJ.)
(DEL REY, Judge.) Before this court is an appeal of a final summary judgment ruling entered against the Appellant, State Farm Mutual Automobile Insurance Company (herein State Farm). In its appeal, State Farm contends that the county court erred regarding (1) the competency of the Appellee’s summary judgment evidence presented to establish the reasonableness of fees, (2) the scope of the court’s role in resolving fee disputes during the summary judgment stage, and (3) the deficiency of State Farm’s countervailing evidence refuting the reasonableness of the Appellee’s fees. This court generally agrees, in principle, with State Farm. Accordingly, we reverse the decision on appeal and remand this case for further proceedings for the reasons set forth more fully below.
This appeal emanates from a lawsuit filed in 2013. In April of 2013, the Appellee, Dr. Rivera-Morales filed a lawsuit against State Farm for failing to pay, in full, PIP benefits which would cover certain x-ray services provided to State Farm’s insured. In 2012, State Farm’s insured sustained personal injuries as a result of an automobile collision. The insured’s x-rays were submitted to radiologist Dr. Rivera-Morales who read and interpreted the results of the x-rays. As consideration for performing the x-ray services, Dr. Rivera-Morales accepted and executed a written assignment of the patient’s PIP benefits. Under the assignment of benefits, invoices for Dr. Rivera-Morales’ services were directly submitted to the patient’s insurance carrier, i.e., State Farm. State Farm paid the invoices based on Medicare Part B’s participating-physicians’ fee schedule, instead of paying the amount billed. Thus, the medical invoices submitted by Dr. Rivera-Morales were reduced by State Farm to the Medicare Part B schedule rates. Based on this payment, Dr. Rivera-Morales sued State Farm for failing to pay the amount billed in accordance with the contractual terms of the insurance policy and Florida’s No Fault PIP statute.
During the course of the PIP litigation, Dr. Rivera-Morales filed a motion for summary judgment on the reasonableness of his charges. In support of the summary judgment motion, Dr. Rivera-Morales submitted affidavits which listed his credentials as a board certified radiologist with extensive experience in reading and interpreting imaging films received from medical, diagnostic and rehabilitative centers. The affidavits also detailed his usual and customary charges, payments he has accepted from PIP insurers in the past, charges paid in full by State Farm for identical services, and a statistical analysis of the customary charges of other providers who are located within the geographical community in which he practices. Additionally, attached to the affidavits were medical coding payment forms, medical bills, the insureds’ medical records, and the radiology reports. In opposition to the motion, State Farm filed the affidavit of Dr. Michael Propper and Dr. Rivera-Morales’ deposition. Dr. Propper’s affidavit listed his credentials as an orthopedic surgeon certified in medical billing and coding, and included: his personal knowledge of the prevailing charges and reimbursements rates from commercial insurers and PIP insurers for radiological services in the South Florida area, his own charges for x-ray interpretations, a comparison of his charges versus Dr. Rivera-Morales’ charges, his analysis of the statutory reasonableness factors, the patient’s records reviewed, and his opinion that Dr. Rivera-Morales’ charges were excessive.
At the summary judgment hearing, the county court determined that Dr. Rivera-Morales’ medical bills for the service at issue, the additional documents submitted, along with testimony substantiating that the treatment in question was provided, was sufficient evidence to establish a prima facie showing as to the reasonableness of the charges. The court also determined that Dr. Propper was proffered to the court as an expert witness. As such, the court determined that he failed to detail any work experience which would place him in the position to systemically review reimbursements of x-ray services; failed to reference any studies, surveys or compilations upon which he relied in rendering his opinion; and only identified what he charges. Therefore, the court determined that Dr. Propper failed to demonstrate to the court that his opinion was based on sufficient and reliable data. The court concluded that Dr. Propper’s counter affidavit was conclusory; and thus, legally insufficient to meet the admissibility requirements of Daubert. As a result, the court ruled that State Farm did not present admissible countervailing evidence that would create a genuine issue of material fact. Consequently, the court entered a final summary judgment order in favor of Dr. Rivera-Morales, which is presently under appeal.
We find the county court erred. The Florida Supreme Court has declined to adopt the Daubert-inquiry for evaluating the admissibility of expert testimony. Delisle v. Crane, 258 So. 3d 1219 (Fla. 2018) [43 Fla. L. Weekly S459a]. Therefore, we find the affidavit of State Farm’s expert witness, when evaluated under the appropriate standard, is admissible, competent, countervailing evidence legally sufficient to create a genuine issue in dispute, which defeats the summary judgment motion.
Specifically, we find the trial court’s reliance on Daubert is misplaced. In Delisle v. Crane, Id., the Florida Supreme Court re-affirmed its prior decisions which have held that Frye is the standard to be employed by Florida courts for determining the admissibility of expert testimony. In Delisle, the Court acknowledged “that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence.” Id., at 1229. However, the court, skeptical of the role of a judge as gatekeeper, remarked that “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Id., at 1229. The Court concluded that “Florida courts will continue to maintain the higher standard of reliability as dictated by Frye” irrespective of the legislature’s enactment and the federal courts’ adoption of the Daubert standard to replace Frye. Id., at 1227. Therefore, as the Florida Supreme Court declared, trial courts should not analyze proffered expert testimony to discern faulty scientific reasoning thereby requiring an inquiry as to testing, peer review, publication, error rates and other principles and methods relied upon to arrive at the expert’s conclusion. Instead trial courts should only screen for and exclude novel, experimental, scientific techniques or evidence advocated by an expert witness when the scientific principles have not gained general acceptance in the relevant scientific community.
Furthermore, as the Court also declared, Frye, itself, is inapplicable to the vast majority of cases. Id., at 1230. For instance, Frye’s “general acceptance” requirement would be at odds with expert testimony characterized as pure opinion testimony. In such instances, the expert is not proposing to testify to scientific theories, but instead is offering testimony based on well-established methods and common procedures, such as reviewing, comparing and evaluating facts, records, or data that are of a type reasonably relied upon by experts in the particular field in forming opinions. Thus, when an expert expresses a pure opinion, which is not based on novel scientific theories but is based on the expert’s personal experience, education and training, then the opinion is not subject to a Frye inquiry. Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) [32 Fla. L. Weekly S750a]; Brim v. State, 695 So. 2d 268 (Fla. 1997) [22 Fla. L. Weekly S338a]. Since conceptually, PIP litigation seldomly involves questionable junk science, new or novel tests, or innovative scientific techniques the ultimate conclusions of a PIP expert are presumptively admissible. Therefore, as the Florida Supreme Court warned a “trial court [should] heed [the Court’s] caution to resist the temptation to usurp the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.” Delisle, at 1230.
Applying the above analytical framework to the present case, we find the trial court inappropriately excluded the summary judgment affidavit of State Farm’s expert witness. Dr. Propper’s affidavit is a form of pure opinion testimony as is common in the medical community. His opinion is based on clinical experience, an examination of medical records, an analysis of the quality or quantity of experience involved, research on private and public sector fee schedules and a comparison of recent fee awards. These are generally-accepted forms of evidence from which experts infer reasonable medical fees.
Furthermore, after conducting a de novo review of the record including reviewing the summary judgment affidavits in the light most favorable to the non-moving party, we find Dr. Propper’s testimony set forth in the affidavit is not unsupported speculation. In the context of summary judgment, affidavits must adhere to the same evidentiary requirements that would apply if the witness were present in court and testifying. See Fla. R. Civ. P. 1.510 (e). That is, pursuant to Fla. R. Civ. P. 1.510(e) “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” We find Dr. Propper’s clinical medical knowledge, experience as a director of 2 healthcare practices, and certification in medical billing and coding qualify him to testify competently regarding reasonable rates for x-ray services.
We also find that Dr. Propper’s summary judgment affidavit is not conclusory. His supporting affidavit, attesting to the customary rates charged by radiologists, sets forth a comparison of his own x-ray rates as well as his general familiarity with the charges and reimbursement rates for x-ray services performed in the South Florida region as he observed from a variety of private and public healthcare insurance payment sources. In addition, Dr. Propper’s affidavit has been approvingly regarded by prior appellate panels as being sufficiently specific to raise a triable issue of fact regarding reasonable fees. See, e.g., State Farm v. Gables Ins. Recovery, Inc. a/a/o Carmen Arango, 26 Fla. L. Weekly Supp. 617a (Fla. 11th Jud. Cir. Ct. August 21, 2018). For these reasons, we find the information set forth in Dr. Propper’s affidavit — proffered to refute the reasonableness of Dr. Rivera-Morales’ medical fees — is legally sufficient to withstand the summary judgment motion.
Accordingly, in the wake of the Delisle v. Crane decision, this court is reversing the county court’s decision and remanding for further proceedings consistent with this opinion. (LOPEZ and STUZ1N, JJ., concur.)
