27 Fla. L. Weekly Supp. 226a

Online Reference: FLWSUPP 2703DECHNOT FINAL VERSION OF OPINION
Subsequent Changes at 27 Fla. L. Weekly Supp. 498aInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in applying Daubert standard to determine that physician whose affidavit was filed by insurer in opposition to summary judgment did not qualify as expert witness — Where insurer objected to application of Daubert standard below, and subsequent to entry of summary judgment the Florida Supreme Court decided that Frye standard is appropriate test in Florida courts, Frye standard applies in case — Affiant is qualified as expert on issue of reasonableness of charges under Frye standard — References to Medicare, HMO, and PPO rates do not invalidate affiant’s opinion on reasonableness of charges — Summary judgment is reversed

UNITED AUTOMOBILE INSURANCE CO., Appellant, v. MIAMI DADE COUNTY MRI, CORP. a/a/o Rene Dechard, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2017-183 AP. L.T. Case No. 2013-011978 SP 23. May 16, 2019. On Appeal from the County Court in and for Miami-Dade County, Florida, Judge Spencer Multack. Counsel: Michael J. Neimand, for Appellant. Kenneth J. Dorchak, for Appellee

[Motion for Rehearing filed May 23, 2019.]

(Before PETER R. LOPEZ, ROSA FIGAROLA, AND ABBY CYNAMON, JJ.)

(LOPEZ, J.) United Automobile Insurance Company (“United” or “Insurer”) appeals a summary judgment entered in favor of Miami Dade County MRI, Corp. (“MDC MRI” or “Provider”). United’s insured, Rene Dechard (“Insured”) sustained injures as the result of a motor vehicle accident that occurred on January 14, 2011. MDC MRI provided diagnostic services (an MRI and x-rays). United paid less than the amount billed by MDC MRI, and MDC MRI sued for the difference. United disputed that MDC MRI’s charges were reasonable. MDC MRI moved for summary judgment, submitting the affidavit of Llina Milian (“Milian”), its operations manager. It also relied on Practice Management Information Corp.’s Medical Fees in the United States. United relied on an affidavit of Edward Dauer, M.D. (“Dr. Dauer”), and two deposition transcripts.

United argued that Milian’s affidavit was conclusory and deficient, while MDC MRI argued that Dr. Dauer’s affidavit was conclusory and that it failed to meet the requirements of Daubert.¹ United argued that the trial court should not apply Daubert. Through section 90.702, Florida Statutes (2013), the Florida Legislature codified the Daubert standard as the test to be used in Florida for evaluating an expert’s qualifications, to replace the Frye standard, which Florida had used for many years, and which was based on a previous Supreme Court Case. At the time that United challenged the applicability of Daubert below, the Florida Supreme Court had issued an opinion declining to adopt Daubert to the extent that it is procedural, although it declined to address its constitutionality until a proper case on the issue presented itself. In re Amendments to Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017) [42 Fla. L. Weekly S179a] (“[W]e decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.”) United argued below that the trial court should apply the Frye standard instead of the Daubert standard. The trial court determined that since the Florida Supreme Court had not determined Daubert to be unconstitutional, it would presume the law written at the time of the order would control, and therefore applied Daubert. It found Dr. Dauer’s affidavit in this case to be insufficient under Daubert. As such, it granted summary judgment in MDC MRI’s favor as to reasonableness. The trial court certified the question of Daubert’s constitutionality to the Third DCA, but the Third DCA declined to accept review and transferred the case to this Court.

Subsequent to the trial court’s decision below, the Florida Supreme Court rejected the Legislature’s adoption of the Daubert standard and determined that the Frye standard should be used in Florida. Delisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018) [43 Fla. L. Weekly S459a]. Since United preserved its argument that Daubert is unconstitutional and that Frye should be applied in the instant case, it receives the benefit of the Florida Supreme Court’s decision. See Clay v. Prudential Ins. Co. of Am., 670 So. 2d 1153, 1154 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D809b] (citing Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992)).

“A trial court’s decision on the qualifications of an expert is ordinarily conclusive, and entitled to great weight on appeal, unless it is shown that the trial court applied erroneous legal principles in arriving at its decision.” Lake Hosp. and Clinic, Inc. v. Silversmith, 551 So. 2d 538 (Fla. 4th DCA 1989). In the instant case, the trial court applied an erroneous standard to determine whether Dr. Dauer qualified as an expert (although through no fault of its own, due to the timing of its decision). The Florida Supreme Court has now clearly stated that “Frye, not Daubert, is the appropriate test in Florida courts.” DeLisle, 258 So. 3d at 1229.

Given the Florida Supreme Court’s pronouncement, and United’s objection to the application of Daubert below, Frye applies in the instant case. Under Frye, and expert’s opinion is disqualified only if it is based on new or novel scientific techniques. DeLisle, 258 So. 3d at 1230. Furthermore, an expert may be qualified in a subject matter by knowledge, skill, experience, training, or education. Vega v. State Farm Mut. Auto., 45 So. 3d 43, 44 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1894a]. He may be qualified based on knowledge that he obtained from his occupation or business. Id.

In Dr. Dauer’s affidavit, he states that he has been a medical doctor licensed in Florida since 1976, and that he is Board Certified in Diagnostic Radiology by the American Board of Radiology. He states that he is the Medical Director of Radiology at Florida Medical Center Hospital in Lauderdale Lakes, he is a managing member of Broward PET Imaging Center, and a member of the medical teaching staff at Mt. Sinai Medical Center, Miami Beach; and Research Associate Professor of Biomedical Engineering, Radiology, and Family Medicine at the University of Miami. He states that, in his professional practice as a medical doctor over the last 40 years, he has “treated patients injured in automobile accidents and reviewed and evaluated medical records and bills for patients who were injured in automobile accidents and received medical treatment and diagnostic studies.” He states that he has owned and operated diagnostic centers in Broward, and that Broward PET Imaging Center (which he operates and is a managing member of) is a diagnostic center which provides services including cervical spine, thoracic spine, lumbar spine, knee and skull radiographs, as well as cervical spine MRI imaging. He states that he conducts numerous peer reviews which provide him the opportunity to review the medical records of other physicians and their patients, which allows him to routinely review the charges and reimbursements for the medical services at issue therein. In the course of conducting peer reviews, he has reviewed, considered and evaluated the medical charges and reimbursements of hundreds of persons, not his patients, who were injured in automobile accidents and received medical treatment, including x-rays, MRIs, and CT scans. He states that “I have therefore obtained extensive personal knowledge and professional expertise regarding medical care and medical charges and medical reimbursements, including medical care and medical charges and medical reimbursements in the community for x-rays, MRIs, and CT scans, in the South Florida communities of Miami-Dade and Broward Counties,” including technical fees as well as professional fees.

Based on his affidavit, Dr. Dauer is qualified to opine, as an expert, on the reasonableness of medical charges regarding x-rays and MRIs, utilizing the knowledge and experience that he has gained through his occupation and business.

Nevertheless, the Provider argues that Dr. Dauer’s opinion is insufficient because he made his determination about reasonableness based on a percentage of Medicare reimbursement rates, and because he references HMO and PPO rates, which are negotiated contract rates. Although not unanimous, the majority of written opinions from the Eleventh Judicial Circuit appellate division have found that Medicare rates are properly considered under section 627.736(5)(a)(1).² We agree with those decisions. We also do not believe that Dr. Dauer’s references to HMO and PPO rates invalidates his opinion. Although the Provider may argue to the jury that such negotiated contract rates should not be given great weight in determining a reasonable fee, such considerations are not proper on summary judgment where evidence should not be evaluated, and a mere scintilla of evidence is sufficient to fend off summary judgment.

The trial court, without the benefit of the Florida Supreme Court’s Delisle opinion, erred by rejecting Dr. Dauer’s affidavit under Daubert. Dr. Dauer qualified as an expert under the pre-Daubert standard, and his references to Medicare and HMO and PPO reimbursement rates do not invalidate his affidavit. Furthermore, although the full substance of Dr. Dauer’s affidavit has not been summarized in this opinion, it complies with Rule 1.510(e), and it is not conclusory. Dr. Dauer’s affidavit, interpreted in the light most favorable to United, established the existence of a genuine issue of material fact concerning the reasonableness of the Provider’s charges in the instant case. Summary judgment should not have been granted.

Accordingly, the summary judgment on appeal is hereby REVERSED. (FIGAROLA and CYNAMON, JJ., concur.)

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¹Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

²See United Automobile Insurance Company v. Miami Dade County MRI, Corp., a/a/o Tania Barrios, Case no. 15-341 AP (Fla. 11th Cir. Ct. Mar. 5, 2019) [27 Fla. L. Weekly Supp. 7a]; United Auto. Ins. Co. v. Miami Dade County MRI Corp. a/a/o Ana Rojas, 26 Fla. L. Weekly Supp. 865b (Fla. 11th Cir. Ct. January 8, 2019); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Luis A. Aispur, 26 Fla. L. Weekly Supp. 709a (Fla. 11th Cir. Ct. Oct. 30, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Yanai Torres, 26 Fla. L. Weekly Supp. 706a (Fla. 11th Cir. Ct. Oct. 25, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Carmen Arango, 26 Fla. L. Weekly Supp. 617a (Fla. 11th Cir. Ct. Aug. 21, 2018); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc. a/a/o Sailly Lopez, 26 Fla. L. Weekly Supp. 616a (Fla. 11th Cir. Ct. Aug. 21, 2018); State Farm Mut. Auto. Ins. Co. v. Pan Am Diagnostic Servs., Inc. a/a/o Jermaine Lewis, 26 Fla. L. Weekly Supp. 551a (Fla. 11th Cir. Ct. Aug. 21, 2018); Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018; State Farm Fire and Cas. Ins. Co. v. Rivera-Morales a/a/o Dimanche, Case No. 15-341 AP (Fla. 11th Cir. Ct. May 11, 2018); 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); State Farm Mut. Auto. Ins. Co. v. Gables Ins. Recovery, Inc., 25 Fla. L. Weekly Supp. 857a (Fla. 11th Cir. Ct. Sept. 28, 2017); State Farm Mut. Auto. Ins. Co. v. Health & Wellness Assocs., Inc. a/a/o Scott, 25 Fla. L. Weekly Supp. 220a (Fla. 11th Cir. Ct. May 24, 2017); but see United Auto. Ins. Co. v. Miami Dade Cty. MRI Corp., 2016-000450 AP-01 (Fla. 11th Cir. Ct. Mar. 22, 2019); State Farm Auto. Ins. Co. v. Roberto Rivera, M.D. a/k/a Roberto Rivera-Morales, M.D. a/a/o Juan Asto, Case No. 16-392 AP 01 (Fla. 11th Cir. Ct. Mar. 12, 2019); United Auto. Ins. Co. v. Miami Dade Cty. MRI Corp., Case No. 15279 AP (Fla. 11th Cir. Ct. Sept. 26, 2018).