27 Fla. L. Weekly Supp. 591b

Online Reference: FLWSUPP 2707ARODInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Trial court erred in rejecting opposing affidavit filed by insurer where medical provider did not make specific objection describing alleged defects in affidavit but simply made general arguments that Daubert standard should be applied to any expert affidavit — Trial court abused discretion in rejecting affidavit where affidavit complied with rules, was not conclusory, and was not otherwise insufficient

UNITED AUTOMOBILE INSURANCE CO., Appellant, v. PREFERRED HEALTH AND WELLNESS, INC. a/a/o Alexander Rodriguez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-263 AP. L.T. Case No. 12-8967 SP 23. September 4, 2019. On Appeal from the County Court in and for Miami-Dade County, Florida. Counsel: Michael J. Neimand, for Appellant. Kenneth J. Dorchak, Heather McDonald Kolinsky, and Chad A. Barr, for Appellee.

(Before BERTILA SOTO, MARIA DE JESUS SANTOVENIA, and RENATHA FRANCIS, JJ.)

OPINION

On motion for rehearing, the court’s opinion dated July 2, 2019 is withdrawn and this opinion is substituted therefor.

(SOTO, J.) In this PIP case, the trial court entered summary judgment in favor of Preferred Health and Wellness, Inc. (Preferred Health) because it determined that the affidavit of Dr. Bradley Simon, submitted by United Automobile Insurance Company (United), was insufficient. It subsequently entered final judgment in favor of Preferred Health. We reverse.

Dr. Simon was United’s expert on reasonableness. Preferred Health did not make a proper objection to Dr. Simon’s opinion, specifically describing the alleged defects therein, in sufficient detail to provide United, the opposing party, with the opportunity to address those defects. Instead, Preferred Health simply included a section in its motion for summary judgment that made general arguments which described the Daubert test, and argued that it should apply to any expert affidavit submitted by United. Without a sufficient objection, the trial court should not have rejected the affidavit based on the Daubert test.¹

Additionally, we find that the trial court abused its discretion in rejecting the affidavit for the other bases set forth in its summary judgment order. The affidavit complies with Florida Rule of Civil Procedure 1.510(e), it is not conclusory, and it is not otherwise insufficient. In short, it provides the “iota” or “scintilla” of evidence necessary to survive summary judgment. See Ortega v. Citizens Prop. Ins. Corp., 257 So. 3d 1171, 1172 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D2427b] (citing Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1383a]).

Preferred Health suggests that because two of the Judges deciding this case affirmed a summary judgment in United Automobile Insurance Co. v. Miami Dade County MRI Corp., Case No. 2016-397 AP-01 (Fla. 11th Jud. Cir. Jan. 30, 2019), which was based on the trial court’s determination that an expert affidavit submitted by United was insufficient; and because one of the Judges affirmed a similar ruling in United Automobile Insurance Co. v. Country Line Chiropractic Center, Inc., Case No. 14-395 AP 01 (Fla. 11th Jud. Cir. Apr. 17, 2017); we should affirm the instant case as well. We disagree.

The cases cited were per curiam affirmances. It is well-settled law that a per curiam affirmance without a written opinion has no precedential value and may be disregarded even by the Court who issued it. See Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So. 2d 310, 313 (Fla. 1983); KIS Grp., LLC v. Moquin, 263 So. 3d 63, 67 n.1 (Fla. 4th DCA 2019) [44 Fla. L. Weekly D166c]. Part of the reason for this is that a per curiam affirmance without a written opinion does not set forth the reasons for affirmance, and therefore cannot be relied on for any particular principle of law. Dep’t of Legal Affairs, 434 So. 2d at 312-13. The cases cited involved different affidavits prepared by different experts concerning different accidents than the one involved here. Dr. Simon, the expert involved in the instant case, did not prepare an affidavit in either of the other cases; those affidavits were prepared by litigation adjusters. That is not to suggest that an affidavit prepared by a litigation adjustor could never be sufficient. We simply find that Dr. Simon’s affidavit filed in the instant case was sufficient to create a genuine issue of material fact in regard to the issue of reasonableness, and that the cited per curiam affirmances (and the other cases cited in the various notices of supplemental authority) do not change our opinion.²

Accordingly, the summary judgment entered below is hereby REVERSED. (SANTOVENIA, J. concurs; FRANCIS, J., dissents.)

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¹See 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 v. Sumter Cty. Sheriff’s Office/North Am. Risk Servs., 166 So. 3d 189, 192-93 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c] (indicating that this requirement applies to objections pursuant to both Daubert and Frye; and that the objection to the validity of the expert’s opinion must put the opposing party sufficiently on notice so as to have the opportunity to address the alleged defects in the expert’s testimony). See also State Farm Mut. Auto. Ins. Co. v. Roberto Rivera-Morales, M.D., a/a/o Syed Ullah, 26 Fla. L. Weekly Supp. 469a (Fla. 11th Cir. Ct. June 20, 2018) (stating that the requirement that an objection to an expert’s opinion be timely raised so that the opposing party can have the opportunity to address the alleged defects, “is consistent with the summary judgment requirement that evidence, including affidavits, should be reviewed in the light most favorable to the non-moving party and that summary judgment should be denied if there is the slightest doubt that a genuine issue of material fact might exist.”); 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).

²Unfortunately, in regard to the notices of supplemental authority, we must point out that we are troubled by the misleading wording of the case summaries set forth in the “Appellee’s Twelfth Notice of Supplemental Authority.” The summaries are phrased in such a way to create the impression that they are not describing per curiam affirmances without written opinions at all, but are presented as if they are describing full written opinions containing analysis and holdings.

The case summary for United Automobile Insurance Co. v. Miami Dade County MRI Corp., Case No. 2016-397 AP 01 (Fla. 11th Jud. Cir. Jan. 30, 2019), describes the case as follows:

[A]ffirming summary judgment on reasonableness and holding that the trial court did not abuse its discretion in excluding the opinion of United’s expert which asserted that the charges were not reasonable because they exceeded 200% of Medicare Part B, reimbursement rates under HMO and PPO plans, and worker’s compensation. The trial court held that the affidavit attempted to create a paper issue based on the stacking of inferences which is insufficient to defeat a summary judgment.

(Emphasis added.) Needless to say, the per curiam affirmance in that case does not make the holding suggested in the first sentence of the case summary.

The case summary for United Automobile Insurance Co. v. Country Line Chiropractic Center, Inc., Case No. 14-395 AP 01 (Fla. 11th Jud. Cir. April 17, 2017), describes that case as follows:

[A]ffirming final judgment and holding that trial court did not abuse its discretion in excluding the affidavit of United’s proffered expert.

(Emphasis added). Again, this was a per curiam affirmance without a written opinion. It had no holding. The Appellee’s attorneys need to be more careful in how they present information, and how they attempt to present precedent to the Court. The attorneys need to ensure that their writing is accurate and not misleading.

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(SANTOVENIA, J. concurring) This appeal involves a summary judgment entered in favor of Preferred Health and Wellness, Inc. (“Preferred Health”). Viewing both the Plaintiff’s treating physician, Dr. Raymond M. Ruszkowski, D.C.’s supporting affidavit and the Defendant, United Automobile Insurance Company’s (“United”) expert, Dr. Bradley Simon’s affidavit filed in opposition to the summary judgment motion in the same light, they are both premised on the doctors’ experience. In fact, the Plaintiff’s treating physician’s affidavit contains far less detail than the Defendant’s expert’s affidavit. The entirety of Dr. Ruszkowski’s opinion as to reasonableness of charges his company, Preferred Health, billed was initially contained in one paragraph: “That based upon my experience the charges for each CPT Code represent a reasonable charge within the community and such charges represent Preferred Health and Wellness, Inc.’s usual and customary charges for like services, for which I have received reimbursement without reduction under PIP policies that pay based upon 80% of reasonable charge.” Affidavit of Dr. Raymond M. Ruszkowski, D.C. dated April 10, 2014 at paragraph 9, p. 94 of Record on Appeal. Two years later, on July 26, 2016, Dr. Ruszkowski’s supplemental affidavit (undated) was filed by Preferred Health in support of its summary judgment motion, adding to his initial opinion that:

I have been licensed as a chiropractor within the State of Florida since 2000. For the past 15 I have owned and operated my own chiropractic clinic including Preferred Health Wellness, Inc. I was responsible for setting the charges for Preferred Health Wellness. In doing so I relied upon my knowledge of what other providers in the community charge for the same services, which knowledge was gained from discussing charges with colleagues as well as my forensic review of charges from other providers for the same service, and reimbursement received from PIP insurers which reimburse charges based upon an evaluation of the reasonableness of the charge. I have compared Preferred Health Wellness’ charges to the charges et [sic] forth in the publication known as Medical Fees in the United States for the year 2011 which is a trade publication relied upon in the medical community for evaluating medical charges.

p. 528-30 of Record on Appeal.

United’ s expert, Bradley Simon, D.C., also a chiropractor having owned and operated his own chiropractic clinic since 2001, states, inter alia, that “I have rendered, billed and/or am familiar with all the services, treatment and CPT codes listed in the attached Exhibit A”. Further, the affidavit states that “I have at all times been directly/personally involved in the billing/pricing aspect of my practice” with a “comprehensive and personal knowledge of usual and customary reimbursement rates offered in the community/markets for my chiropractic services”. The affidavit describes his “formula/methodology used in determining what is a reasonable charge” as giving consideration to “the usual and customary charges and payments accepted by provider at issue, reimbursement levels in the community and various state and federal fee schedules applicable to automobile and other insurance coverages”. His affidavit also refers to the Resource-Based Relative Value Scale, a component of the annual Medicare Physician Fee Schedule as a benchmark and or reference point. p. 602-05 of Record on Appeal.

The trial court found that “the affidavit of Dr. Simon fails to create a genuine issue of material fact. . . .is not a qualified expert opinion under Daubert as the opinions therein are self-serving, conclusory, devoid of sufficient facts or data, based on inadmissible hearsay and lacks reliable principles, methodology, foundation or basis for the assertion that the amount charged was unreasonable” p. 768-71 of Record on Appeal.

The abuse of discretion lies in the trial court’s rejecting one affidavit while considering the other. As counsel for United summarized the issue for the trial court at the hearing on the Amended Motion for Reconsideration of Order Granting Plaintiff’s Motion for Summary Judgment as to Reasonableness:

So how can it be good for the goose but not for the gander when they’re two same types of people saying the same thing but with a different ultimate conclusion, but yet the Defendant’s witness gets stricken, but the Plaintiff meets their prima facie case? That doesn’t make sense.

Transcript of June 6, 2017 hearing, p. 26, lines 18-25. Applying the same standard to both affidavits, regardless of which standard was applied, should have led to the same conclusion. If United’s affidavit was conclusory and lacking in foundation or methodology, then Preferred Health’s affidavit was also conclusory and lacking in foundation or methodology. Conversely, rejecting United’s affidavit while accepting Preferred Health’s affidavit was arbitrary. As such, the issue raised in Appellee’s motion for rehearing that this court did not specify which standard it applied in reversing the summary judgment, whether Daubert or Frye, is a red herring.

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(FRANCIS, J. Dissenting) The majority is absolutely correct when it notes the troubling practice of citing, in notices of supplemental authority, a PCA as authority for why this Court should affirm. Counsel knows better. Or should. In future cases, I trust these notices of supplemental authority that include such PCAs will not be part of the record.

Beyond this, however, I would affirm. Though the majority notes that there was no proper objection, I contend that there was as Preferred Health’s summary judgment motion “sufficiently [put the opposing party] on notice” of the defects in Appellant’s expert’s testimony. See Rojas, 185 So. 3d at 710. These parties have litigated this issue so thoroughly, and repeatedly, it would be a stretch to say at this point they don’t know what the issues are with respect to each other’s experts. To be sure, in response to Preferred Health’s summary judgment motion — and just like Preferred Health’s use of “general” arguments to defeat United Auto’s expert — United Auto’s motion in opposition to the former’s motion for summary judgment shows that it knew exactly what Preferred Health took issue with: the expert’s qualification to testify regarding reasonableness of the charges pursuant to Daubert. That’s why in the motion United Auto included an entire section, replete with case law, outlining the Daubert standard, and contending that it’s expert qualified under that standard. Furthermore, nowhere in its brief did United Auto raise this issue — that Preferred Health failed to make a proper objection to United’s expert — as a basis for reversal. These are sophisticated parties who, through repeated litigation of this very issue, know what the issues are — to the point where they both rely on “general arguments” (Maj. Op. at 2) to pre-empt each other’s claims regarding their respective experts.

Also, I cannot agree that the trial court abused its discretion. A trial court retains an enormous amount of discretion in the determination of admissibility of experts. All told, there are literally hundreds of opinions from this appellate body upholding decisions like the one at issue here — and likewise, hundreds reversing, too. The standard of review on the trial court’s ruling on the admissibility of expert testimony is whether the trial court abused its discretion. See, e.g., Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a]. That is, was the trial court’s ruling “arbitrary, fanciful, or unreasonable” such that “no reasonable man would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1990) (explaining the abuse of discretion standard). Some very reasonable judges, including on this appellate body, have taken similar views in similar cases to the views taken by the trial court here. So it can’t be that “no reasonable man [or woman] would take the view adopted by the trial court.” See id.

At oral argument, however, counsel for United Auto urged that we should review the trial court’s ruling on this issue de novo because the trial court applied the wrong law. In other words, the trial court should have applied the standard in Frye — as ultimately articulated by our supreme court in Delisle — instead of the standard in Daubert. I’ll bite. Let’s assume for the moment that United Auto is correct that the wrong law was applied. United Auto’s argument still fails, nonetheless, because the trial court struck United Auto’s expert’s affidavit for reasons that predated Daubert: it was conclusory and lacking in foundation.

I would affirm the order on appeal.