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25 Fla. L. Weekly Supp. 860a

Online Reference: FLWSUPP 2510MUSEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — When considering reasonableness of particular charge, trier of fact may consider evidence pertaining to Medicare fee schedules that are referenced by and incorporated into PIP statute — Affidavit submitted by insurer in opposition to provider’s motion for summary judgment was legally sufficient to create genuine issue of material fact as to reasonableness of amount charged for X-ray services at issue — Trial court improperly applied Daubert admissibility standard to reject affidavit filed in opposition to motion for summary judgment — Remand for further proceedings

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. AlA MANAGEMENT SERVICES, LLC, d/b/a ROBERTO RIVERA-MORALES, MD, (a/a/o Farano Muselaire), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 15-076 AP. L.T. Case No. 13-6512 SP 25 (01). October 25, 2017. On Appeal from the County Court for Miami-Dade County, Gloria Gonzalez-Meyer, Judge. Counsel: Nancy W. Gregoire and Andrew W. Bray, for Appellant. Zachary A. Hicks, Martin I. Berger, and Daniel M. Samson, for Appellee.

(Before, RODRIGUEZ, ZABEL, and GORDO, JJ.)

(R. RODRIGUEZ, Judge.) The Appellant, State Farm Mutual Automobile Insurance Company (“Insurer”), appeals the Final Summary Judgment entered in favor of Appellee, AlA Management Services LLC, d/b/a Roberto Rivera-Morales, MD (“Provider”) as the assignee of Farano Muselaire (“Insured”) in a suit to collect Personal Injury Protection (“PIP”) benefits. This appeal seeks review of the trial court’s order granting Final Summary Judgment in favor of the Provider where the parties filed conflicting affidavits regarding the reasonableness of the amount charged for X-rays.

The standard of review applicable to summary judgment is de novo, and requires the appellate court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a]. To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130-31 (Fla. 2000) [25 Fla. L. Weekly S390a]. It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party. Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the record reflects the existence of any issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper and must be denied. Milgram v. Allstate Ins. Co., Inc., 731 So. 2d 134, 135 (Fla 1st DCA 1999) [24 Fla. L. Weekly D1069a]. Summary Judgment cannot be granted “if the evidence is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues.” Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2165a]. In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence. Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D646a].

At issue here is the trial court’s summary judgment decision on the issue of reasonableness. In a lawsuit seeking benefits under the PIP statute, reasonableness, like necessity and relatedness, is an essential element of a plaintiff’s case and is decided by factfinders on a case by case basis, depending on the specific evidence introduced at trial and the arguments of counsel. Derius v. Allstate Indem. Co., 723 So. 2d 271, 274 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].

The applicable policy language in the instant case states that State Farm will pay “80% of all reasonable expenses incurred for. . .X-ray. . .services.” Provider’s complaint for breach of contract alleged that its bills were reasonable and that State Farm owed the Provider 80% of the amount charged. Thus, the question below was whether the Provider’s charges were reasonable. If the Provider’s bill was reasonable, it could then be held that State Farm breached the contract by not paying 80% of the amount charged. Section 627.736(5)(a)(1), Florida Statutes (2009 – 2012 and April 24, 2012 – November 30, 2012), provides the following guidance to determine whether a charge for treatment is reasonable:

“[w]ith respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.”

(Emphasis added). Pursuant to this section of the PIP statute, we find that when determining reasonableness of a particular charge pursuant to 5(a)(1), the trier of fact may consider evidence pertaining to Medicare fee schedules that are referenced by and incorporated into the PIP statute.

In defense against the breach of contract claim, the Insurer seeks to challenge the reasonableness of the Provider’s bill by having the trier of fact consider the following (5)(a)(1) factors: reimbursement levels in the community and federal and state medical fee schedules applicable to automobile and other insurance coverage. In opposition to the motion for summary judgment, and to make its case in challenging the reasonableness of the Provider’s bill, the Insurer submitted the affidavit of Dr. Propper. Pursuant to Florida Statute 627.736(5)(a)(1), the affiant compared the amounts billed with the range of reimbursement levels “in the subject community” and the statutory limits relating to pertinent Medicare fee schedules. Dr. Propper found that the amounts charged exceeded the reimbursement levels in the community and the statutory limits referencing Medicare fee schedules. Consequently, Dr. Propper opined that the amounts billed by the Provider were not reasonable.

In reviewing the motion for summary judgment de novo and in the light most favorable to the nonmoving party (the Insurer), this Appellate Court finds that Dr. Propper’s affidavit includes sufficient information to suggest the possible existence of a genuine issue of material fact relating to the issue of reasonableness. Dr. Propper’s affidavit provides evidence, consistent with the PIP statute’s 5(a)(1) factors, that may be considered when determining whether a Provider’s bill is reasonable.

Furthermore, when determining whether expert testimony is admissible, a court “must not conflate” the question of admissibility with the weight of the proffered testimony. Rosenfeld v. Oceania Cruises, Inc., 654 F. 3d 1190, 1193 (11th Cir. 2011) [23 Fla. L. Weekly Fed. C366a]. It is not the court’s role to “make ultimate conclusions as to the persuasiveness of the proffered evidence.” Id. Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking the substance of expert testimony.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993).

The continued validity of the Daubert standard appears to be in question. In re: Amendments to the Florida Evidence Code, 42 Fla. L. Weekly S179a (Fla. Feb. 16, 2017). However, regardless of whether Daubert, or Frye, or some other standard applies to the admissibility of expert witness opinion testimony, the question remains as to what extent such standard should be applied to affidavits submitted on a motion for summary judgment. For instance, a trial court was held to have overstepped Daubert boundaries by conflating summary judgment sufficiency standard with the Daubert admissibility standard. In re Joint Eastern & Southern Dist. Asbestos Litig., 52 F.3d 1124, 1131 (2d Cir. 1995).

In making its decision on the summary judgment motion below, the trial court adopted an opinion of a Broward County judge in a different case that relied on the Daubert admissibility standard to reject the affidavit of Dr. Propper that was filed in that case. However, in the instant case, a Daubert motion was not filed below to challenge Dr. Propper’s affidavit. Furthermore, a motion to strike the affidavit does not appear in the record and no formal order striking the affidavit was entered by the trial court below. The notice for the hearing referred solely to the motion for summary judgment and, while a hearing is not always required,¹ there was no evidentiary Daubert proceeding conducted below.

Case law advises that it is incumbent upon the party who wishes to challenge the sufficiency of an expert’s opinion to timely raise an objection and request a hearing before the trial court. 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.”); see also Booker v. Sumter County Sheriff’s Office/North American Risk Servs., 166 So. 3d 189, 192 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c]. An objection to the validity of an expert’s opinion must sufficiently place an opposing party on notice of the alleged defects in its expert’s testimony so that it can have the opportunity to address those alleged defects. Id. at 193.

Daubert generally contemplates a gatekeeping function, not a “gotcha” function. Feliciano-Hill v. Principi, 439 F. 3d 18, 24-25 (1st Cir. 2006.). Timely and specific objections allow the court to perform its gatekeeping function and permit the expert’s proposed testimony to be evaluated with care, rather than allowing Daubert to act as a “gotcha” mechanism. Id. (citing Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001)). Therefore, a Daubert challenge should not be addressed at a summary judgment hearing unless the party making the challenge filed a motion sufficiently setting forth the alleged defects in the expert’s opinion. Also, it remains an open and debatable question as to whether a Daubert challenge should be entertained during a motion for summary judgment, rather than the customary procedure of entertaining such a challenge at a pre-trial proceeding.

Upon review of the applicable law and facts of this case, this Appellate Court finds that the affidavit submitted by Dr. Propper was legally sufficient and, when interpreted in a light most favorable to the nonmoving party, created a genuine issue of material fact as to the reasonableness of the amounts charged for the X-ray services provided. Summary judgment is not proper where there is the possibility that a genuine issue of material fact exists. Additionally, we find that the trial court improperly applied the Daubert admissibility standard to reject the non-moving party’s affidavit filed in opposition to the motion for summary judgment.

As such, this Appellate Court finds that the trial court erred in granting Provider’s motion for summary judgment. Accordingly, this case is REVERSED and REMANDED for proceedings consistent with this opinion.

MOTIONS FOR APPELLATE ATTORNEY’S FEES

Both parties moved for appellate attorney’s fees and costs pursuant to Florida Appellate Procedure Rule 9.400, which authorizes the prevailing party on appeal to recover these expenses. The statutory basis for Appellant/Insurer’s motion is section 768.79, Florida Statutes, while Appellee/Provider relies on section 627.428(1). Given the above holding, Appellee’s motion is DENIED and Appellant’s conditionally GRANTED pending a favorable outcome at trial on remand. USAA Cas. Ins. Co. v. American MRI, LLC, 19 Fla. L. Weekly Supp. 534a (Fla. 11th Cir. Ct. 2012). The trial court on remand is hereby authorized to consider both entitlement and amount.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; APPELLANT’S MOTIONS FOR ATTORNEY FEES CONDITIONALLY GRANTED; APPELLEE’S MOTIONS FOR SAME DENIED. (ZABEL and GORDO, JJ., concur.)

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¹US v. Sebbern, 2012 WL 5989813 (ED NY 2012) (In challenge to ballistics testimony, Daubert hearing was not necessary).