STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. M & E DIAGNOSTIC SERVICES, INC., etc.

• Court: District Court of Appeal of Florida
• Decided: August 18, 2021
• Docket: 20-1193
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 18, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1193 Lower Tribunal Nos. 11-7998 SP; 20-144 AP ________________

State Farm Mutual Automobile Insurance Company, Appellant,

vs.

M & E Diagnostic Services, Inc., a/a/o Omar Pinelo, Appellee.

An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge.

Birnbaum, Lippman & Gregoire, PLLC, and Nancy W. Gregoire (Fort Lauderdale); Kirwan Spellacy Danner Watkins & Brownstein, P.A., and Scott E. Danner (Fort Lauderdale), for appellant.

A Able Advocates – Stuart L. Koenigsberg, P.A., and Stuart L. Koenigsberg, for appellee.

Before FERNANDEZ, C.J., and GORDO and LOBREE, JJ.

GORDO, J. State Farm Mutual Automobile Insurance Company appeals the trial

court’s entry of final judgment in favor of M & E Diagnostic Services after

granting summary judgment as to the reasonableness of charges and

striking State Farm’s expert witness. We have jurisdiction. See Fla. R. App.

P. 9.030(b)(1)(A). Based on our review of the record, we find the expert

witness’s affidavit created a genuine issue of material fact as to the

reasonableness of the charges and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

M & E Diagnostic Services, as assignee of Omar Pinelo, sued State

Farm alleging the insurer underpaid for services offered to Pinelo following

an automobile accident. The parties stipulated that M & E’s treatment to

Pinelo was medically necessary and related to the accident. M & E moved

for summary judgment regarding the reasonableness of charges. In

opposition to summary judgment, State Farm filed the affidavit of Dr. Edward

A. Dauer, a medical doctor and owner of a diagnostic imaging center, who

opined that the provider’s charges were not reasonable. M & E moved to

strike the doctor’s affidavit arguing Dr. Dauer’s opinion was pure opinion

testimony based primarily on speculation and conjecture and failed to meet

2 the Daubert1 test for admissibility under section 90.702 Florida Statutes

(2020).

The trial court heard the motions, struck Dr. Dauer’s testimony and

entered summary judgment finding that M & E established the

reasonableness of charges as a matter of law and the conflicting affidavit

was legally insufficient to create a genuine issue of material fact. The court

concluded that Dr. Dauer’s affidavit did not satisfy the Daubert requirements

under section 90.702 as it was largely based on personal opinion and lacked

any scientifically verifiable methodology.

LEGAL ANALYSIS

We review an order granting summary judgment de novo. Volusia

Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

“Similarly, a lower court’s ruling on the legal sufficiency of an affidavit is also

reviewed de novo.” United Auto. Ins. Co. v. Progressive Rehab. &

Orthopedic Servs., LLC, No. 3D21-0108, 2021 WL 3072936, at *2 (Fla. 3d

DCA July 21, 2021).

“Florida Rule of Civil Procedure 1.510(e) (effective to April 30, 2021)

provides that affidavits supporting or opposing summary judgment ‘must be

made on personal knowledge, must set forth such facts as would be

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

3 admissible in evidence, and must show affirmatively that the affiant is

competent to testify to the matters stated therein.’” Id. “[T]he Daubert

standard does not prohibit . . . expert opinion testimony based on

experience.” United Auto. Ins. Co. v. Cent. Therapy Ctr., Inc., No. 3D21-58,

2021 WL 3177319, at *3 (Fla. 3d DCA July 28, 2021) (quoting Progressive

Rehab., 2021 WL 3072936, at *3). “[T]he plain text of section 90.702, Florida

Statutes, provides that experts may be qualified by ‘knowledge, skill,

experience, training, or education.’” Id. (quoting § 90.702, Fla. Stat.). “Under

Daubert, the expert affidavit must satisfy the reliability inquiry.” Id.; see

Progressive Rehab., 2021 WL 3072936, at *4. “[A]ffidavits . . . which are

based entirely upon speculation, surmise and conjecture, are inadmissible

at trial and legally insufficient to create a disputed issue of fact in opposition

to a motion for summary judgment.” Progressive Rehab., 2021 WL 3072936,

at *2 (quoting Morgan v. Cont’l Cas. Co., 382 So. 2d 351, 353 (Fla. 3d DCA

1980)).

Dr. Dauer attested that he has personal knowledge and expertise

regarding the range and rate of charges for medical care in the relevant

community, including the range and rate of charges for radiological services

provided in the area to patients by credentialed and experienced diagnostic

centers and hospitals. Dr. Dauer considered the reimbursement levels and

4 charges in the community, his own charges in the community, various federal

and state medical fee schedules applicable to motor vehicles and other

insurance coverages including worker’s compensation, Medicare,

HMO/PPO, and other third-party insurance carriers, and the payments and

reimbursements that M & E accepts from all sources. Dr. Dauer attested to

conducting numerous peer reviews and obtaining extensive personal

knowledge and professional expertise regarding medical care and medical

charges and medical reimbursements in the Miami-Dade and Broward

communities. Dr. Dauer opined, after reviewing the medical records for care

provided to the insured, Omar Pinelo, by M & E in connection with the

accident, that the contested charges were not reasonable.

We find that Dr. Dauer’s opinion satisfies section 90.702 and is not

pure opinion testimony based on speculation or conjecture. “[P]ure opinion

testimony is based solely on the expert’s experience, without relation to the

actual condition of the person in the relevant case.” Cent. Therapy Ctr., 2021

WL 3177319, at *3. Here, the affidavit was based on the doctor’s personal

knowledge, expertise in the relevant community and evaluation of the

medical records pertaining to the injured insured, Omar Pinelo. Dr. Dauer

relied on sufficient facts in developing the conclusion regarding the

reasonableness of charges in this instance. “His affidavit was not pure

5 opinion and was sufficient to create a genuine issue of material fact

preventing summary judgment.” See Cent. Therapy Ctr., 2021 WL 3177319,

at *3.

Because, based on our review of the record, there are genuine issues

of material fact, we are compelled to reverse the final judgment and the order

granting summary judgment in favor of M & E. See State Farm Mut. Auto.

Ins. Co. v. Cent. Therapy Ctr. Inc., 46 Fla. L. Weekly D1477 (Fla. 3d DCA

June 23, 2021).

Reversed and remanded.