Trial Court Erred in Striking PIP Insurer’s Reasonableness Affidavit

Recently the Eleventh Judicial Circuit sitting in its Appellate capacity considered several appeals brought by United Automobile Insurance Company regarding orders finding that its expert’s affidavit did not meet the criteria under Daubert in order to avoid the entry of summary judgment. United had employed a Dr. Dauer in order to contest reasonableness of medical bills charged by radiology providers in the respective cases.
On appeal the Eleventh Circuit disagreed with the lower court’s finding that Dr. Dauer’s affidavit was insufficient under Daubert. The Court first started its analysis by outlining the relevant standard. Under Daubert as codified in section 90.702 Florida Statutes states:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

1. The testimony is based upon sufficient facts or data;
2. The testimony is the product of reliable principles and methods; and
3. The witness has applied the principles and methods reliably to the facts of the case.

Using this standard the Court ultimately found that it could not reasonably be questioned that Dr. Dauer was qualified under Daubert as an expert and the affidavit was sufficient. The Court outlined in sum its findings that Dr. Dauer was qualified by knowledge, skill, experience, training, or education on reasonableness in part because his affidavit stated he has “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 …”

The Court reasoned that the consideration of reimbursement levels in the community, his own charges in the community, various federal and state medical fee schedules including Medicare and other payments that the provider receives set forth reliable principles and methods. For the second prong regarding facts and data, a familiarity with the range and rate of charges for radiological services provided to patients in the area by credentialed and experienced diagnostic centers, along with Dauer’s own experience met this prong. Lastly, the application of the principles and methods were reliably applied as Dr. Dauer reviewed and compared the providers charges to what Dr. Dauer considered to be a reasonable charge.

When a carrier is considering or contesting reasonableness whether it’s a PIP case or Bodily Injury claim obtaining an expert who can survive the Daubert test is crucial and when vetting a potential expert laying the groundwork for the admissibility of their testimony will hopefully prove fruitful later.