Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 6, 2022. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D21-0063 Lower Tribunal Nos. 19-281-AP, 11-4466 SP ________________ State Farm Mutual Automobile Insurance Company, Appellant, vs. All X-Ray Diagnostic Services, Corp., a/a/o Pedro Rios, Appellee. An Appeal from the County Court for Miami-Dade County, Lawrence D. King, Judge. Birnbaum, Lippman & Gregoire, PLLC, and Nancy W. Gregoire Stamper (Fort Lauderdale); Kirwan, Spellacy, Danner, Watkins & Brownstein P.A., and Christopher L. Kirwan and R. Ryan Smith (Fort Lauderdale), for appellant. A Able Advocates, - Stuart L. Koenigsberg, P.A., and Stuart L. Koenigsberg, for appellee. Before FERNANDEZ, C.J., and HENDON and BOKOR, JJ. BOKOR, J. State Farm appeals from a grant of summary judgment in favor of the provider in a personal injury protection (PIP) action. State Farm argues that genuine issues of material fact preclude summary judgment. Specifically, that material issues of fact related to the reasonableness, medical necessity, and relatedness of medical charges to the underlying motor vehicle accident for purposes of reimbursement under section 627.736, Florida Statutes (2010), warrant reversal of the summary judgment on appeal. 1 We agree. FACTS AND PROCEDURAL HISTORY On December 20, 2010, the insured, Pedro Rios, was involved in a car accident. Rios received diagnostic imaging procedures at a facility operated by All X-Ray Diagnostic Services, which performed five x-rays at a total charge of $3,100. Subsequently, All X-Ray, as Rios’s assignee, submitted a claim to State Farm for reimbursement of eighty percent of the reasonable medical expenses in accordance with section 627.736(1)(a). State Farm reimbursed All X-Ray for $421.50 and denied payment on the remainder of the claim. All X-Ray brought an action for breach of contract, asserting that State Farm was obligated to reimburse the remaining amount of $2,058.50 1 State Farm also raises several challenges to the sufficiency of the evidence to support the trial court’s findings of fact, which we decline to address. 2 because the charges and procedures claimed were reasonable, medically necessary, and related to the accident. See § 627.736(4), Fla. Stat.; United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So. 3d 60, 63 (Fla. 3d DCA 2009) (“Section 627.736(4)(b) imposes on the insurer a thirty-day time period in which to pay PIP benefits, if the claim is reasonable, related, and necessary.”). All X-Ray subsequently moved for partial summary judgment on relatedness and medical necessity, asserting that State Farm’s corporate representative had waived any right to challenge those issues by conceding in deposition testimony that State Farm contested only the reasonableness of the charges at the time. In opposition, State Farm asserted the existence of a material dispute of fact regarding relatedness and medical necessity, relying on an affidavit by Edward A. Dauer, M.D., in opposition to All X-Ray’s summary judgment motion. The trial court granted partial summary judgment on those issues in favor of All X-Ray, finding that State Farm’s deposition testimony waived its ability to raise any further issue of disputed material facts. All X-Ray then moved for summary judgment on the remaining issue of the reasonableness of the charges. In support, All X-Ray submitted evidence including State Farm’s community pricing report for the 2010 3 calendar year, which indicated that State Farm had reimbursed the same procedures Rios received here numerous times at the amounts charged by All X-Ray. In response, State Farm asserted that All X-Ray had failed to meet its burden of proving that the charges were reasonable, relying on another affidavit by Dr. Dauer specifically attesting that the prices were unreasonable. This additional affidavit indicated that Dr. Dauer formed his conclusion relying not only on the reasonableness factors in section 627.736(5)(a)1., but also on the fact that the prices exceeded 200% of the Medicare Part B fee schedule. 2 The trial court rejected Dr. Dauer’s affidavit and granted summary judgment on the remaining issue, finding that All X-Ray had made a prima facie case of the reasonableness of the charges and that the countervailing affidavit constituted inadmissible pure opinion testimony. State Farm subsequently appealed. ANALYSIS Summary judgment is appropriate only where no genuine issue of material fact exists and the movant is entitled to prevail as a matter of law. See, e.g., Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). Under the 2 The parties do not dispute that the applicable policy did not elect to use the Medicare fee schedule. 4 applicable standard of review, 3 the court “must draw every possible inference in favor of the party against whom summary judgment is sought,” and “summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Id. Here, State Farm primarily argues the existence of genuine issues of material fact as to the reasonableness, relatedness, and medical necessity of the charges. An issue of fact is “genuine” for summary judgment purposes when a reasonable jury could potentially return a verdict in favor of the non- moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). A factual dispute is “material” when it may affect the outcome of the case under the applicable substantive law. Id. at 248. Because a summary judgment forecloses the parties’ right to a trial, summary judgment should be granted “[o]nly after it has been conclusively shown that the party moved 3 The Florida Supreme Court has recently held that appellate courts should utilize the federal standard of review articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), when reviewing summary judgments rendered after May 1, 2021. See In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192, 194 (Fla. 2020). As the judgment appealed here occurred before that date, we instead apply the former summary judgment standard. 5 against cannot offer proof to support his position on the genuine and material issues in the cause.” Holl v. Talcott, 191 So. 2d 40, 47 (Fla. 1966). Here, the trial court failed to consider countervailing evidence demonstrating genuine, material issues of fact as to reasonableness, relatedness, and necessity. We first address the partial summary judgment on the relatedness and necessity issues, specifically, the trial court’s conclusion that State Farm waived its ability to present additional evidence due to the following testimony of its corporate representative: Q. As you sit here today does State Farm dispute the bills were not medically necessary or related to Pedro Rios’ 12/20/10 accident? A. Not at this time. Q. Would you also agree that the only issue between the plaintiff and the defendant in this case is whether or not the bills submitted by my client in the total sum of $3,100 is whether or not the bills were reasonable in that amount? That’s the only issue? A. At this time, yes. .... Q. I want to make sure the only issue is reasonableness of the bills between the parties at this time as you sit here today? A. Correct. This testimony occurred in May 2012. State Farm contends that this testimony, particularly the use of the language “at this time,” waived nothing, 6 and that State Farm raised a material dispute by the time of the summary judgment hearing in February 2019 by timely presenting affidavit evidence regarding the relatedness and necessity of the images. Therefore, State Farm argues, the trial court erred by rejecting Dr. Dauer’s affidavit and finding no dispute of material fact. We agree with the trial court that a party’s stipulation “limits the issues to be tried [and] amounts to a binding waiver and elimination of all issues not included.” Delgado v. Agency for Health Care Admin., 237 So. 3d 432, 437 (Fla. 1st DCA 2018) (citations and quotations omitted). Consequently, “[a] party may not file his or her own affidavit, or that of another, baldly repudiating his or her own deposition testimony to avoid the entry of a summary judgment.” Ouellette v. Patel, 967 So. 2d 1078, 1082 (Fla. 2d DCA 2007). However, “[t]he principle that a party defending a motion for summary judgment is entitled to all reasonable inferences in his or her favor includes giving the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.” Peterson v. Lundin, 148 So. 3d 784, 787 (Fla. 2d DCA 2014) (quotations omitted) (reversing trial court’s striking of deposition testimony that could be reconciled with subsequent affidavit). Accordingly, “a party may file a subsequent affidavit for the purpose of explaining testimony given at a prior deposition, provided the explanation is 7 credible and not inconsistent with previous sworn testimony, even though it creates a jury issue on the opponent’s motion for summary judgment.” Ouellette, 967 So. 2d at 1082–83 (quotation omitted) (reversing due to trial court’s refusal to consider expert testimony that was not inconsistent with ambiguous response in prior testimony); see also Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 582 (Fla. 1st DCA 2016) (Makar, J., concurring) (discussing why expert’s deposition testimony that offered no opinion on issue was not inconsistent with subsequent opinion). Here, State Farm’s representative stated that reasonableness was the only issue in dispute “at this time.” Conceding that an issue is not in dispute at a particular time is not inconsistent or irreconcilable with subsequently presenting evidence on that issue after the insurer has had time to acquire such evidence. Indeed, nothing in the PIP statute precludes an insurer from contesting the reasonableness, relatedness, or necessity of a medical charge at any time, including after the commencement of an action. See Santa Fe Med. Ctr., 21 So. 3d at 64; Coastal Neurology, Inc. v. State Farm Mut. Auto. Ins. Co., 458 F. App’x. 793, 795 (11th Cir. 2012). Because State Farm’s presentation of Dr. Dauer’s affidavit addressing the relatedness and necessity of the procedures did not “baldly repudiate” its earlier deposition testimony, the trial court erred by excluding the affidavit on that basis. The 8 trial court erred in these circumstances in finding that waiver precluded the consideration of such contrary evidence, and the affidavit created a material dispute of fact as to the relatedness and medical necessity of the procedures. We also find that the trial court should not have rejected Dr. Dauer’s other affidavit creating a genuine issue of material fact as to reasonableness. Pursuant to section 627.736(1)(a), an insurer must reimburse “[e]ighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services.” “If an insurer refused to pay medical expenses that an insured believes are reasonable, the insured may sue, but he or she bears the burden of establishing that the charges are, in fact, reasonable.” State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002). In order to establish the reasonableness of the charges, the insured must submit “‘reasonable proof’ of such loss to the insurer.” United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 86 (Fla. 2001). Upon doing so, the insurer then has thirty days to pay the claim, and if the insurer does not do so, the claim becomes “overdue” unless the insurer can demonstrate “reasonable proof to establish that the insurer is not responsible for the payment.” Id. (quoting § 627.736(4)(b), Fla. Stat.). 9 The term “reasonable proof” is not defined in the statute. See Santa Fe Med. Ctr., 21 So. 3d at 65. However, section 627.736(5) provides two methods for evaluating the reasonableness of medical charges. The first method involves “a fact-dependent inquiry determined by consideration of various factors” outlined in section 627.736(5)(a)1. 4 Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 155–56 (Fla. 2013). Section 627.736(5)(a)2. also provides for an “alternative mechanism for determining reasonableness” by reference to the Medicare fee schedules. Id. at 156. In pertinent part, under section 627.736(5)(a)2.d., an insurer may limit reimbursement to “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.” However, in order for the insurer to utilize the Medicare fee schedules as a basis for 4 Section 627.736(5)(a)1., Florida Statutes, provides that: With 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. 10 limiting reimbursements, the policy must notify the insured by electing to use those fee schedules in its policy. Virtual Imaging Servs., 141 So. 3d at 159; see also Allstate Fire & Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So. 3d 1, 3 (Fla. 1st DCA 2015) (same). There is no dispute here that the underlying policy did not elect to use the Medicare fee schedules. Hence, the trial court agreed with All X-Ray’s argument that State Farm’s presentation of Dr. Dauer’s expert affidavit could not create a material dispute of fact on the reasonableness issue because Dauer’s opinion considered 200 percent of the Medicare Part B fee schedule to be the “objective” maximum reasonable charge even though that schedule was not applicable here. The trial court therefore considered the affidavit to be “pure opinion” testimony inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This conclusion misstates the purpose of Daubert. Under Daubert (which has since been codified into the Florida Evidence Code as section 90.702, Florida Statutes), expert witnesses may testify in the form of an opinion so long as their testimony is (1) based upon sufficient facts or data, (2) the product of reliable principles and methods, and (3) has been applied reliably to the facts of the case. See § 90.702, Fla. Stat.; Daubert, 509 U.S. at 594–95; see also In re Amendments to Florida Evidence Code, 278 So. 11 3d 551, 552–53 (Fla. 2019) (explaining how section 90.702 incorporates the Daubert standard). While trial courts have broad discretion regarding the admissibility of expert evidence, “[t]he test under Daubert is not the correctness of the expert’s conclusions but the soundness of his methodology.” Kemp v. State, 280 So. 3d 81, 89 (Fla. 4th DCA 2019) (quoting Daubert v. Merrell Dow Pharms., Inc., 43 F. 3d 1311, 1318 (9th Cir. 1995)). In other words, “[w]hen engaging in a Daubert analysis, the judge’s role is that of the evidentiary ‘gatekeeper,’ that is, the one who determines whether the expert’s testimony meets the Daubert test.” Booker v. Sumter Cnty. Sheriff’s Off./N.A. Risk Servs., 166 So. 3d 189, 192 (Fla. 1st DCA 2015). The Daubert test is “not intended to supplant the adversary system or the role of the jury,” and if the record makes clear that the expert’s opinion is the product of reliable principles and methods that were reliably applied to the facts of the case, the trial court abuses its discretion by declining to consider the opinion on that basis. Baan v. Columbia Cnty., 180 So. 3d 1127, 1134 (Fla. 1st DCA 2015) (reversing and remanding due to trial court’s failure to consider expert affidavit despite affidavit stating improper standard of care where record indicated that affidavit satisfied Daubert, and expert was not relying purely on personal experience). 12 The trial court correctly observed that Daubert prohibits “pure opinion” testimony. See Perez v. Bell S. Telecomms., Inc., 138 So. 3d 492, 497 (Fla. 3d DCA 2014) (“Expert testimony that might otherwise qualify as ‘pure opinion’ testimony is expressly prohibited.”); see also Booker, 166 So. 3d at 194 (contrasting “pure opinion” testimony, which is “based only on clinical experience and training,” with opinions based on “relevance and reliability based on scientific knowledge,” which are “the cornerstone of section 90.702”). However, even if Dr. Dauer’s affidavit did in fact rely entirely on the Medicare Part B fee schedules as the basis for reasonableness (which it did not), the affidavit was not “pure opinion” evidence because it resulted from the application of reliable principles and methods to the facts of the case. The affidavit addresses Dr. Dauer’s qualifications as a medical doctor, his experience with reimbursement levels in the community, the factors in section 627.736(5)(a)1., as well as the underlying data Dr. Dauer reviewed. The affidavit explains which information influenced Dr. Dauer’s opinion regarding reasonableness and how, and also individually addresses each of the Daubert factors in relation to the specific methodology used. Finally, the affidavit explains the rationale behind the methodology used and why it was reliable, and also explains why Dr. Dauer believed his conclusions were consistent with the PIP statute and prevailing practices in the industry. 13 Regardless of whether the trier of fact ultimately accepts the conclusions expressed, the trial court could not reasonably find that this affidavit was purely based on Dr. Dauer’s own personal experience or otherwise constituted impermissible “pure opinion” testimony. See Baan, 180 So. 3d at 1133–34. Dr. Dauer’s affidavits created genuine issues of material fact as to reasonableness, relatedness, and medical necessity. The trial court should not have excluded the affidavits and should have denied the motions for summary judgment. We therefore reverse and remand for further proceedings. Reversed and remanded. 14