Third District Court of Appeal
State of Florida
Opinion filed August 18, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1193
Lower Tribunal Nos. 11-7998 SP; 20-144 AP
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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
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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
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Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
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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
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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
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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.
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