In 1955, Congress created the Indian Health Service (IHS) to govern tribal healthcare. The IHS, now a sub-agency within the U.S. Department of Health and Human Services (HHS), continues to govern tribal healthcare today. Indeed, the IHS is the “principal federal health care provider and health advocate for Indian people, and its goal is to raise their health status to the highest possible level.” First, IHS funds and operates healthcare facilities—such as hospitals and clinics—which provide direct care to American Indians. Second, IHS separately funds Contract Health Service (CHS) Programs, which operate as a referral safety net such that, if an American Indian seeks a healthcare service that is unavailable at their direct-care IHS tribal facility, CHS Programs may refer that American Indian to a non-IHS healthcare facility.
Central to this case, in 2003, Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act which authorized HHS to demand no more than Medicarelike rates (MLRs) from hospitals that provide services to tribes under a CHS Program, including those CHS Programs which tribes themselves orchestrate.
The Tribe retained ClaimInformatics—a healthcare “payment integrity firm” based in Connecticut to identify which of the Tribe’s claims were eligible for MLRs, and to “reprice” those eligible claims to determine if Blue Cross Blue Shield of Michigan (BCBSM) applied MLRs and, if not, how much the Tribe overpaid.
On September 16, 2023, the Tribe produced the “Preliminary Expert Report of ClaimInformatics/Dawn Cornelis.” The Report noted that ClaimInformatics “repriced a total of 6,6641 claims” out of the 93,104 claims produced by BCBSM at that time. On November 6, 2023, BCBSM filed a Daubert motion seeking to exclude Cornelis’ proffered expert testimony about MLR and ClaimInformatics’ MLR repricing in this case.
Data Science Expert Witness
Dawn Cornelis created her own healthcare claim audit and recovery business—Claim Recovery Services. Claim Recovery Services closed nearly twenty years later in 2010, and Cornelis worked the next seven years in various payment integrity roles. In 2017, Cornelis cofounded ClaimInformatics and helped develop a payment integrity software known as “Claim Intelligence” which was used by ClaimInformatics to process and audit the Tribes claims with BCBSM in this case.
Discussion by the Court
BCBSM argued that (1) Cornelis lacked the training, education, and experience to testify as a MLR and re-pricing expert at trial under Federal Rule of Evidence 702, and (2) even if qualified, Cornelis’ expert testimony would be unreliable because the testimony merely “parrots” or “bootstraps” the calculations and conclusions of Linda Myrick.
Qualifications
BCBSM argued that Cornelis has no formal education in healthcare, insurance, tribal welfare, or any other study which would enable her to testify as an expert in MLR or MLR repricing.
This Court, however, does not discount Cornelis’ substantial knowledge and experience related to healthcare insurance claim processing and auditing, generally. Yet, it held that despite Cornelis’ knowledge, training, and experiencing in processing and auditing healthcare insurance claims, generally, she does not have comparable knowledge, training, and experience in auditing tribal healthcare claims involving MLR, specifically. Also, Cornelis had no experience with MLR repricing in this specific case.
As further proof of her lack of experience, Cornelis herself expressly denied her MLR repricing expertise on three separate occasions, noting that she only knows enough “to be dangerous.”
To sum it up, Cornelis lacked the education, training, and experience to offer expert opinions on MLR repricing, both generally and as specifically applied to the Tribe’s claims with BCBSM.
Reliability
Even if Cornelis was qualified based on her training, education, and experience, her proffered opinion about BCBSM’s rates and the Tribe’s MLR repricing would be unreliable because this testimony does not concern her opinion. It would instead only concern Linda Myrick’s opinion.
However thin the line may be between permissible reliance and impermissible “parroting,” Cornelis crossed it here. According to the Court, Cornelis conceded that all MLR re-pricing was conducted solely by Linda Myrick. Although Cornelis testified that she independently assured the accuracy of some CMS pricing tables which Myrick may have relied on when comparing the rates BCBSM charged the Tribe to the applicable MLRs, nothing suggested that Cornelis independently evaluated Myrick’s re-pricing calculations.
The Court held that this testimony is just as unreliable under Daubert as it is unfairly prejudicial under Rule 403. If Cornelis was permitted to testify about Myrick’s re-pricing calculations and conclusions, BCBSM would have no meaningful opportunity for cross-examination. The Tribe has indicated it will not call Myrick as an expert witness.
In response to BCBSM’s meritorious motion to exclude Cornelis’s testimony, the Tribe attempted to bolster Cornelis’s qualifications and reliability by producing her “Declaration,” dated November 15, 2023—notably executed after the Parties’ Daubert deadlines and nearly one month after Cornelis’s deposition. To the extent Cornelis’s declaration contradicts her prior deposition testimony, the Court held that her declaration will be stricken and will not be considered when analyzing the propriety of her expert testimony at trial.
Held
The Court granted the Defendant’s motion to exclude Dawn Cornelis’s proffered expert testimony on Medicare-like Rate repricing.
Key Takeaway:
The law governing expert testimony distinguishes between permissible reliance and impermissible “parroting.” True, an expert may rely on the opinions and conclusions of other experts when forming their own independent conclusions throughout their own independent investigation. But an expert may not simply “parrot,” “echo,” “regurgitate,” or “bootstrap” the opinion or conclusion of another expert without any independent evaluation or analysis.
Case Details:
| Case Caption: | Saginaw Chippewa Indian Tribe Of Michigan Et Al V. Blue Cross Blue Shield Of Michigan |
| Docket Number: | 1:16cv10317 |
| Court: | United States District Court for the Eastern District of Michigan, Northern Division |
| Order Date: | August 14, 2024 |
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