Plaintiff Vicenta Vega was allegedly injured when she slipped on water that had accumulated on the floor of a Ross Stores retail store. She sought damages for past and future medical expenses, past and future pain and suffering, past and future physical impairment, past and future scarring and disfigurement, and lost earning capacity.
Ross Stores designated Patrice Morin-Resch as an expert witness. Her report provided “charge benchmark data,” which she described as “actual medians of ʻcharges’ that doctors and other medical providers have submitted to thirdparty payers and shows how these compare to what the providers have invoiced to the Plaintiff.”
She explained that she used “Context 4 Healthcare data to compare charges made by physicians, chiropractors, outpatient facilities, and hospitals” and that, for medications, she uses GoodRx or Drugs.com. The Context 4 Healthcare data comes “from various clearinghouses that collect the charge information after it is sent from the provider before it is dispatched to a third-party payer,” and Morin-Resch narrowed the data by service date, zip code, and medical code. She explained that her “work is not limited to merely uploading the Context 4 Healthcare comparative fees into a spreadsheet”; she analyzed and compared the billing codes used in medical documentation to determine whether they are correct.
She provided a report that reflected different percentiles showing how much medical providers billed for the same service in the same year and geographic location. As she explained, 50 percent of providers charge equal to or less than the 50th-percentile dollar amount; 60 percent of providers charge equal to or less than the 60th-percentile dollar amount, and so on. The report also included the amount that Medicare paid for those services.
Plaintiff Vicenta Vega filed a motion to strike the testimony of Morin-Resch.
Medical Billing Expert Witness
Patrice Morin-Resch has authored textbooks on medical billing and coding, edited the American Medical Association’s CPT® (Current Procedural Terminology) codebook, and trained thousands of people on the use of CPT® coding.
The report included Morin-Resch’s opinion as to whether the amounts billed by twelve of Vega’s providers were usual, customary, and reasonable when compared with the data compiled from Context 4 Healthcare, Medicare, GoodRx, and Drugs.com.
Vega argued that Morin-Resch’s proposed testimony is irrelevant and based on unreliable data and methodology because it relied on data from Context 4 Healthcare, Inc., Medicare, GoodRx, and Drugs.com and applied a percentile-based methodology to determine the reasonableness of charges.
In response, Ross Stores argued that the data supporting Morin-Resch’s proposed testimony is relevant and reliable and that her methodology reflected her knowledge and expertise. Although Ross Stores spent much of its response reiterating Morin-Resch’s qualifications as an expert, Vega did not challenge her proposed testimony on that basis.
Relevance
Vega argued that Morin-Resch’s opinion, which relied on data from Context 4 Healthcare, Medicare, GoodRx, and Drugs.com, is not relevant because Ross Stores cannot show that Vega had access to services or medications at those prices or that prices available through discount programs are the “benchmark” for reasonableness. Vega specifically asserted that she was not eligible for Medicare and that she did not have a Drugs.com discount card.
However, the Court held that Morin-Resch’s opinion about the reasonableness of charges, based on aggregated data from Context 4 Healthcare, Medicare, Drugs.com, and GoodRx and combined with her own knowledge of billing practices, is relevant to the amount Vega may recover for her medical expenses. That is true even if Vega personally could not access services or medications at the prices charged to other customers.
Reliability
Vega argued that Ross Stores cannot show that Morin-Resch reviewed the data underlying the Context 4 Healthcare reports or that the data has been peer-reviewed or relied on by others to establish usual, customary, and reasonable charges for medical care.
Ross Stores argued that Morin-Resch reviewed the Context 4 Healthcare data to prepare her report and that its data has been used by hundreds of healthcare organizations over the course of decades. Morin-Resch’s report confirmed that she reviewed the report provided by Context 4 Healthcare. According to the Court, her review of the data underlying the report is not determinative of the reliability of her testimony based on that report.
Methodology
Vega challenged Morin-Resch’s conclusion that charges exceeding the 80th percentile are not reasonable because, in her view, there is an insufficient basis to draw the line between reasonable and unreasonable at 80%.
Ross Stores argued that Vega mischaracterized Morin-Resch’s opinion and overlooked the value added by her expert analysis. It pointed to Morin-Resch’s assessments of the billing codes used by Vega’s medical providers, which allowed her to provide additional commentary on how those providers billed. It also noted that Morin-Resch did not reach a blanket conclusion that bills were unreasonable because they exceeded the 80th percentile; instead, she discussed each service billed and compared it to the percentiles, noting that one provider billed 2.33 times the 80th percentile for similar services.
Morin-Resch’s report supported Ross Stores’ position. Morin-Resch’s methodology entailed downloading data from Context 4 Healthcare; filtering it by date, location, and billing code; and extrapolating percentiles from the results. Morin-Resch then analyzed the billing codes used by Vega’s providers, compared them to documentation showing the care Vega actually received, and made corrections as necessary to the billing codes that should have been applied. Morin-Resch then compared the prices charged to Vega with prices charged for the same services, as reflected by the Context 4 Healthcare data. While Vega may be able to criticize the report when it is presented to the jury, the Court held that she cannot show that Morin-Resch employed “no methodology.”
Held
The Court denied Vega’s motion to strike the testimony of Ross Stores, Inc.’s expert witness Patrice Morin-Resch.
Key Takeaway:
Daubert’s “general acceptance” factor goes to whether a theory or technique is reliable. “A proponent need not prove to the judge that the expert’s testimony is correct,” but only that it is based on reliable methods. That means it does not matter, at this stage, whether Morin-Resch is correct that a given charge for a medical service is unreasonable. What matters is how she reached that conclusion, and her report makes that sufficiently clear.
This case arises from a traffic accident that occurred on December 21, 2022 at an intersection on U.S. Highway 98, involving an 18-wheeler and a Ford F-150 pickup truck.
Cameron Thompson and his son, J.C., brought this action seeking damages, which included, among other things, past medical expenses for injuries sustained in the accident.
Defendants retained Nancy Michalski to opine on the “reasonable value” of Cameron’s medical treatment. Of the $40,440.00 billed for medical services provided to Cameron, Michalski opined that the reasonable value of such services is only $33,166.60.
Plaintiffs contended that Michalski’s opinions are inadmissible because the methodology Michalski used to arrive at her opinions violates Mississippi’s collateral source rule and because the opinions are otherwise not relevant or reliable.
Medical Billing Expert Witness
Nancy Fraser Michalski provides clients with practical ways to improve efficiency, quality, and outcomes of their bodily injury claims and litigation, including medical bill auditing, comprehensive claim reviews, medical record reviews, and life care planning. Drawing on her extensive experience as a nurse and medical billing expert, Michalski developed a methodology for medical bill audits that has been endorsed by peer review, as well as a patent pending system for medical record analysis.
Plaintiffs asserted that any testimony at all “about the so-called ‘reasonable value’ of Plaintiff’s medical bills are [sic] simply not referred to or a factual issue at dispute.”
Given the Defendants’ right to rebut the “necessary and reasonable” presumption regarding evidence of medical bills, it seems clear that Michalski’s opinions may be relevant. Having reviewed the parties’ submissions, including Michalski’s report and affidavit, the Court found that Michalski’s opinions are indeed directed at the “reasonableness” of the amount of the medical bills by focusing on the charges themselves for the medical services rendered.
It is through Michalski’s opinions that Defendants are attempting to rebut the presumption that the medical bills incurred were necessary and reasonable, and by reducing the charges, they would thereby reduce the amount recoverable on the medical bills.
Therefore, the Court found that, because Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged, the opinions were relevant.
Reliability
Whether Michalski’s opinions violate the collateral source rule
Mississippi’s collateral source rule bars a tortfeasor from reducing the damages it owes to a Plaintiff ‘by the amount of recovery the Plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor.’”
In other words any “compensation or indemnity for the loss received by Plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of damages.” Typically, the rule bars a Defendant from introducing evidence that a Plaintiff has received payments from a collateral source to reduce that Defendant’s liability for the damages.
Plaintiffs contended that Michalski’s opinions ran afoul of the collateral source rule. To be sure, Michalski’s ultimate opinion is that the reasonable value of the medical services rendered is less than the amount billed. However, she did not arrive at this opinion based on payments made on behalf of Plaintiffs either by insurance or Medicaid/Medicare or evidence in the form of write-offs or self-pay discounts.
Her ultimate opinion is based on what is essentially a “sub-opinion” that some of the rates charged were too high. Defendants emphasized, and the Court agreed, that Michalski’s proposed testimony is not that Plaintiffs’ recovery should be reduced by payment from an independent source; rather, it is that the charges are not reasonable when ultimately compared to charges from other similarly situated providers. Because Michalski does not arrive at her opinions, as Plaintiffs contend, by deducting, or even considering, payments, gifts, or write-offs from third parties, the Court found that Michalski’s opinions, on their face, do not violate Mississippi’s collateral source rule.
Whether Defendants have shown the opinions are otherwise reliable
Plaintiffs claimed that Michalski “has not sufficiently established that her method for projecting these future costs is generally accepted in the relevant scientific community.”
However, there is no opinion by Michalski as to future costs. She addresses only past medical treatment. Plaintiffs also argue that “Michalski’s methodology differentiates between expected charges for services as opposed to a reasonable value or actual cost to a patient.” While the meaning of this statement is a bit unclear, Plaintiffs never explain which part of Michalski’s report employs such methodology.
The Court is left to speculate about the methodology’s unreliability because these general statements lack sufficient explanation.
Critiques go to the weight not the admissibility of the opinion
To begin with, Michalski used several nationally recognized sources to determine the reasonable value of the charges. She consulted multiple pricing databases including Physician’s Fee Reference, PMIC Medical Fees, Find-a-Code, and the American Hospital Directory, and then applied a geographic adjustment factor for the location where the services were provided and ultimately arrived at her opinion as to the reasonable value of the medical services rendered to Cameron.
In their Reply, Plaintiffs assert that medical treatment is not a commodity or services that is like other goods or services. Plaintiffs claim that medical providers have their own system, “Chargemasters,” which establishes the prices for treatment provided. The Court cannot accept a bald assertion in a party’s brief as fact.
Additionally, Plaintiffs complained that by comparing Cameron’s providers to other “unidentified” providers, Michalski failed to account for the quality of services, the cost of the services, or the continuity of care, making her opinion, a comparison of apples to “unidentified oranges.” The Court held that these critiques go to the weight not the admissibility of the opinion.
Finally, Plaintiffs argued that numerous other courts have excluded experts who have used Michalski’s exact same methodology, citing several cases. Because Plaintiffs have misunderstood Michalski’s methodology, the Court cannot agree.
Held
The Court denied the Plaintiffs’ motion to exclude the opinions by Nancy Michalski.
Key Takeaways:
Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged.
To address every case cited would seem to be an exercise in futility because “a district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert’s opinion.” This Court exercises its discretion here, and trusts that those courts did the same with what they were presented and reached the correct result.
Case Details:
Case Caption:
Thompson Et Al V. Intermodal Cartage Co., Llc. Et Al
Docket Number:
2:24cv34
Court Name:
United States District Court, Mississippi Southern
This matter stems from a motor vehicle accident that occurred on May 21, 2023 when the vehicle driven by Plaintiff, Juwan Brown, and occupied by his parents, Clarence and Tawanna Brown, was struck by a commercial vehicle driven by Dashawn Brooks.
The commercial vehicle was owned by Penske Truck Leasing Co. and leased by Defendant Mayflower Laundry & Linen. As a result of the accident, Plaintiffs have alleged that they have sustained various injuries and damages.
The Defendant retained Yvonne Dailey “to coordinate an analysis of the billing and reimbursement dates for services provided to [Plaintiffs] due to” the motor vehicle accident at issue in this case.
In her report, Dailey compared the amounts charged for Plaintiffs’ medical care arising from the accident with the amounts permitted by the fee schedules under the New Jersey Personal Injury Protection (“NJ PIP”) fee schedule and Pennsylvania’s “Act 6” schedule. However, Dailey’s analysis did not include the amounts that were actually paid for the services.
Plaintiffs challenged the reliability, relevance, and fit of Dailey’s opinion, asserting that her testimony should be precluded under Federal Rule of Evidence 403. Plaintiffs argued that the charges reflected in Dailey’s report “have already been reconciled with Plaintiffs’ health insurers [and] will be presented to the jury in the form of liens which will be sanitarily presented in compliance with the collateral source rule.
Medical Billing Expert Witness
Yvonne Dailey has over 20 years of experience in the medical billing and coding field. As a Certified Professional Coder (CPC) and Certified Professional Biller (CPB), she helps clients understand the importance of accurate coding and documentation in the reimbursement process.
Her specialties include Infectious Disease, Family Practice, Endocrinology, Interventional Radiology, Internal Medicine, OB-Gyn, Chiropractic, Mental Health, Podiatry, Substance Abuse, Oncology, Hematology, Ophthalmology, Dental (medical side), and Orthopedics.
The defense expert created spreadsheets identifying the charges from Plaintiffs’ medical providers, and opining as to the allowable amounts under NJ PIP and Act 6 for each charge. However, as Plaintiffs pointed out, Plaintiffs’ health and auto insurers have already paid for the treatment which Dailey analyzed.
Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”
Plaintiffs asserted that Dailey’s report reviews the amounts previously billed which have already been paid and Defendants did not dispute this characterization. Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury.
Held
The Court granted the Plaintiffs’ motion to preclude the testimony of Yvonne Dailey.
Key Takeaways
Under Pennsylvania law, “if the exact amount of [past medical] damages has been decided, or payment has been made and accepted in full, the Plaintiff’s recovery is limited to that amount and there is no issue for the factfinder to determine.”
Because the measure of damages for past medical damages is the amount accepted by the provider as payment in full and that amount is readily available, the Court concluded that Dailey’s analysis is not relevant to any issue the jury must decide and would not aid the jury. Therefore, Dailey’s analysis was precluded.
Please refer to the blog previously published about this case:
Plaintiff Wendy Marie Henshaw alleged that she slipped and fell on a liquid substance on October 28, 2021, at the Defendant Wal-Mart’s premises.
Plaintiff filed a motion to strike Defendant’s medical billing and coding expert, Kathleen DePaolo, MSHI, RHIA, CCS. DePaolo, who is a “Certified Coding Specialist,” intended to offer expert testimony regarding the reasonable market value of Plaintiff’s medical bills. DePaolo’s ultimate opinion is that, although Plaintiff’s medical bills amount to $264,324.76, the reasonable value of those bills is $90,053.36.
Reasonable Value of Plaintiff’s Medical Bills
DePaolo’s expert report includes item-by-item analyses of Plaintiff’s medical providers’ charges. To calculate the reasonable value of Plaintiff’s medical bills, DePaolo used a “three-pronged analysis.”
First, DePaolo audited Plaintiff’s medical bills to ensure that each charge was correctly coded and complied with the “applicable medical billing and coding rules, standards, and federal regulations.” If Plaintiff’s providers failed to code an expense (or if she determined that a provider applied an incorrect code), then DePaolo applied the code that she deemed to be appropriate based on her review of Plaintiff’s medical records.
Second, DePaolo “determined the reasonable marketplace value for the same services within the same community within in the same year.” To calculate the reasonable value of a line-item charge, DePaolo generally relied on three pricing databases: (1) Physicians’ Fee Reference (Yale Wassermann, DMD Medical Publishers, Ltd); (2) Medical Fees (Context4Healthcare Inc. Practice Management Information Corporation); and (3) Find-A-Code.
DePaolo specifically reviewed the seventy-fifth percentile value for each code across the three databases, and she identified the median value to be the “national usual and customary value.” She then multiplied the “national usual and customary value” by a geographic modifier based on Plaintiff’s providers’ zip codes. DePaolo concluded that the resulting number was the “reasonable value” for each line item.
Third, DePaolo conducted a market analysis of outpatient service prices in the Orlando area. To identify additional evidence and further validate the results of her audit, DePaolo reviewed published, hospital-specific data listing local outpatient service prices.
Medical Billing Expert Witness
Kathleen DePaolo is a medical billing auditor with specialized expertise in inpatient hospitalization billing including DRG, ICD-10 diagnostic code classification and pricing methodologies. Her expertise lies in medical billing, health information, and revenue data analytics.
The Plaintiff argued that the Court should exclude DePaolo’s testimony regarding the reasonable market value of Plaintiff’s medical bills because: (1) DePaolo’s opinions are unreliable conduits of hearsay upon hearsay; (2) her opinions and methodology cannot be tested; and (3) her opinions will not assist (and pose an unreasonable risk of misleading) the jury.
DePaolo’s opinions are unreliable conduits of hearsay upon hearsay
According to the Court, the Plaintiff failed to recognize that (1) Rule 803(17) of the Federal Rules of Evidence states that “[m]arket quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations” are not excluded by the hearsay rule and (2) Rule 703 provides that an expert may rely on inadmissible facts or data in forming her opinion if experts in her particular field would reasonably rely on the same evidence.
The Plaintiff primarily claimed that DePaolo’s reliance on the three pricing databases is insufficient, considering that DePaolo does not know how the pricing databases compile their data. However, DePaolo and other courts have explained that experts in the medical billing industry routinely rely on the three databases that DePaolo used.
DePaolo’s opinions and methodology cannot be tested
The Plaintiff specifically argued that DePaolo’s opinions and methodology cannot be tested because DePaolo (1) declined to demonstrate how she queried the pricing databases during her deposition (because she considered the databases to be proprietary) and (2) merely referenced two peer review studies in her Expert Report.
Although the average person lacks access to the pricing databases that DePaolo used, another medical billing and coding expert could surely replicate DePaolo’s calculations. Additionally, Defendant included two letters— authored by highly credentialed individuals—reflecting separate studies of DePaolo’s procedures with its Response.
The Court concluded that the Plaintiff’s argument that DePaolo’s opinions and methodology cannot be tested is meritless.
DePaolo’s opinions and testimony will not assist the jury
Despite the Plaintiff’s argument to the contrary, DePaolo’s testimony plainly relates to the reasonable value of Plaintiff’s medical expenses.
The Court notes that there is a split in this district regarding the admissibility of medical billing and coding experts’ testimony and that it has previously excluded a medical billing and coding expert because “she provided no analysis as to how she reached her opinions and merely state[d] her opinions in a conclusory fashion.”
However, considering the detailed nature of DePaolo’s Expert Report (as well as the complicated healthcare billing landscape in United States), the Court is satisfied that DePaolo’s testimony and opinions are sufficiently reliable, relevant, and admissible in this case. Therefore, the Plaintiff, once again, failed to show that DePaolo’s opinions and testimony will not assist the jury.
Held
The Court denied the Plaintiff’s motion to strike Kathleen DePaolo’s opinions as to reasonable value of the bills.
Key Takeaway:
DePaolo submitted a detailed report on the reasonable market value of the Plaintiff’s medical bills. Her reliance on the three pricing databases was deemed sufficient, and her methodology could be tested despite the Plaintiff’s reservations. Given the complicated healthcare billing landscape in the United States, her testimony, which plainly relates to the reasonable value of the Plaintiff’s medical expenses, could assist the jury.
On June 27, 2019, Plaintiff was involved in a motor vehicle accident with an underinsured driver. At the time of the accident, Plaintiff was covered by an Uninsured and/or Underinsured Motorist (“UM”) policy issued by Defendant. Plaintiff issued a demand to Defendant for settlement at policy limits. On August 26, 2020, Plaintiff filed a civil remedy notice (“CRN”) against Defendant, demanding $100,000 in UM benefits and asserting medical expenses exceeding $145,000.
Defendant retained Nicole Bonaparte to provide expert opinions and testimony on medical coding and billing. Specifically, the parties engaged Bonaparte to testify about the reasonableness of Plaintiff’s medical expenses and the billing practices used in connection with those charges. In her report, she opined that “the charges in this case were above the usual, customary, and reasonable charges in the community for the subject procedures and services.” The Plaintiff then moved to strike Bonaparte as an expert so as to preclude her from testifying at trial.
Medical Billing Expert Witness
Nicole Deniene Bonaparte, C.P.C., became a Certified Professional Coder after completing her Medical Coding Specialist Program in 1998 at the National School of Technology, North Miami Beach. She earned an A.A. degree from Miami-Dade Community College the same year. In 2000, she completed education classes, including ESOL, at Nova Southeastern University. She later received a Corporate Etiquette Consultant Certificate of Completion, specializing in Healthcare Protocol from the Protocol School of Palm Beach. She has extensive knowledge of medical terminology, diseases, surgeries, and insurance and medical billing terminology.
Plaintiff primarily challenges the helpfulness and reliability of Bonaparte’s testimony. The Plaintiff argued that the Court should exclude Bonaparte’s testimony for two reasons. First, they claim her proposed testimony is irrelevant and will not assist the trier of fact in deciding the ultimate issue in this case. Second, they assert that her opinions are not based on reliable methodology.
Plaintiff contended that his medical damages were already litigated in the Underlying Lawsuit, and Defendant is not entitled to relitigate Plaintiff’s damages in this case. In response, Defendant argued that “based on the record and established case law, Bonaparte satisfies each prong necessary to permit her testimony.”
A. Helpfulness
I. Relevance
The Plaintiff argued that the Court should exclude Bonaparte’s testimony because it was irrelevant and would not assist the jury. The Plaintiff contended that the probative value was outweighed by the risk of unfair prejudice and confusion. Also, the testimony could raise doubts about an issue already decided in the underlying case. Defendant countered that Bonaparte’s testimony was essential to “demonstrate that its decisions were based on an objective evaluation of the medical charges and were not made in bad faith.”
However, the Court sided with Plaintiff and held that Bonaparte’s testimony regarding the reasonableness of Plaintiff’s medical expenses and the billing practices used in connection with those charges would not be helpful to the jury and should be excluded. It noted that courts throughout the Eleventh Circuit, including the Eleventh Circuit Court of Appeals, have routinely excluded medical coding and billing experts under Daubert and Federal Rule of Evidence 403. The Court found such testimony irrelevant and unhelpful, as experts in this area are typically unqualified to testify as to the reasonable charges for the myriad medical procedures involved in injury cases.
II. Qualifications
Bonaparte’s curriculum vitae reflects that she holds certificates in medical coding, but does not have a medical education or training. Because Bonaparte holds no medical qualifications that would support her testimony as to the reasonableness of the medical procedures, the Court finds that her limited testimony on medical billing/coding would not be helpful to the jury.
However, Defendant disputed this conclusion, arguing that “an expert’s analysis is required to assist the trier of fact to assess the reasonableness of the medical charges at issue.”
However, Bonaparte is being offered to opine about the reasonableness of charges for medical services assumed to have been delivered rather than about whether the medical services billed reflected medical services delivered. In conclusion, the Court held that Bonaparte’s testimony would not be applicable where there is merely “a conflict over the reasonableness of charges for medical services, assumed to have been delivered.”
Held
The Court granted the Plaintiff’s Daubert motion to strike Nicole Bonaparte as an expert and preclude her from testifying at trial in this matter.
Key Takeaways:
Bonaparte’s limited testimony on medical billing/coding would not be helpful to the jury because she holds no medical qualifications that would support her testimony as to the reasonableness of the medical procedures.
Because there is a conflict over the reasonableness of charges for medical services, assumed to have been delivered, Bonaparte’s testimony would not be applicable because Bonaparte is being offered to opine about the reasonableness of charges for medical services assumed to have been delivered rather than about whether the medical services billed reflected medical services delivered.
Case Details:
Case Caption:
Collazo v. Progressive Select Ins. Co.
Docket Number:
1:23cv22953
Court:
United States District Court for the Southern District of Florida
This case arises from a high-speed, single vehicle collision into a tree. After the collision, the vehicle caught fire and exploded. Plaintiff Jade Burch was the front seat passenger in the vehicle.
As a result of the collision, Burch broke her pelvis, femur, tibia, and seven ribs. She required emergency leg surgery. Burch also suffered burns on her left foot, which required a skin graft. To date, Burch has incurred over one million dollars of medical expenses and will have at least one more surgery in the future.
Defendant hired Marilyn Pacheco to give testimony “regarding the reasonableness of medical charges for medical services provided.
Pacheco opines that “the $900,343.05 in billed charges on or after 10/25/21 is excessive and the reasonable value of the past medical care received by Plaintiff is $429,553.74.” Plaintiff argued Pacheco’s opinions must be excluded because she is not qualified to offer them, they are unreliable and unhelpful to the trier of fact under Fed. R. Evid. 702 and Daubert and its progeny, and her opinions impermissibly inject collateral source into this case under Georgia law.
Medical Billing Expert Witness
Marilyn Godoy Pacheco has over 30 years of experience in establishing medical charges, medical billing, collections, pricing, and third-party payer contract negotiations and has been qualified and has testified as an expert forensic medical bill auditor in state and federal trials and arbitrations on approximately 638 occasions. She has 18 years of experience managing the medical billing department of a medical practice with 10 physicians; became a Certified Professional Coder from the American Academy of Professional Coders in 2012; founded E&M Billing Services, a medical billing service for multiple independent physician practices filing 1,000 claims per month, in 2004; been the director of Miller Children’s Subspecialty Group since 2005 where she provides oversight of the medical billing department, contract negotiations, and credentialing of 26 specialty medical groups with 90+ physicians; and since 2012, she has provided expert testimony for medical billing and auditing services for Elevate Services, Inc.
Plaintiff first challenged Pacheco’s qualifications, arguing she is not qualified to offer opinions about what an Augusta hospital (or any Georgia hospital) should have charged for Plaintiff’s medical treatment. Plaintiff argued while Pacheco may be qualified to assign the right billing codes to the medical services provided at Doctor’s Hospital, she is not qualified to use those codes to determine a reasonable fee in this case. However, the Court held that the Defendant has met its burden of demonstrating Pacheco is qualified as a medical billing expert.
Plaintiff pointed out that Pacheco held only a high school diploma and lacked formal training in finance or economics. Moreover, she had no professional experience with pricing medical procedures and services in the state of Georgia. Despite this, Pacheco’s extensive experience in medical billing qualified her as an expert. She asserted that no specific academic degree existed for medical billing professionals, who do not need to be physicians or healthcare providers. As a medical billing expert she has specialized knowledge on industry-specific requirements “including ICD-9, ICD-10, CPT, HCPCS, APC, DRG, and NDC coding, rules, and regulations related to each code set and regional/geographic pricing.”
B. Pacheco’s Methodology and Reliability
The Court found Pacheco’s methodology is sufficiently reliable for admissibility, and the weaknesses in the data she relies on in conducting her methodology is appropriately addressed on cross examination. To form her opinions, Pacheco used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided.
First, Pacheco analyzed Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta.
Second, she applied geographic-specific pricing to determine the reasonable marketplace value for the same services within the same community within the same year.
Third, she conducted a market analysis of the local medical community for similar services based on published data “to identify additional evidence of reasonable marketplace value and further validate the results of the audit.”
Plaintiff argued Pacheco’s methodology simply consists of plugging codes into databases from which she picks the “reasonable” value for the medical services; she cannot explain the origin of the data in these databases; she did no independent research in the Augusta or Georgia healthcare market to determine what hospitals charge for similar services; and therefore neither the Court nor the jury can test whether the databases are accurate and reliable. But these arguments are appropriately addressed on cross examination.
Moreover, the methodology and data sources Pacheco employed have been peer reviewed in 2013 by Gerard Anderson, Ph.D., a widely known expert in the field of healthcare services pricing, and again in 2023 by a panel of experts including Professor Emeritus Gerald F. Kominski, Ph.D,; Orthopedic Surgeon Stewart L. Shanfield, M.D.; QA Auditor and Coder Vivian Washington, CPC, COC, CPMA, CRC, CPC-1; and Healthcare Administrator Andrew Bowen who found the methodology “sound, reliable, and applied appropriately using industry standard data.”
C. Helpfulness to the Jury
The Court is also unpersuaded by Plaintiff’s contention that Pacheco’s opinions are not helpful to the jury. The average lay person does not know what hospitals charge for healthcare services or understand how they generate the prices. Pacheco’s opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.
D. Collateral Source Rule
The collateral source rule bars the Defendant from presenting any evidence as to payment of expenses of a tortious injury paid for by a third party and taking any credit toward the Defendant’s liability and damages for such payments.” But the Eleventh Circuit has rejected this challenge to similar medical billing experts, explaining “Defendants were properly allowed to argue that medical charges were unreasonably high,” and such expert testimony “did not violate the collateral source rule.” Here, Pacheco does not opine that the medical expenses should be reduced by insurance payments, write-offs, or write-downs.
The Court held that her testimony as to how the charged fees compare to the market is relevant to the reasonableness inquiry and does not “purport to present evidence that a third party paid for or should pay for the expenses of the tortious injury allegedly caused by Defendant’s negligence; accordingly the collateral source rule does not apply.”
Held
In conclusion, the Court denied Plaintiff’s motion to exclude the testimony of Defendant’s medical billing expert witness, Marilyn Pacheco.
Key Takeaway:
Not only is Pacheco qualified as a medical billing expert, she used a multi-step process to review and audit the medical charges to determine the reasonable value of the services provided followed by a detailed analysis of Plaintiff’s past medical records, billing data, and medical cost benchmarking resources over the period of Plaintiff’s treatment in Augusta. Moreover, her opinions address coding issues and whether the correct billing codes were applied, removing charges for improper packaged services, which is beyond the understanding of the average lay person and will assist the jury in determining whether Plaintiff’s medical expenses are reasonable.
Case Details:
Case caption:
Burch v. Cracker Barrel Old Country Store, Inc.
Docket Number:
5:22cv316
Court:
United States District Court for the Middle District of Georgia, Macon Division
This is an automobile negligence case alleging that the Plaintiffs, Fred Young and Jeff Firman were permanently injured in a rear-end collision by an employee of the Defendant, Panera, LLC.
Plaintiff filed a motion to exclude or limit the testimony of Defendant’s medical billing expert, Keyona White. Plaintiffs argued White’s testimony should be excluded because her testimony is irrelevant, unhelpful to the jury, and because coding “experts” are generally unqualified to testify as to the reasonable charges for the myriad medical procedures involved in injury cases.
Medical Billing Expert Witness
Keyona White has nearly 20 years of experience in health information management and as a medical billing and coding professional, with specialized expertise in inpatient, outpatient, ancillary, radiology, and CDI services. She is responsible for the revenue cycle management of over 20 facilities in a large national healthcare system and is proficient in both federal program requirements and hospital compliance program obligations. Her extensive experience with coding and compliance analysis for pricing of medical services, along with applicable geographic considerations for similar services in the community, provides her with the bill review expertise needed to audit billing records in the context of clinical settings.
The Court held that White is a coding expert. She has no expertise in the reasonableness of medical procedures or their associated costs. She offers no opinion that any bills submitted were fraudulent or billed under incorrect codes such that a correct code would yield the accurate billing value for the services rendered.
Moreover, the data underlying her opinions is drawn from national averages or mean billing rates across a number of reimbursement scenarios (i.e., Medicare, insurance, self-pay, etc.). Defendant, it seems, does not intend to call a witness to opine that Plaintiffs should have shopped around to find the least expensive fees for the medical services or treatments they were prescribed. Additionally, the mean billing rates Defendant proposes the jury should consider appear skewed by a myriad of factors, including Medicare billing requirements, insurance rates paid for the service rendered, and geographical differences in rates charged.
The Court added that if this testimony were admitted, the trial would devolve into side disputes about the fairness of the various providers’ billing practices—practices over which Plaintiffs had no control. This would be extremely confusing to the jury.
Also, Defendant has not raised a defense of collusion or fraud in the submission of medical bills, and White is not offered as a witness on that issue.
Finally, Defendant has secured a medical expert to opine on several issues, including the reasonableness of the amounts charged for Plaintiffs’ treatments. If White were qualified to testify on that point, which she is not, any testimony she would offer would be cumulative and, for that reason as well, would be unduly prejudicial.
Held
The Court granted Plaintiff’s Daubert motion to exclude or limit the testimony of Defendant’s medical billing expert, Keyona White.
Key Takeaways:
To begin with, White lacks expertise in the reasonableness of medical procedures or their associated costs.
Finally, if White’s testimony were admitted, the danger of unfair prejudice on these points would far outweigh any probative value the average or mean coding values would offer in this simple car accident case.
Plaintiff Shawn Martin suffered serious injuries from the rear-end motor vehicle collision with Defendant Valenzuela’s trailer, which occurred on I-84 on Cabbage Hill outside Pendleton, Oregon, amid adverse weather conditions. Defendants Luis Valenzuela and Baljinder Singh were operating commercial motor vehicles, while Defendant Joel Hannu was driving a large pick-up truck. The Plaintiff, Shawn Martin, operated a pick-up truck and had a passenger, Dylan Smith, at the time of the incident.
Defendants Valenzuela and Singh encountered a scene with multiple vehicles blocking the highway upon their arrival. As Defendant Valenzuela was slowing down for traffic, Defendant Singh, along with a Black Ford Escape, collided behind him, forcing Valenzuela out of his lane. Consequently, Valenzuela’s semi-truck was struck by Defendant Singh and/or the Ford Escape. Despite managing to bring his truck to a complete stop on the highway exit ramp without colliding with other vehicles, Valenzuela couldn’t proceed forward due to previous collisions blocking the road. Additionally, Defendant Singh’s tractor-trailer obstructed the exit. In a matter of seconds, the Plaintiff, Shawn Martin, collided with the rear of Valenzuela’s trailer.
The Plaintiff entered the highway from the onramp immediately preceding the exit where the accident occurred. At that location, an Oregon Department of Transportation (ODOT) worker flagged down the Plaintiff, warning of an accident or a stalled vehicle in the fast lane about two miles down the road. Although the Plaintiff noticed some fog upon entering the highway, the weather conditions worsened just before the accident, reaching “zero visibility.” Despite being aware of the stalled vehicle ahead and facing poor visibility, multiple witnesses, including the Plaintiff’s passenger, had confirmed the Plaintiff’s speed at 45 miles per hour just before colliding with the back of Valenzuela’s stopped trailer. Plaintiff sustained serious injuries in the accident. Plaintiffs Shawn Martin and Karen Martin brought a negligence action against multiple Defendants, stemming from a multi-vehicle accident.
The Plaintiff hired a trucking expert, Lew Grill, with the intention of obtaining testimony on Federal Motor Carrier Safety Administration (FMCSA) regulations. Grill’s evaluation focused on determining whether the Defendants’ drivers had violated FMCSA regulations.
The final deadline for expert disclosures had been known to the parties for months. By Order dated April 10, 2023, the Court reset the deadline for expert disclosures to July 18, 2023, and rebuttal expert disclosures to August 8, 2023. On July 18, 2023, the Plaintiffs disclosed and produced reports from their two purported primary experts, Lew Grill ( Trucking Expert) and Sharla Paso (Medical Billing Expert). On August 8, 2023, the date for rebuttal reports, Plaintiffs submitted a four-page “rebuttal” report from Paso and newly disclosed expert Michele Cook (“Paso/Cook Report”) that contained the primary opinions alluded to but not included in the original Paso Report.
Defendant Valenzuela moved to exclude the expert report of Plaintiffs’ trucking expert, Lew Grill (“Grill”), under Federal Rule of Evidence 702. The basis for Valenzuela’s motion was the assertion that Grill’s opinion, as presented in his expert report, lacked sufficient reliability, and his methodology was flawed due to a failure to consider adequate facts and data. Additionally, Defendant Singh joined in the motion. Defendant Singh also moved to strike the expert reports of Passo/Cook due to Plaintiffs’ failure to adhere to their expert discovery obligations under Fed. R. Civ. P. 26(a)(2)(B).
Trucking Expert Witness
Lew Grill, an expert witness in motor fleet safety, accident investigation, and traffic accident reconstruction, has a comprehensive background in the trucking industry. He has over 50 years’ experience as a truck driver, independent trucker, truck driver training instructor, and consultant for motor carriers and truck driving schools. Grill holds licenses, certifications, and qualifications as a Commercial Motor Vehicle (CMV) driver with endorsements for hazardous materials, tank truck, double & triple trailers, passenger carriage, and school bus. Currently, Grill is the Founder and Chief Visionary Officer (CVO) at The Legacy Corporation International, and since March 1990, he has been the Founder/CVO, Author, Publisher, A/V Producer, and trucking consultant at Atlantic Pacific Resource Group, Inc.
Medical Billing Expert Witness
Sharla Paso, DNP, RNC-OB, Women’s Health CNS, has a Doctorate in Nursing Practice (DNP) from the University of Washington, and has 25 years of experience in various nursing areas including ICU, medical surgical, dialysis, and all areas of obstetric/newborn nursing. Sharla holds certifications in obstetric nursing and as a Life Care Planner. Paso is currently the Owner of Medical Vocational Planning, LLC, and is the Founder of Listen Line Community Services. She obtained her Associate Degree from the College of St Catherine-MPLS and then earned her B.S.N. from Walden University.
Life Care Planning Expert Witness
Michele Cook, RN, MA, ABVE has been a Registered Nurse, Medical Case Manager and Vocational Rehabilitation Counselor for over 30 years. She is also a Life Care Planner for over 15 years. She obtained her R.N. from Los Angeles County College of Nursing and Allied Health and then earned her M.A. from Marylhurst University. Cook is currently the Owner/Operator of Medical Vocational Planning, LLC, which serves the attorney clients in areas of medical negligence, personal injury, motor vehicle accidents, product liability, wrongful death, domestic relations, and workers’ compensation.
Discussion by the Court
Federal Rule of Evidence 702 outlines the criteria for admissibility of expert testimony, requiring qualification, reliability, and relevance. The proponent bears the burden of establishing these requirements by a preponderance of the evidence. The Court acts as a gatekeeper, ensuring the testimony is both relevant and reliable. The relevancy bar is low, demanding logical advancement of a material aspect of the case. Testimony is reliable if rooted in the knowledge and experience of the relevant discipline, with a flexible inquiry allowing broad discretion to trial Courts. The reliability test focuses on the methodology’s soundness, not the correctness of conclusions, and shaky but admissible evidence should be addressed through cross-examination and contrary evidence rather than exclusion.
Lew Grill, a trucking expert retained by the Plaintiffs, provided an expert opinion where he formulated the opinion that both Defendants Singh and Valenzuela were negligent in their operation of their vehicles and failed to adhere to the Federal Motor Carrier Safety Administration (“FMCSA”) regulations. His opinion was based on the review of several documents, including the Oregon State Police Traffic Crash Report, Oregon State Police Incident Report, Driver Statements, Photos of the accident scene, and Deposition Transcripts for Plaintiff Shawn Martin, witness Dylan Smith, and Defendant Singh.
In their motion to exclude Grill’s testimony, the Defendants pointed out that Grill had not reviewed testimony from witnesses Joel Hannu and Sam Glerup or Defendant Valenzuela, which would have provided information on the conditions immediately preceding the accident. Additionally, the Defendants noted that Grill did not consider testimony from multiple witnesses regarding the weather at the time of the accident or the conditions of the road. The Defendants argued that reviewing this evidence was crucial for any expert to form a reliable opinion. Due to Grill’s failure to examine this evidence, the Defendants asserted that his opinion was unreliable and should be excluded. In response, the Plaintiffs contended that “material facts (time and place of the accident, parties, etc.) are common and generally accepted among all expert reports” and that this case was “relatively simple,” requiring the review of only basic evidence.
Arguments regarding whether Grill should have reviewed additional documents in formulating his opinion were considered by the Court to pertain to the weight, rather than the admissibility, of Grill’s testimony. The Court emphasized that the requirement for expert testimony to be based on “sufficient facts or data” involves a quantitative analysis rather than a qualitative one. The Court clarified that this requirement doesn’t authorize the exclusion of expert testimony based on the Court’s belief in one version of the facts over another. The Court cited Bluetooth SIG, Inc. v. FCA US LLC, 468 F. Supp. 3d 1342 (W.D. Wash. 2020), stating that the factual basis of an expert opinion goes to the credibility of the testimony, not its admissibility. Therefore, any issues concerning the materials deemed more appropriate for the expert to consult were deemed matters of weight, not admissibility, of the expert’s testimony.
The Court concluded that Grill’s failure to review all available evidence, including what the Defendants deemed essential, did not render his decision unreliable, at least under Rule 702. While the Defendants presented persuasive arguments highlighting deficiencies in Grill’s analysis due to his limited review of the evidence, on the other hand the Defendants conceded that the basic facts of the accident were not in dispute. As such, the Court determined that Plaintiffs were entitled to have their expert formulate an opinion based on “relatively simple” facts without rendering the opinion inadmissible under Rule 702. Therefore, the Court denied the Defendants’ motions to exclude Grill’s testimony.
Under Rule 37(c)(1), failure to disclose information required by Rule 26(a) may result in exclusion of evidence unless the failure is justified or harmless. To overcome Rule 37’s preclusive effect, a party must show substantial justification or harmlessness. The burden lies on the party facing sanctions to prove harmlessness. Factors guiding the Court in this determination include prejudice, the ability to cure the prejudice, trial disruption likelihood, and any bad faith or willfulness in nondisclosure. Exclusion of expert testimony is not appropriate if other less severe sanctions are available, especially when harm can be easily remedied.
On the deadline for expert disclosures, which was July 18, 2023, the Plaintiffs submitted a purported expert report from medical billing expert Sharla Paso. The two-page report asserted that the cost of Plaintiff Martin’s medical treatment was reasonable and necessary. However, the report lacked a basis for this opinion and mentioned that Paso was recently hired and in the process of reviewing the records. Subsequently, on the deadline for rebuttal expert disclosures, which was August 8, 2023, the Plaintiffs submitted a combined rebuttal expert report from Paso and her associate, Michele Cook. This report contained the complete opinions regarding the reasonableness of Plaintiff Martin’s medical treatment.
In their motion to strike, the Defendants argued that the reports should be excluded because the initial Paso report did not contain the required information under Fed. R. Civ. P. 26(a)(2)(B), and the Paso/Cook report was not an appropriate subject for rebuttal testimony. The Defendants sought to strike the Paso/Cook reports and prohibit the testimony of these experts at trial. During oral argument, the Plaintiffs conceded that Paso’s initial expert report did not contain the required information as per Rule 26(a)(2)(B), and the opinions in the Paso/Cook report were not a proper subject for rebuttal testimony. Citing Grove City Veterinary Serv. v. Charter Practice Int’l., 3:13-cv-2276-AC (D. Or. Apr. 19, 2016), in this case it was acknowledged that if the purpose of expert testimony is to contradict an expected portion of the other party’s case-in-chief, then the witness is not a rebuttal witness. Plaintiffs attributed this error to counsel’s unfamiliarity with Rule 26’s expert disclosure requirements. Thus, it is undisputed that Plaintiffs failed to comply with Rule 26.
Exclusion of the experts was deemed unwarranted in this case. Any potential prejudice to the Defendants was considered easily curable by requiring Paso and/or Cook to undergo expert depositions, at the Plaintiffs’ expense. Additionally, Defendants were allowed to supplement their rebuttal reports if deemed necessary. Given that no trial date was set, both parties had ample opportunity to address and remedy any prejudice in advance of trial. Moreover, the Court noted that there is no evidence indicating bad faith or willfulness in the delayed disclosure of evidence. Consequently, the Defendants’ motion to strike the expert reports was denied, and instead, Plaintiffs were ordered to facilitate depositions for Paso and Cook, at their expense. Defendants were permitted to supplement their expert reports after these depositions.
Held
The Court denied the Defendants’ motions to exclude the testimony of Lew Grill and also denied the Defendant’s motion to strike the expert reports of Passo/Cook. The following orders were issued:
1. Within fourteen (14) days from the date of the order, Plaintiffs were directed to submit separate and complete expert reports for either or both Paso and Cook.
2. Defendants were granted permission to depose Paso and/or Cook, with Plaintiffs being responsible for any expert fees associated with the deposition if conducted.
3. Defendants were allowed to supplement their rebuttal expert reports if deemed necessary.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the presented case, Plaintiffs brought a negligence action against Defendants following a multi-vehicle accident on I-84. The Plaintiff hired a trucking expert, Lew Grill, to provide an opinion on the Defendants’ alleged negligence in operating their vehicles and violating Federal Motor Carrier Safety Administration (FMCSA) regulations. Defendants moved to exclude Grill’s testimony, arguing it lacked reliability due to a limited review of evidence. The Court, however, deemed Grill’s failure to consider additional documents as a matter concerning the weight, not admissibility of his testimony, and denied the motion. Another dispute arose the Plaintiffs’ failure to comply with their expert discovery obligations. The Court refrained from excluding the testimony in question, instead directing the concerned experts to submit to expert depositions, at Plaintiffs’ expense. These decisions underscore the importance of complying with disclosure rules and suggest that Courts prioritize addressing evidentiary issues through less severe sanctions when possible.
