Government Employees Insurance Co. v. The Right Spinal Clinic, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GOVERNMENT EMPLOYEES

INSURANCE CO., et al.,

Plaintiffs,

v. Case No: 8:20-cv-0802-KKM-AAS

THE RIGHT SPINAL CLINIC,

INC., et al.,

Defendants.

ORDER

Defendants, a medical clinic and several of its doctors and employees,’ engaged

Michael Miscoe to give expert testimony on coding and billing practices for insurance

reimbursement under Florida’s No-Fault Law. GEICO, which sued the clinic for allegedly

submitting fraudulent billing and receiving unwarranted repayment, moves to exclude three

opinions from Miscoe’s expert report. (Doc. 229.)

Specifically, GEICO seeks to exclude Miscoe’s opinion that (1) a mere error on a

form is immaterial to GEICO’s obligation to pay the claim; (2) that coding insurance

' The Defendants are The Right Spinal Clinic, Inc., Lianny Jimenez-Urdanivia, Yunied Mora-Jimenez,

Kendrick Eugene Duldulao, Victor Silva, Stephen Diamantides, Yulieta Perez Rodriquez, Alexis Garcia-

Gamez, and Mignelis Veliz Sosa.

claims is a subjective inquiry; and (3) that GEICO cannot show that Defendants’ billing

was fraudulent or reckless. The Court agrees with GEICO in part. The Court excludes the

first opinion as unreliable and the third as an improper and unhelpful legal conclusion.

Miscoe may testify as to his second opinion.

I. BACKGROUND

Florida’s Motor Vehicle No-Fault Law requires that automobile insurers provide

personal injury protection (PIP) benefits to insureds when they are injured in a motor

vehicle accident. See §§ 627.730-627.7405, Fla. Stat. Healthcare providers may submit

PIP claims directly to insurance companies to receive reimbursement for qualifying medical

services. See Gov't Emps. Ins. Co. v. Quality Diagnostic Health Care, Inc., 2021 WL

5157535, at *1 (11th Cir. Nov. 5, 2021) (per curiam). The No-Fault Law requires that

providers submit PIP claims on standard forms that are properly completed. See

§ 627.736(5)(d). One such form is the Health Care Financing Administration, or “HCFA-

1500,” form. Along with other information, the HCFA-1500 form identifies the

performing or supervising physician and a current procedural terminology (CPT) code that

denotes the treatment provided.

The No-Fault Act creates several exceptions to the insurer’s general obligation to

pay. For example, a claim is not reimbursable if the provider knowingly made a false

statement, exaggerated the extent of the service provided (“upcoding”’), or did not properly

complete the billing form. See § 627.736(5)(b), (d), Fla. Stat. The provider must also

comply with the Clinic Act, which requires that medical clinics appoint a medical director

to oversee the clinic’s operations. See Gov’t Emps. Ins. Co. v. Mas, No. 19-21183, 2020

WL 9604436, at *1 (S.D. Fla. Mar. 31, 2020) (citing § 400.9935, Fla. Stat.).

GEICO’s operative Complaint alleges that The Right Spinal Clinic and several of

its doctors, officers, and employees submitted fraudulent insurance charges to GEICO for

reimbursement. (Doc. 249 4 1-2.) According to GEICO, these PIP charges were not

reimbursable because Right Spinal did not comply with the Clinic Act and violated the

No-Fault Law.

Il. LEGAL STANDARD

Federal Rule of Evidence 702 governs expert testimony. The Rule permits a

qualified witness to give opinions as an expert, provided that the opinions have a sufficient

basis in facts or data, are derived from reliable principles or methods, and are helpful to the

jury. See Fed. R. Evid. 702. Because “expert testimony may be assigned talismanic

significance in the eyes of lay jurors,” the “courts must take care to weigh the value of such

evidence against its potential to mislead or confuse.” United States v. Frazier, 387 F.3d

2 Upcoding is as “an action that submits a billing code that would result in payment greater in amount than

would be paid using a billing code that accurately describes the services performed.” § 627.732(14), Fla.

Stat.

1244, 1263 (11th Cir. 2004). Thus, federal courts are the “gatekeepers” of expert testimony,

screening out unreliable opinions. Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir.

2010) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 n.13 (1993)).

The inquiry simplifies into three “basic requirements—qualification, reliability, and

helpfulness.” Frazier, 387 F.3d at 1260. The proponent of the expert’s opinion must

establish that (1) the expert is qualified, (2) his methods are reliable, and (3) his testimony

assists the trier of fact by applying specialized expertise. See City of Tuscaloosa v. Harcros

Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998); Fraizer, 387 F.3d at 1260.

Ill. ANALYSIS

GEICO alleges that it was not legally obligated to pay the PIP insurance charges

that Right Spinal submitted on its HCFA-1500 forms. Two of GEICO’s asserted

justifications are relevant here. First, GEICO claims that the forms falsely reported that

Dr. Luis Merced performed or supervised the services. Second, GEICO claims that

Defendants upcoded the PIP charges, nullifying GEICO’s obligation to pay.

Defendants hired Michael Miscoe to give expert testimony on coding and billing

practices for patient examinations. GEICO does not dispute Miscoe’s qualifications or his

extensive experience with coding and regulatory compliance. (Doc. 229-1 at 1; Doc. 243-

1.) GEICO moves to exclude three of Miscoe’s opinions based on their reliability and

helpfulness to the jury. (Doc. 229.)

A. Miscoe’s Opinion That Right Spinal’s Claim Errors are Immaterial

Box 31 of a HCFA-1500 form requires the provider to identify the name of the

doctor who performed or supervised the services. Miscoe submits that entering the wrong

doctor’s name in box 31 would not alter GEICO’s obligation to pay for PIP benefits.

For purposes of his opinion, Miscoe makes several assumptions. (Doc. 229-1 at 3.)

Miscoe assumes that the patients and injuries were covered under the insurance plan; that

the services were related to covered injuries; that the services were performed and were

consistent with the CPT codes on the claim forms; that a licensed doctor was always

present to supervise the services; and that the performing provider was licensed. (Id.)

In sum, Miscoe assumes that Right Spinal’s claim forms were perfect, except as to

box 31, which identifies the doctor’s name. Under Miscoe’s assumptions, box 31 contains

the wrong doctor’s name, but a doctor was present to supervise the services. So, again, the

error with Right Spinal’s claims or practices in this hypothetical is that the form only

inadvertently names the wrong doctor. It is Miscoe’s opinion that, in this situation,

GEICO would be obliged to pay the bills and the amount of the bills would be unchanged.

GEICO objects to this opinion on two grounds. First, GEICO argues that Miscoe’s

opinion is a legal conclusion that should be excluded because it is not helpful to the jury.

Second, it presses for exclusion because the opinion lacks a proper basis and is unreliable.

1. Miscoe’s Opinion is Not an Improper Legal Conclusion

An expert may not offer an ultimate legal conclusion. See United States v. Delatorre,

308 F. App’x 380, 383 (11th Cir. 2009) (per curiam); accord Cook ex rel. Est. of Tessier

v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1112 n.8 (11th Cir. 2005). But “whether

challenged testimony is either an admissible factual opinion or an inadmissible legal

conclusion is not always easy to perceive.” Hanson v. Waller, 888 F.2d 806, 811 (11th Cir.

1989). That said, an expert may not give an opinion that trespasses on a court’s providence

to declare the law, see Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013); Freund

v. Butterworth, 165 F.3d 839, 863 n.34 (11th Cir. 1999), nor on the jury’s domain to decide

the facts in the light of the law that the court provides, see Montgomery v. Aetna Cas. &

Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). But experts may opine on ultimate issues.

See Fed. R. Evid. 704. If they do, the opinion “must be helpful to the jury and also must

be based on adequately explored legal criteria.” Haney v. Mizell Mem’ Hosp., 744 F.2d

1467, 1474 (11th Cir. 1984).

GEICO argues that Miscoe’s opinion that an unintentional error on the HCFA-

1500 form is “immaterial” to an insurer’s obligation to pay is an ultimate legal conclusion

that should be excluded. The Court agrees in part.

Miscoe may not opine that a mere error in the doctor’s name who supervised the

service is “immaterial” to GEICO’s obligation to pay PIP benefits under the No-Fault

Law. While Miscoe may testify on what errors are common or are taken seriously in the

industry, he may not instruct the jury on what Florida law means when it requires that

HCFA-1500 forms be “properly completed in their entirety as to all material provisions.”

§ 627.736(5)(d), Fla. Stat. That is a task for the Court. See Montgomery, 898 F.2d at

1541. Nor may he testify on whether a legal standard has been satisfied. See Cordoves v.

Miami-Dade Cnty., 104 F. Supp. 3d 1350, 1365 (S.D. Fla. 2015) (Altonaga, J.) (citing

Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 1997)).

That is a task for the jury.

Not only would the opinion be out of Miscoe’s purview as an expert, but there is

also no basis for that opinion in Miscoe’s report. The express basis for Miscoe’s opinion

that the error is immaterial is only the practical result under the claim correction process.

In announcing his opinion, Miscoe simply does not refer to the No-Fault Law or its

exceptions to an insurer’s obligation to pay PIP benefits. Nor does he “adequately

explore[ that] legal criteria.” Haney, 744 F.2d at 1474.

Defendants disagree. They claim Miscoe relied on Florida’s No-Fault Law in

reaching his opinion that the error would be immaterial. (Doc. 243 at 5.) They argue that

§ 627.736(5)(d) requires only a “properly completed” HCFA-1500 form, which in turn

means that it must be “substantially complete” in its “material elements.” (Doc. 243 at 5

(quoting §§ 627.736(5)(d), 627.732(13), Fla. Stat.).) Substituting one doctor’s name for

another, Defendants conclude, is a minor error that does not render the claim unpayable.

The Court expresses no opinion on Defendants’ reading of the statute, but its reading of

Miscoe’s report is erroneous.*

While Miscoe cites § 627.736(5), he does so twenty-six pages before announcing

the opinion that Right Spinal’s error is immaterial. (Doc. 229-1 at 8, 34.) When he cites

it, he quotes a substantial portion of subsection (d). But he does not quote the “properly

completed” language Defendants rely upon in attempting to admit his opinion. Nor does

he cite to the definitional section from whence Defendants summon the “substantially

complete” term. So, whatever the merits of Defendants’ argument that GEICO must pay

a claim made on a substantially complete form, that is not the basis for Miscoe’s opinion.

And if it was, it lacked any analysis of the No-Fault Law and thus would not have been

founded upon “adequately explored legal criteria.” Haney, 744 F.2d at 1474. Either way,

Miscoe does not support his opinion in his expert report with the No-Fault Law.*

> If Defendants were correct, it would likely be an impermissible legal opinion. See Morgan v. N. Miss.

Med. Ctr., Inc., 458 F. Supp. 2d 1341, 1355 n.21 (S.D. Ala. 2006) (Steele, J.) (“It is the function of this

Court, not [of an] expert witness, to construe, interpret, and apply [the law] to these facts; therefore, [an]

opinion on the strictly legal question of whether the record facts amount to [a statutory] violation is entitled

to no weight.”); Day v. Sarasota Drs. Hosp., Inc., No. 8:19-cv-1522, 2020 WL 7310757, at *5 (M.D. Fla.

Dec. 11, 2020) (Covington, J.) (explaining that expert testimony on whether the No-Fault Law was violated

“constitutes an impermissible legal conclusion”).

* To Defendants’ credit, it is true that Miscoe arguably explained his opinion in relation to the No-Fault

Act during his deposition. But an expert may not provide a new basis for his opinion in a deposition. See

Fed. R. Civ. P. 26(a)(2)(B)(i) (requiring that an expert’s Rule 26 report contain “a complete statement of

all opinions the witness will express and the basis and reasons for them”). Thus, “subsequent deposition

testimony cannot resuscitate an otherwise deficient expert report.” Jackson v. Johnson & Johnson, No. 1:11-

Instead, Miscoe grounds his opinion in the claim correction process. (Doc. 229-1

at 34.) Despite Miscoe’s reference to it in his report and in his deposition, GEICO does

not argue that reliance upon the claim correction process results in an improper legal

opinion. Accordingly, the Court need not consider whether it is. As presented in his expert

report and his deposition, it appears Miscoe’s knowledge of the claim correction process

comes from his industry knowledge and experience, not from a source of law or

interpretation of the No-Fault Act. Since Miscoe’s opinion is not based on the No-Fault

Act, the Court will not exclude it as an improper legal opinion.

2. Miscoe’s Opinion is Unreliable

An expert’s opinion must be reliable and based on sufficient data. See Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 149 (1999); Fed. R. Evid. 702(b). Experts relying on

experience must explain “how that experience is reliably applied to the facts.” Frazier, 387

F.3d at 1261 (quotation omitted). The opinion must also be helpful to the jury. See Fed.

R. Evid. 702. An opinion is often helpful if it explains “matters that are beyond the

understanding of the average lay person.” Frazier, 387 F.3d at 1262. But it does not help

the trier of fact if the opinion “offers nothing more than what lawyers for the parties can

argue.” Id. at 1262-63.

cv-3903, 2022 WL 110422, at *3 (N.D. Ga. Jan. 12, 2022) (Thrash, J.) (citing Ciomber v. Coop. Plus,

Inc., 527 F.3d 635, 642 (7th Cir. 2008)).

GEICO argues that Miscoe’s opinion should be excluded because it is “baseless and

unreliable.” (Doc. 229 at 10.) GEICO claims that Miscoe failed to support his opinion

that mere “administrative claim errors,” like a misstatement of the performing or

supervising physician, are immaterial. GEICO is correct, partly. Miscoe’s opinion is not

baseless, but it is unreliable.

Miscoe’s opinion is not baseless. Miscoe concludes that an error in the supervising

doctor’s name would not change GEICO’s obligation to pay for the services. Miscoe bases

this opinion on the claim correction process. (Doc. 229-1 at 34.) As Miscoe explains in his

deposition, an insurer like GEICO may challenge inaccuracies in a provider’s claim form

for PIP reimbursement. (Doc. 229-2 at 20.) The provider may then correct the form and

resubmit it. (Id. at 21.) Requiring a provider to resubmit a corrected claim is worth doing

only if the amount payable differs between the original claim and corrected form. (Id..)

Under Miscoe’s assumptions, the single correction to Right Spinal’s form necessary

for complete accuracy is to swap Dr. Merced’s name for that of another doctor who

supervised the services. Otherwise, the forms are correct and payable. Miscoe then explains

that “it’s not the identity of the provider that changes [the insurer’s] obligation to pay.” (Id.

at 16.) That is so because the amount due is determined by the CPT code, not by a

characteristic of the doctor. Thus, provided that the correct name is that of a physician (a

fact that Miscoe assumes), the amount GEICO owes would not change from the incorrect

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form to the corrected form. (Id. at 21.) Rendering, in Miscoe’s words, “that reporting error

immaterial,” (id. at 20), because the claim correction process would take no notice of it.

Miscoe’s opinion is unreliable. Miscoe’s report references the claim correction

process only once. (Doc. 229-1 at 34.) Miscoe asserts that “the mis-identification of the

supervising provider is ultimately an immaterial error since correction of the claims to

identify the correct supervising provider would have no impact on GEICO’s obligation to

pay.” (Id. (emphasis added).) The reference is so opaque that neither GEICO nor

Defendants mention it expressly in their briefing. During his deposition, Miscoe explains

the concept in greater detail. But even there, Miscoe provides no sources to support his

explanation of the process or his conclusions on the results it would yield in this case. When

pressed for sources or citations at his deposition, Miscoe did not give them. He instead

explained that “it’s a practical reality.” (Doc. 229-2 at 12.)

Without sources or data, the Court cannot “ensur[e] that [his] testimony . . . rests

on a reliable foundation.” Daubert, 509 U.S. at 597. Perhaps Miscoe knows by experience

and industry familiarity. If so, Miscoe has not explained “how that experience leads to the

conclusion reached, why that experience is a sufficient basis for the opinion, [or] how that

experience is reliably applied to the facts.” Frazier, 387 F.3d at 1261 (quotation omitted).

As is, the Court would simply have to take his word for it. Though GEICO does not

challenge Miscoe’s qualifications, the Court “must still determine the reliability of the

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opinion, not merely the qualifications of the expert who offers it.” Kilpatrick, 613 F.3d at

1336; see Frazier, 387 F.3d at 1261 (explaining that reliability is not “established merely

by the ipse dixit of an admittedly qualified expert”). Since Miscoe provides insufficient

foundation to test the reliability of his opinion, the Court excludes it.

B. Miscoe’s Opinion That Coding is Subjective

When Right Spinal submitted HCFA-1500 forms to GEICO it identified the level

of treatment it provided the patients using a CPT code. In turn, the CPT code dictates the

level of reimbursement due to Right Spinal. GEICO alleges that Right Spinal selected

incorrect CPT codes to inflate its reimbursement. The No-Fault Law prohibits such

“upcoding” and references several sources that provide standards for coding. See

§ 627.736(5)(d), Fla. Stat.

After reviewing the sources that the statute references, Miscoe opines that the

standards are so subjective that coding amounts to “pure guesswork.” (Doc. 229-1 at 36.)

He claims that the authoritative sources and guidance documents do not sufficiently define

key coding terms. Instead, these sources leave a range of permissible codes for any given

patient examination. In Miscoe’s view, the ambiguity is so great that “no objective and

repeatable opinion can be expressed as to whether the level of [patient] services reported

was accurate or not.” (Id.) Without an objective criterion, “GEICO is precluded from

objectively demonstrating” that the coding for “any particular encounter was actuallly]

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wrong.” (Id.) GEICO argues that this opinion should be excluded because it is legally

inaccurate, would defeat the purpose of the No-Fault Law, and is not helpful to the jury.

1. Inaccurate Legal Opinion

Pointing to the language of the No-Fault Law, GEICO asserts that the CPT

Assistant Newsletter is an authoritative source that renders the coding process more

objective. (Doc. 229 at 13-15.) And GEICO points to caselaw concluding that the CPT

Assistant is binding. (Id. at 13 (citing State Farm Mut. Auto. Ins. Co. v. Nu-Best

Whiplash Inj. Ctr., Inc., No. 09-19125, 2014 WL 12744728, at *4 (Fla. 6th Cir. Ct. Dec.

2, 2014).) Miscoe, meanwhile, submits that the CPT Assistant is, “at best, a secondary

source.” (Doc. 229-1 at 34.) GEICO argues that Miscoe’s view of the CPT Assistant is an

incorrect legal opinion that is the basis of his broader opinion that CPT coding is too

subjective to allow GEICO to prove that Right Spinal’s codes were incorrect. (Doc. 229 at

13-14.)

GEICO is correct that experts “are not permitted to explain to the jury what the

applicable legal standards are.” See Cordoves, 104 F. Supp. 3d at 1364. And the Court

expresses no opinion on GEICO’s reading of the No-Fault Law. But even if GEICO were

also correct that the CPT Assistant is binding, Miscoe’s opinion stands. Miscoe opines

that, even if the CPT Assistant binds Right Spinal, the coding inquiry still would not be

objective. (Doc. 229-1 at 34.) In other words, Miscoe’s opinion on authority is independent

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of his view on subjectivity. Accordingly, even if Miscoe is wrong on the former, it does not

change his opinion on the latter.

2. Statutory Interpretation

GEICO argues that Miscoe’s opinion should be excluded because it “tends to

nullify” portions of the No-Fault Statute, specifically the portion that prohibits upcoding.

(Doc. 229 at 17.) As a practical matter, GEICO may be correct. But this Court is not

aware of any authority suggesting that an expert’s opinion may be excluded because it rejects

purposivism or violates the superfluity canon of statutory interpretation.

3. Helpfulness to the Jury

Finally, GEICO argues that Miscoe’s opinion on the subjectivity of coding is not

helpful to the jury. Miscoe’s position is that, given the lack of objective criteria, “a

declaration of error” is “an impossible task.” (Doc. 229-1 at 34.) If that’s so, GEICO

argues, then Miscoe cannot offer an opinion on whether Right Spinal’s bills were upcoded,

and thus his opinion is not helpful. (Doc. 229 at 18.) GEICO is mistaken.

Miscoe’s opinion is helpful to the jury. CPT coding is “complex, voluminous, and

subject to expert interpretation.” State Farm Mut. Auto. Ins. Co. v. Physicians Inj. Care

Ctr., Inc., No. 6:06-cv-1757, 2008 WL 11337326, at *8 (M.D. Fla. Dec. 18, 2008) (Kelly,

Mag. J.) (quotation omitted). After reviewing coding manuals and regulatory guidelines in

the light of his CPT auditing experience, Miscoe concluded that selecting a CPT code for

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a treatment session is not a simple task. Nor is it an exact science. Instead, it requires dozens

of subjective decisions. For example, a provider selecting a code must decide if an

examination was “detailed” or “comprehensive” and if the medical decision was of “low” or

“moderate” complexity. (Doc. 229-1 at 36-37.) These terms—and many like them—are

difficult to apply in practice.

Of course, an expert may not instruct the jury on what sources are legally binding

or on the meaning of statutory terms. R.W. v. Bd. of Regents of the Univ. Sys. of Ga., 114

F, Supp. 3d 1260, 1274 (N.D. Ga. 2015) (May, J.) (explaining that “all witnesses ‘are

prohibited from testifying as to questions of law regarding the interpretation of a statute,

the meaning of terms in a statute, or the legality of conduct” (quotation omitted)); accord

Cordoves, 104 F. Supp. 3d at 1364. But Miscoe’s experience in coding and CPT auditing

equips him to testify on the complexity of applying these terms in a treatment setting and

on the practices auditors use to verify CPT codes. See Thomas v. Auto-Owners Ins. Co.,

No. 1:16-cv-542, 2022 WL 210134, at *6 (M.D. Ala. Jan. 24, 2022) (Huffaker, J.)

(explaining that an expert may testify on insurance industry practices and relevant facts, but

not as to whether a legal standard has been met). Because the “average juror is not likely to

be familiar with the practices and procedures involved in insurance claims handling,”

Camacho v. Nationwide Mut. Ins. Co., 13 F. Supp. 3d 1343, 1366 (N.D. Ga. 2014)

(Totenberg, J.), Miscoe’s opinion may help the jury decide if Right Spinal upcoded its CPT

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billing, see Frazier, 387 F.3d at 1262 (reasoning that expert opinion is helpful if it “concerns

matters that are beyond the understanding of the average lay person”). The Court declines

to exclude Miscoe’s opinion that coding is subjective.

Miscoe’s opinion is not immune from criticism. But a “district court’s gatekeeper

role under Daubert ‘is not intended to supplant the adversary system or the role of the

jury.” Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quotation omitted). GEICO

may draw out any limitations or errors it sees in his opinion in its briefing and its

questioning. “Vigorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of attacking

shaky but admissible evidence.” Daubert, 509 U.S. at 596. That said, the Court “will not

permit a party to cloak its legal arguments in the garb of an expert witness.” Domercant v.

State Farm Fire & Cas. Co., No. 1:11-cv-02655, 2013 WL 11904719, at *2 (N.D. Ga.

May 15, 2013) (Forrester, J.).

C. Miscoe’s Opinion That GEICO Cannot Prove Fraud

GEICO takes issue with a third opinion. Miscoe says that GEICO cannot prove

that Right Spinal acted fraudulently or recklessly in its billing practices because billing is a

subjective inquiry. (Doc. 229-1 at 36, 42-43.) GEICO argues that this opinion should be

excluded because it is an improper legal conclusion. (Doc. 229 at 19-20.) The Court agrees.

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Miscoe may testify as to the difficulty of coding and his view that it is a subjective

inquiry. However, he may not testify that it is impossible for GEICO to prove its case or

what evidence it would need to show that Right Spinal acted fraudulently or with the intent

to deceive. See Clarke v. Healthsouth Corp., No. 8:14-cv-778, 2021 WL 129821, at *6

(M.D. Fla. Jan. 14, 2021) (Covington, J.) (excluding expert opinion that a party acted

fraudulently as an improper legal opinion).

An expert may testify on ultimate issues. But it must be helpful to the jury. See

Haney, 744 F.2d at 1474. The Court provides the law to the jury, including the elements

of claims and burdens of proof. See Montgomery, 898 F.2d at 1541. Duplicative and

potentially conflicting instructions would in no way help the jury. See Camacho, 13 F.

Supp. 3d at 1365 (“An expert may not testify regarding the legal implications of conduct

because the court must be the jury’s only source of law.”).

Once the Court explains the law and the experts testify on the coding process, a

“conclusory statement” on an ultimate issue from Miscoe would not help since the

“inferences to be drawn from [his] testimony [are] manifest.” Acrement v. S. Pac. Transp.

Co., 517 F.2d 729, 732 (5th Cir. 1975). It would do no more than “tell the jury what result

to reach,” Montgomery, 898 F.2d at 1541, and “offer[] nothing more than what lawyers

for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262-63.

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In sum, Miscoe cannot opine that “GEICO is precluded from objectively

demonstrating that the level of [patient] services... were fraudulent,” or that GEICO

cannot show that Right Spinal acted recklessly. (Doc. 229-1 at 36, 43.) Allowing the

opinion would undermine the Court’s role as the jury’s sole source of law and the jury’s role

as the ultimate factfinders.

IV. CONCLUSION

GEICO is correct that Miscoe’s first and third opinion should be excluded. The

first is unreliable and the third is a legal opinion that would not help the jury. The Court

declines to exclude the second opinion, however, because Miscoe’s perspective on the

subjectivity of coding may prove useful to a jury, provided that it is not expressed as a

conclusion on the meaning or application of legal terms.

Accordingly, GEICO’s Motion to Exclude Expert Testimony is GRANTED in

part and DENIED in part. (Doc. 229.) Miscoe’s opinions are excluded to the extent stated

above.

ORDERED in Tampa, Florida, on March 11, 2022.

fatten Keil, Mizell

athryn’ Kimball Mizelle

United States District Judge

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