Government Employees Insurance Co v. Mas

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 19-21183-Civ-WILLIAMS/TORRES

GOVERNMENT EMPLOYEES INSURANCE

CO., GEICO INDEMNITY CO., GEICO

GENERAL INSURANCE COMPANY, and

GEICO CASUALTY CO.,

Plaintiffs,

v.

LUIS LOPEZ MAS, et al.,

Defendant.

___________________________________________/

ORDER ON DEFENDANT’S DAUBERT MOTION

This matter is before the Court on Dr. Luis Mas’s (“Defendant” or “Dr. Mas”)

motion to strike the expert opinion testimony of Government Employees Insurance

Co.’s, GEICO Indemnity Co.’s, GEICO General Insurance Company’s and GEICO

Casualty Co.’s (collectively, “Plaintiffs”) expert, Dr. James Dillard (“Dr. Dillard”).

[D.E. 92]. Plaintiffs responded to Defendant’s motion on November 12, 2020 [D.E.

110] to which Defendant replied on November 20, 2020. [D.E. 124]. Therefore,

Defendant’s motion is now ripe for disposition. After careful review of the motion,

response, reply, and for the reasons discussed below, Defendant’s Daubert motion is

DENIED.1

1 On October 29, 2020, the Honorable Kathleen Williams referred Defendant’s

Daubert motion to the undersigned Magistrate Judge for disposition. [D.E. 93].

I. BACKGROUND

Plaintiffs filed this action on March 28, 2018, seeking redress for violations of

the Racketeer Influenced and Corrupt Organizations Act, the Florida Deceptive

Unfair Trade Practices Act, the Florida Civil Remedies for Criminal Practices Act

common law fraud, unjust enrichment, and declaratory relief. [D.E. 1]. The

complaint alleges that Defendants submitted thousands of fraudulent insurance

charges related to unnecessary, illusory, unlawful or otherwise unreimbursable

health care services. See id. Plaintiffs also claim that Defendants misrepresented

coding levels on billing statements and changed healthcare professionals who

administered treatments on examination reports. To the extent medical services

were rendered, Plaintiffs suspect that unsupervised massage therapists and/or

physical therapist assistants performed medical services that were billed in place of

doctors. Because of this widespread deception, Plaintiffs seek compensatory

damages, court costs, interest, and fees.

II. APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s

discretion and the court enjoys “considerable leeway” when determining the

admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.

Evid. 702. The party offering the expert testimony carries the burden of laying the

proper foundation for its admission, and admissibility must be shown by a

preponderance of the evidence.2 See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness

rests on the proponent of the expert opinion, whether the proponent is the plaintiff

or the defendant in a civil suit, or the government or the accused in a criminal

case.”).

“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which

admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The

purpose of this role is “to ensure that speculative, unreliable expert testimony does

not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256

(11th Cir. 2002). Also, in its role as gatekeeper, a court’s duty is not to make

ultimate conclusions as to the persuasiveness of the proffered evidence. See Quiet

Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).

To facilitate this process, district courts engage in a three-part inquiry to

determine the admissibility of expert testimony:

2 Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is based on sufficient facts

or data; (c) the testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied the principles and

methods to the facts of the case.

Fed. R. Evid. 702.

(1) the expert is qualified to testify competently regarding the matters

he intends to address; (2) the methodology by which the expert reaches

his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert; and (3) the testimony assists the trier of

fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”

“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;

“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing

Quiet Tech, 326 F.3d at 1341).

In determining the reliability of a scientific expert opinion, the Eleventh

Circuit also considers the following factors to the extent possible:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community. Notably, however, these factors do not exhaust the

universe of considerations that may bear on the reliability of a given

expert opinion, and a federal court should consider any additional

factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are

not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in

case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,

1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on

principles and methodology, not on conclusions that they generate.” Daubert, 509

U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role

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

jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;

see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.

2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must

do a preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010)).

“[T]he objective of [the gatekeeping role] is to ensure the reliability and

relevancy of expert testimony. It is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999). The district court’s role is especially significant since the expert’s opinion

“can be both powerful and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal

Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

III. ANALYSIS

Defendant’s motion3 seeks to exclude Dr. Dillard’s opinions because they

cannot be used to prove that Dr. Mas falsified any medical examinations or billing

records. More specifically, Defendant takes aim at how Dr. Dillard opined that

healthcare providers committed fraud in the following three ways: (1) that Dr. Mas

falsified his clinical judgment on the medical necessity of the treatment protocols,

(2) that Dr. Mas and others falsified the examination results for the purpose of

inflating medical bills, and (3) that the therapeutic care at each facility was

performed without supervision. Defendant’s argument rests on the proposition

that, under Florida law, opinions are not actionable for fraud because Dr. Dillard

needed to rely on statements of fact if he intended to undermine Dr. Mas.

Plaintiffs argue, in response, that the motion has no merit because it includes

conclusory arguments and fails to question Dr. Dillard’s qualifications or his

helpfulness to the jury. Plaintiffs also claim that, to the extent Defendant takes

issue with the reliability of Dr. Dillard’s opinions, those contentions are equally

misplaced because there has been no showing that the underlying methodology is

inappropriate or unreliable.4 Indeed, Plaintiffs state that Dr. Dillard’s opinions

meet all the requirements under Daubert because they give a plausible explanation

as to all the irregularities contained within Defendant’s billing records. Therefore,

3 Although all co-defendants joined in the relief sought, we refer only to Dr.

Mas as the party seeking relief because he is the named defendant who filed the

pending motion.

4 Plaintiffs suggest that it is difficult to understand Defendant’s motion

because the arguments presented are unclear, conclusory, and fail to present any

substantive reasons in support of the relief sought.

Plaintiffs request that Defendant’s motion be denied in all respects and that Dr.

Dillard be allowed to testify as to all the opinions contained in his expert report.

Under Florida law, “[a]n action for fraud generally may not be predicated

on statements of opinion or promises of future action, but rather must be based on a

statement concerning a past or existing fact.” Mejia v. Jurich, 781 So. 2d 1175,

1177 (Fla. 3d DCA 2001) (citing Florida cases); see also Thor Bear, Inc. v. Crocker

Mizner Park, Inc., 648 So. 2d 168, 172 (Fla. 4th DCA 1994) (“A claim of fraudulent

misrepresentation is not actionable if premised on a mere opinion, rather than a

material fact.”) (citing Chino Elec., Inc. v. United States Fidelity & Guar. Co., 578

So. 2d 320 (Fla. 3d DCA 1991)). There are well-recognized exceptions, however,

where “the person expressing the opinion is one having superior knowledge of the

subject of the statement and the plaintiff can show that said person knew or should

have known from facts in his or her possession that the statement was false.”

Mejia, 781 So. 2d at 1177 (citing cases). In addition, if “the plaintiff can

demonstrate that the person promising future action does so with no intention of

performing or with a positive intention not to perform,” then “such a promise may

also constitute a fraudulent misrepresentation.” Id.

Defendant argues that the Third District’s decision in Mejia is dispositive of

the question presented because, although Dr. Dillard criticizes the way in which Dr.

Mas handled the billing records and the treatment plans in this case, any

disagreement takes aim at an opinion – not a statement of fact. The problem with

Defendant’s argument is that, even if Dr. Mas only rendered a statement of opinion,

an exception applies because Dr. Mas was the medical director of several clinics and

a supervisor for both physician assistants and nurse practitioners. [D.E. 87-1 at 1].

That means that he was a person “having superior knowledge of the subject of the

statement,” Mejia, 781 So. 2d at 1177, because he examined “most, if not all, of the

patients in this case either initially or in a follow up exam,” and he used his

professional training and experience to find that the treatment provided was

medically necessary. [D.E. 87-1 at 1]. The second part of the exception also applies

because there is evidence in the record that Plaintiffs can prove, through Dr.

Dillard, that Dr. Mas “knew or should have known from facts in his . . . possession

that the statement was false.” Mejia, 781 So. 2d at 1177.

Defendant disagrees and claims that the Third District’s decision in Mejia

supports its case. But, that case actually hurts, rather than helps, Defendant’s

argument. There, a group of home purchasers sued several defendants with

allegations that they were fraudulently induced into signing agreements for the

purchase of real estate prior to closing. The defendants argued, in part, that a

fraud in the inducement claim could not survive a motion to dismiss because any

statement that was made only constituted mere puffery or salesmanship as opposed

to a statement of fact. The Third District ultimately reversed the dismissal of the

plaintiffs’ claims because the plaintiffs alleged that they relied on the salespersons

in the execution of the purchase agreements and the Court found that those

positions gave the salespersons superior knowledge of the subject of the statement.

See id. at 1178 (“[A]ppellants have alleged that they relied on the representations

made by appellee because of her position as an experienced and knowledgeable . . .

sales agent. As such, appellants were entitled to consider appellee’s representations

as statements of facts and not mere puffing or salesmanship.”). The Appellate

Court also determined that there were allegations that the defendants knew the

statements were false and that defendants had no intention of performing. As such,

the Court concluded that the allegations fell within an exception to the general rule

and that the trial court erred in dismissing the case.

The same reasoning applies here because Dr. Mas had superior knowledge of

his statements when he rendered his medical opinions. This is supported with Dr.

Mas’s own statements where he admitted that he evaluated most, if not all, of the

patients who received medical services. In fact, Plaintiff’s argument is far stronger

in this case when compared to Mejia because – unlike an experienced salesperson –

this case concerns a medical professional who supervised and developed treatment

plans for patients. The second part of the exception also applies because Plaintiffs

have evidence, through Dr. Dillard, that Dr. Mas knew or should have known from

the facts in his possession that patients were treated for unnecessary medical

services, or that billing records were inflated to increase medical costs. Therefore,

Mejia does nothing to support Defendant’s motion because, unlike that case, there is

an even stronger argument that an exception applies here.

Defendant claims that the Eleventh Circuit’s decision in United States v.

AseraCare, 938 F.3d 1278 (11th Cir. 2019), provides further support for the

exclusion of Dr. Dillard. Defendant argues that, in AseraCare, the Court held that

an expert opinion based on a review of treatment records is, by itself, insufficient to

prove that a prior opinion was false. This argument is unpersuasive, in large part,

because AseraCare explored the question of how to determine falsity under the

False Claims Act (the “FCA”) – a statute that is noticeably not at issue in this case.

Putting that aside, Defendant’s reliance on AseraCare fails for an entirely

separate reason because of the principles that the Court identified. While the Court

stated that “a reasonable difference of opinion among physicians reviewing medical

documentation ex post is not sufficient on its own to suggest that those judgments—

or any claims based on them—are false under the FCA,” that was not the end of the

analysis. Id. at 1297. Defendant relies heavily on this sentence and concludes that

the same result should be reached in this case because Dr. Dillard has done nothing

more than cast doubt on another doctor’s medical opinion. And because Dr.

Dillard’s opinion is no better than another opinion, Defendant concludes that

Plaintiffs cannot prove that any fraud occurred.

Defendant has made an analytical misstep because it overlooked the

remaining parts of AseraCare, where the Court found that a plaintiff can state a

claim under the FCA if he or she identifies facts and circumstances that are

inconsistent with the proper exercise of a physician’s clinical judgment. Id. (“[T]o

properly state a claim under the FCA in the context of hospice reimbursement, a

plaintiff alleging that a patient was falsely certified for hospice care must identify

facts and circumstances surrounding the patient’s certification that are inconsistent

with the proper exercise of a physician’s clinical judgment.”). That is exactly what

Dr. Dillard has done in this case because he opines that, when Dr. Mas reviewed

billing and treatment records, he was either aware of the misrepresentations in the

documents or he failed to conduct a review of those records. It is therefore unclear

as to how Defendant can conclude that Dr. Dillard should be excluded when he fits

squarely within the exception provided in AseraCare – assuming, of course, that

this case has any relevance and should be applied in the first place.

AseraCare also raises the question as to whether Dr. Mas rendered an

opinion at all because there is some evidence that he failed to review any of the

necessary medical records to prevent overbilling. Defendant assumes that this is

cannot be true and that Dr. Dillard should be stricken anyway. But, Defendant

never explains why Dr. Dillard’s opinion lacks reliability if the irregularities in the

records can be explained by Dr. Mas’s failure to conduct any legitimate review of

those items. In fact, the Eleventh Circuit contemplated this exact circumstance in

AseraCare because – if it can be shown that a physician (i.e. Dr. Mas) never

considered any records to support an opinion or a clinical judgment – that physician

has, in effect, failed to render any opinion at all:

[I]n examining whether a physician’s clinical judgment was truly

communicated, the latter must first have actually exercised such

judgment. If it can be shown that the physician never considered the

underlying records supporting the prognosis at issue, but instead

rubber-stamped whatever file was put in front of him, then the

physician has offered no clinical judgment. Moreover, an opinion can

enter falsifiable territory when it is based on information that the

physician knew, or had reason to know, was incorrect.

Id. at 1302. And if an opinion has not been provided, it is unclear why Plaintiffs

should be prohibited from exploring that possibility if they have an expert that can

support that argument with evidence for a jury to consider.

This brings us full circle because it shows the weaknesses throughout

Defendant’s motion. The first is that Defendant makes an assumption that Dr. Mas

rendered an opinion. That is not at all clear if he merely rubber-stamped the

documents that other healthcare providers completed. And if Plaintiffs can present

evidence to that effect (as Dr. Dillard suggests in his expert report), the rule on

using an opinion to pursue a fraud claim never comes into play. The second is

Defendant’s decision to cherry-pick portions of cases to support the argument that

Dr. Dillard cannot undermine the work of Dr. Mas. That is unpersuasive because it

assumes the end result of this case without allowing a jury to consider the evidence

and to weigh it accordingly. The third weakness is that Defendant assumes that no

exception applies to undermine the opinion of Dr. Mas. But, based on the

allegations and the evidence in Dr. Dillard’s expert report, an exception can apply

because there is a factual dispute on Dr. Mas’s involvement with how several

medical facilities handled treatment and billing records. Defendant seeks to bypass

these factual disputes with assumptions that an exception cannot apply, but that

determination is for a jury to decide. Accordingly, Defendant has failed to present

any compelling argument that Dr. Dillard should be stricken and therefore the

motion to strike must be DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Daubert motion [D.E. 92] is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 1st day of

December, 2020.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge