Case Information

*1 UNITED STATES DISTRICT COURT FOR THE SOU TH ERN D ISTRICT OF FLO RIDA M iam i D ivision

Case N um ber: 17-60264-CIV -M O R EN O

REINA LD O D A M A S M A LU FF,

Plaintiff,

VS .

SA M 'S EA ST, lN C.,

D efendant.

THIS CAUSE came before the Court upon (1)Plaintiff's M otion to Strike Expert W itness Testimony of Nicole Bonaparte (D.E. 35), filed on September 22. 2017, and (2) Defendant's M otion to Limit the Testimony of Plaintifps Treating Physician (Dr. Kingsley Chin) (D.E. 42), filed on September 25. 2017.

THE COURT has considered the m otions, the responses, the replies, the pertinent portions of the record, and being otherwise f'ully advised in the prem ises, it is

A DJU D G ED as follow s:

Plaintiffs M otion to Strike Expert W itness Testim ony of Nicole Bonaparte (D.E. 35) is GRANTED.

(ii) Defendant's M otion to Limit the Testimony of Plaintiffs Treating Physician (Dr. Kingsley Chin) (D.E. 42) is G M NTED in part and DEN IED in part.

(a) Defendant's M otion is GRANTED to the extent it seeks to prevent D r. Chin from offering his opinion about the cause of Plaintiff s injuries.

(b) Defendant's Motion is DENIED to the extent it seeks to exclude D r. Chin's testim ony about the reasonableness of Plaintiff s m edical bills.

D ISCU SSIO N

This is a personal injury case arising from an incident at a Sam 's Club store. Plaintiff Maluff alleges that an employee of Defendant Snm's East, lnc. negligently pushed a pallet jack loaded with merchandise into M aluffs back while he stood next to his shopping cart. The incident allegedly caused Maluff serious lower back injuries that ultimately required him to undergo lumbar spine fusion surgery.

A. Plaintiff's M otion to Strike Expert W itness Testim onv of N icole B onaparte

Sam 's East retained N icole Bonaparte to provide expert opinions and testim ony on medical coding and billing. Bonaparte's testimony is purportedly important iûto audit and evaluate the coding and billing practices of Plaintiff's treating healthcare providers and the customary and reasonable charges for the senices rendered.'' (Def.'s Resp. 3.) Sam's contends that Bonaparte's C'testim ony as a billing and coding expert on reasonableness of m edical reimbursement is critical to Sam's East's defense'' and dkgelxcluding such testimony would eviscerate one of the only damages defenses available to Sam 's East.'' (1d.4

M aluff challenges the reliability and relevance of Bonaparte's testim ony. H is relevance grounds for precluding Bonaparte's testim ony. Although argum ent alone provides sufticient Bonaparte may be qualified to opine on whether Plaintiff s treating physicians double-billed for a certain procedure or incorrectly charged for a certain injury, she carmot speak to Plaintiff s injuries or the appropriateness of certain treatments.

Sam's East disputes that conclusion, noting that under Florida law, kçla) plaintiff bears the burden of proving the reasonableness of his medical expenses.'' Columbia Hosp. (Palm Beaches) L td. P'ship v. Hasson, 33 So.3d 148, 150 (F1a. 4th DCA 2010). lt relies heavily on the Florida Court of A ppeals' decision in State Farm M ut. Auto. Ins. Co. v. Bowling, which held that a personal injury plaintiff tsmust demonstrate that his or her medical expenses are reasonable and necessary.'' 81 So. 3d 538, 540 (Fla. Dist. Ct. App. 2012). According to Sam's East, Bowling *3 compels this Court to permit Bonaparte's testimony about the coding and billing practices of M aluff s healthcare providers in order to rebut M aluffs evidence of their reasonableness .

However, the Eleventh Circuit already rejected that argument in Castellanos v. Target Corp. , which involved analogous personal injury claims based on Defendant's alleged negligence. 568 F. App'x 886 (1 1th Cir. 2014). Despite Bowling 's holding, the Eleventh Circuit held that Judge Kathleen W illiam s did not abuse her discretion by excluding sim ilar billing and coding testimony from Nicole Bonaparte the same expert witness. JJ at 886. The Court called Bowling içmaterially different'' because the defendant alleged that the Plaintiff fabricated or exaggerated his injuries, whereas Castellanos involved merely contlict over the reasonableness of charges for m edical services, assum ed to have been delivered.'' Id

G iven the Eleventh Circuit's holding, Judge W illiam s's rationale for striking Bonaparte's testim ony is instnzctive. She explained in open court:

If in fact gBonapartel has anything to offer, I imagine it would be in some rebuttal or impeachm ent context of how dam ages are being calculated by a treating hospital. She has nothing to do with the injuries. ln as much as the motion was directed to that, it will be granted.

gBonaparte) speaks to the issue of how the charges are coded when they are reimbursed by the insurance companies. She can tell us whether som ething, for example, was double billed or they coded a broken 1eg as opposed to a compound fracture. She can't say or speak to the fact that this was a severe injury, they needed to do X num ber of things, this treatm ent was im portant, and here's m y bill. gYlou can bring in a doctor to say if I treated X person I would have done this and the charge would have been this, and this is what is customarily charged for this particular procedure. You can have M s. Bonaparte standing by. But unless som ething extraordinary com es up during the course of the Plaintiff s case I am not going to allow that testim ony from M s. Bonaparte. Right 1 The majority opinion in Bowling explained that <tgwjhile M s. Pacha does not have the necessary medical background to render an opinion on whether the medical care allegedly provided to M r. Bow ling was reasonable, she does have the requisite skill and training to render an opinion on whether the bills subm itted by his medical providers accurately retlect the care documented in the m edical records of those sam e providers.'' 8 1 So. 3d at 54 l .

now she has no place in this case. A s I said, you can call a doctor to get in that testim ony.

Transcrlpt of Oral Argument at 3-4, Castellanos v. Target Corp. , No. 1 1 -62467-CV, 20 1 3 W L 12080185, at . . * 1 (S D Fla. Jan. 25 2013).2 ,

As in Castellanoss Bonaparte has no place in this case. Her testimony would not assist the titrier of fact . . . to understand the evidence or to determ ine a fact in issue.'' United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). Therefore, this Court GRANTS Plaintiff s M otion to Strike Expert W itness Testimony of Nicole Bonaparte.

B. Sam 's East's M otion to Lim it the Testimonv of Plaintifrs Treatin: Phvsician (Dr.

Kinzsley Chin)

A treating physician may offer expert opinions based on personal knowledge obtained during the care and treatment of the Plaintiff if he submits an expert disclosure narrative required under Federal Rule of Civil Procedure 26(a)(2)(C). f evine v. Wyeth lnc., No. 8:09-CV-854-T- 33AEP, 2010 W L 2612579, at * 1 (M .D. Fla. June 25, 2010). This 26(a)(2)(C) disclosure must summarize the subject matter, facts, and opinions to which the physician is expected to testify. However, ligwjhere a doctor's opinion extends beyond the facts disclosed during care and treatm ent of the patient and the doctor is specially retained to develop opinion testimony, he or she is subject to the provisions of Rule 26(a)(2)(B),'' which requires a more fulsome written expert report. Brown v. Best Foods, 1 69 F.R.D. 385, 388 (N.D. Ala. 1996).

Dr. Chin M aluff s treating physician submitted his 26(a)(2)(C) disclosure describing the facts and opinions he plans to address in his testim ony. M aluff contends that the disclosed opinions tswere derived through treatment'' and that û$Dr. Chin is not providing opinions based on infonnation obtained from other sources.'' (Pl.'s Resp. 4.) Specifically, Dr. Chin plans testify about the follow ing:

2 J d e W illiams is not alone in striking the testimony of N icole Bonaparte--/â/: Court granted u g Plaintiff's motion to strike expert testim ony of N icole Bonaparte in a 2016 case involving lsclaim s of negligence and premises liability for personal injuries resulting from a slip and faIl.'' Rogers v. Fiesta Restaurant Group., Inc., No. 1 5-24073-CW , 2016 WL 7540540, at # 1 (S.D. Fla. July 1, 2016), report and recommendation adopted, No. l 5-24073-CW , 2016 W L 7644789 (S.D. Fla. July 8, 20 16).

(i) Causation

(ii) The reasonableness of Plaintiffs medical bills (iii) Dr. Chin's care and treatment of the Plaintiff Plaintiff s future care and treatm ent (v) The cost of Plaintiff's medical care Plaintiffs future care and treatm ent, perm anency or Plaintiff's restrictions/lim itations Sam's East disputes Dr. Chin's anticipated testimony regarding the first two topics: (i) causation; and (ii) the reasonableness of Plaintiff s medical bills. lt contends that Dr. Chin's treatment of M aluff did not require him to determine tçwhat caused the Plaintiff s injuries or whether the Plaintiff s medical bills were reasonable.'' (Def.'s Repl. 2.)

M otion to Limit Testim ony on Causation

Courts recognize that resolution of these evidentiary issues often depend heavily on the particular facts. Here, Sam 's East notes that Dr. Chin's Stm edical records pertaining to the Plaintifps treatment and care do not contain a causation opinion prior to June 7, 2016 . . . .'' (f#.) ln response, M aluff offers a conclusory assertion that dilaj treating physician would be of little value to his or her patient if the physician only treated the immediate injuries, but stopped short of telling the patient what caused the injury . . . .'' (P1.'s Resp. 4.) Maluff, however, provides no support for this statem ent, failing to cite even one case where the Court perm itted a treating physician to opine on causation without producing a Rule 26(a)(2)(B) report.

Indeed, the Eleventh Circuit seemingly prefers for district courts to strike a treating physician's causation testimony if the physician failed to submit a Rule 26(a)(2)(B) report and the facts suggest he did not need to know the injury's cause to prescribe a course of treatment. ln W ilson v. Taser 1nt 'I, Inc. , the Eleventh Circuit affinned the trial court's decision to exclude a treating physician's causation testim ony because the physician did not need to know what caused the plaintiffs back fractures in order to treat the injury. 303 F. App'x 708, 712 (1 1th Cir. 2008). *6 And the Eleventh Circuit in United States v. Henderson held that the district court erred by allowing the treating physician to opine on causation where the physician's treatm ent did not require a determination of how the plaintiff was injured. 409 F.3d 1293, 1300 (1 1th Cir. 2005).

Because Dr. Chin did not submit a Rule 26(a)(2)(B) report, and the facts suggest he neither considered nor relied on the cause of M aluff s injuries to prescribe treatment, this Court GRANTS in part Sam 's East's M otion to Lim it the Testimony of Plaintiff's Treating Physician to preclude Dr. Chin from offering his opinion about the cause of M aluff s injuries.

2. M otion to Limit Testimony on the Reasonableness ofplaintlff's M edical Bills Sam 's East contends that the Court should bar Dr. Chin from stating his opinion about the reasonableness of Plaintiff's medical bills. As with causation, Sam 's East contends that dtgalt no time during the course of Plaintiff s treatm ent did Dr. Chin determine the reasonableness of Plaintifps medical bills in order to treat the Plaintiff.'' (Def.'s Repl. 7.) Here, however, Sam's fails to provide any support for this statem ent likely because Courts consistently allow treating physicians to opine on the reasonableness of a Plaintiff's medical bills. See Transcript of Trial Proceedings at 272-73, Coleman v. Home Depot U S.A., Inc., No. 1:15-CV-21555-UU, 2016 W L 4543120, at * 1 (S.D. Fla. M ar. 23, 2016) (D.E. 105) (Dr. Kingsley Chin testifying about the typical price of a specific medical procedure); see also Hall 's Camp, Inc. v. Decker, 394 So. 2d 1041 (F1a, Dist. Ct. App. 1981) (treating physician testitied as to amount of bills and their causal connection to treatment rendered); S. Pac. R. R. v. Montalvo, 397 F.2d 50, 52-53 (5th Cir. 1968) (rejecting contention that plaintiff did not provide sufficient proof tiof the reasonableness of medical bills incurred for the services of doctors who were called into consultation by the treating physician,'' because Stthe treating physician testified that the charges of the consulted doctors were reasonable, and there was evidence that he was fam iliar with the services they had performed''),

A ccordingly, this Court D ENIE S in part Sam 's East's M otion to Lim it the Testim ony of Plaintiff s Treating Physician in order to pennit Dr. Chin's testim ony about the reasonableness of Plaintiff s m edical bills.

CO N C LU SIO N

Based on the foregoing, it is hereby

O RD ER ED A ND A DJUD G ED as follow s:

(i) Expert W itness Testimony of Nicole Bonaparte (D.E. 35) is G R AN TED .

(ii) Defendant's Motion to Limit the Testimony of Plaintiff s Treating Physician (Dr. Kingsley Chin) (D.E. 42) is G R ANT ED in part and DEN IED in part.

(a) Defendant's M otion is GRANTED to the extent it seeks to prevent Dr. Chin from offering his opinion about the cause of Plaintiff s injuries.

(b) Defendant's M otion is DENIED to the extent it seeks to exclude Dr. Chin's testim ony about the reasonableness of Plaintiff's m edical bills.

p . ksV D ON E AN D O RDER ED in Cham bers at M iam i, Florida, this o f N ovem ber 2017. W W FEDERIC A. N O UN ITED STA TES D ISTRICT JU D GE Copies furnished to:

Counsel of Record