.

Defense Digest

Overcoming the Daubert Challenge With Your Billing and Coding Expert

Defense Digest, Vol. 30, No. 3, September 2024

September 1, 2024

by Frank L. Madia and Thomas J. Slogar

Key Points:

  • The Florida Standard Jury Instructions pertaining to plaintiff’s medical expenses instruct the jury to consider and award damages for the reasonable value or expense of medical care and treatment necessarily or reasonably obtained by plaintiff in the past or future. 
  • It is plaintiff’s burden at trial to prove the reasonableness of his or her medical expenses. Once he or she testifies to the amount of the medical bills and introduces them into evidence, it is a jury question whether the bills and charges represent reasonable and necessary medical expenses. 
  • If scientific technical or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.

In a recent slip and fall case we handled in Broward County, Florida, the plaintiff moved to strike a retail store’s billing and coding expert under Daubert from testifying at trial as to the usual, customary, and reasonable charges of the plaintiff’s medical-related expenses. Among other things, the plaintiff alleged the billing and coding expert relied on incomplete, unverifiable information, including her own opinion testimony, which the plaintiff averred would only confuse the jury.

In opposition, we argued the billing and coding expert had sufficient specialized knowledge, experience, and training and was adequately qualified to express her expert opinions regarding the plaintiff’s medical bills and how those bills compare to the prevailing and customary rates charged in the medical community and specific geographical location where the services were performed and that such testimony would assist the trier of fact in understanding the evidence related to those reasonable charges for the alleged treatment provided to the plaintiff. 

The plaintiff’s position would make it impossible for a defendant to contest whether the charges claimed are usual, customary, and reasonable. It would also be contrary to Florida law, which acknowledges a defendant’s right in personal injury litigation to argue to a jury that a plaintiff’s medical bills are unreasonable. See e.g., Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1065 (Fla. 4th DCA 2011) (sufficiently explained below why certain hospital billing information was necessary as part of determining whether a treating doctor billed non-litigation patients at a lower rate for the same medical services is “admissible evidence regarding the reasonableness of medical expenses”); Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232, 1235 (Fla. 2d DCA 2009) (stating that reasonableness of bills can be determined by looking at: (1) the relevant market for services, including the rates charged by other similarly situated providers for similar services; (2) the usual and customary rate the provider charges and receives for its services; and (3) the provider's internal cost structure). 

The plaintiff in our case also argued that the medical and billing coding expert did not employ a sufficiently reliable scientific methodology in forming the basis for her expert opinion. In pertinent part, the plaintiff cited testimony from the expert that, as part of her methodology, she would input data from the medical billing charges (CPT coding) into a nationally recognized data base in order to obtain what the usual, customary, and reasonable charges were, in her expert opinion, for the plaintiff’s medical treatment. This method, according to the plaintiff, was not sufficiently reliable under Daubert and was, therefore, inadmissible. Simply inputting data into a database, according to the plaintiff, does not survive Daubert.

In response, we cited Cordero v. Target Corporation, 2019 WL 13080580 (2019), where the federal court had already spoken on the same legal challenge under Rule 702 of the Federal Rules of Evidence as it relates to the admissibility of expert opinion testimony from a medical and billing coding expert. 

The Cordero court held that the medical billing and coding expert who specifically utilized the Context 4 Healthcare UCR database—the exact same database used by the billing and coding expert in our case—was qualified to render expert opinions on the reasonableness of the medical charges based on, among other things, the expert’s nine years of experience in reviewing the reasonableness of medical charges and nearly thirteen years of experience in establishing and reviewing “fee schedules using standards such as UCR databases and negotiating out-of-network reimbursement amounts (based on UCR data and commercial insurance allowable fees.” Id. at 23-24.

In applying Cordero and Daubert to our case, we referred the court to the testimony of our billing and coding expert, who testified at length as to the methodology utilized to determine the reasonable value of past medical bills uniformly employed by medical billing professionals based on proper CPT coding for the medical services performed, together with the sources and data obtained, which, in her expert opinion, were not arbitrary. It was further argued that our expert utilized the same methodology throughout her 30 years in the medical billing and coding industry. 

Our expert relied on nationally recognized medical billing and coding standards, federal regulations, and geographically specific modifiers based on the particular categories of medical care. The expert’s methodology was “based on billing rules and coding standards that dictate how medical services are billing in the United States, which are federally regulated, and the application of pricing databases specific to the category of care, community and year in which the service was provided.” As part of her methodology, as indicated above, the billing and coding expert utilized the nationally recognized and generally accepted UCR database (Context 4 Health Care) to review, analyze, and determine what the UCR charges should have been for the medical treatment and services provided to the plaintiff.
 
Additionally, our expert testified that she reviewed the plaintiff’s medical records and billing, including a review and verification of the CPT codes inputted by the providers, to determine if the providers listed and billed the services under the correct CPT codes. In essence, the methodology employed in our case was the same methodology utilized by thousands of medical providers throughout the United States inasmuch as those same or similar databases were used to establish and implement their fee schedules. 

Overall, we were able to successfully establish that our medical and billing coding expert relied on sufficient and reliable data, the testimony was based on reliable and verifiable methods, and the expert applied those nationally recognized scientific methods to the facts of our case. 

As a consequence, the Circuit Court denied the plaintiff’s motion in its entirety and ruled that our medical and billing coding expert was permitted to testify at trial and to provide expert opinion testimony on what the usual, reasonable, and customary charges should be for the plaintiff’s medical treatment and related expenses. The court’s decision led to a favorable settlement of the litigation shortly thereafter. 

Frank and Tom are both members of our Casualty Department and work in our Orlando, Florida, office.  


 

Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.