UNITED AUTOMOBILE INSURANCE COMPANY

v.

AFFILIATED HEALTHCARE CENTERS, A/A/O ARMANDO MONTA

a/a/o Armando Montalvo, _ Q? -53' ' .-1 -1.- .. Appellee. Before CRISTINA MIRANDA, SAMANTHA RUIZ—COHEN, ROBERT J. LUCK, II. _ LUCK, Judge: .-H l /1—¥"' >1 .5-¢-15‘ \v—v 585335 The issue in this case is whether the defendanlfs expert testimony can be considered no evidence at all for purposes ofa plaintiffs directed verdict motion. Because it can, whenthe expert concedes that his opinion is not reliable and not n just determination, we affirm the trial court’s directed verdict for the plaintiff. ' i

I.

Armando Montalvo was involved in acar accident onNcvember 12,2005. Three days later, he reported the accident to his car insurance company, defendant United Automobile Insolence Company. Montalvo’s insurance policy with United included personal injury protection coverage, which pays for “medical bills, lost wages, and other economic losses.” _.—_—.,-_—_—_q-_--.-.~_-_».—.,.np,\,;- - ---_-.|_-.r_-_-_-~ - --_ —- ‘ In the complaint, and the subsequent pleadings, including in the style ofthis appeal, Montalvo's name is spelled with a “V” as the second to last letter. In the trial transcript, it has his name with a “b” as the second to last letter. The court will use the way it is spelled in the style ofthe case throughout this opinion. T-‘l 93 PU003/0018 F-800 ~/J‘ * [*2] 0'5—20-’ ‘I4 ll :00 FROi'-'l- T—-193 P0004/0013 F-800 Two months after the accident, Montalvo went to plaintiffAffiliated Healthcare Centers, Inc. for medical treatment. Atthe initial evaluation, Montalvc said thathe sustained injuries tohis head, neck, knee, finger, and shoulder as a result of the accident, and as ofJanuary 2,006 he had pain in those areas. After a medical examination and history, Montalvo was diagnosed with cervicallbrachial radiculitis, cervical sprainlstrain, lumbar radiculitis, lumbar spralnlstrain, leftknee pain, and left calf pain. The examining doctor recommended that Montalvo receive at treatment regimen “three times per week for six weeks, twice per week ofsix weeks, once per week for four weeks" of “chiropractic manipulation therapy with lumbar distraction as necessary, galvanic and kill?-ii¢ il1°1'flPY, lllflliilfll and/Of Hliwilflniflfll traction, myofascial release, ultrasound, and hotpacks.” Between January I8, 2006 and March 6, 2006, Montalvo received these treatments at Affiliated I-leathcare. The bill for these services, which Affiliated Healthcare sent to United on Montalvo’s behalf, came out to $4080.00. United “denied for payment" all treatments between January 23, 2006 and March 6, 2006 because the costs of the treatments, it said, were not reasonable, related to the accident, and medically necessary. Based onthe denial ofpayment, AffiliatedHealthcare, onM0ntalvo’s behalf, sued United for a declaratory judgment that the insurance policy covered the medical expenses, breach of the insurance contract, and attorney‘s fees. The trial was held front May 7 to May 10,2012. Atthe end ofthe defendant’s case, the trial court granted Affiliated Hcathcarc’s motion for directed verdict, and entered finaljudgment for the company. United has appealed. [*3] 05-20-’ lit ll :00 FROi‘tl— T—'l 93 P0005/00’! 8 F-800 \ \ i ll. “The standard ofreview on appeal ofa trial court’s ruling on a motion for directed verdict is do novo in which we apply the same test used by the trial court in ruling on the motion.” Fell y, Carlin, 6 S0. 3d H9, 120 (Fla. Zd DCA 2009). A motion for directed verdict should be granted only where noview ofthe evidence, or inferences made therefrom, could support a verdict for the nonmoving party. In considering amotion for directed verdict, the courtmust evaluatethetestimony in the light most favorable to the nomnovingpatty and every reasonable inference deduced from the evidence must be indulged in favor of the nomnoving party. if there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to thejury. ILL (quoting ' ‘ ' ' ' , 898 So. 2d 1004 1005 (Fla. 2d DCA 2005)). Sims v. Crrstmzto , _ Florida Statute section 627.7368) requires an insurance company to provide $10,000 of personal ihjury protectionto a “named insured . . . resultingfrombodily injury, sickness, disease, or deatharising out ofthe ownership, maintenance, oruse ofemotorvehicle.” § 627.736(1), Fla». Stat. That protection includes “[e]ighty percent of all reasonable expenses for medically necessary . . . services." LL § 627.736(1)(fl)- Pfli 31105161‘ way. “[11]nderthis statute, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular service or if the service is not necessary. in a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements ofa plaintiff's case.” Derius v. Allstate it1tiC_l1_1_i)_i_i?_§[_gin, 723 So. 2d 211,212 (Fla. 4th non 1998). Our court has eitpiained: it is settled law that a plaintiff in n PIP case has the burden to establish that the payments it seeks were reasonable, related to the accident and necessary for treatment. Once an insured meets this burden, to escape s directed verdict, the insurer must come forward with at least some “reasonable proof” that payment is not justified. [*4] 05-203 '14 'i’| :01 C0. y._l—_Iialeal1Dia;gr1o$tic Ctrg l 1 Fla. L. Weekly Supp. 1041a n.4 (Fla. 1 lth Cir. 2004). “In orderto survive amotion for directed verdict once the plaintiffpresents experttestimony to support a claim, the defense must come forwardwith countervailing evidence or severely impeach the proponent.” gt; at 1041a (citing Medina v. Peralta, 8l)2 So. 2d 376 (Fla. 3d DCA 2001)). On appeal, United contends that the trial court erred by directing st verdict for Affiliated Healthcarc on two issues: the relatedness ofthe medical expenses to Montaivo’s car accident; and the medical necessity of those expenses? United argues that it presented countervailing expert testimony and severely impeached Affiliated Healthcare’s expert on the relatedness and medical necessity issues.

A.

In support ofthe relatedness and medical necessity issues, Affiliated Healthcare presented the expert chiropractic testimony of Dr. Barry Burak, the owner ofAffiliated Healthcare. Dr. Borek testified for the company as an expert that it was his opinion, to ti reasonable degree of medical probability, that Montalvtrs pain and injuries were caused by the November 2005 automobile accident. AndDr. Burak testified that the treatment Montalvo received from January toMarch2006 was necessary to treat his injuries. United argues that it presented countervailing evidence from its chiropractic expert, Dr. Marvin Merrit. On direct examination, Dr. Merrit testified as follows:

Q.

Doctor, Pm going to ask you the question again. Please listen to the question closely. In your opinion, was any chiropractic treatment after January 18th of2006 reasonable, related, or medically necessary.”

A.

Based upon the information provided to me, no. 2 United does not argue on appeal that the trial court erred in directing a verdict for Affiliated Heaithcare on the issue ofwhether the medical expenses were reasonable. We, therefore, will not address that issue. [*5] O'5—20—’ '14 11:0’! FROM" T—’l93 P0007/0013 F-300 The “information provided” to Dr. Merrit included only: A report of independent Medical Examination from Dr. Luis Castillo D.C. dated I/4/2006, office notes from Affiliated I-Iealthcare Centers for dates of treatment 1/18/2006 through 2/3/2006 and I-ICFA 1500 Forms, wltichaxe it1$tl!L£ill0G.¢.1€llI11., forms from Affiliated Hertlthcare Centers for dates of service l/18/2006 through 2/3/3006 total[ing] $2,690.00. Before giving his opinion, however; Dr. Merrit had not reviewed: the initial examination r6p0t'i from Affiliated I-Iealthcare (“one of the most important documents that you would he reviewing”; “extremely important”); the report fromMontalvo’sx-ray; the results fromthe r£tnge-ofmotion testing and manual-muscle-testing; and the SOAP (subjective/objective assessment prognosis) notes from February 3 to March 6, 2006. Dr. Meirit agreed on cross-examination that each ofthese documents would he irnportttnt in rendering an opinion on Montalvo’s condition and treatment. Then, this happened: '

Q.

Would you agreewith methen that your opinionofMarch 10th, 2006 is really incomplete and cannot he relied upon because you haven’t reviewed oneofthe most important papers in Mr. Montalvo‘s medical records‘?

A.

Yes, sir. R ' e * rs ‘-

Q.

Okay. So, Doctor, like I said, I know this is somewhat difficult because you haven’t been provided that document but would you agree with me, Doctor, that Without that document you really didn’t have the tools to he able to render a just detennination on Mr. Montalvo’s medical conditions?

A.

Yes, sir. Dr. Merrit, in other words, agreed with Affiliated Hea1thcare’s counsel that his opinion “cannot be relied upon” and he wasn’t “able to render a just determination on Mr. Montaivo’s medical co11ditions.”- Affiliated Healthcare argues that these concessions by Dr. Merrit— the only “countervailing evidence” presented by United — “le[ft] United with no expert testimony to refitte- Affiliated [Healthcare]’s medical expert testimony." [*6] O5-20—’ lit 11:01 FROM» T—'l 93 P0008/0018 F-860 There are two sets of cases that inform our decision. In one set, the insurance company presents no evidence - no witnesses — in its case to refute the plaintiffs expe1t___opinton.' _§_e_e_ Affiliated Heal___tl_1_care Ctrs. v. United Automobile! nC_o., 18 Fla. L. Weekly Supp. 758a (Fla. llth .. 115..-. Cir. Ct. Jun. T22, 201 1) (“Affiliated presented expert testimony from Dr. Duran thatthe treatment was medically necessary. United Auto offered no ‘countervailing’ expert testimony; in fact, it called no witnesses at all. . . . Because"Aftiliated’s evidence was uncontradicted, it wasrequiredto be believed and not disregarded.”); Progessive Apt. Ins. Co. v. Virtual Imaging Servs., 16 Fla. L. Weekly Supp. 293!) (Fla. llth Cir. Ct. Feb. 20, 2009) (affirming directed verdict “where there was no conflicting evidence whatsoever to refute the medical expert testimony”); _Qptima _I"Iealt_ii_§8g,_j_1ehab v. United ' 11 Fla L Weekly Supp 146a (Fla Miami-Dede Cty Ct. O<>t.2 2003) (Suarez, Automobile Ins. Co., . . . . . , J.) (“Therefore, once the Plaintiffin a PIP action has introduced experttestimony that the treatment was. reasonable, related and necessary, the burden fails to the Defendant who must either substantially discredit the Plaintiffs expert or present expert testimony on its own. UAIC failed to do either in the above-captioned trial. The jury could not, therefore, find for UAIC and against Optima”). ' In the other set, the insurance company presents expert testimony in its case but that testimony docs not conflictwith the plaintiff’s expert. in Evans v. Montenegro, 728 So. 2d 270 (Fla. 3d DCA 1999), for example, The plaintiffs medical expert testified thatthe plaintiffsustained a permanentinjury resulting in a nine to ten percent permanent impairment rating. The defendant countered with her own expert who testified that the plaintiffsustained a permanent injury, but assigned only a one percent permanent impairment rating. Because there was no conflict in the expert testimony regarding whether the plaintiffsustained a permanent injury, the trial court directed a verdictin favorofthe plaintiff on the issue ofpermanency. [*7] 05-20314 ’l'l :01 FRC*l'-i— T-193 POO09;'00’l8 F-800 19, at 271 . The Third District affirmed, explainingthat “[a}lthongh the defendant did,p11t.o.n.e2<p_ert_ testimony, that testimony also established that the plaintiff's injury was permanent,” I_d,; see also State Farm Mut. A\liQ1_Il0lJllC Ins. Co. v. Orr, 660 So. 2d 1061, 1063 (Fla. 4th DCA 1995) (“To the contrary, putting on its best case, it offered only expert medical testimony CtI1r1'0'U0l‘8.tll'lg that offered by plaintiff concerning the permanency of her injury. Thus, at the close of the evidence, both plaintiffand defendant had offered evidence fully supportingplaintiffs claim ofpermanent inju1'y.”). In some ways this case is like the no-evidence cases. Ifthe opinion Dr. Merrit gave on direct examination “cannot be relied upon” and was not a just determination of M0ntalv0’3 medical condition, as Dr. Mcrrit conceded on cross examination, then the opinion is ti nullity; it is as ifthe opinion was never given. It cannot be relied upon by thejury in deciding the case on the subject of _ the opinion: the ielatedness ofMontalvo’s injuries to the treatments he was getting; and the medical necessity of those treatments. The cornerstone of expert testimony is that it is based on “reliable principles and methods.” § 90.702(2), Fla. Stat. Ifthe expertllltnsclfsays that his opinion cannot be relied upon and is not a just determination of the medical condition, then it cannot be expert testimony that thejury and court consider as part ofthe verdict. It is not “reasonable proof’ that can overcome a directed verdict motion. See Davis v. Caterpillar, lnc., 787 So. 2d 894, 898 (Fla. 3d DCA 2001) (“One ofa trial judge’sjobs is to prohibit unreliable expert testimony from reaching a jury.”). In other ways this case is like the no—conflict cases. Dr. Men-it conceded that, while he may have chosen different treatment methods, those prescribed by Affiliated Healthcare for Montalvo were not unreasonable or contrary to schools ofchiropractic thought or the rules and regulations of the Board ofChiropractors. That concession, combined with Dr. Men*it’s agreement that his opinion '7 [*8] 05-26-’ '1 4 ‘ll :02 Either way, there was no “conflicting evidence” on the relatedness and medical necessity issues, which is the cornerstone ofovercoming a directed verdict motion where theplaintiffpresents expert testimony. gig Wald v. Graingcr, 64 So. 3d 1201, I205 (Fla. 2011). At the end of Dr. Merrit’s testimony, there was “no evidence . . . to support the position ofthe party moved against,” United. fie; Jarell v. Cling, 691 So. 2d 69, 70 (Fla. 4th DCA 1992). ~

B.

United argues that the directed verdict for Affiliated Healthcere was error for a second reason: because the testimony of Dr. Bumk, Affiiiated Healthcarefs expert on relatedness and medical necessity, was severely impeached, such that thejury could reasonably find forUnited. To “severeiy" impeach aplaintiff's expert, thedefendant must “clearly anddirectlycontradictan expert opinion or the facts upon which that opinion is predicated.” @'_efl, 611 So. 2d at '71. The impeachment cannot be “minor and indirect," §\_!%, 728 So. 2d at 271; instead, it must be “inconsistent” with the experfs diagnosis or opinion, Jgell, 611 So. 2d at ‘Ii. _ Here, during the cross-examination of Dr. Burak, Dr. Burak testified that he had no information on whether Montalvo: was treated by fire rescue at the scene ofthe car accident or by his primary care physician shortly afierwaxds; missed time at Work orwas put onrestrictive duty; and had bruising or marks. Dr. Burak was asked a number of hypothetical questions about whether Montalvcfs employment, medical history, x-ray placement, and honesty could have affected the diagnosis and treatment. Dr. Burak testified inconsistently on one issue: whether Montalvo was [*9] O5—2G—"i1i "ll :02 FROM— T—'l98 P0011/0013 F-300 getting better. At his deposition Dr. Burak testified that Montalvo was not getting better; attrial, Dr. Burak said he was. V i None ofthese hypotheticals and gaps is inconsistentiwith or clearly and directly contradicts Dr. Burn]-c’s medical opinion that Montalvo’s pain and injuries were related to his car accident, and the treatlnent lte received was medically necessary. The most that Dr. Bumk conceded was that it was possible that Montalvo was not really injured or had pre-existing injuries given his missed appointments and degenerative condition. This possibility, however, did not clearly and directly contradict, and was not inconsistent with, Dr. Burak’s medical judgment, based on his review of Mont.alvo’s medical records, that the pain and injuries were related and the treatment medically necessary. The E1/5% andLl cases illustrate this point well. Inits, the defendant attempted to severely impeach the plaintiff’s expert: this way: “the evidence showed that theplaintiffs expert was not board certified; that the plaintiffdid not seek additional medical treatmentfollowing arthroscopic surgery; that the plaintiffsecn1[sd] to have maintained an active lifestyle; and, that the plaintiffdid not even make a claim of lost earning capacity due to the injury.” gyms, 728 So. 2d at 271. The Third District, atfnming the directed verdict, ‘concluded that “the defendant neither severely impeached the plaintiffs expelt nor presented other conflicting evidence . . . . The evidence relied upon by the defendant as a basis for this appeal was minor and indirect.“ lgl, Likewise, in larrell, “[t]he defense evidence consisted of the plaintiff’s previous medical history and a surveillance tape showing her ability to tum her head and to carry items ofhousehold filrnituted’ Midi, 611 So. 2d at 70. The Fourth District said even this video evidence was not enough. “It was incumbent upon the defense . . . at the very least, to inquire ofplaintiff's expert Q . [*10] O5—20—’ tit 11:02 FROitl— T-‘i 98 Pi)O'l 2/0013 F-390 whether the activities engaged in by plaintiffhad any substantial impact on his professional opinion that plaintiffhad suffered a permanent injury.” Leg at 71; The‘ Fourth"Di‘strict concludcd:""'""""-- [B]ased solely upon consideration of evidence which does not clearly and directly contradict an expert opinion or the facts upon which that opinion is predicated, ajury of lay persons cannot be credited with having the technical expertise to totally ' disregard an expert medical Opinion. There were no such direct conflicts in the record of these proceedings. Li» Likewise, during Dr. Burak's testimony, none ofthe questions asked by United called into question — had a substantial impact on — his expett opinion on relatedness and mecticat necessity. As in * and Eli, raising the possibility that Montalvo was lying about his pain based on Evans Mental‘/o’s pre-treatment medical history and post-treatment notions is not enough to severely impeach the expett unless it is connected to, and has a substantial impacton, the experfis testimony. Indeed, the cross-examination ofDr. Burak was not based on contrary evidence presented by United (like video surveillance) that would have catled into question the expert opinion, but rather on alternative possibilities for Montalvo’s pain. Because United did not make that connection —did not get Dr, Burak to concede or agree or ask whether the possibilities and gaps in information United raised would have substantially impacted his opinion — it did not severely impeach him} V

III.

Because, like the trial conit, all we are left with is Dr. Bu1'ak’s_ medical opinion on the relatedness and medical necessity issues, we affirln the directed verdict for Affitiated Healtheare. 3 In other words, United needed to do to Dr. Burak wl1atAfliiiated Healthcare did to Dr. Menit: get him to admit that some Fact or document that he did not have affected his professional opinion. [*11] G5—20—’14 11:03 FROM- 2% R0BBRf JT"ffi?:'I%; T—193 P0013/0018 F—30Q // \ / _¢__+

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