January 21, 2020
The expert testimony of a medical billing analyst was at issue in a recent case in the Southern District of Illinois.
In January 2016, the plaintiff was driving when his vehicle collided with a semi-tanker driven by the defendant. Plaintiff alleged that as a result of the accident, he suffered a traumatic brain injury, and he filed suit seeking, among other damages, compensation for future expenses, including lost future wages.
United States Magistrate Judge Gilbert C. Sison was asked to decide several motions to exclude witnesses, including a medical billing analyst.
Quoting the Seventh Circuit, Judge Sison wrote that screening evidence is a function that lies “squarely within the purview of the trial judge.” The judge explained that Rule 703 requires that an expert employ “those kinds of facts or data” on which experts in a particular field reasonably rely. Further, Daubert laid the foundation for Rule 702, which seeks to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable, again quoting Seventh Circuit precedent.
Judge Sison explained that Rule 702, as amended after Daubert, provides: expert testimony is admissible if offered by a witness qualified by knowledge, skill, experience, training or education and if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness reliably applied the principles and methods to the facts of the case.
The standards set forth in Daubert also apply to non-scientific expert testimony, the judge noted. Rule 702 requires that the expert’s scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence or to determine a fact issue. Simply stated, “Rule 702 requires that expert testimony be relevant, reliable, and have a factual basis — requirements that must be met before the jury is allowed to hear and perhaps be persuaded by the expert testimony,” the Seventh Circuit stated.
Taken together, Judge Sison opined that Daubert and Rule 702 allow that expert testimony is admissible only if (1) the expert testifies to valid technical, scientific, or other specialized knowledge; and (2) the testimony will assist the trier of fact.
Again, quoting the Seventh Circuit, Judge Sison wrote, “[n]o matter the nature of the witness’s expertise, Rule 702 ‘establishes a standard of evidentiary reliability,’ ‘requires a valid . . . connection to the pertinent inquiry as a precondition of admissibility,’ and mandates that the testimony have ‘a reliable basis in the knowledge and experience of [the relevant] discipline.’”
Judge Sison explained that the court’s inquiry focuses “solely on principles and methodology, not on the conclusions they generate,” and evaluating reliability “requires a flexible inquiry.” The relevant consideration the judge said is whether the testimony falls outside the range where experts might reasonably differ. Experts must rely on theories, studies, reports, and other materials and methodologies that are reliable, both in general and in the case.
As Daubert provides, as long as the expert’s principles and methodology reflect reliability, vigorous cross-examination, Judge Sison said that “presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
The medical billing analyst who, according to her curriculum vitae, served as an expert witness many years and offered expert testimony on many issues, including the estimating the cost of future medical expenses. The expert was retained by Defendant to review the life-care plan developed by Plaintiffs’ expert and to estimate the cost of his future medical expenses. The medical billing expert concluded that the estimated future medication cost for Plaintiff’s injuries was roughly $115,000– while Plaintiff’s experts on the issue put the cost closer to $600,000.
Plaintiff argued that Defendant’s medical billing analyst’s methodology was fundamentally unsound or unaccepted in the field.
Judge Sison found that in reaching the lower figure, Defendant’s medical billing expert, who had no medical background but did have expertise in medical billing, allegedly substituted generics for branded medications without the input of a medical professional and relied on a website. That site generate a coupon for a patient to take to a pharmacy. The pharmacy honors the price displayed on the coupon. Plaintiff argued that this only helps inform the question of damages. But Defendant emphasized that their medical billing expert didn’t substitute generics for name-brand medications unless a generic medication was listed in Plaintiff’s expert‘s report.
The judge held that it was clear that the experts evaluating the future medical costs Plaintiff would incur disagreed in their exact approach, there wasn’t sufficient support in Plaintiffs’ motion to convince Judge Sison that the medical billing expert‘s methodology was fundamentally unsound or unaccepted in the field.
Plaintiff’s questions about the methodology and qualifications of Defendant’s medical billing analyst as an expert were best addressed on cross-examination, the judge said. Further, the judge wasn’t convinced that a medical-billing expert must testify as to present-cash value— testimony generally presented by economists. The expert’s testimony would prove useful to a jury in assessing damages, if necessary, and the judge found no basis for striking it.
The motion to exclude testimony of the medical billing expert was denied.