Plaintiff Brenda Boston, pursuant to Rule 702 and Rule 703 of the Federal Rules of

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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO CV-LENARD/O'SULLIVAN IN RE: AMERICAN AIRLINES FLIGHT 331, Defendant. THIS DOCUMENT RELATES TO: Brenda Boston v. American Airlines, Inc. PLAINTIFF BRENDA BOSTON'S MOTION TO STRIKE DEFENDANT'S EXPERT VICKI SCHWEITZER. R.N. AND INCORPORATED MEMORANDUM OF LAW Plaintiff Brenda Boston, pursuant to Rule 702 and Rule 703 of the Federal Rules of Evidence, hereby files her Motion to Strike Defendant's Expert Vicki Schweitzer, R.N. and the incorporated Memorandum of Law. It is requested that the following facts and legal arguments be considered: I. INTRODUCTION Defense "Medical Billing" Expert Vicki Schweitzer, R.N. should be excluded from testifying in this case due to her lack of qualifications, lack of knowledge of the data she used, and the faulty methodology that she employed. Her "opinions" are not based upon any personal knowledge of the South Florida medical community and the billing rates they charge. She never spoke to or contacted a single medical doctor or other medical provider about whether any of Brenda Boston's medical bills are reasonable. In fact, her opinions are based upon computer printouts obtained by her clerical staff from leased third party databases of which she has insufficient knowledge. She fails to meet the Daubert standard.

2 II. FACTS Brenda Boston was a passenger on American Airlines Flight 331, along with her Son Craig. She was injured and lost consciousness (Exhibit A, Interrogatory Answer 6) when the Flight 331 jetliner hit the runway and bounced, skidded off the end of the runway and then dropped down over nine and a half feet onto a rocky beach (Exhibit B, Page 1). The forces of this crash landing caused the jetliner to break into three main pieces (ECF 503-1, Page 2) and caused an overhead panel to fall from the jetliner ceiling and struck Brenda Boston (Exhibit 1, Interrogatory Answer 6). She was taken from the crash scene by bus along with her Son Craig and other passengers to Kingston Public Hospital (Exhibit 1, Interrogatory Answer 6). She was taken to a large room at KPH with a number of other passengers. Although she was not admitted to the hospital, she was given an injection for pain by somebody she believed to be a doctor. She was taken from the hospital to a relative's house, where she stayed until she could take the return flight back to the United States that had been booked for her by American Airlines (ECF 526-1, P. 14 ). Although she was in constant pain, she did not want to initiate her medical care in Jamaica (ECF 526-1, P. 76). She waited until she returned to her home in the United States to see physicians for her injuries. All of Brenda Boston's medical care and treatment for the injuries she suffered in the crash of Flight 331 has taken place in South Florida. Brenda Boston received multiple, extensive injuries in the crash of flight 331(Exhibit A, Interrogatory Answer 9), requiring her treating orthopedic surgeon, Jeffrey Katzell, M.D. to perform surgery on her shoulder (ECF 492-1, Page 89), surgery upon her neck (ECF 492-1, Page 86) and surgery upon her back (ECF 492-1, Page 91). As a part of her necessary diagnosis, medical care and treatment, Brenda Boston has had MRI Scans and X-Rays, physical therapy, and has had numerous doctor visits. Her medical bills resulting from her extensive injuries received in the crash total over $359, (Exhibit A, Interrogatory Answer 10). These 2

3 medical bills are unpaid. They have not been paid by any insurance and Brenda Boston is not covered by Medicare or Medicaid. III. VICKI SHWEITZER'S OPINIONS SHOULD BE STRICKEN FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE DAUBERT STANDARD. A. The Standard of Review Under Federal Rule 702 and Daubert Federal Rule 702 sets forth the following requirements for expert testimony: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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 has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702 The U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and its progeny govern the application of Rule 702. Under Rule 702 and Daubert, district courts must act as "gatekeepers" admitting expert testimony only if it is both reliable and relevant, to prevent speculative and unreliable testimony from reaching the jury. Rink v. Cheminova, Inc F.3d 1286, 1291 (11th Cir. 2005). SpecificaUy, the district court must consider whether: (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 issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, (11th Cir. 1998). In the Eleventh Circuit, these three considerations are known as "qualifications, reliability, and helpfulness," and must not be conflated by the district court. U.S. v. Frazier, 387 F.3d 1246, 1260 (11th Cir. 2004). The party offering the expert bears the burden of satisfying each of the three elements by a preponderance of the evidence. Rink,

4 400 F.3d at The Eleventh Circuit noted that under Daubert the testimony must "fit with respect to the offered opinion and the facts of the case" and "does not assist the trier of fact unless the testimony has a justified scientific relationship to the pertinent facts." McDowell v. Brown, 392 F.3d 1283, (11th Cir. 2004). Although the Daubert Opinion specifically addressed expert testimony which was scientific in nature, the Supreme Court later extended the application of the Daubert rationale to include all expert testimony based upon "technical" and "other specialized" knowledge. Kuhmo Tire Co. v. Carmichael. 526 U.S. 137 (1999). Importantly, in the case of General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), the Supreme Court held that: But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. B. Vicki Schweitzer Lacks Sufficient Qualifications to Give the Opinions Defendant, American Airlines hired Vicki Schweitzer, R.N. to review Brenda Boston's Medical Bills and to offer opinions on them. She is the Director of Litigation Services for a company called "Exam Works" which sets up IME examinations and performs medical bill audits for the insurance industry. She lives and works in Redding, California. Vicki Schweitzer's is a licensed Registered Nurse with a Bachelor's Degree in Nursing (Exhibit C). She is also licensed as a coder. She is not a medical doctor, medical economist or statistician. She is not trained in data processing or information technology. Her lack of sufficient educational background and training in statistics and data processing creates a basic lack of understanding of the computer generated data she used in her faulty analysis of Brenda Boston's medical bills. Vicki Schweitzer's Deposition Transcript is attached as "Exhibit E." Her Deposition Testimony includes the following statements: 4

5 Her clients for her "legal bill review" services are all attorneys (Deposition Page 8, Line 3). 78% of her work is for clients on the Defense side (Deposition Page 18, Line 4). She began working for Exam Woj^ks in 2010 (Deposition Page 19, Line 12). Other than an Operator's Manual on how to use databases, Exam Works has no written rules or standards for her to follow in her bill reviews (Deposition Page 14, Lines 6 and 21). In her analysis of bills she utilizes databases that Exam Works leases from third parties (Deposition Page 8, Line 22). Exam Works leases the rights to use these databases. (Deposition Page 9, Line 24 and Page 10, Line 3). She did not develop these databases. These databases were developed by the third party entities that own them. (Deposition Page 9, Line 22). She didn't rely on any articles or publications in analyzing Bostons Medical Bills (Deposition P. 16, Line 10). Tfie "Metadata" database she used to process Brenda Boston's medical bills is divided into Federal Government PSRO areas1 and Vicki Schweitzer does not know how many PSRO areas there are in the State of Florida (Deposition Page 26, Line 23). She doesn't know if the PSRO area for zip code (the one used for many of Brenda Boston's bills) comprises one county, more than one county, or the whole State of Florida (Deposition Page 14, Lines 14 and 16). Medical Bill charges are different in urban areas as compared to rural areas (Deposition Page 52, Line 8). She has no expertise in statistics (Deposition Page 30, Line 24). She has no expertise on whether one doctor's report should be accepted over another (Deposition Page 45, Line 14). She did not input the data into computer programs she used to process Brenda Boston's medical bills. That was done by her clerical staff. (Deposition Page 60, Lines 20 and 24). As a result of her lack of education and training in statistics, data processing, and information technology, Vicki Schweitzer is using data and databases that she doesn't fully understand. She admits in her deposition testimony quoted above that medical bill charges are 1 PSRO areas (see attached Exhibit G) are geographic areas created by the U.S. Government for the administration and coordination of Federal Programs.

6 different for physicians located in urban areas as opposed to rural areas. However, she doesn't know whether the area used by the computer program analyzing the bills covers a single county, more than one county or the whole state of Florida. For all she knows, bills from a physician's office in Lake City, Florida are being compared by the computer program to bills for physicians in downtown Miami. She can't say for sure, because of the critical gaps in her education and training. This clearly does not meet the Daubert standard. Her lack of training and lack of understanding of the database information is even more of a problem, because that internet database search is the foundation of her entire opinion. She admits in her Deposition Testimony that she didn't rely on any publications or articles in formulating her opinions regarding Brenda Boston's medical bills. Also, she admits in her deposition testimony quoted that she didn't contact a single physician or other medical provider (inside or outside Florida) to ask whether Brenda Boston's medical bills were reasonable (Deposition Page 20, lines 2 and 17). Nobody on her behalf contacted any medical providers either (Deposition Page 20, Line 20). Not one call was made to compare the database information to actual physician's charges in South Florida. C. Vicki Schweitzer's Opinions Are Based Upon Insufficient Facts and Data Vicki Schweitzer has no personal knowledge of what a "reasonable medical bill" is in South Florida. She lives and works over 3000 miles from South Florida, in Redding California (Deposition Page 5, Line 8). She admits in her deposition testimony that she didn't contact a single medical provider (inside or outside Florida) to ask whether Brenda Boston's medical bills are reasonable (Deposition Page 20, Lines 2 and 17). Nobody on her behalf contacted any medical providers either (Deposition Page 20, Line 20). She didn't rely on any publications or articles at all (Deposition Page 16, Line 10). She cannot testify the traditional way and say to the jury: "I personally contacted doctor's offices in South Florida to determine the reasonableness 6

7 of Brenda Boston's medical bills." She substitutes a computer printout from a third party database for actual personal knowledge (see, for example Exhibit F, Page 10). Vicki Schweitzer used two databases in her determination of reasonableness of medical bills: Metadata and Context (Deposition Page 21, lines 1 and 3). These databases are leased by Exam Works from third party entities (Deposition Page 8, Line 22). These databases don't actually have medical bills in them. They record something called a "provider charge record" which doesn't reflect what was actually paid, only what was charged (Deposition Page 22, Line 25). These "provider charge records" don't come from physicians or hospitals; they come from entities called "Data Aggregators" who purchase them (Deposition Page 22, Line 25). The Metadata database (used by Vicki Schweitzer) then purchases the provider charge record from the "Data Aggregator" and records it in its database (Deposition Page 21, Line 22). Metadata database searches were used for all of the bills except those for Lake Worth Surgery Center (LWSC). The Context database, which collects data in similar fashion to Metadata was used for LWSC, because that database has information on surgery centers, labs and X-Ray facilities (Deposition Page 9, Line 6). The database information relied upon bv Vicki Schweitzer is insufficient for the following reasons: The submitted information is from biased sources. Insurance companies like Blue Cross and Blue Shield, CIGNA, WellPoint and United Healthcare sell provider charge records to the Data Aggregators (Deposition Page 53, Line 25). Provider charge records are also submitted from Third Party Administrators who administer Workers Compensation claims or Medicaid claims (Deposition Page 24, Line 15 and Page 25, Line 10). These insurers and Third Party Administrators have a vested interest in keeping their medical bill payments to claimants low. They know that the provider charge records they are submitting will be used to audit medical bill claims. They have an incentive to submit only the lowest bills so that the audits state that a claimants medical bills should be reduced (thereby saving them from making full payments 7

8 under their insurance policies or workers compensation plans). Additionally, many medical bills submitted to medical insurance companies are subject to much lower "negotiated rates" through PPO and HMO plans which guarantee high volume in exchange for much lower billing rates. Therefore a much lower bill would be submitted under the plan. When submitted, this would skew the data in the database lower than the actual reasonable medical billing rate. The databases are not designed to determine what a fair and reasonable medical bill is in a personal injury case. The purpose of these databases, when originally leased by Exam Works, was to do medical bill audits for insurance adjusters and adjusters working for Third Party Administrators (working primarily for Work Comp. self insured plans) (Deposition Page 6, Line 23). Exam Works provides those insurance adjuster clients with a computer printout (Deposition Page 7, Line 8). In 2010 Vicki Schweitzer decided to use these same internet database searches to determine "reasonable value of medical services" for litigated cases. She is using databases designed for different clients (insurance adjusters and work comp. managers) and different purposes (auditing medical insurance and work comp. claims). Some of the submitted data is subject to low workers compensation "payment schedules" and this taints the entire database and biases the data toward lower bills. Some of the provider charge data submitted by Third Party Administrators is subject to defined payment schedules (Deposition Page 25, Line 16). These payment schedules are notoriously low and provide much lower reimbursement to physicians and other medical providers. That is why many physicians refuse to do workers compensation claim cases. The Metadata database information does not take into account the areas of specialization that today's physicians have. Specialties (like "orthopedic surgeon") are not broken out in the Metadata Database. You can only compare M.D. to M.D., D.O. to D.O., D.O. to Chiropractor etc. (Deposition Page 28, Line 9). Therefore, you cannot search on Metadata for a reasonable bill for the specialties "Orthopedic Surgeon" or "Shoulder Specialist." 8

9 The database is subdivided into PSRO geographic areas designed for the administration of Federal Programs, not for comparing medical bills between physicians in a particular community. PSRO areas were designed many years ago as subdivisions to aid in the administration of Federal benefit programs like Social Security (Exhibit G). Vicki Schweitzer admits that these areas are used, among other things, for Medicare and Medicaid programs (Deposition Page 32, Line 17). The question of what size geographic area is the most efficient for a Medicaid Program is different from a geographic area designed to compare medical bills of similar physicians in that area. General PSRO data is not a substitute for personal knowledge of what physicians actually charge in South Florida. D. Vicki Schweitzer's Methodology is Arbitrary And Speculative And, Therefore, Unreliable as a Matter of Law The reliability inquiry mandated by Federal Rule 702 requires the court to independently analyze each step in the logic leading to the expert's conclusions. If the court determines that any stem in the expert's chain of logic is unreliable, the expert's entire opinion must be excluded. McClain v. Metabolife. Int'l Inc., 401 F.2d 1233, 1245 (11th Cir. 2005). When subjected to this analysis, it is clear that Vicki Schweitzer's opinions must be excluded. She has used unreliable and arbitrary methods in Brenda Boston's case. She improperly applies Federal Medicare Program rules to Brenda Boston's bills. Brenda Boston is not on Medicare or Medicaid. It is well known that Medicare is a Federal Program, with pre-negotiated rates for many health care providers. Medicare has many technical rules that are applicable to the Federal Medicare Program. Vicki Schweitzer applied one of these rules: the "Multiple Procedure Rule" to Brenda Boston's case. The Multiple Procedure Rule is promulgated by the U.S. Government Centers for Medicare and Medicaid Services (CMS) and it is defined as follows: 9

10 When two or more medical procedures are performed during the same session by the same provider, Medicare does not reimburse all procedures at the full billed or allowable amount. Under the multiple procedure reduction rule, Medicare will allow 100 percent of the fee schedule amount (or billed amount if it is less) for the first procedure reported, and 50 percent for the second, third, fourth, and fifth procedures. When more than five procedures are performed in the same session, an operative report must be submitted and the Medicare carrier determines if any additional reimbursement is allowed. Back To Basics. American Academy of Orthopedic Surgeons Newsletter, September As one would expect, the Draconian Multiple Procedure Rule is widely opposed by the medical community including the American Medical Association (Exhibit H, Page 13) Orthopedic Surgeons (Exhibit I), and Radiologists (Exhibit J), to name a few. This rule has nothing to do with what constitutes a reasonable medical bill in a personal injury case where Medicare payments are not an issue. As you can see from the quote above, it deals with percentages of Medicare Fee Schedules that do not apply to Brenda Boston. Vicki Schweitzer improperly applied the Medicare Multiple Procedure Rule to the Cervical Discectomy (surgical) charges, which resulted in an additional $4,500 in reductions beyond the already huge reduction her database made to the bill in the first place (Deposition Page 37, Lines 6 and 17). Vicki Schweitzer arbitrarily selected her own measuring scale to determine what bills are reasonable. In 2010 when she started working for Exam Works, she decided to use the Metadata and other databases (which were being used for bill audits for adjusters) for determinations of reasonableness in litigated cases. She alone decided that "payment at the 80th percentile" of the database rate would constitute a "reasonable value for a medical service" (Deposition Page 33, Lines 16 and 18; Page 34, Line 13). This is a completely subjective methodology. It is well established that expert testimony based upon completely subjective methodology should be excluded. See: O'Connor v. Commonwealth Edison Co.. 13 F.3d 1090 (7th Cir. 1994). 10

11 E. Vicki Schweitzer's Opinions Will Not Assist The Trier of Fact Vicki Schweitzer received the materials from this case and did her original analysis in October and November of 2012 (Deposition Page 61, Line 4). She did not prepare her "Supplemental Report" until many months later on February 28, 2013 (Deposition Page 61, Line 20). This Supplemental Report (Exhibit K) adds a column entitled "Appears Related Per IME" It lists which specific charges she feels may be related to the airline crash (presumably based upon her interpretation of the IME Reports). This column is pure speculation and will not assist the trier of fact. Vicki Schweitzer admits in her Deposition that she "has no expertise" in determining which charges are related to the airline crash and which may not be (Deposition Page 45, Line 2). As such, she is merely speculating and guessing based upon the reports of others. This last column is something that lawyer argument could easily cover at trial. In closing argument, lawyers routinely tell the jury which medical bills compensate for based upon the evidence. It is well established that expert testimony generally will not help the trier of fact when it offers nothing more that what lawyers for the parties can argue in closing arguments. United States v. Frazier, 387 F.3d (11th Cir. 2004). CONCLUSION The opinions of Vicki Schweitzer, R.N should be stricken because she is unqualified and lacks basic understanding of the data that she is using, her opinions are based upon databases containing insufficient and unsuitable data. Her methodology is arbitrary and speculative and her testimony will not assist the trier of fact. CERTIFICATION PURSUANT TO LOCAL RULE 7.1(a)(3) Pursuant to Local Rule 7.1(a)(3), the undersigned counsel certifies that he made reasonable efforts to confer with counsel for Defendant American Airlines, Inc. by telephoning 11

12 Counsel for American Airlines and by sending an message in an attempt to resolve this matter. Defense Counsel responded to the message. A resolution was not obtained and this motion was required to be filed. Dated: March Respectfully Submitted, BRENDA BOSTON By Her Attorney ]. TULLIE, ESQ. Florida Bar Number: attornevtullie@comcast.net RICHARD E. TULLIE, P.A. Boca Palm Professional Plaza 6971 N. Federal Highway - Suite 401 Boca Raton, Florida Telephone: (561) Fax: (561) Attorney for Plaintiff Brenda Boston CERTIFICATE OF SERVICE I hereby certify that on this 29th day of March, 2013 we electronically filed the foregoing document with the Clerk of the Court using CM/ECF, which will send transmissions of Notices of Electronic Filing on Counsel for the Defendant American Airlines:: Gregory M. Palmer, Esq., Rumberger, Kirk & Caldwell, Brickell Bayview Centre, Suite 3000, 80 S.W. 8th Street, Miami, FL ; and to the following Counsel For The Plaintiffs: Steven C. Marks, Esq., Ricardo Martinez Cid, Esq., and Alexander Rundlet, Esq., Podhurst Orsek, P.A., 25 W. Flagler Street, Suite 800, Miami, FL, 33130; Stuart Z. Grossman, Esq. and Seth Miles, Esq., Grossman Roth, P.A Ponce de Leon Blvd., Suite 1150, Coral Gables, FL 12

13 33134; Paul J. Hedlund, Esq., Baum, Hedlund, Aristei & Goldman, Wilshire Blvd., Suite 950, Los Angeles, CA, ; David R. Heffernan, Esq., Hamilton, Miller & Birthisel, LLP, 150 S.E. Second Avenue, Suite 1200, Miami FL 33131; Joseph J. Slama, Esq., Krupnick, Campbell, et al., 2 S.E. 7th Street, Legacy Bank Building, Suite 801, Ft. Lauderdale, FL 33301; David Katzman, Esq. and Patrick Gallagher, Esq., Katzman, Lampert & McClune, 100 W. Big Beaver Road, Suite 130, Troy, MI ; Curtis Miner, Esq., Colson, Hicks, Edison 255 Alhambra Circle, Coral Gables, FL 33134; Jeffrey P. Allen, Esq., Lawson & Weitzen LLP, 88 Black Falcon Avenue, Boston, MA 02210; and John R. Solter, Jr., Esq., Azrael, Franz, et al., 101 E. Chesapeake Avenue, 5th Floor, Baltimore, MD 21286, Karlyn R. Hylton, Esq., 120 E. Colonial Drive, Orlando, FL 32801, and Joseph B. Chazen, Esq., Meyers, Robell & Rosenbaum, P.A., 6801 Kenilworth Ave., Suite 400, Riverdale, MD By: //^sj <Jr /*«&& RICfr&RD E. TULLIE, fesq. Florida Bar Number: attor nevt ullie@comcast. net RICHARD E. TULLIE, P.A. Boca Palm Professional Plaza 6971 N. Federal Highway - Suite 401 Boca Raton, Florida Telephone: (561) Fax: (561) Attorney for Plaintiff Brenda Boston 13