Nursing Expert's Reasonable Value Opinion Admitted

Plaintiff George Huffman sued the United States and the United States Postal Service ("USPS") (collectively, "Defendants") under the Federal Tort Claims Act for damages he sustained in a motor vehicle accident allegedly caused by the negligence of an employee of Defendants acting in the course and scope of her employment.

Defendants filed a motion to exclude Huffman's medical billing expert, Ms. Wendy L. Votroubek, arguing she is unqualified and that her opinions lack scientific rigor.

Nursing Expert Witness

Wendy Leone Votroubek has been a nurse since 1976 and has experience reviewing medical bills and obtaining healthcare financing while working in the clinical setting. She has also taken additional training as a legal nurse to determine the reasonableness of charges and future medical cost projections, including "the Reasonableness of Charges and Life Care Planning Training through FIG Services Nursing Education and Consultancy" as well as "additional training for both Reasonableness of Charges and Medical Cost Projections through AALNC (American Association of Legal Nurse Consultants)."

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Discussion by the Court

Votroubek's expert report details the methodology she followed to assess the reasonableness of Huffman's medical costs. She "reviewed the medical billings corresponding to the treatment received by Plaintiff after the subject motor vehicle collision." She then looked up the codes listed on medical bills.

1. Votroubek is Qualified

Defendants first argued that Votroubek is not qualified to opine on the reasonable value of medical services where she has "never worked in the administration of a hospital or medical practice and has never worked in any billing, charging, or contracting department of any medical provider or payer," nor has she received "training, education, or experience evaluating the reasonable value of medical services outside of the litigation consulting context."

In sum, the Court found that Votroubek's experience described above, in addition to her experience as a professional expert witness—including the fact that she "has testified at least 58 times and her testimony has never been excluded or limited"—is sufficient to qualify her as an expert who can opine on the reasonableness of Huffman's medical bills.

2. Votroubek's Methodology is Reliable

Defendants next challenged Votroubek's methodology and identified "three fundamental flaws that render it unreliable and inadmissible."

a. Whether Huffman's medical bills correspond to the actual medical services he received

First, Defendants noted that Votroubek never "determined whether the codes and charges on Plaintiff's medical bills correspond to the actual medical services he received."

Huffman responded that "evidence as to what treatment was actually provided and reflected in the billing statements will be presented by other witnesses, including Plaintiff's treating health care providers, and by the face of the bills and corresponding treatment records."

This does not solve the problem, according to Defendants, because Huffman had not disclosed that these treating providers would testify to the accuracy of his medical bills. And even if Huffman had disclosed this information, Defendants also argue that "courts have held treating providers cannot testify regarding their bills without a written report."

Neither of Defendants' arguments is persuasive. As an initial matter, they both bear on the scope of the treating providers' testimony, not Votroubek's. The Court understands that Defendants made this argument on reply in response to Huffman's position that "evidence as to what treatment was actually provided" will be presented by other witnesses and evidence. Even so, Defendants did not move to exclude, limit, or otherwise challenge any of Huffman's treating providers, and the scope of their testimony is not currently before the Court.

Moreover, Defendants' assertion that Huffman's expert disclosures did not identify that the treating providers would testify as to the medical bills is misleading. The Court found that Huffman's disclosures as to the treating providers appear to contemplate that they will testify about the costs associated with the treatment provided. Furthermore, Defendants fail to provide authority from this district or Circuit supporting their proposition that treating providers cannot testify about their medical bills without a written expert report.

Finally, in addition to the testimony of the treating physicians, Huffman intended to rely on "the face of the bills and corresponding treatment record" as "evidence as to what treatment was actually provided." Defendants did not respond to this point, nor do they otherwise dispute that "medical bills may be offered as proof of actual past medical expenses."

Thus, the Court is not convinced that Huffman's "evidence is missing an indispensable link between Votroubek's testimony and the medical care he received" such that Votroubek's testimony should be excluded on this basis.

b. Whether Votroubek's valuation methodology is reliable

Defendants next challenged Votroubek's reliance on data from various medical databases, including PMIC and FairHealth. According to Defendants, Votroubek's methodology is a "black box" where she "does not know how the data in these databases is calculated," "only that it is 'based on over 600 million actual charges from public and private databases and using a proprietary formula and estimates fees for providers.'"

On balance, and bearing in mind that "in most cases, objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility," the Court declined to exclude Votroubek's testimony based on her use of these databases.

The PMIC Medical Fees Database is a nationally recognized source to determine the reasonable value of medical charges. Similarly, the FairHealth Database is an industry publication that is commonly relied upon by medical professionals, insurance companies, and others involved in the medical industry to keep up to date with recent trends in fees charged for medical services.

The Court is also not convinced by Defendants' argument that Votroubek's methodology cannot be tested. Here, Defendants had the opportunity to procure their own medical billing expert who would have been able to replicate Votroubek's methodology and assess whether they would reach the same conclusions. Defendants' decision not to do so does not render Votroubek's testimony untestable or unreliable.

In sum, Defendants' challenges to Votroubek's reliance on these databases go to the bases and sources of her opinion and affect the weight of the evidence rather than its admissibility.

c. Whether Votroubek's determination of reasonable value is reliable

Finally, Defendants argued that Votroubek's opinion is unreliable "because it turns on her arbitrary assertion that the range of reasonable values for medical services is equal to the 75th to 90th percentile values in the proprietary databases she uses." Courts within this Circuit have rejected similar arguments challenging an expert's choice of percentile benchmark.

As one Court put it, the expert "could have used any percentile that she saw fit, and Plaintiff would be free to inquire into her choice of percentile upon cross-examination." The Court agreed with these decisions and declined to exclude Votroubek's testimony on this basis. Any perceived weakness regarding Votroubek's use of the 75th to 90th percentile values can be adequately addressed through cross-examination.

Held

The Court found that Wendy Votroubek is qualified to opine on the reasonableness of Huffman's medical bills and that her methodology is sufficiently reliable. Accordingly, Defendants' motion to exclude her testimony was denied.

Key Takeaway

The Court is persuaded that Votroubek's experience in the medical field, completion of training modules, and familiarity with medical billing provide a "minimal foundation" in her area of expertise.

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