Pain Management Expert Witness Overstepped by Offering Opinions on Fraud
Posted on February 11, 2025 by Expert Witness Profiler
In a civil RICO lawsuit, Plaintiff Allstate Insurance and its affiliates sued Defendants Dr. Ayman Tarabishy and his medical clinic, Ayman Tarabishy, M.D., PLLC, (doing business as Enhance Center). Allstate alleged that the Defendants orchestrated a racketeering scheme to exploit Michigan’s no-fault insurance law by generating and submitting fraudulent medical bills for reimbursement.
Allstate retained Dr. Wilfred Hynes “to testify regarding the fact, extent, and causation of the alleged services for which Allstate was billed [by the Defendants] relative to patients at issue in this action . . . the medical necessity and reasonableness of the services billed by the Defendants; the billing submitted by the Defendants; and any other subjects or opinions referenced in his report, supplemental report, or in subsequent deposition testimony, including reasonable inferences and summaries arising therefrom.”
On September 8, 2023, Allstate disclosed Hynes’ initial expert report, where he detailed his findings and opinions after reviewing the Defendants’ treatment and billing records for more than 90 patients involved in the case. Eighteen days later, Allstate submitted a supplemental report in which Hynes included five charts that Allstate might “use at trial to summarize the opinions set forth in detail in [Hynes’] medical expert report.”
Pain Management Expert Witness
Dr. Wilfred L. Hynes, M.D. is a pain-management physician at Tufts Medical Center in Boston, Massachusetts. He is board certified in anesthesiology and pain management. Since 2005, he has been the medical director of the pain management center and co-chair of the pain management committee at Tufts Medical Center in Boston, Massachusetts. He is an award-winning, Harvard-trained pain management physician with a long career in interventional pain-management.
Hynes is familiar with the diagnosis and treatment of patients diagnosed with a variety of chronic pain conditions, and the standard of care applicable to the management of these patients.
Discussion by the Court
Defendant’s Arguments
The Defendants moved to strike both the original and supplemental reports and sought to exclude Hynes’ testimony at trial, on several grounds:
(1) Hynes is not board-certified in the specialties of physical medical rehabilitation or brain injury medicine and is not qualified to render opinions about Defendants’ treatments;
(2) Hynes is not an expert in current procedural terminology (CPT) coding and is not qualified to render opinions about Defendants’ CPT coding or billing;
(3) Hynes did not prepare the “Supplemental” expert report served on September 26, 2023;
(4) Hynes’ opinions regarding “fraud” are beyond his purview and he is not qualified to give an opinion or testify about Defendants’ intent;
(5) Hynes’ reports contain analysis of patients for whom Plaintiffs are not seeking to recover damages and his findings regarding these patients are irrelevant; and
(6) Hynes’ testimony will not assist the trier of fact and is significantly more likely to mislead a jury.
A. Hynes’ Opinions on Medical Care
Defendants argued that Hynes lacked the necessary qualifications and experience to opine on the treatments that Tarabishy provided to patients. Although both doctors are board-certified pain management practitioners, Tarabishy is also board certified in two additional specializations which he regularly practices: physical medicine and rehabilitation (“PM&R”) and brain-injury medicine.
Hynes is not qualified to testify about every medical procedure Tarabishy performed
First, Defendants argued that Hynes “has never practiced outside of an academic or hospital setting,” which means unlike Tarabishy, Hynes does not treat patients throughout the entire course of their injuries. Allstate contested this characterization of Hynes’ practice, and Hynes’ own report contradicted it, too. Even if this were true, the Court held that it does not justify excluding Hynes’ opinions.
Second, the Defendants pointed out that because Tarabishy’s practice is a ‘combination’ of all three of his specialties, Hynes is not qualified to testify about every medical procedure Tarabishy performed.
To bolster this argument, Defendants cited two provisions of Michigan statutes: Mich. Comp. Laws § 600.2169(1)(a), which requires that experts in medical-malpractice suits practice the same specialty and have the same board certifications as the Defendant-physician; and Mich Comp. Laws § 500.3151(2)(a), which requires the same of physicians conducting an independent medical examination under the No-Fault Act.
Allstate pointed out that these state-law provisions have no bearing on the Daubert inquiry, and Defendants provided no authority demonstrating otherwise. The Court agreed.
Moreover, Defendants did not really explain how pain management is so different from PM&R, such that an expert in one could not testify about the other. Nor did they label any specific opinion of Hynes as one that only a PM&R specialist would be qualified to give. In fact, whatever differences between PM&R and pain management, even Tarabishy acknowledged there is overlap: he testified that, in the context of his practice, “it’s really hard to draw a line where one ends and the other one starts.”
Hynes is not qualified to opine on Defendants’ assessment, diagnosis, or treatment of brain or neurological injuries
When Defendants argued that Hynes is not qualified to opine on Defendants’ assessment, diagnosis, or treatment of brain or neurological injuries, Allstate responded that this is a nonissue because “not once in his report does Hynes critique a brain-injury treatment allegedly rendered by the Defendants.”
While the bulk of medical care at issue in this case is not neurological, the Court held that Allstate’s read of the report is not wholly correct—or at least it hides the ball. Neurological treatments aside, Hynes certainly critiques how Defendants handled diagnostic testing for neurological disorders, especially as related to Magnetic Resonance Imaging (MRIs).
Hynes went on to opine that “without concerning neurologic deficits, particularly considering the negative head CT scans, there was no indication to routinely proceed with a brain MRI on every patient with headache complaints.”
While Hynes is no expert in brain injury, he maintained that, based on his “review of the literature” outlined in his report, he could testify as to whether ordering brain MRIs was appropriate.
Although the factual basis is weak, the Court held that Hynes has seen patients with head injuries, ordered diagnostic testing for some such patients, and reviewed medical literature on when ordering such testing is proper. Therefore, Hynes has provided a “reasonable factual basis” for his opinions on whether Defendants properly ordered neurological testing like MRIs.
In sum, Hynes may opine on the bulk of the medical care at issue in this case. The sole caveat is that he may not offer opinions at trial that attempt to interpret the substance of any MRIs related to brain injuries.
B. Hynes’ Opinions on Billing and CPT Coding
Defendants also argued that Hynes’ opinions on Defendants’ billing and use of CPT coding exceeded the scope of his expertise.
The Court, however, noted his decades of experience providing the types of services and treatments at issue in this case—which includes billing and using CPT codes for those services and treatments. This experience alone provides a sufficient basis for Hynes’ testimony.
C. Hynes’ Opinions on Fraud
Hynes accused Defendants of fraud more than once. For instance, he said that Defendants “exhibited clear patterns of health care fraud,” and that they were “fraudulently submitting” bills to Allstate, and that “there was clear evidence of rampant fraud, waste, and abuse of health care resources.”
According to the Court, Hynes plainly overstepped by offering opinions on fraud because they improperly invaded the province of the jury. When Hynes opined that Defendants “committed health care fraud” by “fraudulently submitting” bills to Allstate, he decided the answer to an ultimate issue for the jury.
When Allstate cited Champion v. Outlook Nashville, Inc., 380 F.3d 893, (6th Cir. 2004) because it supported admitting Hynes’ opinions on fraud, the Court found the case distinguishable. There, the district court permitted an expert to testify about a discrete aspect of police practices—the use of excessive force—despite excessive force ultimately being a question for the jury. The Sixth Circuit affirmed, given that the expert had extensive and particularized knowledge about the area.
The Court held that Hynes’ general training for “medicare fraud, waste, and abuse” did not constitute particularized knowledge or expertise about medical fraud.
D. Hynes’ Supplemental Report
Defendants argued that Hynes’ supplement is inappropriate under Civil Rule 26(e), which requires parties to supplement discovery disclosures and responses in certain circumstances.
The supplement stated that its contents “do not alter the opinions set forth in [Hynes’ initial report] in any way, are derived entirely from the opinions set forth [in the initial report], and will be used only to summarize the opinions of [the initial report].”
However, all the supplement’s information comes from Hynes’ initial report—which no one disputes he prepared himself. While Allstate formatted the supplement; by providing all the supplement’s underlying findings and opinions, the Court held that Hynes helped prepare it.
Defendants pointed out 3 instances (out the supplement’s 575 entries) where the “date of treatment” listed differs from the date listed in Hynes’ initial report. They added that “Allstate’s contradictory positions . . . have made it unreasonably difficult for Defendants to prepare their defense or determine what Allstate claims as its damages.”
Although the supplement requirement was not intended “to allow parties to spring late surprises on their opponents under the guise of a ‘supplement to earlier disclosures,'” the Court held that Allstate has attempted no such thing. Moreover, these minor inconsistencies would not substantially mislead or confuse the jury, requiring exclusion under Federal Evidence Rule 403.
E. Patients Not Listed in Allstate’s Damages Chart
Defendants argued that Hynes’ opinions about treatments provided to patients not listed in Allstate’s “damages” chart were irrelevant.
However, the Court held that Hynes’ testimony was relevant to Allstate’s RICO claim, even for patients not included in the damages chart. The Court emphasized that a RICO claim under 18 U.S.C. § 1962(c) required proving “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”
A pattern of racketeering activity requires related predicate acts of racketeering which continued during a substantial period or which by their nature forebode of future criminal conduct. The Court held that Hynes’ opinion on all patients is relevant to proving a pattern of racketeering activity by Defendants.
In other words, Hynes’ testimony about whether Defendants acted similarly across the full range of patients discussed in his expert report goes to this pattern element. Thus, his opinions as to patients not listed in Allstate’s damages chart will not be stricken.
Held
The Court granted the Defendants’ motion to strike Wilfred Hynes’ testimony to the extent that Hynes, may not offer opinions labeling Defendants’ conduct as “fraud” in any way; nor may he offer opinions on the substance of MRIs related to brain injuries. The motion was denied in part in all other respects.
Key Takeaways:
i) Qualifications of Hynes – Defendants argued that Hynes lacked the necessary qualifications to testify as an expert. The Court rejected this claim, ruling that his expertise in pain management qualified him to opine on the medical care at issue in this case, except for brain-injury-related MRIs.
ii) CPT Coding and Billing Practices – Defendants challenged Hynes’ qualifications to testify about their billing practices and use of CPT codes, arguing that his opinions exceeded his expertise. The Court disagreed, ruling that Hynes’ decades of experience provided a sufficient foundation for his testimony.
iii) Legal Conclusions – Defendants objected to Hynes labeling their conduct as “fraud.” The Court agreed and prohibited him from characterizing Defendants’ actions as fraudulent, ruling that such determinations fell into the jury’s province.
iv) Supplemental Report – Defendants sought to exclude Hynes’ supplemental report, asserting that he did not personally prepare it. The Court disagreed because the supplement could not exist without Hynes first generating each of the findings and opinions in his initial report. Even if Allstate formatted the supplement; by providing all the supplement’s underlying findings and opinions, it was Hynes who helped prepare it.
Case Details:
| Case Caption: | Allstate Insurance Company Et Al V Ayman Tarabishy, Mc., Pllc Et Al |
| Docket Number: | 2:22cv12736 |
| Court: | United States District Court for the Eastern District of Michigan, Southern Division |
| Order Date: | January 31, 2025 |
