(Thereupon, the following proceedings were held:) THE COURT: versus Automobile Insurance Company. Case

Transcription

1 (Thereupon, the following proceedings were held:) versus Automobile Insurance Company. Case number. If all counsel could now announce themselves for the record. MR. KOENIGSBERG: Good afternoon, Judge, Stuart Koenigsberg and Yvette Blackwell on behalf of the cap Global cap when referring to plaintiff. this case, not cited cases cap add, On behalf of defendant Pablo Arrue. Thank you. I read the motion in this case. Judge. Mr. Arrue, did you have a response to this? an I did, quite extensive response, I apologize. Because under our current situation, the state does not have the money to print out in written form all of your documents and attachments and et cetera. Was a courtesy copy delivered to the Court, because I did not have it. If you did not do so, if you have something to share with me now that would be great. In other words, I'm a reader. I like to read everything. The problem is I couldn't find anything. It may have been in the docket and I just overlooked

2 that, but I couldn't have printed all that anyway. don't have the money. We MR. KOENIGSBERG: To save time, I did make a courtesy copy of adjuster's affidavit that you had served. And I also have a copy of the deposition transcript of Mr.. If you'd like, I can provide the Court with those. Okay. That would be appreciated. MR. KOENIGSBERG: provided last week, I believe. in writing. These documents were I don't have a response Whatever you all do, whenever you have something you want me to see, make sure it's add - hand delivered to my chambers. That way I get. Otherwise, if you file it with the clerk of court, we don't have an opportunity to review it. forward. Let's go At this time, Mr. Koenigsberg on behalf of the plaintiff. Your motion, please. MR. KOENIGSBERG: Thank you, Judge. What I have provided you -- and I know you have a ton of stuff in front of you, but to make things easier, I provided you a copy of Mr. 's affidavit in support of plaintiff's motion for summary judgment. It's probably

3 the smaller of the three documents and that has some attachments to it. I also provided you a copy of the affidavit that Mr. Arrue filed of (phonetic). 's litigation adjuster And the last document that I provided to you was a copy of the deposition transcript of Mr. that was taken in this particular case. And I can refer to those documents. That way you have a copy of all the evidence that would be relevant in terms to the entire motion. Thank you. MR. KOENIGSBERG: First of all, Your Honor, the affidavit of Mr., which has been before the Court. And just to set the table, the motion for summary judgment today concerns the reasonableness of the charges in this particular case, which was $,0 for diagnostic X-rays. Mr. in his affidavit establishes that he is the person that has the most knowledge on behalf of, being the corporate representative, being the person who does all the billing, being the person who is responsible for setting the charges in this case and also person who has knowledge of the charges for medical services in Miami-Dade County, Florida. keep together You've seen similar affidavits before of Mr.

4 gave it some thought as to some of the places that I actually went to. I went to Millennium Radiology. I went to Universal. I went to M&E Diagnostic. I went to Mercy Hospital. I went to South Miami Hospital and I went and gave them information as to what I charge and they gave me their prices and I incorporated those." I don't have a complete list, but on page he indicates those are the ones that I used. On page, he goes on to indicate that, "I put my prices in the middle of the range of the prices that I obtained from these providers. I didn't want to make them too high. low." I didn't want to make them too And he goes on to elaborate a little bit more in detail on page about the types of overhead concerns that he took a look at in terms of looking at his prices. Well, this is the gentleman, you will recall, that has a digital machine which cost two to hyphenate $00,000. It creates state of the art images that get add - read by board certified radiologists that are like, you know, at Jackson, that can give you an immediate read. add " And he indicated, I have numerous factors because of those issues, licensing, medical directors, supervising doctors, technicians, filing personnel, clerical personnel, software, transportation and those sorts of

5 things in addition to my survey is why I got to where I end " got. That essentially is the prima facie case. And I think that we have discussed the cases that this Court has relied on previously. I did not bring copies because the last time -- I think I was here a week and a half ago I brought them. But it's the Multicare case, the ^ Talusfa case from Judge Lee, the A&J versus State case, all stand for the proposition, which this Court has acknowledged, that once a person has established that they've actually prepared the services for the bills at issue, and that the person got the services, you've established your prima facie case. There's one additional case that I supplement today, which I thought, in doing some reading, was relevant. And I provided a courtesy keep together copy -- which I have with me -- I'll provide to Mr. Arrue and the Court -- which I thought this was a little bit relevant as I was doing research on another appellate matter that I was handling in Broward County. In this particular case, is the case from the Fourth District Court of Appeal. versus Automobile verse Hallandale Open MRI. It's United The face sheet that I provided to the Court is essentially the Fourth's pronouncement last September, that the -- because United

6 Streitfield? lost the cost. It was affirmed by Judge ^ Drifeld at GLOBAL the intermediate level. United then appealed to the Fourth DCA. And the gist was that the affirmance could have been based on the trial court's outright rejection of the affidavit. The reason I said that is because I gave you also Judge Drifeld's opinion and I attached behind that a copy of affidavit. Why did I do that, because the affidavit of, who is the United Automobile's adjuster, very familiar in terms of the adjuster's deposition file in this case, in paragraph says, based on my review of the claims file, the medical bills, physician fee and coding guide, my experience in handling PIP claims. Familiarity -- which is the ()(a)() factors -- usual and? and customary charges, payments accepted, state federal fee schedule, et cetera, this is what I think is a reasonable price. And Judge Drifeld, in his opinion, which was just affirmed, said that's conclusory, that the adjuster can't just come out and make bold pronouncements of, you know, these are what they are and why they should be what they should be. is The other thing that I think it's really interesting in Judge Drifeld's opinion was his analysis,

7 which I think was on page of the opinion. Where United Automobile challenged the witness' ability to present a prima facie case, like we have here. And one of the things they said is, you didn't go through all ()(a)() factors. You haven't met your burden, and the add, uncap judge rejected that. Saying, listen, this particular witness has hit numerous factors, number one, has testified that these are usual and customary charges for an MRI, that the payments have been accepted for the same procedure by other insurers and that she's got years of experience. Why do I say that, because if we go back to certainly to Mr. 's affidavit, he says, "I have knowledge of usual and customary charges. I went to these places --" which I identified the names. "I obtained these charges in the community. I took the average fees. Allstate case. I have attached to my affidavit that And I have eight years of experience." So clearly, I think this would be provide comfort to the Court to establish that a prima facie case would have been made in this particular case. The next issue then would become, what evidence would oppose the motion that would be sufficient to create a factual issue. And I've provided to the Court a copy of the affidavit of Mr..

8 lengthy. The affidavit, itself, is not significantly add, I think it's only seven pages but it attaches a host of other items, which include the actual policy. It includes the endorsement of the policy. It includes the medical bill and assignment of benefit, the encompasses explanation of review and it also encompases a PIP payout sheet. I think that if we start to dissect this affidavit, it becomes pretty clear as to why it wouldn't be considered relevant, admissible evidence. First of all, to start with page, the witness identifies herself as nothing more or nothing less than a claims or litigation representative. She says she's got claims and personal knowledge of the facts of the litigation. Then in paragraph, on page, she tries to go and tries to authenticate the document. If we leave to the side and just take a look and digest what just took place in page, we have nothing before this Court, Your Honor, that would tell you what this witness is qualified to do or not to do, aside from working for, which we can see. We don't know how long. We don't know whether she has any knowledge as to usual or customary pricing in Miami-Dade County. We don't know if he has any personal experience working for

9 medical company and setting prices. We don't know if she's done any analysis or obtained any data or anything that would indicate that she would have any basis in which to express an opinion. She goes through A through F, which are the items that I've indicated, the policy and those sort of documents. Then she authenticates them as true and correct copies, kept in the ordinary course and scope. For the moment, I think, we need to overlook the fact that she's not a records custodian and she's trying to qualify records that may or may not be those to qualified, such as our bill, the policy, those sorts of things. the case. I don't think it's germane to the outcome of But certainly, she's going on doing things that I think are not appropriate in this particular affidavit. Five, six, seven, eight, go through an add ; analysis so does nine and ten of all of the items that I just discussed. And then I think, she goes on to indicate that the company, on page, determined that plural the charge are unreasonably high. And I don't quarrel that made that determination. She goes on to indicate that they determined a reasonable amount, in paragraph, based on the policy in.()(a), which arguably she can or can't

10 no, slide into the ()(a)() pile and say it is, what it is. That becomes problematic as this Court recognized. I even think last Friday in Martin Berger's argument that cap I was listening to when you cited to judge -- I'm sorry. I wasn't privy to that argument and I don't see how it can be relevant to this matter. defend that issue. It would be difficult for him to MR. KOENIGSBERG: Right, but I'm just going cap cap to point out one thing. The virtual imaging case -- The Supreme Court case. MR. KOENIGSBERG: The Supreme Court case, Justice Pariente, page of the opinion indicated specifically the fee schedule is an option. If you want to exercise that option, you've got to have -- it's a method. It's not the option. If you want the option, you have to put it in your policy and let us know that you're going to do it. no, So what we're getting in this affidavit, is the method that's available. I don't quarrel with that exercised at all. But the option wasn't exercises. So what you no, basically have here, is an attempt -- in paragraph -- to call the Medicare fee schedules -- now it's common knowledge in the community that Medicare compensation

11 are a substantial percentage of reimbursements as are Tricare. What does that tell us other than just being add? conclusive. How does this witness even know that? And even if that is to be the case, this Court has no evidence before it of any fee schedules. No evidence before it of any data. numbers. No evidence before it of any So what we're basically getting here is, let's just create a factual issue because our policy's got Medicare and workers' comp in it. Well, your policy doesn't have Medicare. Your policy says you can consider fee schedules, which you can, if you did, but you didn't. It also, you know, said that -- doesn't say you can consider workers' compensation either. So you're stuck with a situation where an adjuster has given no knowledge whatsoever or any ability to have any knowledge of the community, is basically saying it's common knowledge that these things are out there and that we should consider them and, therefore, there's a factual issue. Well, the reality of the situation is, the Court has already entered a protective order in this case indicating that those blanket statements weren't

12 discoverable. And it's very similar to a trial you had in this particular case with Mr. Alvarez. Judge, I really must object. It's eating beyond the time that is allotted. not evidence. It's just I may have had a jury trial with Mr. Alvarez, and I've probably had in my life as a judge, so I couldn't tell you from week to week, month to month, which Alan Alvarez case -- MR. KOENIGSBERG: Understood. Forgetting that, the relevant information is, standing alone, a blanket ^, you know, you've this or done that, doesn't come to life. There's nothing before us here. Virtual versus precludes it. Adkins verse Allstate says that Medicare is not insurance. Lescano is another opinion, which is from the Eleventh, which indicated that the affidavit of the adjuster relying on Medicare and workers' comp cannot be used, because you didn't elect. And it goes back to indicated that if you want that method, as Justice Pariente said, put it in your contract. And therefore, it can't be relied upon on. So on the base of that, respectfully I don't believe there are any issues here that would create factual issues for determination of pricing other than what has

13 And by the way, the deposition in this matter, which plaintiff's counsel referred to, was not noticed as summary judgment evidence in this matter by the plaintiff. And it couldn't have been because it wasn't taken at the time that they filed it, nor did they at any time subsequent in a timely manner give notice of their reliance, so the Court can't consider whatever testimony Mr. decided to put in this more recent affidavit, Judge, because it just hasn't been noticed -- Actually, Mr. Arrue, I'm confused about what you just said. Let me clarify. Once before in my life as a judge, I actually disregarded a transcript that yet had been not transcribed but was completed. In other words, the deposition -- I don't think it was a medical PIP case. It was a contract case, but there was a deposition that one of parties wanted to use to defend the case. They had taken it four days before the hearing. The transcription wasn't expedited, so at the time I didn't allow that party to use that deposition or even refer to it at the time because they didn't have it. I've been reversed by the intermediate level court, one of the possible few reversals that I firmly There believe might have been merit. They're aren't that

14 many, but there are a few. This one actually was -- the idea behind it was that I should've held an abeyance of my ruling 'til the transcription could have been provided, read it and then made an informed decision on the matter. So with that being stated, you're suggesting add, that at the time that motion was filed Mr. 's depo hadn't yet been taken but today is here in front of me? Yes. However, the distinction is, Judge, in your case you did not admit evidence for the nonmoving party, the party defending the motion. It wouldn't matter which party it was. It does. I think I learned my lesson. It does under the rule. Because the Rule For Civil Procedure.0 is strictly applied to the moving party. The party that is seeking to deprive the nonmoving party of its constitutional right to a trial by jury of its peers merely with paper, just saying this is what somebody said. The Supreme Court invented the rule, not me. Read to me the rule, please. Maybe I'm overlooking something. Yes, Judge. The rule is, the

15 moving party is held to a strict standard. The pleadings and the proof supported by such motions are strictly construed against the movant, while those opposing the motion are leniently treated in determining whether the movant has satisfied the burden required of him. Citing McKean v. Kloeppel Hotels Incorporated, So. d, First DCA case from. understand the logic, Judge -- And we can Why can't I consider 's transcript today in my case? They didn't notice it. They didn't -- timely noticed it, days before that they were going to rely on that, so we're entitled to be prepared to rebut. I didn't preamble the rules so cap the court may consider all the discovery up to the point of the hearing -- They must notice it, Judge. Let me read that section of the rule. I'm not familiar with that. Is that true? Judge, I have the rule. I believe that any discovery that has been obtained between the parties is a matter of reasonable notice to one side or the other. You

16 don't want to have an opportunity where somebody is being, quote, ambushed at the hearing. But if you all keep together have engaged and completed formal discovery of Mr., the minute that deposition is concluded, I think that is fair game for summary judgment. MR. KOENIGSBERG: The Court has to consider it. Judge, let me point out, in subsection C of Rule., motion and proceeding thereon, the motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions and other materials as would be admissible in evidence. They have to tell the nonmoving party. They didn't refer to it in their motion? We hadn't taken it. No, because it was impossible. So, Judge, that's why strictly applying the rule they can't use it. But I'll tell you why the Court should not substantially admit it. Because Mr. 's testimony prior to this deposition was contrary, was different.

17 Slow down. If you want to point out the incongruency of the affidavit versus the depo, we have to consider the depo. You don't want to point that out, then only look to the affidavit or only look to the depo, whatever you invite me to do -- I don't want you to look at the depo. Mr. Koenigsberg would be given an opportunity to respond momentarily. Since I've been listening to all the other arguments being made here today and the evidence, I have not had a chance to read the depo. I did have a chance to read the affidavit, which was courteously provided to me by the attorneys here today. I've also been reading your case authority. I will ask the Court to refer to a prior affidavit of Mr.. that's not in my case. In my case? No, in another matter. I can't consider that because In another matter. And the cap defendant noticed it as a summary judgment evidence upon which it relied -- In this case? Yes, Judge.

18 cap The defendant did? Yes, Judge. Again, before we start reading from something that wasn't pertaining to the discovery in my case, exactly related to my case versus something that was obtained in another case -- don't forget we've catch-all got that catchall, at least at trial, saying that any affidavit -- I'm sorry -- any deposition transcript can be used at trial, generally speaking, whether in or taken in or not taken in my case as long as it has evidentiary value. At this point tell me why I should be considering Mr. 's affidavit in a totally different case before we start reading from it? prior affidavit -- Because what he says in his should I consider it? Don't tell me what he says. Why -- is contrary to what he's saying now in his affidavit. We're not comparing apples to apples. Yes. You said you noticed it so you provided a copy to Mr. Koenigsberg and Ms. Blackwell.

19 Actually, Ms. Blackwell is the attorney on both matters, so she is aware. That means she remembers it? No, but I did, I noticed it and I filed them and served them in this matter, Judge. Do we know what he's talking about? MR. KOENIGSBERG: I don't believe I have seen it. a I'm going to take brief recess. I'll be right back. (Brief recess.) MR. KOENIGSBERG: Judge, I think, to clarify, Mr. Arrue did provide a copy of the transcript that he wants to discuss. I think there was a potential problem with consideration of it. And I don't know whether it's something we should talk about before he discusses the content of it. Essentially, simply put, there is content in that deposition transcript that talks about Medicare and workers' compensation and those things. Where in this case the Court has entered a protective order, which indicated that we were not going to provide any evidence and those sorts of things. Mr., I did have a

20 chance do read his affidavit, which was already discussed before me in my case, and he refers to that, I think. Yes. So there's the problem, and I wished no, think it may be that had we wish to strike certain, particular references in 's affidavit, then we might have arguably done that before today. It's already before the Court. So I'm going to go ahead and let him do so. But the same problem exists with 's affidavits, because he discusses both the affidavit and the testimony in conflict, the incongruity of also like of Mr., so I think it's all in. I mean, 's already put it in front of the slain? Court, but for the fact that I hadn't slay paper pine trees by reading everything before I walked there, I would've already had read Mr.. In the interim I was able to do so I don't think -- MR. KOENIGSBERG: It doesn't matter anyway. I think we should go ahead. add, You're opposing the use of the transcript but I think you were trying to show me that there was inconsistencies in the testimony, and I'm happy to listen to that. To clarify, Judge, I'm opposing

21 the affidavit of Mr. gave in a prior matter. with the testimony he Because at the time that they filed the affidavit and their motion for summary judgment, the affidavit of Mr. in this matter was not available. It had not been taken. one thing. The affidavit is The transcript is what you oppose me looking at, because you said it was never taken before they filed their motion? It was never noticed by the plaintiff. My argument is they can't use it. I'm overruling your objection to that because I believe, in light of everything that I stated earlier, in my life from an appellate viewpoint from them looking down at me, I think I would be hard pressed not to do so. Second, I don't believe there's any prejudice to and its fine lawyers because two words they have had this for quite sometime and they have wished known about it. Had you not wish them to do so before, you? they should have moved to strike it earlier. Option two, not noticing it, in and of itself, clearly, you're well being able to handle that presentation of that transcript in this case. He would be able to use it at trial. That's another aspect of

22 it. I agree, Judge. I don't think we can so strictly read the rule to otherwise determine that he can't use it. I think we all agree with that knowledge. Do we have any appellate case authority -- Yes, I just cited it to the Court. -- that That did not allow a transcript to be used that was previously taken prior to the hearing, whether or not they noticed it in the motion, and you read the rule to me? interpretation. I disagree with your It said it must specifically identify any affidavit -- any depositions. law is the rules strictly apply. Okay. Let me ask. And the case Judge, it's not a big deal. It would come in at trial, but today's hearing is what I'm concerned concern with. I agree. I totally agree. Stop. You read the rule correctly, Mr. Arrue. I know you can read. No problem. Thank you. If it is that important that I

23 understand the testimony of and the transcript -- when unfortunately these things do arrive and it could create -- and I don't like creating appellate error. I don't want to make a problem for the appellate court or a mess to clean up. Second, the parties should be able to fight their fight on the merits, so to speak. In this case, if Mr. Arrue is saying, basically, it's prejudiced to him to have not been noticed in the actual motion itself of the transcript, which I'm still not clear was or was not available at the time that the motion was filed and served upon opposing counsel, then it would be prudent, as it is always prudent, to let the discovery to be completed in those other more common run-of-the-mill problems we suffer with. -- somebody didn't get a depo taken at all and they still need it. That happens all the time around here unfortunately. But in this case, Mr. Koenigsberg, do not utilize the deposition transcript of. If I were to suggest to you that rule seems to indicate you have to notice it and not to do so would be unfair to him, he would like not to have to face it today. That doesn't mean he's not going to face it, but he doesn't have fact today. And I'd have to reschedule this. But to properly amend your notice of filing and list

24 I feel that, once one party has noticed they're going to utilize certain evidence taken in a obtained case, fairly before the Court, fairly due process obtain between the parties, I should not have any concern of appellate review of a negative manner. Thank you. So if I might proceed, Judge. Now, the motion to strike 's affidavit -- Was that set for hearing for today? It was noticed as -- in opposition to summary judgment. this -- We were not able to set I can't grant it or deny it today. He's had no proper notice of that. It's not on the calendar for today. Judge, he's had proper notice because I noticed this in opposition for his summary judgment today -- I'm sorry. I don't agree to have that argued. Because, listen again -- see, I'm really struggling here with the idea that procedurally we want to have things removed from the Court's consideration. And if that is the case, and we need to have these things heard before we go forward with the motion, then we have to do so. So, Mr. Arrue, one of my

25 famous reversals -- This is pure argument. One of your old clients -- got me to go on allowing evidence to be no, removed on the morning of trial saying, she was being ambushed, and I got reversed on that. The real ambush was as to the plaintiff on the morning of trial, not the other way around, at least in the eyes of the appellate court. So why should I strike an affidavit now? I'm not asking the Court to strike -- I'll tell you why, because I get to argue this. This is pure argument. This is not evidence. A motion not heard before the Court is almost like a PCA, it says nothing. Judge, I would be entitled to ask the Court to strike his affidavit ore tenus in defense of summary judgment. I don't think that's fair and reasonable under the circumstances. that today. We're not here for Judge, I get to attack his affidavit. Not with a motion. If you want the motion heard, they have to schedule them on my

26 calendar and have it heard. You're trying to limit his ability to present evidence in the case. No, I'm attacking the affidavit that he is submitting to the Court as sufficient and competent evidence. I get to do that. I get to point out where it's hearsay. That's fine. You can argue. You can argue to me that the affidavit in some way -- he argued earlier that your affidavit of Mr. conclusory. was Yes, Judge. You're more than welcome to argue legally why I should not consider affidavit of. If you want it to be by way of a motion to strike the affidavit of different., that's To give you an example, Mr. Koenigsberg just where now cited a case whether he said that they couldn't tell or that the judge totally disregarded someone's affidavit. So you either trust me or don't trust me to weigh the evidence, weigh the particulars of the its affidavit, consider the affidavit and it's moderately, minimally or gargantuanly conclusory nature, if that's what you're attacking. So you're more than welcome to argue it, I

27 just can't rule on your motion because it's not fair to them. It wasn't set for hearing today. Judge, it was noticed to them as summary judgment opposition. By the rule, they've had notice that I was going to raise it. It's been filed for weeks, if not months. my argument. And it's just memorializing They may have had notice of it, but I had none. My clerk had none. It was filed with the Court. I'm going to let you speak. You finish what you want to say and then you let me finish what I'm going to say. Judge, I want to attack his evidence is all I want to do. All this does, Judge, is put it in writing. Everything that I would be arguing here, just in case there's not sufficient time for me to argue it all, the Court has it. It's in the record. It has not been argued before the Court, before the proceeding. If it is indeed what you contend it is, I haven't even seen it, because it hasn't been passed up to me. At this point, a motion to no, strike has to be heard, if you wish to have something stricken. You can't simply ore tenus say, I want to strike his affidavit.

28 On the other hand, since you're not willing to let me -- take me up on my invitation, which is to argue that if somehow invalid, in terms of evidentiary effective in this case, that's a different issue. May I do that? On the other hand, if you want that motion heard, respectfully, denied. I think you're attempting last minute to ambush the plaintiffs with it at this hearing. Had you noticed yesterday and I heard it, by all means, we could've ruled upon it one way or the other. Judge, may I attack the evidence? I don't know what you're talking about. May I -- I think your clients hired you to do that. Mr. 's affidavit, recited? Judge, now despite what counsel resided to the Court, the Court must restrict itself to the four corners of this affidavit. This is the admissible evidence. Counsel's statement are eloquent arguments, but they're not evidence on which this Court can rely. When you read the affidavit of Mr.

29 , he says -- it's based on his personal knowledge within the meaning of Florida Statute 0.. I don't know what that means. his personal knowledge. However, he's defining how he got He states that his charges were established as a result of -- an oral survey by me in 0. "An oral survey by me in 0" is hearsay. It is hyphenate statement? an out of court statements for the truth of the matter asserted that he generated his prices from that oral survey -- that is not before this Court. There is no transcript of it. There's no recorded recollection that Mr. could have made. There is no business record that he could have put together to provide the Court. And what's missing also from this statement, that it's an oral survey, is any data that would its indicate it's reliability. He doesn't say who he surveyed. He doesn't say what he asked, what they codes responded, what CPT coded he asked about, did he ask for just charges or reimbursements, so there's no idea. The rule requires that the affiant must show the Court he has personal knowledge, not just state, I have personal knowledge. Mr. may believe he has personal knowledge, but he hasn't shown that to manner? the Court in a matter sufficient to deprive my client of its right to have Mr. face a jury and answer

30 questions before the jury. Now, Judge, that alone is hearsay, it's inadmissible at trial. Therefore inadmissible at summary judgment. Once more, Judge, there's no data in here. He doesn't cite any numbers that say some other providers charged this and accepted this. The documents that he attaches are Allstate documents, which I don't think are properly authenticated, nor can he authenticate them. But in case the Court allows them, they're explanation of medical bill payments from Allstate. problem with these documents, Judge, is we don't know The what the Allstate policy read. We don't know what the terms of that policy indicated, whether they would pay 0 percent, 0 percent,,000 percent of what was charged. We don't know any of that. So the fact that plaintiff fails to produce it, the Court can only make inferences in favor of the nonmoving party. We must infer that this policy is different one word and in applicable. So the Court can't use them, 's add, Allstate explanation of review to judge a payment that's based on a different policy. And while I'm on that subject, the Lescano case was tried on a 0 policy of insurance from United. We're talking about a policy from which includes

31 language about the use of the fee schedule, Judge. So this is a breach of contract claim at its heart and the Court must look at the policy and how Florida law regulates that policy. It can't use Lescano to say Medicare is not admissible here because puts it in its policy, and I'll provide the Court a of copy of the relevant policy provisions. But moreover, Judge, in a deposition which has been filed with the Court, submitted, served on the parties and noticed as evidence in opposition to summary judgment, Mr. was asked on line of the affidavit that he gave in the matter of -- Page? keep together I'll cite to the Court -- page, line through is the testimony that I'll be referring to. That is in the deposition of Dibia Padilla (phonetic). I have his transcript and the transcript was taken January,? That's the deposition in the instant matter. This is a prior matter. And if I may approach, I have a copy for the Court. keep together I also have the policy of Mr. add -- 's affidavit has attached, I believe. Yes, Judge.

32 spacing -- as Exhibit A. deposition of On line, page of the, line, he's asked, "Earlier you testified that your prices are based on your fixed cost to operate this place." "Correct." His response on line, correct. Line he's asked, "Is there anything else you took into account?" Line he responds, "Apart from the??? operating cost of the company, yes." He's asked. add " add " On line, he said, No, only that. This deposition was taken, Judge, contemporaneous -- it was taken back in -- the deposition would have the date, Judge. But this was the evidence that was available at the time that the its plaintiff filed it's motion for summary judgment. This was taken January th,. Right, Judge, but the claim that is contemporaneous with this claim -- Yes. So, Judge, at the time that the motion for summary judgment was filed, Mr. 's testimony under oath was that he only did a, I guess, cost analysis, a cost accounting and that's how

33 Note: This reads as a paraphrase more than an actual document quote. It would be up to the reporter to determine if this was actually reading or not, which may be difficult to do since they don't usually get copies of these documents during hearings. he determined the charges. He was asking, is that the add, only method and he said yes. Now, in his affidavit, he wants to make it an oral survey of other providers, so he contradicts 0 himself in a manner that is impermissible. And whether it can be explained or not, Judge, perhaps it can, but it hasn't been explained in the evidence currently. Just that alone creates a genuine issue of material fact, Judge. Because when there are issues of credibility, the Court can weigh -- it can't weigh or assess the credibility. It just must punt. It must say summary judgment is inappropriate. That's it. Just based on that. Because the Court cannot get into the weighing of the Mr. 's credibility. That's for the jury, not for summary judgment. So on those grounds, Judge, I say that the affidavit of, the only item that they filed add, in support of summary judgment is insufficient to deprive the defendant of its right to a trial by jury of its peers, its constitutional rights. Furthermore, now, I know that the Court issued a motion for protective order, but we're not before the jury. The Court severely limited the its defendant in it's ability to inquire about Medicare keep together reimbursements, workers' comp, any HMO and PPO for Mr.

34 . Well, Judge, I would argue that I respect one word the Court's ruling and its juris prudence. However, the defendant needs to have that evidence in the record whether sealed or not so that upon appeal, an appellate uncap Court can avail itself of the evidence and make a ruling. So if nothing else, that evidence should come in, interrogatories, whatever sealed, and put apart. Because otherwise, the defendant has no way to preserve its due process right. One second. Before you leave no, that thought, I think what you just are doing, was trying to reassert the argument that he should be entitled to do so, so I will have to reassert my ruling which was denied as to that evidence being presented here today or at trial, based on the case of Laser Spine which is a Second District Court of Appeal case. It's found at WL 0, First DCA, or at Florida Law Weekly D sub(a). Okay. I'm familiar with Laser Spine, Judge, but I would argue that the Court's interpretation does not apply. Laser Spine -- It's in opposition to this situation in We're not rearguing. I'm just citing the -- I'm reaffirming my decision not to

35 allow and that's the case that I'm citing. Let's move forward. Further on, Judge, the defendant filed a motion for compulsory judicial notice of the Florida Statute and state and federal fee schedules add. cap pursuant to Florida Evidence Code given notice and the identification of the materials sought to be judicially noticed, the Court is compelled to take judicial notice of Medicare -- Any objection? MR. KOENIGSBERG: Yes, Judge. First, it's not set for hearing. It has never been set for hearing. The thing is, just because you file a motion doesn't mean it comes in. here. And that's the reoccurring theme This not a motion. This evidence summary. This is summary judgment evidence. You filed that with the clerk of court? Yes. Would you like me to take judicial notice? That's what my question is. Any objection to me taking judicial notice of the other relevant guide approved currently by the Florida Legislature for this Court's consideration of payment of

36 PIP insurance? MR. KOENIGSBERG: I do for the simple reason that the motion that's filed cites to a Medicare statute, cites to one line of it. And the line that he, I believe, was trying to have the Court take judicial notice of was the proposition that Medicare is insurance. What Mr. Arrue has not done, respectfully, he has not filed the actual fee schedules of either Medicare or workers' compensation before the Court with the? numbers and data, so a Court can see a CPT code of this or an X-ray of this -- just the information, the information that was provided to us is merely -- To the degree that the Court -- I understand your argument. To the degree that the Court find that he has filed it timely before the Court. Second, it is a public record. I can go back and look Westlaw at West Law right now and look at the workers' comp fee schedule -- MR. KOENIGSBERG: I understand. So I don't think there's harm, se per say, to the plaintiff and the Court doing so at this point. So I will agree to do so even though the motion wasn't heard before today. I think that's kind of something that is of public record. Anything further?

37 To correct the record, because Mr. Koenigsberg said there was no numbers. It was just one line. On the contrary, we included a summary showing the CPT codes, the charge rate, Medicare rate, Florida Workers' Comp, Tricare rate and what paid. That's good. For the record, what exhibit are you referring to? Exhibit A of defendant's motion Statute for compulsory judicial notice of Florida Statue and state and federal fee schedule. And we back that up with the printouts from the websites, Judge, and plural exhibits from each of the three fee schedule referred to. Again, that motion and all the exhibits attached have to be given to the Court as a copy, please. Because we don't have enough paper, of our reams of paper provided monthly to this Court to two words operate, to printout all the extra exhibits. Thank you. Now, Judge, to sort of correct the record, again, Mr. Koenigsberg said that Medicare is not health insurance. So I also filed a motion for compulsory judicial notice under Florida Statute. I'm asking the Court to take judicial notice of public statutory law and resolutions of the Florida

38 Legislature and the Congress of the United States. Specifically, I'm asking the Court to judicially notice cap title of the US Code Chapter, subchapter, part initial cap document title B, which is entitled, supplemental medical insurance aged? benefits for agent and disabled. Any objection? According to Morson's, document titles should also be quoted after lead-in words such as "entitled," but each reporter may have their own preference. MR. KOENIGSBERG: I do for two reasons. Number one, the proposition of judicial notice and the document would warrant that the entire provision, not snippet, just one snip-it be provided. Reason being -- Let's not rule on it now. I'll take my appellate decision that's already ruled on and that I've ruled many moons ago. What I'm going to do, I'm not going to make a ruling in your case today. I'm going to let you finish your argument today. But I'm not going to make any ruling, Mr. Arrue, on that one versus the other one, which is much more, shall I say, common knowledge amongst all the county judges in the uncap State of Florida, i.e., workers' comp and the Medicare Part B fee schedule. So this is slightly different. I'd like to have that argued. I'll make a ruling on it. That gives him a fair opportunity to file a written response. There was a fair opportunity because I provided notice of this. Note: The word "state" does not get capped when appearing before the name of the state unless it is being used in a corporate sense, such as "The State of Florida distributes driver's licenses," versus "I am licensed to drive in the state of Florida." Morson's

39 Of the motion itself? Any objection? It has been filed. MR. KOENIGSBERG: I don't have a problem with that. I'd like Mr. Koenigsberg within ten to please file a written response. MR. KOENIGSBERG: I will provide the Court with a copy of the Adkins versus Allstate because I think that would be the biggest -- We have that and you have addressed that in your argument. MR. KOENIGSBERG: You know what, I'm not getting ambushed today. Yes, it is insurance. In fairness, Mr. Arrue says, I want you to know Medicare is insurance. The Third DCA says Medicare is social insurance. Okay. But it doesn't constitute insurance. So we're not going to play with words. That's that case. That's the holding. That's the law. That's my argument. I will address it in more detail. So that point that you cited earlier, it was in the brief, was it not? It was in their motion, yes. Therefore, no harm, no foul. Again, in the public record and we can all look at it in

40 Westlaw West Law. Judge, in specific rebuttal to the Adkins case from the Third DCA Florida Court, ruling on what the legislature has said is insurance, the federal courts have chimed in, Judge. And specifically in the United States Court of Appeal for the th Circuit, docket number -- let me just cite the style. It's Baker County Medical Services versus U.S. Attorney General. Judge, this case clearly sets forth, and it was decided August th of, which is certainly more recent than the Adkins case -- quite plainly and clearly, that Medicare is health insurance. provide a copy of the case to the Court. I'll Clearly if there is a doubt in the Court's mind as to what Medicare is, that's enough. That's enough to stifle a motion for summary judgment. The Court must make every inference, every single inference in favor of the nonmoving party and can make no inferences in favor of the nonmoving party. Because what's at stake here is one party's constitutional right to a jury deciding the facts and that shouldn't be taken away if there's even a feather's weight of doubt. So, Judge, finally, the defendant also filed a motion for inference, presumption and a jury instruction. And, Judge, at summary judgment, as I've

41 stated, the Court must make all the reasonable inferences in favor of the nonmoving party. Now, Florida Law on presumptions entitles a party to a presumption. And the rules specifically stated that nothing will prevent an inference that is proper. In this case, Judge, the plaintiff withheld its information of it's usual and customary charges and payments accepted when it submitted its claim. When asked them to provide additional data to add, substantiate their charge in its explanation of review the plaintiff opted not to either elected or didn't have the data, so it didn't respond. When it filed its add, demand it did not attach any information to substantiate its high charges. Well, from those facts, Judge, and throughout discovery in this litigation, they have refused, objected and declined to produce evidence of Medicare rates, workers' comp rates, HMOs, PPOs, even any other PIP reimbursement below their charges. flat out refused. From those facts, Judge, we're entitled under the case law to the inference that they're not add, producing this evidence because like a child that doesn't bring home his report card, it's not because They Note: "flat-out" is hyphenated in MW as an ADJECTIVE; however, it's in MW as two words as an ADVERB, which is how it's used here. Make sure the part of speech for the word definition matches how it's used in the sentence. he's got straight A's. It's because there's a D or an F

42 0 and they don't want their mother to know. Same here. keep together I'll refer back to the testimony of Mr. in the deposition that I cite in the previous case where counsel for the plaintiff herself pursued the line of inquiry. trying to locate my motion. And, Judge, I'm just Pursued a line of inquiry to show that the plaintiff indeed accepts Medicare reimbursements. What page? This is the deposition taken on January? Yes, Judge. I'll cite to page -- excerpt at page, line, where he's asked: "Do you expect when -- do you have an agreement with no " Medicare or Medicaid?" "ANSWER: Yes. "And in that agreement, that contract that you have with both Medicare and Medicaid, comma, do you have the expectation to have a multitude of patients coming into your facility in order to have, comma, you know, comma, more patients and more billing so you could have more income coming into? Note: Use quotation marks only at the beginning of every new paragraph of material that is continuously quoted. At the conclusion of the entire passage, use final quotation marks. Morson's, Gregg (b)() "ANSWER: Definitely, wherever the facility have a provider with Medicare, comma, many Medicare patients come in." Note: The letter "A" from a transcript Q&A is being read as the word "Answer." It's okay the have this as part of the quote. Morson's Note. That's the testimony that he accepts

43 Medicare. Judicial notice already to the Court shows you what Medicare pays for the same service that he's charging here over ten times. Line, "QUESTION: And you rely on that ability for Medicare and Medicaid to bring a lot of patients to your place, correct? "ANSWER: It's not that Medicare brings them in, comma, but the thing is that there are more patients from Medicare, period." "And And it continues, and that's why you can accept a lower amount from Medicare because of millions of patients that the particular entity has in order to come into your facility, correct?" There's an objection from Mr. Negron. The "Correct." witness responds, correct. add, a Judge, by his own testimony he accepts substantial amount of reimbursements at the Medicare rate for these services that he charges much higher amount. It goes on. end " "And don't you have that -- a I'm curious. Maybe either of you can answer this, does this facility, a contract with?, have The contract is the policy. That's what binding the parties, Judge. 's

44 policy. They accepted an assignment of a policy of insurance when they treated this patient, so that's what they're bound to. That policy, Judge. And it goes on and it talks about Medicaid and same the arrangement with Medicaid. And then it talks about on line of page, "And you also testified that you accept private insurance, for instance, HMOs, PPOs; is that correct?", "Correct." He says correct. "QUESTION: Do you have written agreement with end " those private health insurer carriers?, "Correct." He answers correct. "QUESTION: Are you placed in their network?" "With And he answers, with the ones that I am end " "Yes." working with, correct, and he says, yes. "QUESTION: And did you enter into those agreements with those private health carriers, HMOs and PPOs with the understanding that you'd be exposed to obtaining more patients and because you're getting more patients you can contract for a reduced price in your end " billing?, "Correct." The witness answers correct. So, Judge, clearly there is evidence here that would show that this provider accepts reimbursement

45 it's for the same charges, for the same services its charging over ten times more. It routinely accepts lower reimbursement, Judge. And according to the policy keep together of insurance, which we filed with the affidavit of Ms., and according to Florida Statute. sub, which sets out the factors by which a determination of a reasonable price will be made, which is the usual customary charges and payments accepted by the provider involved in the dispute. You can't take just the charge. That's only half of the question. You have to take the charge and the payment accepted. You can't disaggregate this data it and its still maintain its truth and its meaning, Judge. and? Second, state federal fee schedules reimbursement rates in the community. There's no comma between those two statements in the legislative language. Although the Virtual opinion somebody inserts a comma in there. Judge, that is because reimbursement rates in the community -- state and federal fee schedules are evidence of reimbursement rates in the community. Because when we consider that the state and uncap federal fee schedule are Medicare, Medicaid, Workers' uncap Comp and Tricare, if you add up those four payor they probably account for at least over 0 percent of all medical reimbursements at any given time throughout the