STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

v.

M & E DIAGNOSTIC SERVICES, INC., ETC.

1 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein.’” Id. “[T]he Daubert standard does not prohibit . . . expert opinion testimony based on experience.” United Auto. Ins. Co. v. Cent. Therapy Ctr., Inc., No. 3D21-58, 2021 WL 3177319, at *3 (Fla. 3d DCA July 28, 2021) (quoting Progressive Rehab., 2021 WL 3072936, at *3). “[T]he plain text of section 90.702, Florida Statutes, provides that experts may be qualified by ‘knowledge, skill, experience, training, or education.’” Id. (quoting § 90.702, Fla. Stat.). “Under Daubert, the expert affidavit must satisfy the reliability inquiry.” Id.; see Progressive Rehab., 2021 WL 3072936, at *4. “[A]ffidavits . . . which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment.” Progressive Rehab., 2021 WL 3072936, at *2 (quoting Morgan v. Cont’l Cas. Co., 382 So. 2d 351, 353 (Fla. 3d DCA 1980)). Dr. Dauer attested that he has personal knowledge and expertise regarding the range and rate of charges for medical care in the relevant community, including the range and rate of charges for radiological services provided in the area to patients by credentialed and experienced diagnostic centers and hospitals. Dr. Dauer considered the reimbursement levels and charges in the community, his own charges in the community, various federal and state medical fee schedules applicable to motor vehicles and other insurance coverages including worker’s compensation, Medicare, HMO/PPO, and other third-party insurance carriers, and the payments and reimbursements that M & E accepts from all sources. Dr. Dauer attested to conducting numerous peer reviews and obtaining extensive personal knowledge and professional expertise regarding medical care and medical charges and medical reimbursements in the Miami-Dade and Broward communities. Dr. Dauer opined, after reviewing the medical records for care provided to the insured, Omar Pinelo, by M & E in connection with the accident, that the contested charges were not reasonable. We find that Dr. Dauer’s opinion satisfies section 90.702 and is not pure opinion testimony based on speculation or conjecture. “[P]ure opinion testimony is based solely on the expert’s experience, without relation to the actual condition of the person in the relevant case.” Cent. Therapy Ctr., 2021 WL 3177319, at *3. Here, the affidavit was based on the doctor’s personal knowledge, expertise in the relevant community and evaluation of the medical records pertaining to the injured insured, Omar Pinelo. Dr. Dauer relied on sufficient facts in developing the conclusion regarding the reasonableness of charges in this instance. “His affidavit was not pure opinion and was sufficient to create a genuine issue of material fact preventing summary judgment.” See Cent. Therapy Ctr., 2021 WL 3177319, at *3. Because, based on our review of the record, there are genuine issues of material fact, we are compelled to reverse the final judgment and the order granting summary judgment in favor of M & E. See State Farm Mut. Auto. Ins. Co. v. Cent. Therapy Ctr. Inc., 46 Fla. L. Weekly D1477 (Fla. 3d DCA June 23, 2021). Reversed and remanded.