Using your opponent’s expert’s report to defeat summary judgment.

In North Shore Medical Center v. Cigna Health and Life Insurance Co. (11th Cir., No. 22-10514, 5/25/2023), the court held that the plaintiff’s expert’s report created a triable issue of material fact, and consequently the district court should not have granted the defendant’s motion for summary judgment.  In a concurring opinion, a member of the panel pointed out that one section of the defendant’s expert’s report supported the plaintiff’s position on the triable issue and hence was an independent reason for denying summary judgment.

The dispute in North Shore concerned payment for out-of-network healthcare services.  Florida law requires hospitals to provide emergency care to all comers.  If a hospital is not in the patient’s insurer’s network, the relevant statute requires the insurer to pay the fair market value of the emergency services “in the community where the services were provided.”  The plaintiffs – eight hospitals located in seven different cities across two South Florida counties – sued Cigna because it was only paying them 15% of what they were billing for out-of-network emergency care, which they asserted was far less than the “community” rate:

To support their contention that Cigna lowballed the “community” rate, the hospitals put forward an expert who pegged the relevant figure at five times what Cigna paid [i.e., 75% of the amount billed].  In forming that estimate, he…considered…the out-of-network rates charged by the eight plaintiff hospitals…. [H]is final estimate of the “community” rate for the out-of-network services was based entirely on the eight plaintiff hospitals’ data.  Cigna sought summary judgment, contending that the expert’s estimate proved nothing about the statutory “community” rate because it relied exclusively on the eight plaintiff hospitals’ own information.  The “community,” Cigna insisted, must include more than just them.  The district court agreed….

Summary judgment was inappropriate here for the simple reason that a genuine dispute exists over the core factual question in this case: What are the “usual and customary provider charges” for services like those that the eight plaintiff hospitals rendered to Cigna’s insureds “in the community where the services were provided”? Fla. Stat. § 641.513(5)(b).  Cigna seeks to sidestep that dispute by claiming that, as a matter of law, the plaintiff hospitals here belong to a “community” that spans all of Palm Beach and Miami-Dade Counties, and thus that any estimate of the relevant “community” rate must account for data from other Palm Beach and Miami-Dade providers…. [But] even if Cigna is right that the “community” covers the entirety of those two counties, the plaintiff hospitals’ own data are enough to create a genuine dispute about the “usual and customary” rates in that area….

Whatever the term’s precise Platonic meaning, the “community” issue in this case belongs in front of a jury.  Even if the word “community” means everything and exactly what Cigna claims – i.e., all providers in Miami-Dade and Palm Beach Counties – a jury could, based on the plaintiff hospitals’ data alone, reasonably infer that Cigna had failed to reimburse the required “usual and customary” rates in that community.

…. Cigna insists – and we’ll accept for present purposes – that there are “over a dozen other providers of ER services” in the two-county area.  But we can see no reason why, as a matter of law, eight good data points – out of, say, 20, or even 30 – can’t support a reasonable inference about the whole set.  It’s all a matter of common sense, really.

Case closed, one might say.  But the very interesting concurring opinion takes it a step further:

Cigna’s own expert witness, Beth Edwards, provided several alternative methods for determining fair market value and figuring out whether (and to what extent) the plaintiff hospitals were underpaid.  She explained in her report that one of these alternative methods (the third method) involved reviewing payments made by Cigna for all claims submitted by Florida hospitals for emergency services from January of 2019 to March of 2021.  This review encompassed 1.687 million claims associated with 337 distinct hospital providers….

Ms. Edwards disagreed with the assertion of the expert for the plaintiff hospitals that reimbursement should be at 75% of billed charges, and concluded that this figure was overstated.  But she opined that under the third alternative method – the one which considered payments by Cigna to hospitals throughout Florida rendering emergency services – Cigna had underpaid the plaintiff hospitals….  From this data, she explained that on the disputed claims Cigna had paid the plaintiff hospitals $1,631,108, while the market median reimbursement for all providers in Florida was $2,385,024.  The difference was $753,916.  In sum, after considering payments made by Cigna to many Florida providers other than the plaintiff hospitals in the relevant markets – the very sort of analysis pressed by Cigna – Ms. Edwards opined that Cigna had underpaid by hundreds of thousands of dollars.

Cigna relied in part on Ms. Edwards’ report in its statement of material facts.  In opposing Cigna’s motion for summary judgment, the plaintiff hospitals pointed out Ms. Edwards’ report and opinion about the third method of calculating fair market value….

…. Ms. Edwards’ report does not cast any doubt on the validity of the third alternative method.  If a jury agreed with Cigna that a proper analysis of fair market value had to include providers of emergency services other than the plaintiff hospitals, it might well agree with Ms. Edwards that such an analysis would still show underpayment by Cigna.  Where a defendant’s expert submits a report providing an alternative analysis under which the plaintiff prevails, it is difficult to see how the defendant can be entitled to summary judgment. (Emphasis added.)

Cigna’s attempt to squirm out of the trap on appeal was unavailing:

On appeal, Cigna argues that the plaintiff hospitals could not rely on Ms. Edwards’ report…. [But] I know of no legal principle that precludes the plaintiff from relying on the opinion of a defense expert, particularly where – as here – the defendant pointed to its expert’s opinion in its statement of material facts.  To the contrary, a number of cases hold that, because there is no surprise or prejudice, a party is permitted to use and rely on the expert testimony presented by the opposing party…. The practical effect of an expert designation is to bring an expert and his report within the universe of material that is discoverable by all parties and, generally, admissible at trial.  Once an expert is designated, the expert is recognized as presenting part of the common body of discoverable, and generally admissible, information and testimony available to all parties.”  (Citations and internal quotation marks, brackets and ellipses omitted.)

I am certain that Cigna was represented by highly competent, very experienced trial lawyers.  But even the best lawyer can make a mistake, and this one has serious consequences.  Not only was their expert’s report used against them in connection with summary judgment, but in addition, her potential trial testimony has been compromised, because on cross-examination she will have to admit that the plaintiff prevails using the third alternative method.  In fairness to defense counsel, Ms. Edwards’ report was lengthy and complex (the concurring opinion cites page 35 of the report, and no doubt it was longer than that), and maybe there was a tight deadline (as is very often the case), as a result of which counsel either overlooked or didn’t recognize the significance of the third alternative method.  The fact is, it could have happened to any of us.  So come gather ‘round, trial lawyers, wherever you roam, and make sure you double- and triple-check your experts’ reports until you are absolutely, positively sure there’s nothing in them that could come back to bite you.


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