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United States v. Aegis Therapies, Inc.

United States District Court, S.D. Georgia, Brunswick Division

September 30, 2014

AEGIS THERAPIES, INC., and BEVERLY HEALTH & REHAB CENTER — JESUP, d/b/a Golden Living Center-Jesup, Defendants.


JAMES E. GRAHAM, Magistrate Judge.

Presently before the Court is Defendants' Motion to Exclude the Proposed Testimony of the Government's Purported Experts, Dr. Kenneth M. Nelson, M.D., and Frosini Rubertino. (Doc. 101). Plaintiff filed a Response (Doc. 122), and Defendants filed a Reply (Doc. 132). The Court held a hearing on this Motion on September 9, 2014.

Plaintiff has retained Dr. Kenneth M. Nelson, M.D. ("Dr. Nelson"), and Ms. Frosini Rubertino, R.N. ("Ms. Rubertino"), to provide expert testimony supporting Plaintiffs claim that Defendants' rehabilitation therapy services were not medically necessary. (Doc. 122, pp. 1-2). Defendants move the Court to exclude the testimony of Dr. Nelson and Ms. Rubertino under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), asserting that such testimony fails to meet Daubert's requirements for the admissibility of expert testimony. (Doc. 101, pp. 1-2, 23). Plaintiff seeks denial of Defendants' Motion on the basis that the proffered testimony satisfies Daubed scrutiny. (Doc. 122, pp. 1, 15).

In Daubert, the U.S. Supreme Court interpreted Federal Rule of Evidence 702 ("Rule 702"), which governs expert testimony, stating that Rule 702 "compels the district courts to perform the critical gatekeeping' function concerning the admissibility of expert scientific evidence." United States v. Frazier , 387 F.3d 1244, 1260 (11th Cir. 2004) (citing Daubed, 509 U.S. at 589 n.7, 597). The U.S. Supreme Court later held that "Daubert's general holding-setting forth the trial judge's general gatekeeping' obligation-applies not only to testimony based on scientific' knowledge, but also to testimony based on technical' and other specialized' knowledge." Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141 (1999) (citing FED. R. EVID. 702). Having adopted these decisions, amended Rule 702 provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. Evil). 702.

The Court of Appeals for the Eleventh Circuit has set forth a three-prong inquiry encompassing the requirements of Daubed and its progeny and Rule 702. Under the three-prong inquiry, a court determining the admissibility of expert testimony must consider whether

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Frazier , 387 F.3d at 1260 (citations omitted). The proponent of the expert opinion bears the burden of establishing qualification, reliability, and helpfulness by a preponderance of the evidence. Daubert , 509 U.S. at 592, n.10. The Court will address Defendants' arguments pertaining to the three Frazier prongs in turn.

A. Defendants' argument that Dr. Nelson and Ms. Rubertino are not qualified as experts.

Defendants emphasize that Dr. Nelson, though a neurosurgeon, has no experience in a skilled nursing facility ("SNF") such as that of Defendants, has not practiced any hands-on medicine in nearly four decades, and has no familiarity with basic terminology in the therapy records of a SNF. (Doc. 101, pp. 2, 7-14). Defendants conclude that Dr. Nelson does not understand the information necessary to evaluate patient improvement due to therapy at the SNF and therefore cannot opine as to whether Defendants' therapy services were medically necessary. (LI. at 14).

Plaintiff stresses Dr. Nelson's decades of experience reviewing medical records for health care fraud. (Doc. 122, pp. 2, 7-8). As to the terminology in the SNF therapy records, Plaintiff maintains that Dr. Nelson bases his opinions on the entire medical record, which includes not only records of therapists but also those of nurses and social workers. ( Id. at pp. 10, 15).

"[E]xperts may be qualified in various ways. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status." Frazier , 387 F.3d at 1260-61. Here, Dr. Nelson's extensive experience as a health care fraud examiner is the type of experience that would enable him to testify competently as to Defendants' claims for Medicare payment in this case.

Dr. Nelson's expertise, however, is not without limits. Given his lack of experience with SNFs, Dr. Nelson is not qualified to testify as to whether, based on the SNF therapy records, patients' medical conditions improved as a result of therapy at the SNF. Plaintiffs counsel, however, represented at the Motions hearing that the inquiry of the experts will be more fundamental: whether, based on the patients' medical conditions and capability to withstand therapy, the type and amount of rehabilitative therapy services were medically necessary. (Doc. 142, p. 31). In other words, the focus will be on the medical conditions of the patients upon arriving at the SNF and receiving therapy, not as a result of the therapy. (See Doc. 122, p. 8; ...

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