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United States ex rel Suter v. National Rehab Partners Inc.

March 23, 2010

UNITED STATES OF AMERICA EX REL., CHERI SUTER AND MELINDA HARMER, PLAINTIFFS,
v.
NATIONAL REHAB PARTNERS INC. AND MAGIC VALLEY REGIONAL MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it Relators' Motion to Exclude Certain Testimony of MVRMC's Expert Witness, Georgeann Edford (Docket No. 182) and Defendant Magic Valley Regional Medical Center's ("Magic Valley") Motion to Exclude Ronald H. Clark's Expert Testimony Pursuant to Federal Rule of Evidence 702 (Docket No. 184). The Court conducted a hearing on the motions on March 8, 2010 and now issues the following decision.

ANALYSIS

As an initial matter, the Court notes that the issues before the Court at this point are limited to whether Relators' expert, Ronald Clark, will be allowed to testify at trial as a damages expert, and whether Magic Valley's expert, Georgeann Edford, will be allowed to testify at trial regarding whether impermissible group therapy occurred at Magic Valley's Transitional Care Unit ("TCU"). In their briefs and at the hearing, the parties spent considerable time addressing related, but distinct, issues concerning the legal standard on damages and Edford's potential testimony on other areas. However, those issues are not before the Court at this time. They will be addressed if and when necessary as we approach trial in this matter.

I. Rule 702 Standard

Whether and to what extent Clark and Edford may testify at trial is addressed under the well-known standard first enunciated in Daubert and its progeny, but now set forth in Rule 702 of the Federal Rules of Evidence,. Rule 702 establishes several requirements for permitting expert opinion. First, the evidence offered by the expert must assist the trier of fact either to understand the evidence or to determine a fact in issue. Primiano v. Cook, --- F.3d ---, 2010 WL 788906, *3 (9th Cir. 2010); Fed. R. Evid. 702. "The requirement that the opinion testimony assist the trier of fact goes primarily to relevance." Id. (Internal quotations and citation omitted).

Additionally, the witness must be sufficiently qualified to render the opinion. Id. If specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified by knowledge, skill, experience, training or education may offer expert testimony where: (1) the opinion is based upon sufficient facts or data, (2) the opinion is the product of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. Fed. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

The inquiry is a flexible one. Primiano, 2010 WL 788906, *3 (9th Cir. 2010) Ultimately, a trial court must "assure that the expert testimony both rests on a reliable foundation and is relevant to the task at hand." Id. (Internal quotation and citation omitted).

II. Motion to Exclude Certain Testimony of Georgeann Edford

Relators contend that Edford did not consider sufficient facts or data, and that her opinion is not the product of reliable principles and methods. With respect to insufficient facts or data, Relators primarily contend that Edford disregarded or ignored the physical therapy daily flow sheets. However, a review of Edford's report and testimony reveals that Edford considered the patients' complete medical records. She considered the daily flow sheets and their context in the complete medical record; she just disagreed with the accuracy of some of the information in the daily flow sheets -- specifically, when therapy occurred. (Edford Report, pp. 19-28.) Ultimately, Edford determined that 54.8% of the complete patient records she reviewed contained time conflicts. (Edford Supp. Report, pp. 1-3).

With respect to methodology, Edford bases her opinion upon a statistically valid audit of the physical therapy services provided in the Magic Valley TCU from October 1, 1998 through September 30, 2000. (Edford Report, pp. 17-35.) She indicates that she applied audit procedures outlined in the Medicare Program Integrity Manual and designed the sample using the Office of the Inspector General's Audit Service Statistical Evaluation Program known as RATSTATs. (Edford Report, pp. 1, 17, 22.) She evaluated patient records based on the policies and procedures of safe practice by the American Physical Therapy Association, the Joint Commission on Accreditation of Health care Organizations, the World Health Organization, and the Centers for Disease Control. (Edford Report, pp. 24-25.) Edford also evaluated the provision of therapy services in the TCU by relying upon the Medicare Fiscal Intermediary Manuals for Skilled Nursing Facilities, the Medicare Reimbursement Manual, Transmittals and Program Memoranda published by the Centers for Medicare and Medicare Services, and other regulatory materials. (Edford Report, p. 25.)

Under these circumstances, Edford relied on sufficient facts or data, and her opinion is the product of reliable principles and methods. She is therefore qualified to testify about the general process for assessing therapy patients and assigning them to Resource Utilization Groups, as well as the framework for Medicare reimbursement of skilled nursing facilities.

Relators do not necessarily take issue with this conclusion. Instead, Relators seek to prevent Edford from testifying about whether impermissible group therapy occurred at Magic Valley's TCU during the pertinent dates. In this regard, the Court agrees with Relators. Although Edford attempts to testify that patient outcomes support her contention that there is no evidence that inappropriate therapy minutes were billed, Edford offers no empirical basis for her conclusion. She does not offer any empirical evidence that, notwithstanding the ...


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