Opinion
Case No. 1:20-cv-24914-KMM
2022-01-13
NORTH SHORE MEDICAL CENTER, INC. et al., Plaintiffs, v. CIGNA HEALTH AND LIFE INSURANCE CO., Defendant.
Alan David Lash, Justin C. Fineberg, Greg Jason Weintraub, William Everett Baldwin, Ashley Paige Singrossi, Emily Louise Pincow, Lash & Goldberg LLP, Miami, FL, Jonathan Eric Siegelaub, Lash, Goldberg LLP, Fort Lauderdale, FL, for Plaintiffs. Kristen Ann Taylor, Audrey M. Pumariega, McDermott Will & Emery LLP, Miami, FL, Ameneh Bordi, Pro Hac Vice, Chelsea Cosillos, Pro Hac Vice, Dmitriy Tishyevich, Pro Hac Vice, Halle Landsman, Pro Hac Vice, John J. Song, Pro Hac Vice, Joshua B. Simon, Pro Hac Vice, Richard Diggs, Pro Hac Vice, Warren Haskel, Pro Hac Vice, McDermott Will & Emery LLP, New York, NY, for Defendant.
Alan David Lash, Justin C. Fineberg, Greg Jason Weintraub, William Everett Baldwin, Ashley Paige Singrossi, Emily Louise Pincow, Lash & Goldberg LLP, Miami, FL, Jonathan Eric Siegelaub, Lash, Goldberg LLP, Fort Lauderdale, FL, for Plaintiffs.
Kristen Ann Taylor, Audrey M. Pumariega, McDermott Will & Emery LLP, Miami, FL, Ameneh Bordi, Pro Hac Vice, Chelsea Cosillos, Pro Hac Vice, Dmitriy Tishyevich, Pro Hac Vice, Halle Landsman, Pro Hac Vice, John J. Song, Pro Hac Vice, Joshua B. Simon, Pro Hac Vice, Richard Diggs, Pro Hac Vice, Warren Haskel, Pro Hac Vice, McDermott Will & Emery LLP, New York, NY, for Defendant.
ORDER
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant Cigna Health and Life Insurance Company's ("Defendant" or "Cigna") Motion for Summary Judgment. ("Mot.") (ECF No. 141). Plaintiffs North Shore Medical Center, Inc., Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital, Delray Medical Center, Inc., Good Samaritan Medical Center, Inc., Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, St. Mary's Medical Center, Inc., West Boca Medical Center, Inc., and CGH Hospital, Ltd. d/b/a Coral Gables Hospital (collectively, "Plaintiffs" or the "Hospitals") filed a Response in Opposition to Cigna's Motion for Summary Judgment. ("Resp.") (ECF No. 168). Defendant filed a Reply in Further Support of Its Motion for Summary Judgment. ("Reply") (ECF No. 176). Defendant's Motion for Summary Judgment is now ripe for review. I. BACKGROUND
The following facts are taken from Defendant's Statement of Material Facts ("Def.’s 56.1") (ECF No. 142), Plaintiffs’ Response to Defendant's Statement of Material Facts ("Pls.’ Resp. 56.1") (ECF No. 170), Defendant's Reply Statement of Material Facts ("Def.’s Reply 56.1") (ECF No. 177), and a review of the corresponding record citations and exhibits. Unredacted copies of Defendant's Statement of Material Facts (ECF No. 159-1), Plaintiffs’ Response Statement of Material Facts (ECF No. 209), and Defendant's Reply Statement of Material Facts (ECF No. 198-1) have been filed under seal. The Court has permitted the Parties to file voluminous materials under seal in support of their various pretrial motions. In setting forth the factual background of this case, the Court has endeavored to respect the parameters of its prior Orders permitting the Parties to file materials under seal. The Court also limits the following background to the record evidence material to the narrow issue upon which the Court decides the instant Motion for Summary Judgment.
This dispute arises under the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. See generally Third Amended Complaint ("TAC") (ECF No. 103). Plaintiffs are eight hospitals located in Miami-Dade County and Palm Beach County, where they operate acute care hospitals with emergency departments. Id. ¶¶ 13–20. As set forth in Plaintiffs’ Third Amended Complaint, each Plaintiff is a Florida corporation with its principal place of business in Florida. Id. Defendant Cigna Health and Life Insurance Company is a Connecticut corporation with its principal place of business in Connecticut. Id. ¶ 21. Plaintiffs assert that their damages exceed the $75,000.00 jurisdictional threshold. Id. ¶ 25.
Plaintiffs commenced this action on October 2, 2020 when they filed a Complaint in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, asserting causes of action for: violation of Florida Statutes § 627.64194, unjust enrichment, quantum meruit , breach of implied-in-fact contract, and declaratory judgment under Florida Statutes § 86.021. See generally (ECF No. 1-2). The case was removed to this Court on December 1, 2020, pursuant to 28 U.S.C. § 1441. See generally (ECF No. 1).
On December 8, 2020, Defendant filed a Motion to Dismiss (ECF No. 12), which the Court denied as moot on January 12, 2021 after Plaintiffs filed an Amended Complaint. See generally (ECF Nos. 22, 23). The Amended Complaint asserted causes of action for: violation of Florida Statutes § 627.64194 as to emergent claims, unjust enrichment as to emergent claims, quantum meruit as to emergent claims, promissory estoppel as to non-emergent claims, unjust enrichment as to non-emergent claims, and quantum meruit as to non-emergent claims. See generally (ECF No. 22).
On January 25, 2021, Defendant moved to dismiss Plaintiffs’ Amended Complaint. See generally (ECF No. 25). On May 10, 2021, the Court granted Defendant's motion, dismissing Plaintiffs’ unjust enrichment, quantum meruit , promissory estoppel, and declaratory judgment claims with prejudice. See generally (ECF No. 53). The Court dismissed Plaintiffs’ claim for violation of Florida Statutes § 627.64194 without prejudice, and provided Plaintiffs with leave to file a Second Amended Complaint. See generally id.
On May 20, 2021, Plaintiffs filed a Motion for Clarification or Partial Reconsideration of the Court's May 10, 2021 Order on Motion to Dismiss (ECF No. 63), which the Court denied on June 2, 2021. (ECF No. 68). Plaintiffs thereafter filed a Second Amended Complaint on June 7, 2021. See generally (ECF No. 73). The Second Amended Complaint asserted one claim for violation of Florida Statutes § 627.64194. Id. On June 21, 2021, Defendant filed a Motion to Dismiss the Second Amended Complaint (ECF No. 81), which the Court granted in part and denied in part on August 24, 2021, dismissing without prejudice the health insurance claims for which Defendant fully denied coverage. (ECF No. 100).
Thereafter, on September 3, 2021, Plaintiffs filed the operative Third Amended Complaint. See generally TAC. Therein, Plaintiffs seek damages for emergency services they rendered to individuals that hold certain health insurance plans issued, underwritten, and/or administered by Defendant, with discharge dates from January 1, 2020 to September 30, 2020 for the services provided. Id. ¶¶ 1–3. Plaintiffs are non-participating providers, and thus are "out of network," for the particular Cigna health insurance plans at issue in this case. Id. ¶ 2. Plaintiffs contend that they submitted claims to Defendant for the emergency services they provided to the Cigna Members that hold the plans at issue, but that Defendant either (1) reimbursed those claims at below the fair market value for the services performed, or (2) denied the claims in their entirety. Id. ¶ 8. Accordingly, the Third Amended Complaint asserts claims against Defendant for violations of Florida Statutes § 627.64194(4) as to the underpaid claims, and for violations of Florida Statutes § 627.64194(2) as to the denied claims. See generally id.
Consistent with the TAC, the Court refers to the individuals that hold these plans as "Cigna Members." TAC ¶ 1.
Generally, without disclosing information that the Parties have filed under seal pursuant to this Court's orders, the Parties dispute what the fair market value is for emergency services Plaintiffs provided to certain Cigna Members. As noted earlier, Plaintiffs are out-of-network for the specific Cigna policies at issue in this case: health insurance plans issued in Florida through the Affordable Care Act exchange. Def.’s 56.1 ¶ 6 (citing TAC ¶ 2 n.2); Pls.’ Resp. 56.1 ¶ 6. These health insurance plans do not provide out-of-network benefits. Def.’s 56.1 ¶ 7; Pls.’ Resp. 56.1 ¶ 7. These health insurance plans set forth the Cigna Members’ cost-sharing responsibilities for healthcare services they receive, such as through deductibles and co-insurance. Def.’s 56.1 ¶ 8 (citing Def.’s 56.1 Ex. 3 (ECF No. 159-4) at 25 ¶ 78); Pls.’ Resp. 56.1 ¶ 8.
Plaintiffs purport to dispute this fact by pointing to Defendant's expert's testimony. See Pls.’ Resp. 56.1 ¶ 8. However, the Court has reviewed the record evidence cited by both Plaintiffs and Defendant and finds that this dispute regarding general background information is not material to the narrow issue upon which the Court decides the instant Motion for Summary Judgment, as set forth below.
Plaintiffs have proffered an expert report that purports to show how much Plaintiffs receive for emergency claims from Defendant and from other health insurance payors, both on an in-network and out-of-network basis. Def.’s 56.1 ¶ 14 (citing Def.’s 56.1 Ex. 1 (ECF No. 159-2) at 6, 9–11); Pls.’ Resp. 56.1 ¶ 14. Plaintiffs’ expert opined on the fair market value of the emergency services provided, which Plaintiffs represent he determined was 75 percent of Plaintiffs’ billed charges, based on "rates provided by leased networks, single case agreements and contracted out-of-network agreements." Def.’s 56.1 ¶¶ 15, 18; Pls.’ Resp. 56.1 ¶¶ 15, 18. The Parties do not appear to disagree that fair market value must be determined at the community level, as opposed to based on any individual hospital. Def.’s 56.1 ¶ 31; Pls.’ Resp. 56.1 ¶ 31. The record also contains the underlying data that Plaintiffs’ expert relied upon in formulating his opinion, although Defendant takes issue with what inferences can be drawn from this data. Pls.’ Resp. 56.1 ¶ 54; Def.’s Reply 56.1 ¶ 54.
The details of this paragraph are filed under seal within Defendant's Statement of Material Facts, but not filed under seal in Plaintiff's Response Statement of Material Facts. Compare Def.’s 56.1 ¶ 14, with Pls.’ Resp. 56.1 ¶ 14.
Now, Defendant moves for summary judgment. See generally Mot.
II. LEGAL STANDARD
Summary judgment is appropriate where there is "no genuine issue as to any material fact [such] that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 ). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). "For factual issues to be considered genuine, they must have a real basis in the record." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) (citation omitted). Speculation cannot create a genuine issue of material fact sufficient to defeat a well-supported motion for summary judgment. See Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005).
The moving party has the initial burden of showing the absence of a genuine issue as to any material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). In assessing whether the moving party has met this burden, a court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the non-moving party. Denney v. City of Albany , 247 F.3d 1172, 1181 (11th Cir. 2001). Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to present evidence showing a genuine issue of material fact that precludes summary judgment. Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) ; Fed. R. Civ. P. 56(e). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992) (citation omitted). But if the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).
III. DISCUSSION
Defendant raises multiple arguments in favor of summary judgment. First, Defendant argues that summary judgment is warranted because Plaintiffs fail to show that Defendant paid less for the disputed health insurance claims they submitted to Defendant than what Defendant is obligated to reimburse Plaintiffs under Florida Statutes § 627.64194. Mot. at 5–16. On this point, Defendant argues that (a) the fair market value Plaintiffs have calculated for the claims at issue ignores information and data that governing Florida law requires a factfinder to consider, (b) Plaintiffs rely on billed charges to calculate fair market value, despite billed charges being sticker prices as opposed to actual prices, and (c) the eight Plaintiff hospitals, alone, are not the relevant community upon which fair market value must be determined, as Plaintiffs’ valuation expert opined. See id. Second, Defendant argues that summary judgment is appropriate as to thirty-six (36) remaining disputed inpatient claims because these patients were stabilized at some point prior to discharge, thus these claims involve some non-emergency care. Id. at 16. However, in the absence of one of Plaintiffs’ experts that Defendant has moved to exclude, (ECF No. 140), Defendant contends that Plaintiffs do not have admissible evidence that demonstrates that these patients had emergency medical conditions that triggered Defendant's obligation to make payments on those claims. Id. at 16–17. Third, Defendant seeks dismissal without prejudice of individual claim lines that Defendant fully denied for reasons unrelated to this case, because they raise a "right-to-payment" rather than "rate-of-payment" issue. Id. at 17–19. And, fourth, Defendant seeks summary judgment on five claims related to insurance policies that Defendant contends were issued outside Florida. Id. at 20.
Plaintiffs respond, first, that there is a genuine issue of material fact as to whether Defendant underpaid claims that Plaintiffs submitted to Defendant for reimbursement. On this point, Plaintiffs argue that (a) their valuation expert's calculation of fair market value properly considered the relevant kinds of information and data a factfinder must consider under Florida law, (b) Plaintiffs are only required to prove Defendant reimbursed them for less than whatever fair market value is determined to be, notwithstanding that Plaintiffs pled in the Third Amended Complaint that fair market value is 75 percent of their billed charges, and (c) even if Plaintiffs’ valuation expert's opinions are excluded, a jury could still rely on the underlying information and data that Plaintiffs’ expert relied to determine what fair market value is in this case. Resp. at 5–12. Second, Plaintiffs argue that there is a genuine issue of fact as to whether thirty-six (36) disputed inpatient claims include emergency care for patients who presented to Plaintiffs’ emergency departments but who were later admitted for inpatient care. Id. at 12–16. On this point, Plaintiffs argue that (a) Defendant adjudicated these claims as payable, and otherwise authorized these inpatient admissions, thus a jury could conclude that these are claims for emergency services and (b) Florida law imposes a more expansive standard for what care is required when a patient presents with an emergency medical condition—the care provided must relieve or eliminate the condition, as opposed to stabilize the condition. Id. Third, Plaintiffs argue that certain denied claims should not be dismissed without prejudice because the claim line bundling for these claims raises a "rate-of-payment" issue. Id. at 16–19. And, fourth, Plaintiffs respond that there is a genuine issue of material fact regarding where the health insurance plans were delivered for five claims that Defendant contends are not covered by the statutes at issue in this case because the plans were delivered outside Florida. Id. at 19–20.
This information is redacted in the publicly available documents on the record, see Resp. at 14; Pls.’ Resp. 56.1 ¶ 76, but unredacted in the versions Plaintiffs filed under seal pursuant to this Court's Order (ECF No. 188). Despite this, Defendant did not redact the corresponding information in its Reply Statement of Material Facts. Def.’s Reply 56.1 ¶ 76.
In reply, Defendant first argues that Plaintiffs’ determination of fair market value is based on an artificially narrow set of out-of-network rates; looking to comparable claims to determine fair market value requires looking to "[1] similar services [2] in the community" as opposed to just Plaintiffs’ own billed charges and paid amounts, in contrast to what Plaintiffs’ expert did; Defendant and Plaintiffs disagree on whether Florida Statutes § 641.513(5) ’s requirement to look to "similar services" requires looking to both in-network and out-of-network payments, as opposed to just out-of-network payments as Plaintiffs contend, as the contours of the analysis required under Florida law is a question of statutory interpretation that cannot be delegated to the jury; and, Plaintiffs cannot now assert that they can just put the underlying data before the jury because Plaintiffs are not required to proffer expert testimony, as Plaintiffs previously represented to the Court and to Defendant that this valuation analysis is the province of expert discovery and testimony. Reply at 2–6. (alterations in original). On this first point, Defendant also replies that Plaintiffs do not dispute in their Response that their billed charges are artificial and "unsuitable for use as a baseline" for determining fair market value, and that Plaintiffs offer no response to Defendant's argument that the eight Plaintiff hospitals, alone, are not the relevant community upon which fair market value must be determined. Id.
Second, Defendant replies that (a) Plaintiffs fail to rebut Defendant's experts’ opinions as to when the emergency conditions for the thirty-six (36) patients ended, (b) Plaintiffs’ expert opined on whether transferring these patients was appropriate, as opposed to whether their emergency conditions had ended, and (c) Defendant did not concede, as Plaintiffs contend, that the services provided to these thirty-six (36) patients were emergency services, because Defendant authorized and reimbursed those services—according to Defendant these patients’ health insurance plans provide out-of-network coverage for medically necessary services, in addition to stabilization and initial treatment in emergencies, and the two are not coextensive. Id. at 7–8.
Third, Defendant argues that the denied claims in dispute were denied as non-covered and present right-to-payment issues, not rate-of-payment issues. Id. at 8–9. And, fourth, Defendant argues that Plaintiffs have failed to adduce evidence to rebut that five of the disputed claims involve patients covered by insurance policies delivered outside Florida. Id. at 9–10.
The operative Third Amended Complaint asserts two causes of action against Defendant: (1) alleged violations of Florida Statutes § 627.64194(4) for purportedly underpaying healthcare insurance claims they submitted to Defendant for reimbursement, and (2) alleged violations of Florida Statutes § 627.64194(2) for healthcare insurance claims Defendant denied. See generally TAC.
In the Third Amended Complaint, Plaintiffs assert that Defendant was obligated under Florida law to reimburse these purportedly underpaid and denied claims according to the methodology set forth in Florida Statutes § 627.64194(4), but Defendant either reimbursed Plaintiffs at rates substantially below fair market value, or denied coverage in whole or in part. TAC ¶¶ 71, 75–77, 85, 90. Thus, as discussed below, for all of the claims at issue in this case that Plaintiffs submitted to Defendant for reimbursement, to survive summary judgment, Plaintiffs bear the burden of adducing evidence to establish both the fair market value in the community for the services provided in the submitted claims, and that Defendant failed to reimburse those claims at that fair market value. This inquiry is governed by Florida law.
Section 627.64194(4) of the Florida Statutes requires that "[a]n insurer must reimburse a nonparticipating provider of services under subsections (2) and (3) as specified in s. 641.513(5), reduced only by insured cost share responsibilities as specified in the health insurance policy." Fla. Stat. § 627.64194(4). The methodology set forth in § 641.513(5) of the Florida Statutes is as follows:
Reimbursement for services pursuant to this section by a provider who does not
have a contract with the health maintenance organization shall be the lesser of: (a) The provider's charges; (b) The usual and customary provider charges for similar services in the community where the services were provided; or (c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the submittal of the claim.
A threshold issue in this case is determining the "usual and customary provider charges for similar services in the community where the services were provided." Id. § 641.513(5)(b). Florida courts have interpreted this language to mean the fair market value of the services provided within the relevant community. See Baker Cnty. Med. Servs., Inc. v. Aetna Health Mgmt., LLC , 31 So. 3d 842, 845 (Fla. Dist. Ct. App. 2010). The court in Baker County determined that the phrase "usual and customary charges" calls for "the fair market value of the services provided." Id. According to that court, "[f]air market value is the price that a willing buyer will pay and a willing seller will accept in an arm's-length transaction." Id. Thus, Florida Statutes § 641.513(5) requires a health insurer to reimburse certain non-participating (i.e. , out-of-network) providers for emergency medical services at the fair market value for similar services in the community where the services were provided, that being what a willing buyer will pay and a willing seller will accept in an arm's-length transaction for the services provided, in the community where the services were performed.
"In determining the fair market value of the services, it is appropriate to consider the amounts billed and the amounts accepted by providers with one exception[:]" Medicare and Medicaid reimbursement rates. Id. Accordingly, the Baker County court upheld a state trial court's consideration of the following datapoints in determining fair market value in that case:
[B]ecause the bill by the provider may not be reflective of the charge that is usual and customary for the service at issue, to determine the ‘usual and customary provider charges for similar services,’ the trier of fact should consider all relevant factors, specifically including, but not limited to, the amount of payment that the provider is receiving from different sources for rendering those similar services. This would include, but not be limited to, the reimbursement to the provider for similar services pursuant to ... contracts with insurers, contracts with other health maintenance organizations, worker's compensation payments, private pay, charity care, indigent care, and payments received from any other payer source.
Id. at 844–45.
Here, Defendant appears to assume that Plaintiffs will rely on only their valuation expert to establish the fair market value of the claims at issue in this case. See Mot. at 10 ("The Hospitals previously made it clear that they will rely on Mr. Watson's analysis to establish the [fair market value] of their claims ...." (quoting Def.’s 56.1 ¶ 20)). The Court recognizes that Plaintiffs dispute that they are not, as a matter of law, required to rely on expert testimony to prove their case. Resp. at 9–10. Nonetheless, given that Defendant assumes Plaintiffs will rely on their expert valuation analysis, the Court understands Defendant's Motion for Summary Judgment as arguing that Plaintiffs have not adduced evidence to establish fair market value for the services provided in the community where the services were performed, because Plaintiffs’ expert only "calculated fair market value specific to just the eight Hospitals as a group." Mot. at 15. That is, the Court understands Defendant as arguing that, where Plaintiffs’ evidence of fair market value is specific to the eight Hospital plaintiffs themselves, Plaintiffs’ evidence does not establish that their determination of fair market value satisfies § 641.513(5) ’s requirement that fair market value be determined "for similar services in the community where the services were provided. " Fla. Stat. § 641.513(5) (emphasis added).
"When the non-moving party bears the burden of proof on an issue at trial," as Plaintiffs do in this case in establishing the fair market value of the services provided within the community, "the moving party need not ‘support its motion with affidavits or other similar material negating the opponent's claim,’ in order to discharge this initial responsibility." Rice-Lamar v. City of Ft. Lauderdale , 232 F.3d 836, 840 (11th Cir. 2000) (quoting Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). "Instead, the moving party simply may ‘show’—that is, point out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. (quoting Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ) (alterations incorporated). Here, Defendant points out to the Court that Plaintiffs’ evidence fails to establish the fair market value for the services performed within the community , as the evidence they rely on to establish fair market value is limited to only the eight plaintiff Hospitals in this lawsuit. Mot. at 15–16 (citing Def.’s 56.1 ¶¶ 18, 31); Reply at 7.
However, a factfinder determining fair market value must take into account more than just what a willing acute care hospital that operates an emergency department will accept and what a willing health insurance company will pay that acute care hospital—that is, determining fair market value of the services provided must also take into account different types of providers. The court in Baker County noted as much:
On appeal, BCMS argues that the trial court erred in ruling that the term "provider" in section 641.513(5) is not limited to any specific type of provider. BCMS asserts that the term is limited only to hospitals. However, the term "provider" is specifically defined in chapter 641 to include all providers of similar services, not just hospitals. Section 641.513(5) is contained in part III of chapter 641, entitled "Health Care Services." Section 641.47 contains the definitions for terms used in Part III. Section 641.47(14) defines "provider" as "any physician, hospital, or other institution, organization, or person that furnishes health care services and is licensed or otherwise authorized to practice in this state."
Baker Cnty. , 31 So. 3d at 845. Thus, the Baker County court upheld a state trial court's ruling that "[t]he determination of what constitutes ‘the community where the services were provided’ is a question of fact that is not limited by the type of provider." Id. Necessarily, then, "the community where the services were provided" requires that fair market value be determined by considering more than just the plaintiff-providers in a particular lawsuit, and must include other types of providers that perform similar services to those at issue in this case.
While Plaintiffs respond that the record contains the voluminous underlying data upon which a jury could determine fair market value, Resp. at 10, Plaintiffs did not expressly respond to Defendant's argument that the evidence they have adduced is not reflective of the community. See generally id. That is, in their Response, Plaintiffs do not expressly point the Court to what evidence in the record would establish fair market value for the relevant community. In fact, Plaintiffs do not inform the Court what the relevant community is in this case, see generally Resp., and the Court is unable to determine what Plaintiffs’ definition of the relevant community is that they intend to prove. Plaintiffs generally direct the Court to the underlying data their expert relied upon without providing context on how that data would establish the relevant community in this case. Resp. at 10.
It is not clear to the Court whether Plaintiffs and Defendant genuinely dispute where or what the relevant geographic community is or encompasses. Compare Def.’s 56.1 ¶ 5 ("Plaintiff's Third Amended Complaint (‘TAC’) alleges that each of the Plaintiffs are ‘acute care hospital[s]’ in south Florida. " (alteration in original) (emphasis added)), with Pls.’ Resp. 56.1 ¶ 5 ("Disputed. Plaintiffs’ Third Amended Complaint (‘TAC’) alleges that each of Plaintiffs are ‘acute care hospital[s]’ located in either Miami-Dade County, Florida or Palm Beach County, Florida. " (alteration in original) (emphasis added)).
In setting forth the evidence to establish fair market value even if Plaintiffs’ expert were excluded, Plaintiffs list multiple composite exhibits, many of which are larger than 1,000 pages in length, without describing with sufficient particularity what each composite exhibit contains beyond the generalized description provided. See Pls.’ Resp. 56.1 ¶ 54. For example, Plaintiffs point to the entirety of Defendant's "paid claim market data" in Composite Exhibit 16 to their Response Statement of Material Facts (ECF Nos. 209-24 to 209-128) without informing the Court: (1) what market this data is for, (2) what geographic areas it encompasses, (3) what types of providers are represented in the dataset in light of Baker County ’s recognition that " ‘provider’ is specifically defined ... to include all providers of similar services," Baker Cnty. , 31 So. 3d at 845, (4) whether the services performed that are at issue in this case are represented in the dataset, or (5) the time parameters for the data in the dataset, Pls.’ Resp. 56.1 ¶ 60. At more than 320,000 pages in length, the Court is unable to determine whether this dataset can be used to determine fair market value for the relevant community. See generally (ECF Nos. 209-24 to 209-128).
Plaintiffs have drowned the Court in thousands of pages of documents with no direction as to where to look, like the intruders in the film, The Big Lebowski , drowning the Dude in search of money he does not have. The Big Lebowski (Polygram Filmed Entertainment, Working Title Films 1998) ("It's down there somewhere, let me take another look.").
The Eleventh Circuit has held in other cases that "district court judges are not required to ferret out delectable facts buried in a massive record." Chavez v. Sec'y Fla. Dep't of Corr. , 647 F.3d 1057, 1061 (11th Cir. 2011) ("The Seventh Circuit memorably said that appellate judges ‘are not like pigs, hunting for truffles buried in briefs.’ " United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ). This is especially true where, as here, Plaintiffs’ Response Statement of Material Facts cites multiple Exhibits, each more than 1,000 pages in length. See Pls.’ Resp. 56.1 Exhibits 7, 13, 14, 15, 16, 21, and 24 (ECF No. 209-7 to 209-10 ("Exhibit 7"); ECF No. 209-16 ("Exhibit 13"); ECF No. 209-17 ("Exhibit 14"); ECF No. 209-18 to 209-23 ("Exhibit 15); ECF No. 209-24 to 209-128 ("Exhibit 16"); ECF No. 209-137 to 209-140 ("Exhibit 21"); ECF No. 209-143 to 209-156 ("Exhibit 24")). While the Hospitals argue that there is a "broad universe of rate information in the evidentiary record," Resp. at 11, Plaintiffs must present evidence showing a genuine issue of material fact when the moving party satisfies its initial burden. Bailey , 284 F.3d at 1243. Plaintiffs have not expressly informed the Court how the evidence in the record establishes fair market value within the community in light of Defendant's argument that Plaintiffs have only adduced evidence of fair market value as it relates to themselves.
These, like a significant number of filings in this case, are filed under seal, and the Court was required to order the Hospitals to file these and other documents under seal seven (7) days after granting them leave to do so. (ECF No. 202).
In deciding the instant Motion for Summary Judgment, the Court declines to consider arguments Plaintiffs have made in briefing on other pending motions, which Plaintiffs purport to adopt and incorporate by reference within their Response, see Resp. at 6 n.2, 14, but which are not expressly made within their Response. The Local Rules of the Southern District of Florida limit a response and its incorporated memorandum of law to twenty (20) pages. See S.D. Fla. L.R. 7.1(c)(2). Plaintiffs moved for an enlargement of the page limitations for their Response Statement of Material Facts, which the Court granted. (ECF No. 144). They did not do so for their Response, and the Court will not permit Plaintiffs to skirt the page limitations set forth in the Local Rules by incorporating by referencing arguments they make in other motions and responses.
The Court recognizes that the Parties have categorized the claims at issue in this case according to how they are disputed and that the Parties advance different arguments for or against summary judgment as to the different sets of claims. But assuming all of these claims triggered Defendant's obligation to reimburse Plaintiffs, Defendant would be required to do so as set forth in the Florida Statutes, at the "usual and customary provider charges for similar services in the community where the services were provided." Fla. Stat. § 641.513(5). However, as noted above, Plaintiffs do not explain to the Court how the evidence in the record would establish the fair market value for the services provided within the relevant community. Accordingly, Defendant is entitled to summary judgment.
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment (ECF No. 141) is GRANTED. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, final judgment shall be entered by separate order. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of January, 2022.