STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS BARKER,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

Case No. 20-2964MTR

FINAL ORDER

On August 21, 2020, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by Zoom.

APPEARANCES

For Petitioner: Floyd B. Faglie, Esquire

Staunton & Faglie, P.L. 189 East Walnut Street Monticello, Florida 32344

For Respondent: Alexander R. Boler, Esquire

2073 Summit Lake Drive, Suite 330

Tallahassee, Florida 32317

STATEMENT OF THE ISSUES

The issues are whether, pursuant to section 409.910(17)(b), Florida Statutes (17b), Petitioner has proved that Respondent's recovery of

$364,460.51 in medical assistance expenditures1 from $1 million in proceeds from the settlement of a personal injury action must be reduced to avoid

1 "Medical assistance expenditures" is synonymous with Medicaid payments.

conflict with 42 U.S.C. § 1396p(a)(1) (Anti Lien Statute)2; and, if so, the maximum allowable amount of Respondent's recovery.

PRELIMINARY STATEMENT

On June 29, 2020, Petitioner filed with DOAH a Petition to Determine Amount Payable to Agency for Health Care Administration in Satisfaction of Medicaid Lien (Petition). The Petition invokes Petitioner's right to a

17b proceeding and alleges that Respondent's recovery of $364,460.51 is excessive because it violates the Anti-Lien Statute. The Petition alleges that Petitioner accepted $1 million to settle a personal injury action with a true value of $7 million, so he obtained only 14.286% of the true value of the case. Thus, the Petition alleges that Respondent may only recover $57,487.41, which is 14.286% of $402,403.85.

At the hearing, Petitioner called two witnesses, his trial attorney and an attorney serving as an expert witness, and offered into evidence nine exhibits: Petitioner Exhibits 1 through 9. Respondent called no witnesses and offered into evidence no exhibits. All exhibits were admitted.

The court reporter filed the transcript on September 15, 2020. Each party filed a proposed final order on September 29, 2020.

FINDINGS OF FACT

1. On July 22, 2018, Petitioner, who was then 28 years old, visited a convenience store in Fort Lauderdale, made a purchase, left the store, and was robbed and shot several times in the store's parking lot. Petitioner

   
   

   
   

   2 All references to the "Anti-Lien Statute" include its counterpart, 42 U.S.C. § 1396p(b)(1), which operates similarly as an "Anti-Recovery Statute." "Recovery" and "lien" are used interchangeably in this final order to describe the portion of judgment or settlement proceeds allocable to the state Medicaid agency.

   
   

   suffered catastrophic injuries to his left leg, abdomen, and back and underwent 26 surgeries to repair the wounds. Ultimately, surgeons had to amputate Petitioner's leg above the knee.

2. Petitioner commenced a tort action to recover damages from the owners and operators of the business premises. However, the insurance policy limit was $1 million, and the owners and operators themselves were unable to pay a judgment. Accepting a settlement of $1 million, Petitioner and the settling tortfeasors, but not Respondent, which did not participate in the case, agreed that the full value of his case was $7 million, so they allocated $57,478.41 to past medical expenses and the remainder of the settlement to damages elements described only as other than past medical expenses. Petitioner incurred taxable costs of $21,078.98 in the tort action.

3. The motivating factor for any settlement less than a true value over

   $1 million was the inability to recover from the tortfeasors any sum in excess of $1 million. The present record supports no finding of uncertainty of the liability of the tortfeasors or of comparative negligence of Petitioner. The present record establishes that the true value of this case clearly exceeds

   $1 million, but the issue is to determine by how much.

4. As explained in the Conclusions of Law, pursuant to section 409.910(11)(f) (11f), Respondent's share of the settlement would be

   $364,450.51: ($1,000,000 minus $250,000 minus $21,078.98)/2. Petitioner has deposited this amount into an interest-bearing account for the benefit of Respondent, pending the resolution of this 17b proceeding to determine if Respondent's recovery should be further reduced.

5. Petitioner's past medical expense and loss of earning capacity approximate $750,000. Respondent expended $402,403.85 in medical assistance for the diagnosis and treatment of Petitioner's injuries, and Petitioner does not claim additional past medical expenses. Petitioner's highest education is a high school diploma, and he speaks only Spanish. Due to the injuries and lingering pain, Petitioner was unable to return to work as

   
   

   an automobile mechanic. Although he found a job as a liaison for a prosthetics company, Petitioner was unable to continue to work due to pain and, unqualified for most sedentary employment, is presently unemployed. Petitioner's loss of earning capacity is about $350,000.

6. According to Petitioner's trial attorney, who speaks with Petitioner and his mother every couple of weeks, Petitioner underwent multiple amputations of his leg resulting in a very high amputation that has left the remaining structure weak and Petitioner in considerable pain when he sleeps or walks with a prosthesis. Petitioner is depressed and angry and resides with his mother, who cares for him. The mother has told Petitioner's trial attorney that Petitioner is not the same person whom he was before the shooting.

7. Petitioner's trial attorney opined that Petitioner will require future medical care, including the replacement of prosthetics. In contrast to the evidence of past medical expenses and the loss of earning capacity, the proof of future medical expenses is speculation, not evidence. Like future pain and suffering, future medical expenses requires the finding of a remaining life expectancy, but future medical expenses also requires a finding of actual expenditures of money for goods and services in the future. Given the limited financial worth of the tortfeasors, Petitioner's trial lawyer wisely spared Petitioner the costs of medical and economic experts, who are necessary to prepare a life care plan and prove future medical expenses. But this record is thus devoid of any reliable evidence of future medical expenses, so that any value assigned to likely future medical expenses would be no more than guesswork.

8. Petitioner's expert witness, Karen Gievers, is an experienced civil litigator and former circuit judge with a well-earned reputation, while in private practice, for her dedicated advocacy for the under-represented.

   Ms. Gievers's detailed damages analysis was welcome in a case whose true

   
   

   value is based predominantly on noneconomic damages, but on a record that lacks specific details of Petitioner's claimed pain and suffering.

9. Petitioner's trial attorney and Ms. Gievers established with relative ease that the vast majority of any jury award would be noneconomic damages--specifically, pain and suffering. Ms. Gievers testified persuasively that noneconomic damages would represent 80 to 85% of total damages. Ms. Gievers's ratio testimony was generally supported by the summaries of nine jury verdicts in other cases ranging from 2003 through 2017 for plaintiffs ranging in age from six years old to 78 years old, as discussed below.

10. The testimony of a ratio between noneconomic and economic damages is useful because the economic damages are typically more certain, but this ratio is a very rough guide whose applicability in each case must be determined with caution. A precondition to the use of this ratio is proof of substantial pain and suffering. An application of the ratio may not take the place of proof of substantial pain and suffering, even if, as here, the proof is largely inferential. In appropriate cases, the ratio effectively scales past and future pain and suffering to past and future medical expenses--in cases with much larger true values than the subject case, mostly future medical expenses. The ratio is inapplicable if other evidence establishes that one of these four damages elements is atypically disproportionate to the other elements. The ratio is suitable for this case largely based on the weight assigned to the testimony of Ms. Gievers, but also due to the presence, even if inferential, of substantial pain and suffering and a finding that the ratio produces a result that makes sense on these facts.

11. In Underwood v. Strong, No. 2010-CA-00114 (Fla. 5th Jud. Cir. Aug. 24, 2017), 2017 WL 5592916 (Fla. Cir. Ct.), a 44-year-old plaintiff was thrown from her motorcycle, sustaining multiple orthopedic injuries,

    including fractures to her dominant arm and both legs, one of which had to be amputated above the knee. At the time of the accident, the plaintiff was

    
    

    employed as a supervisor in a microchip manufacturing plant; unable to return to work, she claimed a significant loss of future earnings. Her husband claimed loss of consortium. Before reduction for comparative negligence, the jury awarded $6.1 million, which was not allocated among damages items.

12. In Beber v. MDVIP, Inc., No. 50-2009-CA-034380 (Fla. 15th Jud. Cir. Feb. 10, 2015), 2015 WL 2058951 (Fla. Cir. Ct.), rev'd as to fraud claims, MDVIP, Inc. v. Beber, 222 So. 3d 355 (Fla. 4th DCA 2019), a 78-year-old patient informed her healthcare providers, in early 2008, of cold, pain, numbness, and tingling in her left leg and foot. The healthcare providers failed to consider a vascular cause and failed to send the plaintiff for a vascular workup, and the plaintiff had to have her leg amputated above the knee. The plaintiff sued the healthcare providers in 2009. She died in 2012 of unrelated causes, and her personal representative prosecuted the action through a jury verdict allocated by damages item between liability for medical negligence and fraudulent misrepresentation in the following respective amounts, about $36,000 and $500,000 for past medical expenses;

    $1 million and $7 million for pain and suffering; and relatively minor amounts for loss of consortium. The meaning of the verdict is unclear as a measurement of the plaintiff's pain and suffering, especially after the reversal of the trial court's denial of a motion for new trial on liability for fraud, so this verdict is disregarded.

13. In Erb v. Peninsula Logistics¸ No. 12-CA-1509-AN (9th Jud. Cir. Sept. 20, 2013), 2013 WL 8476179 (Fla. Cir. Ct.), rev'd on other grounds, Peninsula Logistics, Inc. v. Erb, 159 So. 3d 301 (Fla. 5th DCA 2015), a

    54-year-old plaintiff suffered an arm fracture and severely crushed leg in a head-on collision with a fully loaded tractor trailer. The plaintiff underwent ten surgeries, including an amputation of a leg above the knee. At the time of the accident, the plaintiff was employed as a boat builder, but was unable to return to this line of work due to his injuries. The jury awarded the plaintiff

    $7.35 million of unallocated damages.

    
    

14. In Lukacs v. Estrada, No. 112007CA05313 (20th Jud. Cir. Oct. 10, 2012), 2012 WL 8262496 (Fla. Cir. Ct.), a 46-year-old plaintiff suffered a fracture of her left foot and ankle from a collision between her motorcycle and a van, whose operator left the scene of the accident, but was found a few hours later asleep in the van, under the influence of drugs and alcohol. Two weeks after the accident, surgeons had to amputate her leg below the knee, and she was fitted with a prosthesis. The plaintiff resumed work, in a new position, for UPS, but claimed that she lost a promotion to a fulltime driver position. The jury awarded $4.3 million, including $2.25 million for past and future pain and suffering, $1 million in past and future medical expenses,

    $800,000 in past and future loss of earnings, and $77,000 in punitive damages, which was reduced by the court to $1000. Ignoring the punitive damages, pain and suffering represented only about half of the total verdict.

15. In Nummela v. Cantu, No. 2005-CA-006908 (15th Jud. Cir. May 31, 2011), 2011 WL 4913021 (Fla. Cir. Ct.), a plaintiff of unreported age suffered "personal injuries including amputation of several body parts; pain and suffering; lost wages; [and] loss of earning capacity" when his motorcycle was struck by a motor vehicle driven by a man found to have cocaine in the vehicle. In a trial on damages only, the jury returned a verdict of $38 million, including $2 million in economic damages, $7.5 million in pain and suffering, and $28.5 million in punitive damages. Ignoring the punitive damages, pain and suffering represented about 80% of the total verdict.

16. In Maharaj v. Ford Motor Co., No. 50-2008-CA-003705-XXXX-MB-AJ (15th Jud. Cir. May 4, 2011), 2011 WL 4454423 (Jud. Cir. Ct.), a six-year-old plaintiff was ejected from the vehicle when it was struck by a small truck, which left the scene of the accident, and suffered injuries to his left leg, which was amputated below the knee. Before reduction for comparative negligence, the jury awarded on account of the child $480,000 for past medical expenses,

    $3.7 million for future medical expenses, $5 million for past pain and

    
    

    suffering, and $1.5 million for future pain and suffering. Pain and suffering represented about 60% of the total verdict.

17. In Lucas v. Osborn, 2008 WL 5455742 (13th Jud. Cir. Ct. Nov. 26, 2008), a plaintiff, who was in his 60s, was a railroad worker riding on the ladder on the leading end of a railroad car when the train struck a loaded dump truck, causing the plaintiff to lose one of his legs--the opinion does not indicate the location of the amputation--and to require the implantation of hardware on his remaining leg. The wheelchair-bound plaintiff claimed that he could not return to work or cook for his 11 children and 19 grandchildren. Before reduction for comparative negligence, the jury awarded about

    $6.5 million that, although unallocated, was in response to evidence of past and future lost wages of about $450,000, future medical expenses of

    $1.7 million, and the wife's loss of consortium. It thus appears that the jury may have allocated about $2 to $3.5 million to pain and suffering. Pain and suffering represented from about one-third to one-half of the total verdict.

18. In Doherty v. Daytona Grand, Inc., No. 2005-32259-CICI (7th Jud. Cir. Feb. 25, 2008), 2008 WL 1901752 (Fla. Cir. Ct.), the 37-year-old plaintiff, who was a New York City police officer, was struck by a motor vehicle while riding his motorcycle, and the officer's leg was eventually amputated. After the injury, the plaintiff remained employed by the police department, but was restricted to desk duty, and he was limited to coaching, rather than playing, Gaelic football. A jury awarded the plaintiff $4.8 million without any reported allocations among types of damages.

19. In Johnson v. Sendzischew, No. 95-453 CA (32) (11th Jud Cir. May 16 2003), 2003 WL 22742636 (Fla. Jud. Cir.), a 36-year-old plaintiff suffered from an unknown condition that caused an occlusion of his right peripheral femoral artery. For several months, the plaintiff's healthcare providers failed to diagnose the problem, even after the plaintiff showed clear signs of gangrene of the foot and leg, which eventually was amputated below the knee. Before reduction for comparative negligence, the jury awarded

    
    

    $4.1 million, including $170,000 for past medical expenses and lost earnings,

    $960,000 for future medical expenses, $900,000 for past pain and suffering, and $2.1 million for future pain and suffering. Pain and suffering represented about 75% of the total verdict.

20. The future pain and suffering of a 28-year-old is much greater than the future pain and suffering of a person in his 60s, but much less than the future pain and suffering of a six-year-old--all due to the duration of the suffering. It is thus very difficult to treat Lucas and Maharaj as comparables. Also, below-the-knee amputations would seem to be less debilitating than above-the-knee amputations. The two most comparable cases in this regard are Underwood and Erb, although the other cases, besides Beber, are generally useful.

21. Petitioner's trial lawyer and Ms. Gievers cite Erb as the most comparable case. It involved multiple surgeries, although half as many as Petitioner has undergone. The Erb plaintiff's proof of loss of earnings would have been stronger than Petitioner's, although Petitioner is 16 years younger. Erb does not allocate the $7.35 million award, but, if pain and suffering represented 80 to 85% of the total award, it would amount to about

    $6.2 million.

22. In Underwood, the unallocated award was about $1.25 million less for a plaintiff ten years younger than the Erb plaintiff and with a stronger loss of earnings than Petitioner's. If pain and suffering represented 80 to 85% of the total award, it would amount to about $5 million.

23. Obviously, the number of surgeries affects the value to be accorded to pain and suffering, especially with multiple amputations of the same extremity, but it would have been helpful to hear from Petitioner or his mother--in more detail than that he is not the person he was before the shooting. The lack of detail as to Petitioner's pain and suffering imposes a heavy burden on inferential factfinding, which, at some point, devolves into speculation.

    
    

24. Given the lack of detailed evidence as to Petitioner's pain and suffering, the lower end of the 80 to 85% range is appropriate, so that the true value of the case comprises 80% noneconomic damages and 20% economic damages. Because the economic damages is established at $750,000 and equals 20% of the true value, the solution is derived from the formula of 2/10 x true value = $750,000--or true value = $750,000 x 10/2. This formula produces a true value of $3.75 million, which obviously allocates $3 million for pain and suffering.

25. Petitioner settled the case for $1 million, for a proportional reduction of 73.3% from the $3.75 million true value of the case. Applying the same proportional reduction to Respondent's Medicaid lien of $402,403.85 yields a 17b recovery amount of $107,441.83.

    
    

    CONCLUSIONS OF LAW

26. DOAH has jurisdiction over 17b proceedings. §§ 120.569, 120.57(1), and 409.910(17)(b); Giraldo v. Ag. for Health Care Admin., 248 So. 3d 53 (Fla. 2018).

27. Respondent is obligated by statute to obtain reimbursement of medical assistance expenditures from judgment or settlement proceeds obtained by a Medicaid recipient3 from a third party whose negligence or other wrongdoing necessitated the Medicaid payments. To effect this recovery, Respondent is subrogated to the recipient's rights to any proceeds derived from a third party, the recipient assigns to Respondent its rights to any such proceeds, and Respondent has a lien against any such proceeds.4

28. In Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), the Supreme Court ruled that the imposition of a state Medicaid

    
    

    
    

    3 A "recipient" is the person on whose behalf the state Medicaid agency expends medical assistance. All references to "recipient" are to the recipient and its legal representative.

    
    

    4 § 409.910(6).

    
    

    agency's lien on the full amount of settlement proceeds conflicts with the Anti-Lien Statute to the extent that the encumbered proceeds include "medical expenses,"5 because the Anti-Lien Statute reserves to the recipient the portion of the proceeds allocable to medical expenses.6 To determine the agency's allowable recovery, the Court applied the stipulation of the parties that, if the Court ruled for the recipient, the agency's lien would undergo a proportional reduction. The agency had paid about $216,000 in medical assistance and the recipient had obtained settlement proceeds of $550,000

    that were unallocated as to medical expenses and other damages components. The parties had stipulated that the true value of the case was about

    $3 million, the true value ratio--i.e., the settlement divided by the true value--was about 1:6, and one-sixth of the Medicaid payments was about

    $36,000, which represented the agency's recovery, once the recipient prevailed on the issue presented to the Court.

29. In Wos v. E.M.A., 568 U.S. 627, 638 (2013), the Supreme Court invoked the Supremacy Clause to set aside a state statute that applied a formula to settlement proceeds to determine the state Medicaid agency's recovery--without providing the recipient an opportunity to show that the statutory recovery would violate the Anti-Lien Statute. An expert witness estimated the true value of the recipient's medical malpractice action to be over $42 million in economic damages, including over $37 million of future medical expenses in the form of skilled home care. The state Medicaid agency expended about $1.9 million in medical assistance, and the recipient settled for $2.8 million. The settlement did not allocate the proceeds among the various damages components, and the relatively low settlement recovery

    
    

    5 The Court has never indicated whether "medical expenses" includes future medical expenses or only past medical expenses, but, as noted below, the Florida supreme court in Giraldo has held that "medical expenses" is limited to past medical expenses.

    
    

    6 The Court impliedly invoked the Supremacy Clause of the U.S. Constitution in holding that the Arkansas statute was unenforceable to the extent that it authorized a lien on the medical expenses of settlement proceeds.

    
    

    percentage was driven largely by the defendants' policy limits. In declining to allow the agency to recover $933,3337 of the $2.8 million settlement without a hearing to determine the portion of the settlement proceeds allocable to past medical expenses, the Court rejected the state's argument that ascertaining the true value of a case was impossible and instead exhorted trial judges and lawyers to find "objective benchmarks" to project the damages that the recipient would have been able to prove, if its case had gone to trial.

30. Responding to Wos,8 the Florida legislature enacted

    section 409.910(17)(b), which authorizes a recipient to commence a 17b proceeding to prove that the portion of Respondent's recovery that

    "should be allocated as past and future medical expenses" is less than its recovery under section 409.910(11)(f), which is an allocation formula not much different from the North Carolina statutory formula at issue in Wos.9 Construing 17b in conjunction with the Anti-Lien Statute and relevant case law, the Giraldo court held that Respondent's recovery is limited to settlement proceeds properly allocable to past medical expenses only.

31. When the settlement amount and true value are supported by the evidence, there is no reason not to apply the same settlement recovery percentage to the past medical expenses or past medical expenses paid by Respondent, as applicable, to determine the maximum recovery that

    
    

    7 The amount is one-third of the gross proceeds, as confirmed in E.M.A. v. Cansler, 674 F.3d 290, 294 (4th Cir. 2012), aff'd sub nom., Wos v. E.M.A., 568 U.S. 627 (2013).

    
    

    8 A few months after the Wos decision, the legislature passed and the Governor signed into law two slightly different bills: chapter 2013-48, sections 6 and 14, and chapter 2013-150, sections 2 and 7, Laws of Florida.

    
    

    9 Section 409.910(11)(f) (11f) sets Respondent's recovery as the lesser of its medical assistance expenditures or the amount produced by a formula that allocates to Respondent one-half of the net settlement or judgment proceeds remaining after the reduction of the gross proceeds by 25% for attorneys' fees and by taxable costs. This statutory formula is irrelevant to the present case because Respondent's medical assistance expenditures are less than the amount derived by the formula. As the statute states, under no circumstances may Respondent's recovery ever exceed its total medical assistance expenditures; thus, in this case, Respondent's maximum recovery is $224,000, not its 11f recovery.

    
    

    Respondent may obtain without violating the Anti-Lien Statute. Although neither Ahlborn nor Wos mandates a method for making this determination, each decision requires analysis of the settlement proceeds in terms of the relationship of the relevant medical expenses to the other damages components. A proportional reduction of each damages component--if each damages component is similarly supported by the evidence--is uniquely suitable because a proportion is inherently comparative.10

32. As set forth in the Findings of Fact, the true value of Petitioner's case is $3.75 million, including $3 million of pain and suffering, and the proportional reduction method produces a 17b recovery for Respondent of

    $107,441,83, which supersedes Respondent's 11f recovery of $364,450.51.

33. This case requires a determination of the nature of the factfinding responsibility of the administrative law judge with respect to noneconomic damages. The Florida supreme court's Model Form of Verdict for Personal Injury Damages11 details the elements of pain and suffering, which is typically the most prominent element of noneconomic damages:

    What is the total amount of (claimant’s) damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a disease or physical defect (list any other noneconomic damages) and loss of capacity for the enjoyment of life sustained in the past and to be sustained in the future?

    
    

34. Noneconomic damages are determined by the factfinder--usually, a jury--based on a few basic principles that are entirely accessible to nonexperts. In Braddock v. Seaboard Air Line Railroad Co., 80 So. 2d 662, 667-68 (Fla. 1955), the court cited, with approval, an earlier decision setting

    
    

    10 Two definitions in Webster's online dictionary are: 2.a. "proper or equal share//each did her proportion of the work"; 2.b. "quota, percentage"; and 3. "the relation of one part to another or to the whole with respect to magnitude, quantity, or degree : ratio." https://www.merriam- webster.com/dictionary/proportion.

    
    

    11 https://jury.flcourts.org/civil-jury-instructions-home/civil-instructions/#model.

    
    

    forth the jury charge for measuring pain and suffering and discussed generally the means by which the factfinder determines damages for pain and suffering:

    "As to pain and suffering the law declares that there is no standard by which to measure it except the enlightened conscience of impartial jurors…. It would be your duty to determine from the evidence what sort of injuries the plaintiff received, if any, their character as producing or not producing pain, the mildness or intensity of the pain; its probable duration, and allow such sum as would fairly compensate her for her pain and suffering, if any, such sum as would receive the approval of the enlightened conscience of each of you." [citation omitted]….

    
    

    The rule does not seek to instruct the jury in the process by which they shall determine the amount of damages for pain and suffering. Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem…involves an exercise of their sound judgment of what is fair and right.

    
    

35. At trial, the role of expert testimony in the determination of pain and suffering is difficult to define, as reflected in Angrand v. Key, 657 So. 2d 1146 (Fla. 1995), in which the justices wrote four different opinions as to whether an expert witness may testify on the narrow issue of grief. The difficulty arises because, in general, the determination of damages for pain and suffering is well-suited for a layperson, who has the means to relate the nature of money to the nature of pain, embarrassment, inconvenience, disability, physical impairment, disfigurement, mental anguish, and loss of

    
    

    capacity for the enjoyment of life--both in the past and to be experienced in the future.

36. Allowing an expert witness to intervene in this factfinding process by testifying generally to the value of pain and suffering raises the twin issues of whether the witness is (or could be) an expert and whether the witness has invaded the province of the factfinder. These related issues were addressed directly in Mills v. Redwing Carriers, Inc., 127 So. 2d 453, 456-57 (Fla. 2d DCA 1961):

    An observer is qualified to testify usually because he has firsthand knowledge which the jury does not have of the situation or transaction at issue. The expert, however, has something different to contribute. This is a power to draw inferences from the facts which a jury would not be competent to draw. To warrant the use of testimony from a qualified expert, then, two elements are required. First, the subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman, and second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of facts in its search for truth. McCormick, Handbook of the Law of Evidence, 1954, page 28 and authorities collected therein. Moreover, where the opinion is nothing more than the speculation of an admitted non-expert on the issue involved, to that extent it does invade the province of the jury, which is equally competent to reach such a conclusion upon the same physical facts observed by the witness and made known to the jury by exhibits and testimony. There would appear therefore to be no material conflict between the basis for the objection by defendant to the evidence in the instant case [the failure of the witness to have been qualified as an expert] and the ground asserted by the court in granting the new trial [the witness invaded the province of the jury].

    
    

37. Stating the issue somewhat differently, the court in Summers v. A.L. Gilbert Co., 82 Cal. Rptr. 2d 162, 178 (Cal. App. 5th Dist. 1999) explained:

    Expert opinions which invade the province of the jury are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). “[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. ‘Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.’ [Citation omitted.]” (People v. Torres (1995) 33 Cal.App.4th 37, 47, 39 Cal.Rptr.2d 103; see 1 McCormick on Evidence, supra, § 12, p. 49, fn. 11 [“The fact that an opinion or inference is not objectionable because it embraces an ultimate issue does not mean, however, that all opinions embracing the ultimate issue are admissible…. Thus, an opinion that plaintiff should win is rejected as not helpful.”].) In other words, when an expert's opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.

    
    

38. Obviously, this decisional law applies directly to a personal injury trial. It remains to be seen how Florida courts will allow the parties in a

17b proceeding to prove pain and suffering for the purpose of determining the true value of a recipient's case. At least one court has stated that a trial lawyer in a 17b proceeding testifies merely as a fact witness about facts from the personal injury action known to the lawyer from the preparation and settlement of the case.12 If a trial lawyer is able to provide useful testimony in a 17b proceeding by identifying jury verdicts awarding specific sums for

12 Ag. for Health Care Admin. v. Rodriguez, 294 So. 3d 441, 443 (Fla. 1st DCA 2020). But see Giraldo, 248 So. 3d at 56: "Although a factfinder may reject 'uncontradicted testimony,' there must be a 'reasonable basis in the evidence' for the rejection. Wald v. Grainger, 64 So.3d 1201, 1205–06 (Fla. 2011)." The Grainger case stands for the principle stated by the court, but as to the testimony of an expert witness, not a fact witness, so Giraldo implies that the trial lawyer testifying in a 17b proceeding appears as an expert witness.

pain and suffering on comparable facts, such testimony may meet the evidentiary standard for admissibility in a chapter 120 proceeding, which is "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." § 120.569(2)(g). But such testimony would be to inform, not supplant, the administrative law judge in finding a reasonable value for pain and suffering in order to determine a reasonable true value, so as to be able to perform a sound proportional reduction of the past medical expenses. If the administrative law judge were to lack such factfinding authority, the administrative law judge would be equally unable to correct an overstatement of the pain and suffering by $40 as by $8 million, leaving it to Petitioner's trial lawyer effectively to dictate Respondent's recovery.

ORDER

It is

ORDERED that Respondent shall recover $107,441.83 from Petitioner's

$1 million settlement in full satisfaction of its present Medicaid lien.

DONE AND ORDERED this 4th day of November, 2020, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 4th day of November, 2020.

COPIES FURNISHED:

Shena L. Grantham, Esquire

Agency for Health Care Administration Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308 (eServed)

Alexander R. Boler, Esquire

2073 Summit Lake Drive, Suite 330

Tallahassee, Florida 32317 (eServed)

Floyd B. Faglie, Esquire Staunton & Faglie, P.L. 189 East Walnut Street Monticello, Florida 32344 (eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 20-002964MTR

Orders for Case No: 20-002964MTR