United States of America et al v. Halifax Hospital Medical Center et al

Filing 391

ORDER denying 299 Motion to Strike. Signed by Judge Gregory A. Presnell on 11/6/2013. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
USA and ELIN BAKLID-KUNZ,
Plaintiffs,
v.

Case No: 6:09-cv-1002-Orl-31TBS

HALIFAX HOSPITAL MEDICAL
CENTER and HALIFAX STAFFING,
INC.,
Defendants.

ORDER
Defendants, Halifax Hospital Medical Center and Halifax Staffing, Inc. (“Halifax”) have
moved to strike the expert report and preclude the testimony of Kathleen McNamara (Doc. 299).
The United States opposes the motion (Doc. 323).
In support of its Stark Act claims, the US presented the report of Ms. McNamara (Doc.
300-2) and disclosed her as an expert witness regarding the fair market value and commercial
reasonableness of the compensation paid by Halifax to three of its neurosurgeons, Dr. Kuhn, Dr.
Khanna and Dr. Vinas. These issues are relevant to Halifax’s claim that the compensation
arrangements between Halifax and these neurosurgeons fall within the bona fide employee
exception to the Act.
Mrs. McNamara is a CPA with over 20 years’ experience as a healthcare consultant
specializing in Medicare and Medicaid compliance issues. Halifax makes no serious effort to
attack her qualifications, and the Court finds that she is competent to express opinions in this field.
Her opinions are also clearly relevant to this dispute. Rather, Defendants’ motion is predicated on

its contention that Mrs. McNamara’s methodology is not sufficiently reliable to withstand a Rule
702, Daubert analysis.
In support of this contention, Halifax argues that McNamara’s opinion regarding fair
market value failed to consider certain relevant evidence (e.g. Halifax’s own fair market value
methodology), dismissed certain evidence as unreliable (e.g. the compensation per WRVU), relied
on unsubstantiated allegations of non-compliance (e.g. improper billing and coding) and contained
computational errors.
With respect to McNamara’s commercial reasonableness opinion, Halifax again criticizes
McNamara’s failure to consider the method by which Halifax allegedly determined the
commercial reasonableness of these compensation arrangements, and her reliance on other factors
such as the inherent unprofitability of the arrangement.1 Halifax also takes issue with
McNamara’s use of “arbitrarily” chosen criteria when comparing the neurosurgeon compensation
with other physicians practicing at Halifax.
Rule 702 requires the Court to exercise a gate-keeping function with respect to expert
testimony, assuring that the witness is qualified, that the opinion is relevant to the dispute and is
based on a sufficiently reliable methodology. Hendrix ex rel G.P. v. Evenflo Co., 609 F.3d 1183,
1194 (11th Cir. 2010). This gatekeeping function, however, does not include a determination of
the persuasiveness of the proffered opinion. Rather, the weight to be given this evidence is within
the province of the jury.
The McNamara report and her proffered testimony satisfies the reliability prong of a
Daubert analysis. It is based on statistical data, salary surveys, valuation ratios and other
observations that appear to be reasonable and supportable. Accordingly, it is
1

The neurosurgeons received a base salary plus 100% of their collections in excess of that
salary and other benefits. In essence, they enjoyed an overhead-free practice at Halifax.

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ORDERED that Defendants’ Motion is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on November 6, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Party

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