20-002038MTR Daniyah Bazar, A Minor, By And Through Her Parents And Natural Guardians, Azzam And Amal Bazar vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Wednesday, July 29, 2020.

Summary: Petitioner proved the suitability of proportional reduction of the past medical expenses in settlement proceeds in accordance with the settlement discount accepted by Petitioner.

S TATEMENT O F T HE I SSUE S

The issues are whether, pursuant to section 409.910(17)(b), Florida

Statutes (17b), 1 P etitioner ha s proved that Respondent's recovery of $ 535,312

in medical assistance expenditures 2 from $ 5 million in proceeds from the

settlement of a personal injury action must be reduced to avoid conflict with

42 U.S.C. § 1396p(a)(1) (Anti - Lien Statute) 3 ; and, if so, the maximum

allowable amount of Respondent's recovery.

P RELIMINARY S TATEMENT

On April 2 7 , 2020 , Petitioner filed with DOAH a Petition to Determine

Medicaid's Lien Amount to Satisfy Claim a gainst Personal Injury Recovery

by the Agency for Health Care Admi nistration. I nvok ing Petitioner's right to

a 17b proceeding , the petition alleges that Respondent's recovery of $ 535,312

is excessive because it violates the Anti - Lien Statute. The petition alleges

that Petitioner obtained $ 5 million in settlement of a per sonal injury action

with a true or full value of more than $ 23.5 million , or 21.3% of the true value

of the case. P etitioner alleges that Respondent's recovery must bear the same

proportion to $535,312 4 -- 21.3% -- that the settlement bears to the true value o f

the case. The petition concludes that Respondent therefore may recover no

more than $114,02 2 . 5

1 All references to sections are to Florida Statutes , and all statutory refe rences are to the appropriate year.

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

3 All references to the "Anti - Lien Statute" include its counterpart , 42 U.S.C. § 1396p(b)(1), which might be

called the "Anti - Recovery Statute" and similarly limits the ability of a state Medicaid agency to recover

medical assistance properly expended on behalf of a recipient. "Recovery" and "lien" are used

interchangeabl y in this final order .

4 Th is value represents Respondent's medical assist ance expenditures and the portion of the true value of

the case represented by past medical expenses .

5 The petition does not seek to reduce Respondent's recovery further by its proportional share of attorneys'

fees and costs incurred in prosecuting the p ersonal injury action.

The parties filed a Joint Prehearing Stipulation on June 2 9 , 2020.

Stipulated facts have been incorporated into the Findings of Fact set forth

below.

At the hearing, Petitioner called three witness es 6 and offered into

evidence eight exhibits: Petitioner Exhibits 1 through 8 . Respondent called no

witnesses and offered into evidence no exhibit s . All exhibits were admitted.

On June 29, 2020, the parties filed a Joint Motion for Protective Order,

which the administrative law judge granted at the hearing and documented

by order entered on July 21, 2020. The motion and order apply to Petitioner

Exhibits 4 through 8. Petitioner Exhibits 4 through 7 concern confident ial

medical information. Petitioner Exhibit 8 is the General Release or

settlement agreement between Petitioner , on the one hand, and , on the other

hand, her birth hospital in West Palm Beach and the large healthcare

corporation that directly or indire c tly owns the birth hospital. 7

Despite the joint motion, it is not entirely clear how the parties wish

confidential information to be handled. In filing the above - referenced

petition, Petitioner elected to name herself and her parents , although such

informat ion ha s been unnecessary to the preparation of the final order and is

not invariably provided in similar petitions filed with DOAH .

8 Petitioner 's

6 One witness was Petitioner's mother, who placed a tablet in front of herself and Petitioner, so Petitioner

could participate in the Zoom hearing to the extent that she was able.

7 Paragraph 5.a of the joint motion allows the part ies to use the designated exhibits solely as evidence in the

subject proceeding. Paragraph 5.b of the joint motion allows the administrative law judge, appellate court

judges, and Respondent's employees to inspect the exhibits. Paragraph 5.c of the joint m otion requires the

administrative law judge to seal the designated exhibits in an envelope with instructions for opening the

envelope. Paragraph 5.d of the joint motion directs the parties not to disseminate the information contained

in the designated exhi bits.

8 As of July 21, 2020, the DOAH case management website lists 26 active 17b proceedings. All but two of

these cases name the petitioner and his or her representative or representatives. DOAH Case 20 - 0875MTR

identifies the petitioner as "Jane Doe, an incapacitated adult by and through her [unnamed] plenary

proposed final order has disclosed the names of the defendants, Petitioner's

metabolic disease, her metabolic decompensation and brain injuries, and the

amount of the settlement . Respondent 's proposed final order states that it

has not disclosed "sensitive information in the [designated] exhibits , " 9 b ut

discloses all of the same information . The preparation of thi s final order has

required findings and analysis as to all of this information, except the names

o f the birth hospital and its corporate owner, so this information has been

omitted from the final order , notwithstanding the ease with which third

parties may inform themselves of the identity of these entities .

The parties did not order a transcript . The parties filed proposed final

or der s by July 2 1 , 2020.

F INDINGS O F F ACT

1. On September 28, 2005, Petitioner was born by an unremarkable

delivery at 42 weeks ' gestation at a hospital in West Palm Beach. On

October 1, 2005, from all appearances a healthy infant, Petitioner was

discharged to home. However, Petitioner was born with an extremely rare

metabolic disorder known as B - ketothiolase deficiency (BK T ) , whi ch prevents

the body from processing a protein building block called isoleucine and

impedes the body's processing of ketones. A few weeks after Petitioner's

birth, the birth hospital began screening that would have detected this

condition and permitted tim ely management and treatment of this serious

condition .

2 . Petitioner progressed normally until, at the age of five years, she

acquired an infection that caused her to suffer a decompensat ion attack and

guardian," and DOAH Case 20 - 2124MTR identifies by name a parent, "individually and as

parent and natural guardian of A. F., a minor." As to the latter case, the same attorneys

represent the petition er and respondent as represent P etitioner and R espondent.

9 Resp . 's proposed final order, footnote 2 .

metabolic crisis. Over the span of a few hours , Petit ioner suffered irreversible

and progressive at r ophic changes to her basal ganglia . This brain damage

produced, among other permanent conditions , intermittent painful spasms ,

multiple times during the day and night , that cause Petitioner to thrash her

head about wildly, to arch her back into an extreme "U - like position," and

uncontrollably to scratch her eyes or mouth until the spasm ends or her arms

are secured or become entrapped in the wheelchair . Otherwise , Petitioner's

arms and legs are in a permanent s tate of contracture, so as to be of little use

to her , and her head is typically deviated to the left .

3. Unable to walk, Petitioner requires the use of a wheelchair for mobility,

but chronic pain, especially in her back, prevents her from remaining in th e

chair for more than 30 minutes at a time. Unable to maintain any position for

very long, Petitioner is unable even to watch television or a movie. Petitioner

attends school, where she is assisted by a one - to - one paraprofessional, but,

due to pain, she ty pically finds it necessary to leave, often in tears, prior to

the end of the school day.

4. Petitioner is completely dependent on others for all of the activities of

daily living. She is fed through a gastrostomy tube. Without respi t e care,

Petitioner's mo ther is unable to leave her daughter unattended and provides nearly all of the required care. Among many other things, the mother secures

Petitioner to her bed, changes her position, stretches her, brushes her teeth,

and takes her to appointments, includin g brain stimulation therapy in

Gainesville twice weekly to help with the spasms. The impact of Petitioner's

condition upon the family is nearly inestimable. For instance, nearly the

entire family must accommodate Petitioner's desire to go to an amusement

p ark, as the mother, Petitioner's father, and the older of their other two

children must help to get Petitioner into one ride.

5. Petitioner's ability to speak is limited , and she lacks the means of

expressive communication by writing or a keyboard. The fr ustration of these

communication barriers is heightened by the fact that Petitioner is likely to

be cognitively intact, meaning that she is substantially "locked in , " so as to

understand what is going on about her, but is unable to express herself, even

by body movement or gesture.

6. No single measure adequately conveys the extensive care required just

to maintain, to the maximum extent possible, Petitioner's present, limited

functional ity . When assessed for a life care plan, Petitioner was being seen by

n ine different physicians, three therapists, and the school nurse ; was taking

nine different medications ; and was served by or consumed nearly two dozen

items of equipment or supplies.

7. In 2013, Petitioner filed a personal injury action in circuit court i n West

Palm Beach against the birth hospital and its corporate parent. The case

presented three major problems in establishing liability. At the time of

Petitioner's birth, only two hospitals in the state of Florida provided BKT

screening at birth, and the birth hospital was not one of them. However, the

corporate parent owns numerous hospitals in other states, and at least some

of these hospitals were providing BKT screening at the time . Petitioner's

ability to establish a favorable standard of care was th us dependent on

keeping the corporate parent in the case, even though its liability was attenuated. Petitioner's task was complicated by a Florida statute that

explicitly provides that the failure of a healthcare provider to provide

supplemental diagnostic tests is not actionable if the provider acted in good

faith with due regard to the prevailing standard of care.

10 Lastly, Petitioner

was confronted by a causation issue because, when informed of Petitioner's

rare metabolic condition, the parents did not im mediately obtain a screening

for her older brother.

8. I n September 2017, the circuit judge ordered the parties to submit to

two summary jury trials, in which each side had a little over one hour to

present the case to actual jurors for a nonbinding verdic t. Each party devoted

10 § 766.102(4).

nearly all of its allotted time to a presentation on liability, not damages. One

jury returned a verdict for the defendants, and the other returned a verdict

for the plaintiff s , awarding $23.5 million as follows: the loss of earning

c apacity and future medical expenses after the age of 18 years -- $10.5 million;

past and future pain and suffering -- $5 million; past and future medical

expenses until the age of 18 years -- $5 million; and the parents' loss of

consortium -- $3 million.

9. In the ensuing settlement negotiations , the defendants' counsel did not

contest the damages . Significantly , in calculating future medical expenses

and loss of earning capacity, both sides chose conservative reduced actuarial

values with only four years separatin g their choices. Additionally, the

defendants' counsel did not contend that a timely screening might not have

prevented the injuries . Instead, the defendants' counsel argued the

above - described liability and causation issues. The plaintiffs' counsel oppose d

these arguments and , secondarily, argued that the $23.5 million summary

jury verdict was too low due to the necessity of counsel's preoccupation with

liability during their presentations. Nearly one year after the summary jury

verdicts and after extensiv e discovery and the expenditure of about $200,000

in costs by the plaintiffs , the parties reached the settlement described above.

10. By any standard of proof, Petitioner has proved that the true value of

her case was at least $23.5 million, including $535 ,000 for past medical

expenses, and that the $5 million settlement was driven by concerns as to liability and causation, not damages. The only noteworthy damages

component in the true value is Petitioner's past and future pain and

suffering, which could ha ve support ed a larger value based on the Florida

Supreme Court's jury instructions on the matter.

11

11 Florida Stan d ard Jury Instructions in Civil Cases, Appendix B, Form 2, states in part:

What is the total amount of (claimant’s) dama ges 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

11 . The $ 5 million settlement represents a discount of $ 18.5 million or

78.7 % when compared to the true value of the case. Applying the same

discount to $535 ,312 results in Respondent's recovery of $114,02 1 .

C ONCLUSIONS O F L AW

1 2 . DOAH has jurisdiction. §§ 120.569, 120.57(1), and 409.910(17)(b);

Giraldo v. Ag. for Health Care Admin. , 248 So. 3d 53 (Fla. 2018).

13 . Respondent is obligated by statute to obtain reimbursement of medical

assistance expenditures from judgment or settlement proceeds obtained by a

Medicaid recipient 12 from a tortfeasor whose wrongdoing necessitated the

Medicaid payments. To effect this recovery , Respondent is subrogated to the

recipie nt's rights to any proceeds derived from third parties , the recipient

assigns to Respondent its rights to any such proceeds, and Respondent has a

lien against any such proceeds. 13

14. I n Department of Health & Human Services v. Ahlborn , 547 U.S. 268

(2006), the Supreme Court ruled that the imposition of a state Medicaid

agency's lien on the full amount of settlement proceeds conflict s with the

Anti - Lien Statute to the extent that the encumbered proceeds include

"medical expenses , " 14 because the Anti - Lien Stat ute reserve s to the recipient

of capacity for the enjoyment of life sustained in the past and

to be sustained in the future?

https://www.floridasupremecourt.org/content/download/243071/2143268/entireDocument.pdf .

12 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.

13 § 409.910(6).

14 T he Court has never indicat ed whether "medical expenses" includes future medical

expenses or only past medical expenses, but , as noted below, the Florida supreme court in

Giraldo has he ld that "medical expenses" is limited to past medical expenses.

the portion of the proceeds allocable to medical expenses . 15 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 und ergo a

proportional reduction . The re was no dispute that the agency had paid about

$216,000 16 in medical assistance and the recipient had obtained settlement

proceeds of $5 5 0,000 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 reco very , once the recipient

prevailed on the issue presented to the Court .

15 . I n 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

ove r $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 settleme nt , which did not allocate the proceeds among

the various damages components , was driven largely by the defendants'

policy limits. In declining to allow the agency to recover $933,333 17 of the

$2.8 million settlement without a hearing to determine the porti on of the

15 The Court impliedly invoked the Supremacy Clause of the U.S. Constitution in holding

that the Arkansas statute was unenforceable to the extent it authorized a lien on the medical

expenses o f settlement proceeds.

16 Most values from other cases are rounded off for ease of presentation.

17 The amount is one - third of the gross proceeds , a s 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).

settlement proceeds allocable to past medical expenses , the Court rejected the

state's argument that ascertaining the true value of a case wa s 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.

16. Responding to Wos , 18 the Florida legislature enacted

s ection 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 . 19

C onst ruing 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 .

17. Respondent does not dispute the fact that Petit ioner obtained a

$5 million settlement. It is equally clear that the true value of Petitioner's

case at the time of the settlement was at least $23.5 million. The future

medical expenses and loss of earning capacity were supported by conservative

actuarial values, and the value assigned to the pain and suffering of

Petitioner was conservative to the point of being inadequate. It is thus clear

that no issues in volving damages drove the settlement discount of 78.7%,

which was the sole result of grave issues a s to liability and causation .

18 A few months after the Wos decision, the legislature passed and the Governor signed into

law two slightly different bills: ch apter 2013 - 48, sections 6 and 14, and ch apter 2013 - 150,

sections 2 and 7, Laws of Fl orida.

19 Section 409.910(11)(f ) sets Respondent's recovery a s 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 attorney s' fees and by taxable costs. This statutory formula is ir relevant to the

present case because Respondent's medical assistance expenditures are less than the amount

derived by the formula. Under no circumstances may Respondent's recovery ever exceed its

total medical assistance expenditures.

18. When the settlement amount and true value -- and thus the settlement

discount itself -- are supported by the evidence, there is no reason not to

impose the same settlement discount or proportional reduction to the past

medical expenses to determine the maximum recovery that Respondent may

obtain without violating the Anti - Lien Statute. Although neither Ahlborn nor

Wos mandates a method for making this determination , each decision

requires some sort of analysis of the settlement or judgment proceeds in

terms of the relationship of the medical expenses to the other damages

components . A proportional reduction of each damages component -- if each

damages component is supported by the evidence -- is uniquely suitable

because a proportio n is inherently comparative. 20

19. In its proposed final order, Respondent asserts two arguments against

a proportional reduction of the past medical expenses -- the latter of which is

unique to the facts of this case . First, Respondent argues that the

propo rtional reduction method is not required, which is correct, but also that

this method has its problems, which is incorrect, as long as each damages

component in the true value is supported by the evidence. 21

20. Respondent relies on Smith v. Agency for Hea lth Care Administration ,

24 So. 3d 590 (Fla. 5th DCA 2009), in which then - Judge, now - Justice Lawson ,

writing for the majority, affirmed the ruling of the trial judge 22 denying a

request by the plaintiff's counsel to reduce Respondent's Medicaid lien from $1 23,000 to $41,000. The plaintiff's counsel had argued that Respondent

20 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 who le with respect to magnitude, quantity, or degree : ratio." https://www.merriam -

webster.com/dictionary/proportion.

21 As noted above, the actual settlement amount must also be supported by the evidence, but

the administrative law judge is unaware of any ca se in which a recipient has attempted to

understate the value of the settlement in order artificially to increase the settlement

discount.

22 Smith predates the enactment of section 409.910(17)(b).

must accept the same 67% settlement discount that the plaintiff had

accept ed , as mandated by Ahlborn .

21. There are two obvious problems with the plaintiff's request. First, as

Smith po ints out, 23 Ahlborn uses a proportional reduction method due to the

stipulation of the parties and does not endorse, let alone mandate, the

method in other cases. Second, as Smith points out, 24 any form of a

proportional reduction requires evidence, not mer ely argument. See Davis v.

Roberts , 130 So. 3d 264, 268 (Fla. 5th DCA 2013) (explaining Smith 's holding

in part as a result of the absence of evidence from the plaintiff in allocating

damages).

22. Smith faults the Ahlborn formula for assuming that the Med icaid lien

is the only medical expense component in the plaintiff's damages claim. It is

risky to glean much detail about a formula that was driven by the parties'

stipulation, but nothing in the proportional reduction method used in this

case limits past medical expenses to Respondent's medical assistance

expenditures . The proportional reduction method can accommodate any

judicial directive as to how to calculate the past medical expenses: i.e., past medical expenses including only Respondent's Medicaid pa yments, past

medical expenses includ ing all paid medical expenses, past medical expenses

includ ing all billed medical expenses , or any combination of these

approaches .

23. At bottom, the trial judge in Smith was confronted with claim s , not

proof, of a true value and, thus, settlement discount that w ere limited only by

the imagination and ethics of the plaintiff's counsel. The judge properly

rejected the claim s and was properly affirmed on appeal.

24. Respondent's second argument springs from a misreading of Smith , in

which Respondent claims to have found , in the case, a "legal test" for

23 Smith , 24 So. 3d at 591.

24 Smith , 24 So. 3d at 592.

determining past medical expenses that, with considerable understatement,

Respondent brands as "most closely aligned with the express language of

[17b]" 25 : " a plaintiff should be afforded an opportunity to seek the reduction

of a Medicaid lien amount by demonstrating, with evidence, that the lien

amount exceeds the amount recovered for medical expenses. " 26 Of course,

three years after Smith , this is substantially what the legis lature enacted --

i.e., a provision allowing a recipient an opportunity to show that the Medicaid lien exceeds the amount recovered for medical expenses. But neither the

language in Smith nor 17b identifies a method for making a determination of

past medical expenses.

25. Next, Respondent misconstrues the 17b language that states : " the

recipient must prove that the portion of the total recovery which should be

allocated as past … medical expenses is less than the amount calculated by

the agency pursuant to the formula set forth in paragraph (11)(f) . "

Respondent contends that this language means that Petitioner must "prove

not only what amount should be allocated, but also how that amount should

be determined." 27 But the statute says only that, if Petitioner wishes to

reduce Respondent's recovery, Petitioner must prove that past medical

expenses are less. Just as the statute contains no method for making this

determination, neither does it assign to the recipient the task of finding a

method.

26. Respondent's argument culminates in the point that , in this case,

Petitioner failed in its proof of the applicability of the proportional reduction method because neither of its expert witnesses unconditionally opted for the

proportional reduction method, but instead p erformed the necessary

25 Resp . 's proposed final order, p. 13.

26 Smith , 24 So. 3d at 592.

27 Resp . 's proposed final order, p. 12.

calculations on the assumption that such a method applied. 28 This is an

interesting point because Respondent usually is on the other end of this

argument: a recipient's expert witness opts for and applies the proportional

reduction me thod, Respondent calls no expert witness to rebut this

testimony, and the recipient claims victory -- for the past two years, usually

citing the Giraldo warn ing t hat a factfinder may reject "uncontradicted

evidence" only if there is a "reasonable basis in th e evidence" for doing so,

although the court relies on a case that so holds as to expert testimony. 29

27. In affirming a proportional reduction, the court in Agency for Health

Care Administrative v. Rodriguez , 294 So. 3d 441, 443 (Fla. 1st DCA 2020),

treat ed the allocation method as a finding of fact and testimony about facts of

the personal injury action from the recipient's trial counsel as fact testimony,

not expert testimony. This may represent the start of a much - needed judicial

revis i tation of the evi dence that is appropriate in a 17b proceeding and the

role of the administrative law judge in weighing this evidence in making direct and ultimate findings of fact.

28. Regardless of whether Giraldo is cited as a sword or a shield in terms

of the necessity of a witness's choice of an allocation method , it is necessary to

limit the role of a fact or expert witness in selecting and using a formula to

determine the extent to which settlement or judgment proceeds represent

past medical expenses , even if the wit ness does not proceed to perform the

arithmetic to determine Respondent's maximum allowable recovery.

30

28 Resp . 's proposed final order, pp. 3, 8 - 9, and 15.

29 Giraldo , 248 So. 3d at 56 (citing Wald v. Grainger , 64 So. 3d 1201, 1205 - 06 (Fla. 2011).

30 A s the court noted in Summers v. A.L. Gilbert Co., 82 Cal. Rptr. 2d 162, 178 (Cal. App. 5th

Dist. 1999):

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 per haps 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

Otherwise, in t he mine run of cases, as distinguished from this case, the role s

of Respondent, the administrative law judge, and the appellate courts are

quickly reduced to checking the accuracy of the witness's arithmetic , and,

unless Respondent subjects itself to the expense of presenting rebuttal

witnesses, the deference paid to the recipient's witness may open the back

the evidence and draw the necessar y conclusions, then the

need for expert testimony evaporates.’ [Citation.]” ( 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 objection able 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 .

Developing the noting of supplanting the trier of fact, in a case closer to home, but

long ago, the court 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 d ifferent 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 app ear therefore to be no material conflict between the basis for the objection by defendant to the evidence in the instant case [failure of the witness to have been qualified as an expert] and the ground asserted by the

court in granting the new trial [the w itness invaded the

province of the jury].

door to the presentation of a tru e value and, thus, settlement discount that ,

as in Smith , are limited only by the imagination and ethics of the recipient's

counsel -- a process that would be as well served by the unilateral filing of an

affidavit or two than by a formal administrative hear ing.

29. Regardless of the testimony of Petitioner's witnesses, the most

suitable method for determining the extent of past medical expenses in the

settlement proceeds in this case is the proportional reduction method, as

applied above. As noted in the Fin dings of Fact, Respondent's recovery is thus

limited by the Anti - Lien Statute and 17b to $114,021.

O RDER

I t is

O RDERED that Respondent shall recover $1 14,021 from Petitioner's

$ 5 million settlement.

D ONE A ND O RDERED this 29th day of July , 2020 , in Tallah assee, Leon

County, Florida.

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 w ith the Clerk of the

Division of Administrative Hearings

this 29th day of July , 2020 .

C OPIES F URNISHED :

Alexander R. Boler, Esquire

2073 Summit Lake Drive , Suite 3 3 0

Tallahassee, Florida 32317

(eServed)

Jason D. Lazarus, Esquire

Special Needs Law Firm

2420 South Lakemont Avenue, Suite 160

Orlando, Florida 32814

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for He alth Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Cou nsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 com menced 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 l aw, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.