2018 Mass. App. Div. 79

February 23, 2018 - April 26, 2018

Appellate Division Northern District

Court Below: District Court, Lynn Division

Present: Coven, P.J., Crane & Flynn, JJ.

Matthew T. LaMothe for the plaintiff.

Jason J. Mellon for the defendant.

COVEN, P.J. This case involves a claim for chiropractic treatment provided pursuant to personal injury protection ("PIP") benefits. See G.L. c. 90, §§ 34A and 34M. After a jury-waived trial in the Lynn District Court, judgment entered in favor of the plaintiff in the amount of $579.43, plus costs and reasonable attorney's fees, although no award was made for attorney's fees. At issue in this Dist./Mun. Cts. R. A. D. A. 8C appeal is the admissibility of data evidence created by Fair Health, Inc. ("Fair Health"), a company that compiles chiropractic cost data from the private health insurance industry. The data purports to identify the usual charge for the same or similar service in an identifiable geographic area.

Jenissa Pomales, an insured under a Vermont Mutual Insurance Group ("Vermont Mutual") motor vehicle policy, was injured in an automobile accident and, as the result of such accident, received treatment from the plaintiff, Lomibo LLC, d/b/a All State Pain Treatment and Therapy Center ("Lomibo"). Lomibo sought payment from Vermont Mutual for provided services in the amount of $3,628.00. Vermont Mutual conducted a bill review utilizing Fair Health's data. Based on the review of the data, Vermont Mutual paid Lomibo $3,048.57 for what it believed were the reasonable costs of provided services. Lomibo filed its claim for the balance of $579.43. At the close of the evidence, the trial judge ruled the data inadmissible and entered judgment for Lomibo. In support of the ruling, the judge cited to a written opinion of another judge confronted with the admissibility of Fair Health data.

Vermont Mutual claims error in the exclusion of the data evidence after the parties stipulated to its admission. We find no error. There was no stipulation. [Note 2] Immediately

Page 80

prior to the opening statements, plaintiff's counsel informed the court that it would forego arguing a motion in limine concerning the admissibility of the Fair Health data and would instead object to its admission as it was presented.

Even if this were not the case, the trial itself was a trial as to the reasonableness of the fees. The parties did not, through a stipulation, remove from the fact finder's consideration the issue of the reasonableness of the charges. Therefore, the stipulation, in the context of the trial itself, could in no way have been a stipulation that was conclusive on the issue of reasonableness. The reasonableness of the charges remained a trial issue.

In any event, there was an understanding by the trial judge that the data evidence was being offered on a de bene basis. In preliminary discussion of the data evidence, it was brought to the attention of the judge that the trial would be the fourth trial conducted on the issue of the reasonableness of fees paid based upon Fair Health data. It was reported that in two cases a motion in limine had been denied, but it is unclear who benefitted from those rulings. And in the third case, the data was admitted on a de bene basis. In written findings, the judge indicated that there was an agreement to admit the trial evidence on a de bene basis with the court reserving a ruling on the motion until after trial. As noted, the record does not support such an express reservation, but this procedural understanding was harmless.

We also reject Vermont Mutual's claim that the court erred in excluding the Fair Health data based upon the ruling of another judge in a different trial [Note 3] where other evidence was presented. It is axiomatic that the adjudication and reasoning applied

Page 81

by another judge in an unreported separate case is not controlling but merely may constitute some persuasive value. The issue is the extent to which the extrinsic reasoning was relied upon in relationship to the facts of the case at issue. We conclude that there was no error.

In finding that the Fair Health data was not admissible, the judge specifically found, based upon testimony, [Note 4] that (1) Fair Health obtained information from insurers, but not from any medical providers; (2) though Fair Health utilized information received from sixty insurers, the identity of the contributors was not provided; (3) no information as to what percentage of national insurers submitted data was provided; (4) no information on the percentage of contributing Massachusetts insurers was introduced; (5) no information as to the percentage of the market within Massachusetts that give their information to Fair Health was provided; (6) no auditing of the data provided by Massachusetts insurers was conducted; and (7) only submitted data falling within the 5th to 95th percentile is used.

In her written memorandum, the trial judge specifically commented that the determination of the inadmissibility of the data was based, in addition to the above findings, on facts found by a judge in the Salem District Court case. [Note 5] In that case, the judge made findings that the Fair Health data was inadmissible pursuant to G.L. c. 233, § 78 (business record exception to hearsay) and G.L. c. 233, § 79B (hearsay exception to

Page 82

statements in commercial publications), summarizing that the basis of the ruling was because "Fair Health did not offer evidence sufficient to detail: an objective gathering of data; assurances that the data gathered was neither biased nor self-serving; the exact methodology for its calculation; nor assurance that the data gathered, in the states from which it is gathered, has created a set of facts relevant to [the case]. The data includes extrapolations, calculations and conclusions." The Salem judge also observed that the Fair Health data lacked support to find "thoroughness or fairness" from reporters; foundationally, the data lacked "statistical support" for its accuracy in collection; no "convincing information" on "external or even internal audits" was provided; the evidence did not "show a lack of bias"; and was "not straightforward or objective."

We conclude that, in comparison, there may exist semantical differences, but in each case the findings are consistent with the ultimate conclusion on the data's admissibility. To the extent that it may be argued that there exists meaningful distinction, any error of reference to the findings in the Salem case is harmless. The objections to the foundational requirement for the admissibility of the Fair Health data articulated by the judge are, themselves, sufficient to undermine the reliability of the data evidence.

Judgment for the plaintiff is affirmed, and the matter is returned to the trial court for the calculation of costs and attorney's fees for the trial.

So ordered.


[Note 1] Doing business as All State Pain Treatment and Therapy Center.

[Note 2] Stipulations may be one of fact or law or a combination of fact and law. In Goddard v. Goucher, 89 Mass. App. Ct. 41 (2016), the Appeals Court stated:

"There is, of course, a significant difference between factual and legal stipulations. 'Nothing is more common in practice or more useful in dispatching the business of the courts than for counsel to admit undisputed facts.' Brocklesby v. Newton, 294 Mass. 41, 43 (1936). Generally, such stipulations are binding on the parties, see Kalika v. Munro, 323 Mass. 542, 543 (1948), and respected by the courts, unless a court determines that to do so would be 'improvident or not conducive to justice.' Loring v. Mercier, 318 Mass. 599, 601 (1945). See Huard v. Forest St. Hous., Inc., 366 Mass. 203, 208-209 (1974) (stipulation that omitted 'seemingly significant information' set aside and matter remanded to trial court); Stuart v. Brookline, 412 Mass. 251, 254-255 (1992) (statement of agreed facts was binding where party failed to show that facts were 'omitted, misstated or inadvertently included'). See generally Mass. G. Evid. § 611(g)(1) (2015).

"In contrast, stipulations regarding 'the legal effect of admitted facts' require a different consideration 'since the court cannot be controlled by agreement of counsel on a subsidiary question of law.' Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917). 'Parties may not stipulate to the legal conclusions to be reached by the court.' Texas Instruments Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995), quoting from Saviano v. Commissioner of Int. Rev., 765 F.2d 643, 645 (7th Cir. 1985). 'Issues of law are the province of courts, not of parties to a lawsuit, individuals whose legal conclusions may be tainted by self-interest.' Ibid. We therefore do not hold ourselves 'bound to accept, as controlling, stipulations as to questions of law.' Estate of Sanford v. Commissioner of Int. Rev., 308 U.S. 39, 51 (1939)." Id. at 45.

[Note 3] Lomibo LLC, d/b/a All State Pain Treatment & Therapy Ctr. v. Vermont Mut. Ins. Group, Salem District Court, No. 1336CV0201.

[Note 4] The trial judge made a number of findings regarding the inadequacy of the testimony of the defendant's expert. Specifically, she found Dr. LoSasso was able to speak only to the number of claims received by Fair Health, but not to the percentage of the industry that this amount made up. Further, he indicated that the identity and exactly how many providers were providing such services did not matter with regard to the data. Dr. LoSasso was able to speak about the sample size based on the total number of claims received by Fair Health, but did not offer any information on what percentage of the industry nationwide these claims represent. Dr. LoSasso was able to speak only to the data received by Fair Health and was unable to discuss who may have sent such data. Dr. LoSasso indicated that Fair Health received seventy million claims from the state of Massachusetts; however, he was unable to answer whether this number represented the total number of claims submitted to health insurers generally within Massachusetts. Further, no information was offered with regard to the percentage of claims within the state this represented. Additionally, Dr. LoSasso was unsure of whether Fair Health receives contributions from every insurer in the state of Massachusetts, nor did he know whether Fair Health receives any claims at all from auto insurers. Dr. LoSasso was unaware of any sort of auditing done for the charges submitted in the state of Massachusetts.

Moreover, the trial judge challenged the objectivity of Vermont Mutual's expert witness, finding that as a past consultant and employee of Fair Health, he helped to create the usual, customary, and reasonable reimbursement rates for Fair Health and, as such, his testimony was an attempt to validate a system that he helped to design and create.

These findings are consistent with findings with regard to similar data in earlier cases. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358 (2013) and Michael Davekos, P.C. v. Liberty Mut. Ins. Co., 2008 Mass. App. Div. 32.

[Note 5] See note 3, supra.