The Federal Rules of Evidence govern the admissibility of expert testimony in federal cases. Rule 702 has long required courts to begin their analysis by asking two questions. First: Is the expert basing an opinion on specialized knowledge, derived from training or experience, that ordinary members of the jury will probably lack? If so, the court asks a second question: Will the expert’s opinion help the jury understand a fact or answer a question that is relevant to the case?
When expert testimony meets those threshold tests, the judge next decides whether the witness is qualified to render an expert opinion. Finally, the judge asks whether the evidence satisfies the Daubert standard.
Whether the evidence is admissible under Daubert is a question that divides the parties in nearly every case in which an expert proposes to testify. Fortunately, the consensus among federal courts (and state courts that have adopted the Daubert standard) is that medical billing experts are able to give admissible testimony.
Federal judges have different ideas about what Daubert means. The Daubert decision purports to liberalize the admissibility of expert testimony. Before Daubert, federal courts tended to reject expert opinions that were not based on generally accepted scientific principles. The Daubert decision focuses on whether experts use reliable methods to form their opinions, even if those methods are not yet generally accepted.
Despite its stated intent to liberalize the standard for admitting expert testimony, many judges view the decision as restricting testimony that the judge deems unreliable, even if a jury might find it persuasive. Federal precedent has described the judge’s role after Daubert as that of a “gatekeeper,” admitting testimony that is based on reliable methods while excluding testimony that is not.
In a nutshell, Daubert and its progeny require expert opinions to be based on:
1. sufficient facts or data,
2. a reliable methodology, and
3. the reliable application of the methodology to the facts or data.
Judges may consider several factors when they decide whether a methodology is reliable, such as whether other experts recognize the validity of the methodology and whether it has a known error rate. Some of those factors (such as error rates) apply to experts who use scientific experimentation to arrive at opinions.
Daubert and Nonscientific Testimony
After Daubert was decided, courts were divided about its applicability to nonscientific testimony. When expert testimony is not based on physics, chemistry, or some other “hard science,” the factors that determine reliability are less clear. The Supreme Court resolved the issue about six years after it decided Daubert. In a case called Kumho Tire, the Court held that expert opinions must be reliable even if they are not based on science.
The analysis of nonscientific testimony begins with an assessment of whether the witness’ field of expertise is reliable. As Justice Breyer noted in Kumho Tire, an expert in astrology cannot give reliable expert testimony because the expert is not engaged in a reliable field of study. A lawyer who seeks the admission of nonscientific testimony should therefore establish that the expert’s field is recognized as legitimate.
Justice Breyer also noted that the factors identified in Daubert to determine the reliability of scientific testimony are flexible. Not all of them apply to nonscientific testimony. The ultimate question is whether the expert’s testimony demonstrates the degree of “intellectual rigor” that should be expected of someone who works within a specialized field.
The Kumho Tire decision did not create a list of factors that help judges decide whether nonscientific testimony is reliable. Courts that consider the admissibility of nonscientific opinions generally ask whether the expert:
1. based an opinion on specialized knowledge,
2. adopted a reliable method to arrive at an opinion that removes guesswork or speculation from the opinion-formation process,
3. considered sufficient facts that are derived from reliable sources to support the expert’s opinion, and
4. arrived at an objective conclusion that is supported by the facts.
Courts also ask whether the expert’s reasoning or methodology “fits” the facts of the case. That question generally informs the judge’s decision whether the expert opinion is relevant.
Admissibility of Medical Billing Expert Testimony
Medical billing experts analyze medical bills to determine whether the bills are reasonable. In many cases, the question they must answer is whether a billing represents the usual, customary, and reasonable charge for each service rendered. Experts might also form opinions as to whether the bills offer evidence of fraudulent billing.
Courts recognize that medical billing experts are qualified when they have particular training and experience that most people lack. Learning the complexities of the codes used on medical bills to identify each diagnosis or service is part of the specialized training or education that qualifies medical billing experts to provide admissible testimony. Courts agree that medical billing experts do not need medical training to qualify as expert witnesses.
Medical billing experts gather sufficient facts and data that allow them to form opinions. In addition to medical billings, they rely on medical records and on databases that record the actual costs of specific medical services within a zip code. Courts consider those facts to be sufficient to support an expert’s analysis of a medical billing.
Medical billing experts also derive their opinions from reliable methodologies. They perform a line-by-line analysis of medical bills, looking for double charges or mistakes (such as data entry errors) that result in erroneous charges. They compare medical records to medical billings to determine whether the billing reflects the actual services that were provided.
Medical billing experts rely on their expert understanding of billing codes to assure that the billing does not reflect a more expensive service than the service that the patient received. They examine billings for “unbundling” errors that occur when doctors use billing codes for separate services that were provided at the same time. Since lay members of a jury are not trained to interpret billing codes, expert knowledge provides the foundation of the expert’s opinion.
Finally, medical billing experts use reliable databases to determine the actual prices charged by other physicians in the same area for the same services. That analysis allows the expert to determine whether the medical billing falls within a reasonable range of charges for the same services or is substantially higher.
As all medical billing experts use the same fundamental principles to determine whether charges are reasonable, their methodology is widely accepted as reliable within their field of expertise. Eliciting testimony about the expert’s methodology and training provides the court with a basis for determining that the expert’s opinion satisfies the Daubert standard.