Motion to Exclude Expert Witness

Motions to exclude an expert witness are tactics by an opposing party to prevent the admissibility of testimony in court or to a jury.  In other words, these motions may focus on alleged deficiencies in an Expert’s qualifications, Expert methodology, Expert’s basis for opinions, and other factors.   Accordingly, if an Expert survives a motion to exclude his or her testimony, it is favorable for their reputation.   Consequently, if the motion to exclude is DENIED, this is a favorable outcome for the expert, and usually for the side that retained the expert.

A motion in limine, Hallmark, or Frye motion or Daubert Challenge may be introduced to exclude an expert witness.   Importantly, a Chief U.S. District Judge, a U.S. District Judge, one State Judge, and an arbitrator denied motions to exclude Michael Arrigo. Another Arbitrator consented to a stipulation of Arrigo’s expert qualifications.

To elaborate, here are the cases and the summary of Rulings by Federal Judges, State Judges and Arbitrators involving Michael Arrigo as an expert witness:

Medicare Fraud Case (Federal), Local Coverage Determinations (LCDs), National Coverage Determinations (NCDs), Medically Necessary Care, Damages

• DENIED – UNITED STATES of AMERICA v. Clifford Shoemake et al. CRIMINAL CASE NO. 16-00002. Order from the bench.  Chief District Judge Frances Marie Tydingco-Gatewood of the U.S. District Court of Guam April 2018.Denied motion to exclude.  Arrigo is retained by Defendant in alleged $30 million Medicare fraud case.  When Defendant’s opposition prevailed, the Prosecution withdrew Daubert challenge.

Medicaid and Medicare Fraud Case (Federal), Kick Backs, Cost Report Fraud, Non-Medically Necessary Care, Electronic Discovery, Damages

• DENIED^,(1)– UNITED STATES of AMERICA and the STATE OF CALIFORNIA ex rel. Julie A. Macias v. PACIFIC HEALTH CORPORATION CV 12–00960–RSWL–AJWx. See Westlaw 2018 WL 1026361.  To elaborate, Senior District Judge Ronald S.W. Lew of the U.S. District Court, Central District of California noted “…Mr. Arrigo is a damages expert…,” “…Mr. Arrigo clearly has the relevant qualifications necessary …” and noted Arrigo’s expertise in medical coding, billing, electronic health records and as a Medicare fraud damages.  “…Accordingly, the Court finds that Mr. Arrigo has sufficient specialized knowledge to provide an opinion…” Feb. 2018. The motion to exclude the expert witness was denied.

Personal Injury Case, Usual Customary and Reasonable Cost of Medical Care, Rebuttal to Life Care Plan, Duty of Plaintiff to Mitigate Damages and Cost of Medical Care (State of Texas)

• DENIED – Lobin v. J.B. Hunt TransportAAA 01-16-0000-0480 Order No. 4, Arbitrator / Judge William E. Hartsfield, 7/18/17 Dallas, TX.Denied motion to exclude. The motion to exclude the expert witness was denied.

Provider v. Billing Company Dispute, Industry Standards for Provider and Billing Companies, Damages Calculations (State of California Arbitration)

• STIPULATED and admitted – San Francisco Spine Surgeons v. Claim Works, LLC. JAMS No. 1110018697 9/17/2017, Transcript Volume III. Arbitrator / Judge Ambler stated that parties stipulate that Arrigo is an expert in medical coding, medical billing and damages calculations.

Personal Injury Case (State of California), Usual Customary and Reasonable Cost of Medical Care, Affordable Care Act Out of Pocket Maximum, Essential Health Benefits

• DENIED (2) – Allure Nichols v. Eskaton, Inc., et al., CASE NO.: CVPO-2017-916 Order after hearing on Parties’ in Limine Motions.  California Superior Court Judge Peter M. Williams. March 28, 2019.  Retained by Plaintiff, in a personal injury case.  To explain, Defendants argue the medical care was paid by a capitated Medicare Part C plan, and regardless of the services provided, there was, in effect no payment made for Plaintiff’s hospital care.  The Court ruled that the reasonable value of the medical services is at issue – not the amount incurred—must be used instead. “This value is generally determined by expert testimony.”   The motion to exclude the expert witness was denied.

(1) To elaborate, the Motion was granted in part, denied in part, based on procedural grounds, not the expertise or methods of the Expert (in that Judge Lew’s ruling permitted Arrigo to give testimony and found that his specialized knowledge and methodology were sound, but precluded Arrigo from stating how many hours a physician might have spent performing specific procedures).  “Relator fails to allege in the Amended Complaint that Dr. Khossoussi was unable to work the time he billed to Medicare. Further, Dr. Khossoussi argues that Mr. Arrigo’s opinions regarding the possibility of Dr. Khossoussi working the time he billed are unfounded and irrelevant to Relator’s remaining claims. Because Relator has failed to offer any opposition to these arguments, any opposition is waived.”

(2) Denied, subject to voir dire.  However, after Arrigo’s testimony at his deposition that an Economist retained by the Defendant had put forth a flawed methodology and unreliable conclusions, the Defendant did not call the opposing expert as a witness at trial. Therefore Arrigo was not called as a witness since he had been disclosed only as a rebuttal expert only.  Therefore, there was no voir dire.

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A U.S. District Judge Denies Motion to Exclude Michael Arrigo.  In his ruling, the Judge discusses Arrigo’s qualifications as a medical billing expert, a medical coding expert, a Medicare fraud expert, a Medicare damages expert and his expertise in electronic health records. Read Ruling published in Westlaw.

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