UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:20-CV-61007-SINGHAL/VALLE

SOUTH BROWARD HOSPITAL DISTRICT d/b/a

MEMORIAL HEALTHCARE SYSTEM, on behalf of 

itself and all others similarly situated,

Plaintiff,

v.

ELAP SERVICES, LLC, a Pennsylvania limited 

liability company, and GROUP & PENSION 

ADMINISTRATORS, INC., a Texas corporation,

 Defendants.

______________________________________________/

PLAINTIFF’S DAUBERT MOTION TO EXCLUDE THE OPINIONS 

OF DEFENDANTS’ REBUTTAL EXPERT, BRUCE A. STROMBOM

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .........................................................................................................iii

INTRODUCTION .......................................................................................................................... 1

LEGAL STANDARD..................................................................................................................... 3

ARGUMENT.................................................................................................................................. 4

I. THE COURT SHOULD EXCLUDE STROMBOM’S OPINIONS RELATING TO 

HOSPITALS’ KNOWLEDGE AND STATE OF MIND. ......................................................... 4

A. Strombom Is Not Qualified to Opine on Hospitals’ Knowledge or State of Mind.......... 5

B. Strombom’s Opinions Are Not Based on a Reliable Methodology................................. 7

C. Strombom’s Factual Narratives Relating to Knowledge and State of Mind Are 

Irrelevant and Offer Nothing More Than What Defendants’ Lawyers Can Argue. ............. 12

II. THE COURT SHOULD EXCLUDE STROMBOM’S OPINION THAT ABERNATHY’S 

DAMAGES METHODOLOGY IS UNRELIABLE................................................................ 16

III. THE COURT SHOULD STRIKE STROMBOM’S OPINION THAT MEMORIAL HAS 

NOT PROPOSED AN UNJUST ENRICHMENT DAMAGES METHODOLOGY BECAUSE 

IT IS UNRELIABLE AND IRRELEVANT. ........................................................................... 18

CONCLUSION............................................................................................................................. 20

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TABLE OF AUTHORITIES

Cases

Bailey v. St. Louis,

268 So. 3d 197 (Fla. 2d DCA 2018)......................................................................................... 20

Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care Corp.,

582 F.3d 1227 (11th Cir. 2009) ................................................................................................ 12

Carriuolo v. Gen. Motors Co.,

823 F.3d 977 (11th Cir. 2016) .................................................................................................. 13

Companhia Energetica Potiguar v. Caterpillar Inc.,

2016 WL 7507848 (S.D. Fla. Aug. 1, 2016)............................................................... 7, 8, 12, 13

Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. (1993).......................................................................................................................... 3

F.T.C. v. Washington Data Res., Inc.,

704 F.3d 1323 (11th Cir. 2013) ................................................................................................ 20

Guantanamera Cigars Co. v. SMCI Holding, Inc.,

2022 WL 1160409 (S.D. Fla. Apr. 20, 2022) ............................................................................. 7

Guillory v. Domtar Indus. Inc.,

95 F.3d 1320 (5th Cir. 1996) ...................................................................................................... 8

Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen & Firemen Ret. Sys.,

50 F.3d 908 (11th Cir. 1995) .................................................................................................... 12

In In re FCA US LLC Monostable ElectronicGearshift Litigation,

382 F. Supp. 3d 687 (E.D. Mich. 2019).................................................................................. 6, 7

In re Mushroom Direct Purchaser Antitrust Litig.,

2015 WL 5767415 (E.D. Penn. July 29, 2015)........................................................................... 6

Jordan v. Celebrity Cruises, Inc.,

2018 WL 3584702 (S.D. Fla. July 25, 2018).............................................................................. 8

Kane v. Stewart Tilghman Fox & Bianchi, P.A.,

85 So. 3d 1112 (Fla. 4th DCA 2012)........................................................................................ 20

Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137 (1999).................................................................................................................... 3

La Gorce Palace Condo. Ass’n, Inc. v. Blackboard Specialty Ins. Co.,

586 F. Supp. 3d 1300 (S.D. Fla. 2022) ....................................................................................... 7

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Lebron v. Sec’y, Fla. Dep’t of Children & Families,

772 F.3d 1352 (11th Cir. 2014) .................................................................................................. 6

Legg v. Voice Media Grp., Inc.,

2014 WL 1767097 (S.D. Fla. May 2, 2014)......................................................................... 9, 15

MDG Int’l, Inc. v. Australian Gold, Inc.,

2009 WL 1916728 (S.D. Ind. June 29, 2009)........................................................................... 19

Point Blank Enters., Inc.,

2020 WL 1666763 (S.D. Fla. Apr. 3, 2020) ................................................................... 1, 13, 14

Rink v. Cheminova, Inc.,

400 F.3d 1286 (11th Cir. 2005) .............................................................................................. 3, 4

Scott v. Chipotle Mexican Grill, Inc.,

315 F.R.D. 33 (S.D.N.Y. 2016) .................................................................................................. 5

Sher v. Raytheon Co.,

419 F. App’x 887 (11th Cir. 2011) ............................................................................................. 4

U.S. v. Stinson,

729 F. App’x 891 (11th Cir. 2018) ........................................................................................... 19

U.S. v. Thaller,

2016 WL 6441548 (S.D. Fla. Nov. 1, 2016)............................................................................... 9

United States v. Frazier,

387 F.3d 1244 (11th Cir. 2004) .................................................................................... 3, 4, 7, 12

United States v. Rouco,

765 F.2d 983 (11th Cir. 1985) .................................................................................................. 12

Webb v. Carnival Corp.,

321 F.R.D. 420 (S.D. Fla. 2017)................................................................................................. 6

Williams v. Wells Fargo Bank, N.A.,

280 F.R.D. 665 (S.D. Fla. 2012)............................................................................................... 13

Wreal, LLC v. Amazon.com, Inc.,

2016 WL 8793317 (S.D. Fla. Jan. 7, 2016).......................................................................... 6, 18

Wright v. Farouk Sys., Inc.,

701 F.3d 907 (11th Cir. 2012) .................................................................................................. 15

Regulations

29 C.F.R. § 2590.715-2719A........................................................................................................ 16

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Other Authorities

RESTATEMENT (THIRD) OF RESTITUTION & UNJUST ENRICHMENT § 51 (2011)...................... 19, 20

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INTRODUCTION

Bruce A. Strombom is a career defense expert. Although Strombom is an economist by 

education and training, his work focuses on attacking plaintiffs’ efforts to obtain class certification, 

and he has never offered an opinion in support of class certification. Even worse, Strombom 

routinely serves as a mere mouthpiece to bolster defendants’ theory of the case. In fact, Judge Ruiz 

recently chastised Strombom for doing just that—he excluded Strombom’s opinions in a product 

defect case for including “argumentative statements” that “improperly and unnecessarily 

attempt[ed] to bolster the testimony of [the defendant’s] employee and Defendant’s version of the 

case.” Ohio State Troopers Ass’n, Inc. v. Point Blank Enters., Inc., 2020 WL 1666763, at *15 (S.D. 

Fla. Apr. 3, 2020). This case is no different.

Defendants retained Strombom to rebut the opinions of Memorial’s expert, J. Mark 

Abernathy. Abernathy, a forensic accountant with more than forty years of professional experience 

in the healthcare industry, has not only devised a uniform methodology to assess damages across 

the class, but also calculated the damages owed to each individual class member. Like ELAP’s 

arbitrary formulae, Abernathy’s fair-market formulae apply uniformly across the class; but unlike 

ELAP, Abernathy 

Defendants rely on Strombom to offer four opinions against class certification. He asserts 

that: (1)

 (2) 

; (3) 

 and (4) 

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. None of Strombom’s opinions are 

admissible under Daubert and its progeny. 

Strombom’s first and fourth opinions fail all three pillars of Daubert: qualification, 

reliability, and helpfulness. First, Strombom is not qualified to opine on hospitals’ knowledge or 

state of mind. Strombom has no practical industry experience that would provide him with the 

necessary qualifications to predict the behavior and perception of hospitals. Next, Strombom’s 

opinions are unreliable because they are speculative and lack any foundation in the evidentiary 

record. Strombom had no choice but to speculate—as Strombom admitted in his deposition,

 Finally, Strombom’s opinions are not helpful. As Memorial established in its class 

certification and summary judgment filings,1hospitals’ knowledge and state of mind are irrelevant 

to the class claims. In any event, Strombom merely parrots arguments that were fed to him by 

Defendants’ lawyers without applying anything approaching true expert analysis. 

Strombom’s opinions attacking the reliability of Abernathy’s damages methodology are 

also inadmissible. Defendants gave Strombom the impossible task of proffering an opinion that 

individualized inquiry is necessary to determine the rate at which hospitals should be reimbursed 

for their services even though Defendants’ business model relies on a standardized reimbursement 

methodology that is applied uniformly to all claims regardless of the hospital or service rendered. 

1

See D.E. 141 (Memorial’s Motion for Class Certification); D.E. 155 (Memorial’s Response in 

Opposition to Defendants’ Motion for Summary Judgment); D.E. 156 (Memorial’s Response to 

Defendants’ Statement of Material Facts); D.E. 168 (Memorial’s Reply in Support of Motion for 

Class Certification).

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Strombom’s opinions also fall flat because he criticizes Abernathy for employing the same 

techniques that Strombom has relied on in prior assignments. Beyond that, Strombom’s criticisms 

about what Abernathy did not consider are simply wrong. As just one example,

Finally, Strombom’s unjust enrichment opinion is factually and legally irrelevant. 

Abernathy was not tasked with developing a classwide methodology for determining ELAP’s 

profits at the hospital or claim level—Abernathy instead identified the fees that ELAP collected 

for each at-issue claim. Strombom is thus not rebutting any opinion offered by Abernathy. 

Moreover, the unjust enrichment opinion is unreliable because Strombom did not verify any of the 

underlying facts upon which it is based. Regardless, the law requires Memorial to show only a 

reasonable approximation of the amount by which Defendants were unjustly enriched and any 

uncertainty in calculating net profits is resolved against Defendants.

For these reasons, as further detailed below, the Court should grant Memorial’s motion to 

exclude Strombom’s opinions.

LEGAL STANDARD

“[T]he Federal Rules of Evidence ‘assign to the trial judge the task of ensuring that an 

expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Kumho 

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert v. Merrell Dow Pharm., 

Inc., 509 U.S. 759, 597 (1993)). “The importance of Daubert’s gatekeeping requirement cannot 

be overstated.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). “District courts are 

charged with this gatekeeping function ‘to ensure that speculative, unreliable expert testimony 

does not reach the jury’ under the mantle of reliability that accompanies the appellation ‘expert 

testimony.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).

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Courts in the Eleventh Circuit follow a three-part test in determining the admissibility of 

expert testimony under Daubert, asking whether: (1) the expert is qualified to testify competently 

regarding the matters he intends to address; (2) the methodology by which the expert reaches his 

conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and 

(3) the expert’s testimony would assist the trier of fact, through the application of scientific, 

technical, or specialized expertise, to understand the evidence or to determine a fact in issue. 

Frazier, 387 F.3d at 1260. 

“The party offering the expert has the burden of satisfying each of [Daubert’s] three 

elements by a preponderance of the evidence.” Rink, 400 F.3d at 1292 (citation omitted). The 

Daubert analysis must be resolved prior to ruling on a motion for class certification where, like 

here, the information provided by an expert is relevant to establishing any of the Rule 23 

requirements. See Sher v. Raytheon Co., 419 F. App’x 887, 890-91 (11th Cir. 2011). 

ARGUMENT

I. THE COURT SHOULD EXCLUDE STROMBOM’S OPINIONS RELATING 

TO HOSPITALS’ KNOWLEDGE AND STATE OF MIND.

Strombom opines that

See Rebuttal Expert Report of 

Bruce A. Strombom, Ph.D. (“Strombom Report”) (Ex. B), §§ III & VI.

2 Specifically, Strombom 

opines on (1)

(2)

 and (3) . See id.

On hospitals’ knowledge, Strombom describes the sources from which hospitals could 

have learned about ELAP’s reference-based pricing methodology and summarizes data on the 

2 An exhibit index is attached as Exhibit A.

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number of certain hospitals’ claims that were repriced by ELAP. See id. at §§ III.A & B. From 

there, Strombom draws inferences about what hospitals likely knew, see id., and later concludes 

that 

, see id. at § VI.A.

Strombom’s other opinions on hospitals’ state of mind follow a similar process. With 

respect to acceptance, Strombom identifies the methods by which a hospital could have disputed 

or objected to the amounts by which ELAP repriced their claims and summarizes data from 

Defendants on claims with disputes. See id. Strombom then concludes without basis that

See id. As for how hospitals value their services, Strombom relies on 

See id. at § VI.C.

The Court should exclude each of these opinions because Strombom is not qualified to 

opine on hospitals’ knowledge or state of mind, his opinions are not the product of reliable 

principles and methods, and he offers nothing more than what Defendants’ lawyers can argue. 

A. Strombom Is Not Qualified to Opine on Hospitals’ Knowledge or State of 

Mind.

Absent a sufficient basis “in any relevant body of knowledge or expertise,” an expert “may 

not testify on the intent, motives or states of mind of corporations, regulatory agencies and 

others[.]” Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 45–46 (S.D.N.Y. 2016) (As a 

general rule, ‘inferences about the intent or motive of parties or others lie outside of the bounds of 

expert testimony.’”). Strombom lacks any relevant knowledge or expertise to render opinions on 

hospitals’ knowledge or state of mind. 

“Determining whether a witness is qualified to testify as an expert requires the trial court 

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to examine the credentials of the proposed expert in light of the subject matter of the proposed 

testimony.” Webb v. Carnival Corp., 321 F.R.D. 420, 427 (S.D. Fla. 2017). “In other words, a 

district court must consider whether an expert is qualified to testify competently regarding the 

matters he intends to address.” Id. Critically, “expertise in one field does not qualify a witness to 

testify about others.” Wreal, LLC v. Amazon.com, Inc., 2016 WL 8793317 at *9 (S.D. Fla. Jan. 7, 

2016) (quoting Lebron v. Sec’y, Fla. Dep’t of Children & Families, 772 F.3d 1352, 1369 (11th 

Cir. 2014)); see also In re Mushroom Direct Purchaser Antitrust Litig., 2015 WL 5767415 at *4 

(E.D. Penn. July 29, 2015) (“[A] respected economist with no background in antitrust markets 

could be unqualified to testify regarding the relevant market in an antitrust case.”). 

While Strombom may be a well-credentialed economist by education and training, he is not 

qualified to opine on issues relating to hospitals’ knowledge of Defendants’ reference-based 

pricing scheme, hospitals’ acceptance of the amounts by which ELAP repriced their claims, or 

what constitutes a “reasonable value” for hospitals services. Strombom has no relevant education 

or training in healthcare admission or reimbursement practices. See Strombom Rep., App’x A. Nor 

does Strombom have practical experience in the healthcare industry. His only remotely related 

professional experience was a job working in the kitchen of a hospital during college. See 

Strombom Dep. (Ex. C) 44:7-46:16. And Strombom has authored no publications that are relevant 

to hospital admission or reimbursement practices.3See Strombom Rep., App’x A.

3 Notably, another court excluded Strombom’s opinions because they were based on matters 

outside the scope of his qualifications and expertise. In In re FCA US LLC Monostable Electronic 

Gearshift Litigation, a class action concerning a motor vehicle defect, the defendant retained 

Strombom, in part, to critique the plaintiffs’ expert’s class-wide damages methodology, which 

relied on a conjoint analysis. 382 F. Supp. 3d 687, 693 (E.D. Mich. 2019). Strombom opined that 

the plaintiffs’ proposed class-wide damages model relied on “incorrect assumptions” because, 

based on his review of deposition testimony of the named plaintiffs, some class members had 

knowledge of the alleged defect and valued other aspects of vehicles more or less than safety 

features when making a purchasing decision. Id. Because Strombom is not an expert in conjoint 

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Accordingly, the Court should exclude Strombom’s opinions relating to hospitals’ states of 

mind or industry norms or practices. Specifically, the Court should strike paragraphs 9(i), 9(iv), 

41-65, 129-135, and 138-139 of the Strombom Report and preclude Strombom from offering any 

testimony on these issues. 

B. Strombom’s Opinions Are Not Based on a Reliable Methodology.

Even if Strombom were minimally qualified, “the unremarkable observation that an expert 

may be qualified by experience does not mean that experience, standing alone, is a sufficient 

foundation rendering reliable any conceivable opinion the expert may express.” Frazier, 387 F.3d 

at 1261. “[A] witness relying solely or primarily on experience must explain how that experience 

leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how 

that experience is reliably applied to the facts. The trial court’s gatekeeping function requires more 

than simply taking the expert’s word for it.” La Gorce Palace Condo. Ass’n, Inc. v. Blackboard 

Specialty Ins. Co., 586 F. Supp. 3d 1300, 1309 (S.D. Fla. 2022) (cleaned up).

“In order to be admissible, an expert’s testimony must be based on more than subjective 

belief or unsupported speculation.” Guantanamera Cigars Co. v. SMCI Holding, Inc., 2022 WL 

1160409, at *3 (S.D. Fla. Apr. 20, 2022). “Rule 703 further ensures reliability by requiring that 

proffered experts base opinions on the types of information reasonably relied upon by experts in 

the particular field in forming opinions or inferences upon the subject.” Companhia Energetica 

Potiguar v. Caterpillar Inc., 2016 WL 7507848, at *3 (S.D. Fla. Aug. 1, 2016). Courts “may 

exclude expert testimony where there is simply too great an analytical gap between the data and 

the opinion proffered, or where the testimony’s factual basis is not adequately explained in the 

first instance.” La Gorce Palace Condo. Ass’n, 586 F. Supp. 3d at 1310. Moreover, “‘expert 

analysis and had never conducted one, the court excluded his opinions. Id. at 694.

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evidence based on a fictitious set of facts is just as unreliable as evidence based on no research at 

all.’” Jordan v. Celebrity Cruises, Inc., 2018 WL 3584702, at *8 (S.D. Fla. July 25, 2018) (quoting 

Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996)). Similarly, an expert’s failure 

“to consider contradictory evidence warrants exclusion.” Companhia Energetica Potiguar, 2016 

WL 7507848, at *12.

Strombom’s opinions relating to hospitals’ knowledge of Defendants’ reference-based 

pricing scheme, hospitals’ acceptance of the amounts by which ELAP repriced their claims, or the 

reasonable value hospitals assign to the payment for their services are unreliable for several 

reasons. First, Strombom’s opinions on hospitals’ knowledge and state of mind are red herrings. 

Hospitals’ knowledge and state of mind are irrelevant because the class claims are subject to

objective legal standards, see p. 13, infra, and (2) in any event, the evidence shows that hospitals 

see pp. 10-11, infra. But even were that not the case, Strombom’s

opinions are unsupported speculation. Each of his conclusions is

See Strombom Rep., ¶¶ 42, 45-46, 48-55, 57-59, 65, 106, 108-109, 129-32, 135, 138. For example, 

Strombom

Id. at ¶ 48.

Id. at ¶ 49. But Strombom does not cite any authority indicating that 

Kaiser Health News is a reliable source of information relied on by hospitals. Nor did Strombom 

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conduct any surveys of hospitals to determine whether Kaiser Health News is an authoritative

source of information. In fact, Strombom conducted no 

See Strombom Dep. 42:10-44:6. And, as noted above, 

Strombom has no relevant practical industry experience. See U.S. v. Thaller, 2016 WL 6441548, 

at *13 (S.D. Fla. Nov. 1, 2016) (excluding expert’s opinion that defendant did not adequately 

educate, train, or supervise medical residents because expert never worked in defendant’s 

department and was not aware of relevant industry standards).

Similarly, Strombom’s opinion that 

see Strombom Report § III.C, is pure 

speculation. Strombom does not direct the Court to any industry standards on reimbursement 

disputes or describe any economic factors that would lend credence to his ultimate conclusion.

Strombom does not even consider other reasons why hospitals may have not disputed a claim, 

including 

See Waters Dep. (Ex. D) 180:17-183:11. Strombom thus speculates about hospitals’ 

reimbursement decisions without considering economic realities. In Legg v. Voice Media Grp., 

Inc., the court excluded an expert’s opinion that cell phone subscribers must have sent more than 

one “STOP ALL” message to the defendant because they had continued to receive unwanted text 

messages because this conclusion was “based not on any data, but on [the expert’s] speculation.” 

2014 WL 1767097, at *3 (S.D. Fla. May 2, 2014). The same reasoning applies here. 

Second, Strombom’s conclusions are not based on independent analysis or objective proof. 

For example, he opines that 

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See Strombom Rep., ¶¶ 45-46. But the Strombom Report notes that

Id. at ¶ 46.

See Strombom Dep. 42:10-18.

The same is true with respect to Strombom’s other opinions. He did not ask Defendants for 

 Strombom Dep. 40:20-23. Strombom 

attempts to opine on the knowledge and state of mind of hospitals, even though he

Id. at 166:12-168:24. 

Strombom did not independently gather any research—neither his report nor his deposition 

testimony references a single study, article, or authority—on industry standards relating to 

interactions between hospitals and payors or entities that reprice out-of-network claims. Nor did 

Strombom

Id. at 42:10-44:6. Strombom just accepted the “facts” as presented to him by Defendants’ lawyers.

Finally, the Strombom Report fails to consider contradictory evidence. On hospitals’ 

knowledge of ELAP’s reference-based pricing formula, Strombom failed to consider, inter alia: 

(1) 

Ex. E at ELAP0136928;

4

(2) testimony from ELAP’s corporate 

4 The third-party consultant’s report also

x. E at ELAP0136994 (emphases in original).

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representative and other internal communications reflecting that

see O’Leary Dep. (Ex. F) 131:9-19; Exs. G-K; and (3) evidence 

demonstrating that, 

See Ex. L at ELAP0113802 

; Ex. M at ELAP0119214 (same). See Strombom Dep.

176:9-21; 195:2-197:21; see also Strombom Rep., App’x B.

Strombom also failed to consider critical testimony from Memorial’s representatives, 

including testimony that: (1)

see Bross Dep. (Ex. N) 43:13-44:3-6 

; 167:16-22 

; (2)

Doyle Dep. (Ex. O) 50:5-

13; and (3) , see Holmes Dep. (Ex. P) 42:7-16; 

Santilus Dep. (Ex. Q) 85:23-25; Fajardo Dep. (Ex. R) 19:10-17; DeStefano Dep. (Ex. S) 35:21-

22; Scozzaro Dep. (Ex. T) 25:1-17. Despite basing all his opinions relating to hospitals’ knowledge 

and state of mind on the interactions between Memorial and Defendants, Strombom 

 Strombom Dep. 208:9-212:23.

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Strombom’s opinions on hospitals’ knowledge and state of mind accordingly should be excluded 

for failure to consider contradictory evidence. See Companhia Energetica Potiguar, 2016 WL 

7507848, at *12 (finding defense expert’s opinion that the plaintiff had inadequate operation and 

maintenance practices was unreliable where the expert ignored contradictory deposition testimony 

and internal communications in the record).

Based on the foregoing, the Court should exclude as unreliable Strombom’s opinions 

relating to hospitals’ knowledge of Defendants’ reference-based pricing scheme, hospitals’ 

acceptance of the amounts by which ELAP repriced their claims, and the reasonable value 

hospitals assign to the payment for their services. Specifically, the Court should strike sections III

and VI of the Strombom Report and bar Strombom from offering any testimony on these issues.

C. Strombom’s Factual Narratives Relating to Knowledge and State of Mind Are 

Irrelevant and Offer Nothing More Than What Defendants’ Lawyers Can 

Argue. 

With regard to the third Daubert factor, “expert testimony is admissible if it concerns 

matters that are beyond the understanding of the average lay person.” Frazier, 387 F.3d at 1244 

(citing United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985)). “The party offering the expert 

testimony has the burden of demonstrating that the testimony is relevant to the task at hand and 

logically advances a material aspect of its case.” Boca Raton Cmty. Hosp., Inc. v. Tenet Health 

Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009). Expert testimony “is properly excluded when 

it is not needed to clarify facts and issues of common understanding which jurors are able to 

comprehend for themselves.” Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen & Firemen Ret.

Sys., 50 F.3d 908, 917 (11th Cir. 1995) (citations omitted).

“Proffered expert testimony generally will not help the trier of fact when it offers nothing 

more than what lawyers for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262–

63. “Simply rehashing evidence about which an expert has no personal knowledge is 

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impermissible under Rule 702.” Ohio State Troopers Ass’n, 2020 WL 1666763, at *15 (“Experts 

that do nothing more than act as narrators of facts fail to convey opinions based on their knowledge 

and expertise.”) (cleaned up). Thus, “[i]t is appropriate to strike testimony that merely relays 

observations rather than performing true expert analysis.” Companhia Energetica Potiguar, 2016 

WL 7507848, at *8. 

Strombom’s opinions on hospitals’ knowledge and state of mind are not helpful because 

they are irrelevant legal argument disguised as expert testimony. On relevance, as Memorial 

established in its class certification and summary judgment filings, the FDUTPA and unjust 

enrichment claims here are evaluated under objective standards. “[A] plaintiff asserting a

FDUTPA claim need not show actual reliance on the representation or omission at issue” and, as

a result, “the mental state of each class member is irrelevant.” Carriuolo v. Gen. Motors Co., 823 

F.3d 977, 985 (11th Cir. 2016). Nor does class members’ awareness of a scheme necessitate 

individualized inquiry on an unjust enrichment claim. See, e.g., Williams v. Wells Fargo Bank,

N.A., 280 F.R.D. 665, 674 (S.D. Fla. 2012) (“[I]t is not relevant whether a particular class member 

was aware that force-placed insurance is generally more expensive because the claim in this case 

is not just that [it] was more expensive, but that [it] was artificially and unjustly more expensive 

due to [Defendants’] illicit actions.”). Strombom’s opinions are therefore irrelevant.

Strombom’s opinions also simply narrate Defendants’ version of the case. Judge Ruiz 

recently admonished Strombom for submitting an expert report opposing class certification that 

included “improper factual narrative” and “cherry pick[ed] testimony . . . that [wa]s consistent 

with Defendant’s theory of the case.” Ohio State Troopers, 2020 WL 1666763 at *15-16. Judge 

Ruiz chastised Strombom for stating that “certain evidence was consistent with the testimony of 

one of Defendant’s employees,” relating to the return rates of defective products. Id. at *16. “The 

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inclusion of such argumentative statements in Strombom’s report improperly and unnecessarily 

attempt[ed] to bolster the testimony of the employee and Defendant’s version of the case.” Id. 

Judge Ruiz thus prohibited Strombom from offering “testimony containing similar factual 

narrative” at any class certification hearing. Id.

Strombom’s opinions relating to hospitals’ knowledge of Defendants’ scheme, hospitals’ 

acceptance of discounted amounts, and the reasonable value hospitals assign to the charges for 

their services are such improper factual narratives. They offer nothing more than what Defendants’ 

lawyers can argue at any class certification hearing or to the jury. For each of these opinions, 

Strombom merely draws apparent inferences from record evidence without the benefit of 

specialized knowledge or expertise. 

With respect to his opinion that 

 Strombom Rep., ¶¶ 41-65. Strombom 

conceded that

Strombom Dep. 161:8-163:1. Neither the Strombom Report nor his

testimony involve any economic analysis supporting this opinion. Strombom even admitted that 

Id. at 174:5-20. 

In support of his opinion that 

 Strombom similarly narrates facts that bolster 

Defendants’ theory of the case without applying any economic analysis. Strombom recites 

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 19 of 26
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Strombom Rep., § III.C. Simply 

summarizing data in a spreadsheet does not transform Strombom’s factual narrative into true 

expert analysis. “Counting the number of [claims disputed by a hospital] is a task that, though 

perhaps time-consuming, is within the understanding of the average lay person.” Legg, 2014 WL 

1767097, at *3. Because Strombom’s opinion “offers nothing more than what a factfinder could 

comprehend through the presentation of non-expert witnesses and evidence such as [Defendants’ 

disputed claims] spreadsheet, the testimony is not properly admitted under Rule 702.” Id.

Finally, Strombom’s opinion that 

fails to offer any expert analysis beyond the understanding of the average lay 

person. The proffered bases for this opinion are that 

Strombom Rep., § VI. Each of these bases are subject to the same flaws described 

above. But the last basis is even more problematic: Strombom describes

case, Strombom 

Dep. 39:19-24) 

See Strombom Rep., ¶¶ 100-09. Not only is this opinion 

entirely speculative, but Defendants are also using Strombom as a mouthpiece to introduce

otherwise inadmissible hearsay. See Wright v. Farouk Sys., Inc., 701 F.3d 907, 911 n.8 (11th Cir. 

2012) (“[P]leadings are only allegations, and allegations are not evidence of the truth of what is 

alleged.”). Moreover, the fact that hospitals have sued for billed charges in other cases does not 

implicate matters that are beyond the understanding of the Court or jurors. Strombom’s opinion 

therefore offers no more than what Defendants’ attorneys could argue and does not assist the 

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 20 of 26
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factfinder in understanding the evidence through the application of technical expertise. 

II. THE COURT SHOULD EXCLUDE STROMBOM’S OPINION THAT 

ABERNATHY’S DAMAGES METHODOLOGY IS UNRELIABLE.

Strombom also opines that

See Strombom Rep., § IV. These opinions not only defy the foundation of ELAP’s 

business model and the American healthcare system, but also mischaracterize Abernathy’s

methodology and are contradicted by Strombom’s own prior experience. 

The practice of applying a standardized reimbursement formula to hospital claims is 

common in the American healthcare system. For example, Medicare and Medicaid programs 

establish standardized reimbursement rates that are applied to each claim a hospital submits for 

reimbursement.5 Likewise, the federal government codified a methodology for health insurance 

plans to reimburse out-of-network hospitals for emergency care using the median reimbursement 

rate the plan negotiated with in-network hospitals. See 29 C.F.R. § 2590.715-2719A.

Ex. U at 

ELAP0240113. ELAP’s own business model uses a reference-based pricing methodology without 

applying any individual analysis to determine a claim specific rate. 

Here, Memorial challenges ELAP’s reference-based pricing formulae as inadequate, 

alleging that ELAP designed them with an eye toward underpaying providers and without 

sufficient market research. See FAC ¶¶ 36, 37. As Mr. Abernathy explains,

5

See https://www.cms.gov/medicare/medicare-fee-for-service-payment/acuteinpatientpps (last 

accessed June 12, 2023).

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 21 of 26
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See Abernathy Report (Ex. V) at Opinion 1 & 1(A). Record evidence supports this conclusion—

ELAP’s founder testified that 6and

7 Abernathy thus offers alternate standardized formulae that would pay hospitals 

fair market value—the formulae ELAP should have used in building a legitimate and fair 

reimbursement model. Like ELAP’s arbitrary formulae, Abernathy’s fair-market formulae apply 

uniformly across the class; but unlike ELAP, Abernathy 

See 

Abernathy Report at Op. 2; see also id. at Ex. 4-5. The application of Abernathy’s formulae will 

not require individual claim analysis because setting fixed rates for medical services is precisely 

the point of reference-based pricing or any standardized reimbursement methodology.

Strombom’s primary criticism of Abernathy’s methodology is that

 Strombom Dep. 87:22-89:22. These two dimensions

—would, according to Strombom, 

. Id.

8 Contrary to Strombom’s misleading opinion, 

Abernathy’s damages methodology does . 

6

See Waters Dep. 29:16-30:10.

7

See id. at 32:15-25.

8 The Strombom Report also 

Strombom Rep. ¶ 94. However, 

Strombom conceded at his deposition that 

 Strombom Dep. at 230:14-231:9.

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 22 of 26
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Abernathy’s damages formula calculates damages systematically and formulaically as 

. Abernathy 

Rep., App’x F.

see

Waters Dep. 118:19-119:18. Abernathy uses 

. Abernathy Rep., App’x F. Abernathy’s methodology thus results in 

See id. 

at Ex. 4-5. Strombom’s criticisms of Abernathy’s methodology are thus illusory and serve only to 

mislead and confuse the factfinder. The Court should thus exclude Strombom’s opinions that 

Abernathy’s methodology is unreliable.

III. THE COURT SHOULD STRIKE STROMBOM’S OPINION THAT 

MEMORIAL HAS NOT PROPOSED AN UNJUST ENRICHMENT DAMAGES 

METHODOLOGY BECAUSE IT IS UNRELIABLE AND IRRELEVANT.

Finally, Strombom opines that

See Strombom Rep. ¶¶ 118-28. But

“rebuttal testimony is permitted only when it directly addresses an assertion raised by an 

opponent’s experts.” Wreal, 2016 WL 8793317, at *3 (emphasis in original). Here, Abernathy was 

not tasked with

Instead, Abernathy was asked 

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 23 of 26
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See Abernathy Rep., Opinion #3 & ¶¶ A-C. Strombom’s unjust enrichment opinion 

is therefore not proper rebuttal expert testimony.

Even if Strombom’s unjust enrichment opinion were within the scope of rebuttal expert 

testimony, it is inadmissible because it does not meet the reliability or helpfulness requirements of 

Daubert and its progeny. On reliability, Strombom’s opinion is based on testimony from an ELAP 

employee, reflecting that Strombom Rep.,

¶ 122. That same ELAP employee also testified that

Id. at n. 209. Strombom, however, did not conduct any independent 

analysis to verify the testimony. “An expert must independently verify facts given to him, rather 

than accepting them at the word of counsel.” MDG Int’l, Inc. v. Australian Gold, Inc., 2009 WL 

1916728, at *4 (S.D. Ind. June 29, 2009) (cleaned up). Because Strombom did not independently 

verify the purported facts supporting his unjust enrichment opinion, it is not the product of reliable 

principles and methods and is thus inadmissible under Daubert.

The unjust enrichment opinion is also inadmissible because it is unhelpful. Strombom is

again offering an opinion that does not require any specialized knowledge or expertise, but merely 

bolsters the testimony of Defendants’ lay witnesses. The average person can understand, without 

the assistance of expert testimony, that profits are derived from subtracting costs from income. 

Moreover, the issue of costs is legally irrelevant under the circumstances. The weight of 

authority holds that a plaintiff’s only burden is providing a reasonable approximation of a 

defendant’s disgorgement liability; any uncertainty in determining the actual amount of profits is 

resolved against the defendant where the defendant has created the uncertainty. See RESTATEMENT 

(THIRD) OF RESTITUTION & UNJUST ENRICHMENT § 51 (2011);

9 U.S. v. Stinson, 729 F. App’x 891, 

9 Florida courts follow the Restatement (Third) of Restitution and Unjust Enrichment. See, e.g., 

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 24 of 26
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899 (11th Cir. 2018) (“Disgorgement of gross revenues is appropriate because wrongdoers are not 

entitled to deduct costs associated with committing their illegal acts. Additionally, once the 

plaintiff presents a reasonable approximation, the burden shifts to the defendant . . . to disprove 

this amount.”); see also F.T.C. v. Washington Data Res., Inc., 704 F.3d 1323, 1326–27 (11th Cir. 

2013) (holding “the amount of net revenue” instead of “the amount of profit (net revenue minus 

expenses)” was the correct measure of disgorgement damages for deceptive trade practices). 

Accordingly, Defendants, not Memorial, carry the burden of demonstrating their profits at the 

claim or class member level. Strombom’s opinions suggesting the contrary are therefore 

inadmissible and should not be considered at class certification. 

CONCLUSION

For the foregoing reasons, the Court should exclude Strombom’s opinions on the issues 

addressed above and disregard them when ruling on class certification. 

Respectfully submitted: June 12, 2023.

/s/Benjamin J. Widlanski

Benjamin J. Widlanski., Esq.

/s/ Douglas A. Wolfe

Douglas A. Wolfe, Esq.

Bailey v. St. Louis, 268 So. 3d 197, 201-02 (Fla. 2d DCA 2018) (relying on the Restatement (Third) 

of Restitution and Unjust Enrichment, including Section 51); Kane v. Stewart Tilghman Fox & 

Bianchi, P.A., 85 So. 3d 1112, 1115 (Fla. 4th DCA 2012) (holding that the “trial court’s measure 

of damages was consistent with the law of unjust enrichment” with citation to Restatement (Third) 

of Restitution and Unjust Enrichment). 

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 25 of 26
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bwidlanski@kttlaw.com

Fla. Bar No. 1010644

Gail McQuilkin, Esq.

gam@kttlaw.com

Fla. Bar No. 969338

Tal J. Lifshitz, Esq. 

tjl@kttlaw.com

Fla. Bar No. 99519

Rachel Sullivan, Esq.

rs@kttlaw.com

Fla. Bar No. 815640

Michael Lorigas, Esq.

mlorigas@kttlaw.com

Fla. Bar No. 123597

KOZYAK TROPIN &

THROCKMORTON LLP

2525 Ponce de Leon Blvd., 9th Floor

Coral Gables, Florida 33134

Telephone: (305) 372-1800 

Counsel for Plaintiff

doug@wolfepincavage.com

Fla. Bar No. 28671

Danya J. Pincavage, Esq.

danya@wolfepincavage.com

Fla. Bar No. 14616

Hana A. Aryan, Esq. 

Hana.aryan@wolfepincavage.com

Fla. Bar No. 1003617

WOLFE | PINCAVAGE

7800 SW 57th Avenue, Suite 217

Miami, Florida 33143

Telephone: (786) 409-0800

Counsel for Plaintiff

Case 0:20-cv-61007-AHS Document 171 Entered on FLSD Docket 06/12/2023 Page 26 of 26