A court weighs which nursing home defense expert topics are admissible at trial.

Record source: CourtListener

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KATHY SHERROD, SURVIVOR OF * CIVIL ACTION NO. 25-1248 SHELDON SHERROD * JUDGE ELDON E. FALLON VERSUS * MAGISTRATE JUDGE NEXION HEALTH AT MARRERO, INC. EVA J. DOSSIER D/B/A MARRERO HEALTHCARE CENTER * AND NEXION HEALTH MANAGEMENT, INC. * * * * * * * * ORDER & REASONS Before the Court is a Daubert Motion in Limine filed by Plaintiff Kathy Sherrod seeking to limit the testimony of Defendants’ expert witness Leon LeBreton. R. Doc. 111. Defendants Nexion Health at Marrero, inc., d/b/a Marrero Healthcare Center (“Marrero”) and Nexion Health Management Inc. (“Nexion”) (collectively, “Defendants”) oppose the motions. R. Doc. 144. Plaintiff filed a reply memorandum. R. Doc. 146. Considering the record, briefing, and applicable law, the Court now rules as follows. I. BACKGROUND Plaintiff Kathy Sherrod is the surviving spouse of Sheldon Sherrod, a former resident of Marrero Healthcare Center (the “Facility”). At all relevant times, the Facility was owned and operated by Marrero and managed by Nexion. Sherrod avers that the Facility operated in violation of Louisiana and federal rules, laws, and regulations governing the minimum staffing necessary to adequately operate a nursing home and provide sufficient services to meet the needs of the resident population. Sherrod maintains that during the process of Mr. Sherrod’s admission, Defendants knowingly misrepresented and concealed from Mr. and Mrs. Sherrod their compliance with statutory and regulatory requirements to induce Mr. Sherrod into entering into an admission agreement and becoming a resident of the Facility. Mr. Sherrod resided at the Facility for a period of roughly five months, from August 22, 2023, to December 22, 2023. Sherrod maintains that Mr. Sherrod received inadequate care during his residency, which resulted in the advancement of his medical ailments and premature death. Sherrod proceeds in this action against Nexion and Marrero on a fraud claim pursuant to La. Civ. Code art. 1953. II. LEGAL STANDARD District courts have discretion to admit or exclude expert testimony under the Federal Rules of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 of the Federal Rules of Evidence requires a district court to act as a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The Supreme Court extended Daubert’s applicability to experts who testify based on technical and specialized knowledge, noting that Daubert’s gatekeeping requirement to ensure the reliability and relevancy of expert testimony “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Rule 702 of the Federal Rules of Evidence sets forth the framework governing the admissibility of expert testimony. “The object of Rule 702 is to protect juries from unreliable and irrelevant expert testimony.” In re Taxotere (Docetaxel) Prods. Liab. Litig., 26 F.4th 256, 268 (5th Cir. 2022). Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. First, Rule 702 requires that an expert must be properly qualified. “[G]enerally, however, if there is some reasonable indication of qualifications, the court may admit the expert’s testimony and then leave to the jury the extent of those qualifications.” Urda v. Valmont Indus., Inc., 561 F. Supp. 3d 632, 638 (M.D. La. 2021). Second, an expert’s testimony must be reliable. The reliability inquiry requires a court to assess whether the reasoning or methodology underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93; Kumho Tire, 526 U.S. at 152–53. In Daubert, the Supreme Court listed several non- exclusive factors relevant to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the general acceptance of the methodology in the scientific community. Daubert, 509 U.S. at 593–95. However, a court’s evaluation of the reliability of expert testimony is flexible because “[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at 150. The party offering the testimony must establish its reliability by a preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). Third, expert testimony must also be relevant. Testimony is relevant if the expert’s reasoning and methodology “fits” the facts of the case and the testimony will assist the trier of fact to understand the evidence. Daubert, 509 U.S. at 591. An expert’s testimony is not relevant and may be excluded if it is directed to an issue that is “well within the common sense understanding of jurors and requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 155 (5th Cir. 2003). III. DISCUSSION Plaintiff asks the Court to limit Mr. LeBreton’s testimony to the extent that he be rejected as an expert as to the following categories of evidence: 1. the acuity or need level of residents at Marrero Healthcare Center (“Marrero Healthcare); 2. whether Defendants provided staffing levels sufficient to meet the acuity level of Marrero Healthcare in compliance with regulatory requirements; 3. whether at any time Marrero Healthcare had a staffing level above 2.6 hours per patient day as called for by its own facility assessment; 4. any legal opinion; 5. the significance of Marrero Healthcare’s ratings under the Centers for Medicare & Medicare Services’ Five-Star Rating System; and 6. Defendants’ respective responsibility for the operation and staffing of Marre

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