Acadiana Renal Physicians, a Medical Corporation v. Our Lady of Lourdes Regionalmedical Center, Inc.,lafayette General Medical Center, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-16

ACADIANA RENAL PHYSICIANS, A MEDICAL CORPORATION, ET AL

VERSUS

OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC.
LAFAYETTE GENERAL MEDICAL CENTER, INC., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20202289
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

J. LARRY VIDRINE
JUDGE

**********

Court composed of Sylvia R. Cooks, Chief Judge, Van H. Kyzar, and J. Larry
Vidrine,* Judges.

REVERSED AND REMANDED.

__________________
*Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Russell B. Kahn
Meade Young L.L.C.
322 S. Market Street
Opelousas, LA 70570
(337) 948-6217
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Maximo Lamarche
Alfonso Lebron
Juan Zeik
Anthony Blalock
Akshey Gupta
Acadiana Renal Physicians
Roderick Clark
Melissa Harrington

Charles E. Leche
Deutsch Kerrigan, LLP
755 Magazine Street
New Orleans, LA 70130
(504) 593-0790
COUNSEL FOR DEFENDANT/APPELLEE:
Certain Underwriters-Lloyds subscribing to Policy W205D7190301

M. Bofill Duhe’
District Attorney Sixteenth Judicial District
S. Andrew Shealy
Assistant District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4434
COUNSEL FOR DEFENDANT/APPELLEE:
Iberia Medical Center Foundation

Randall K. Theunissen
Allen & Gooch, A Law Corporation
P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1240
COUNSEL FOR DEFENDANT/APPELLEE:
Our Lady of Lourdes Regional Medical Center, Inc.

James H. Gibson
Stacy N. Kennedy
Gibson Law Partners, L.L.C.
P. O. Box 52124
Lafayette, LA 70505
(337) 761-6023
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette General Medical Center, Inc.

Adam G. Young
Meade Young, L.L.C.
556 Jefferson Street
Box 7
Lafayette, LA 70501
(337) 534-0200
COUNSEL FOR PLAINTIFF/APPELLANT:
Maximo Lamarche
Melissa Harrington
Alfonso Lebron
Akshey Gupta
Juan Zeik
Roderick Clark
Anthony Blalock
Acadiana Renal Physicians

John Alden Meade
Meade Young L.L.C.
909 Poydras Street, Suite 1600
New Orleans, LA 70130
(503) 799-3102
COUNSEL FOR PLAINTIFF/APPELLANT:
Maximo Lamarche
Melissa Harrington
Alfonso Lebron
Akshey Gupta
Juan Zeik
Roderick Clark
Anthony Blalock
Acadiana Renal Physicians

Jaylen Hebert Simar
Julie Savoy
Gachassin Law Firm
400 East Kaliste Saloom Road, Suite 6100
Post Office Box 80369
Lafayette, LA 70598-0369
(337) 235-4576
COUNSEL FOR DEFENDANT/APPELLEE:
St. Tammany Parish Hospital Service District No. 1

VIDRINE, Judge Pro Tempore.

This is a case where a physician group and member physicians brought

antitrust, unfair trade practices, and unjust-enrichment claims against two hospitals

in Lafayette, Louisiana, for failure to pay renal specialist physicians’ for mandated

on-call services per those physicians receiving hospital privileges. After remand for

a second time, the trial court denies physician group and physicians’ motion to

compel a non-party hospital to comply with a subpoena duces tecum and produce

requested discovery.

Physician group and physicians appeal. We reverse and remand.

FACTS AND PROCEDURAL HISTORY:

The underlying fact to this suit is not in dispute. Nephrologists are not paid

for working required, emergency on-call hours at hospitals in Lafayette, Louisiana.

In the bylaws of both Our Lady of Lourdes Hospital (Lourdes) and Lafayette General

Medical Center (LGMC) all physicians with medical staff privileges are required to

serve emergency on-call rotations, not only at the main campuses of Lourdes and

LGMC, but also at the other hospitals in Lafayette owned by Lourdes and LGMC.

Acadiana Renal Physicians (ARP) filed suit against Lourdes and LGMC

alleging violations of the Louisiana Monopolies Act, La.R.S. 51:121 et seq., the

Louisiana Unfair Trade Practices Act (LUTPA), La.R.S. 51:1401 et seq., and

damages for unjust enrichment. ARP is comprised of nephrologists practicing in

Lafayette who have full medical privileges at Lourdes and/or LGMC.

The petition alleges that Lourdes and LGMC exercise monopsony power to

deny emergency on-call payments to nephrologists at either hospital. The petition

also alleges that other physician specialists receive emergency on-call pay in

Lafayette, but nephrologists do not. Further the petition alleges that nephrologists

in other localities are paid for hours working on-call, but, again, nephrologists in

Lafayette are not.

This case has been before this court twice previously. First, in Acadiana

Renal Physicians v. Our Lady of Lourdes Regional Medical Center, Inc., 21-289

(La.App.3 Cir. 5/27/21), 321 So.3d 469, writs denied, 21-887, 21-899 (La. 10/12/21),

325 So.3d 1070, 1074 (Acadiana Renal Physicians I), the trial court, inter alia,

granted Lourdes and LGMC’s exception of no right of action. We reversed and

remanded.

Second, in Acadiana Renal Physicians v. Our Lady of Lourdes Regional

Medical Center, Inc., 21-586 (La.App.3 Cir. 10/4/21), 329 So.3d 418 writs denied,

21-1614, 21-1615 (La. 1/12/22), __ So.3d ____ (Acadiana Renal Physicians II), the

trial court denied ARP’s motion to compel Lourdes and LGMC to answer

supplemental discovery requests. We reversed and remanded.

This third appeal is whether the trial court properly denied ARP’s motion to

compel compliance with a subpoena seeking further information from Our Lady of

the Lake Hospital in Baton Rouge (the Lake). The Lake is Lourdes’ sister hospital

owned and operated by the Franciscan Mission of Our Lady Health Services.

On April 15, 2021, ARP issued a subpoena duces tecum to the Lake seeking

information pertaining to emergency on-call pay for nephrologists. On April 30,

2021, Lourdes and the Lake filed a motion to quash that subpoena. After a hearing

on May 24, 2021, the trial court granted the motion, in part, and denied the motion,

in part. The trial court limited the subpoena to only have the Lake provide the rates

it pays for emergency on-call nephrologists for a shorter timeframe than originally

requested. However, while denying ARP’s request for other information from the

Lake relative to emergency on-call pay for nephrologists sought by ARP, the trial

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court stated, “once [ARP] gets [the pay rates, if it] thinks [its] entitled to something

else, then we’ll go from there.”

On July 6, 2021, the Lake produced information showing the pay rate

nephrologists receive for emergency on-call services. Thereafter, ARP filed a

motion to compel compliance with the subpoena duces tecum requesting the Lake

provide, inter alia, “methods used to determine the fair market value” of those

emergency on-call pay rates nephrologists earn. A hearing on the motion was held

on September 20, 2021. After hearing the arguments, the trial court denied ARP’s

motion. ARP filed the current appeal before us on September 27, 2021, assigning

three errors.

JURISDICTION:

Prior to adjudicating the errors assigned by ARP, Lourdes urges this court to

examine whether it has subject matter jurisdiction over this appeal. This is a

threshold matter as a court without subject matter jurisdiction lacks “the legal power

and authority . . . to hear and determine a particular class of actions or proceedings,

based upon the object of the demand, the amount in dispute, or the value of the right

asserted.” La.Code Civ.P.art 2. Courts have the duty to ensure it has subject matter

jurisdiction, even where the litigants have not raised the issue. Adkins v. City of

Natchitoches, 14-491 (La.App. 3 Cir. 11/5/14), 150 So.3d 646; Otwell v. Otwell, 10-

1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232.

This court addressed the jurisdictional issue raised by Lourdes in Acadiana

Renal Physicians II, wherein we found that La.R.S. 51:121-152 were sui generis

statutory law that invoke this court’s appellate jurisdiction versus its supervisory

jurisdiction. As such, we found that appellants have an appeal by right to have

interlocutory judgment reviewed, not subject to the discretion of this appellate court.

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We reiterate our decision reached in Acadiana Renal Physicians II. There is

no merit to Lourdes’ argument that this court should dismiss ARP’s appeal on

jurisdictional grounds.

Additionally, Lourdes contests the authority of this court to hear this appeal

by asserting that ARP’s failure to appeal the trial court’s judgment per the hearing

held on May 24, 2021, renders this matter before us as final and not appealable. We

find no merit to this argument.

On May 24, 2021, the trial court did quash part of ARP’s subpoena and limited

ARP’s discovery, at that time, from the Lake to the rate received by nephrologists

for emergency on-call services. However, at that hearing, the trial court also stated,

“once [ARP] gets [the pay rates, if it] thinks [it is] entitled to something else, then

we’ll go from there.” ARP’s subsequent motion to compel compliance with the

subpoena and hearing held on September 20, 2021, was after ARP received the rates

paid by the Lake. Thus, this appeal is ARP following the trial court’s decision to

see where “we’ll go from there” per the trial court’s statement on May 24, 2021.

Accordingly, we find no merit to Lourdes and the Lake’s assertion that this matter

is final and unappealable.

ASSIGNMENTS OF ERROR:

1. The trial court abused its discretion in denying the relief sought
in the Motion to Compel Compliance with Subpoena Duces
Tecum, because the information sought from the third-party is
relevant.

2. The trial court abused its discretion in denying the relief sought
in the Motion to Compel Compliance with Subpoena Duces
Tecum, because Respondent did not show any inconvenience or
difficulty with the production of the information sought.

3. The trial court abused its discretion in denying the relief sought
in the Motion to Compel Compliance with Subpoena Duces
Tecum, because it made no findings in its written judgment that
the subpoena in question was either unreasonable or oppressive.

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DISCUSSSION OF THE MERITS:

ARP three assignments of error seek the same relief, compelling the Lake to

comply with its subpoena duces tecum. As such, we will address all three assigned

errors under one heading.

Appellate court review evidentiary rulings of a trial court using the abuse of

discretion standard. Whitehead v. Kansas City Southern Ry. Co., 99-896 (La.App. 3

Cir. 12/22/99), 758 So.2d 211; writ denied, 00-209 (La.4/7/00), 759 So.2d 767.

[Louisiana Code of Civil Procedure articles] 1422-1425 define the
scope of permissible discovery. Hodges v. Southern Farm Bureau
Casualty Insurance Company, 433 So.2d 125 (La.1983). These articles
permit the discovery of any relevant matter, which is not privileged. Id.
Evidence is relevant if it has any tendency to make the existence of any
fact that is of consequence to the determination of an action more
probable or less probable than it would be without the evidence.
La.Code Evid. art. 401. “Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or waste of time.” La.Code Evid. art.
403.The basic objectives of the Louisiana discovery process are as
follows:

(1) to afford all parties a fair opportunity to obtain
facts pertinent to the litigation, (2) to discover the true
facts and compel disclosure of these facts wherever they
may be found, (3) to assist litigants in preparing their cases
for trial, (4) to narrow and clarify the basic issues between
the parties, and (5) to facilitate and expedite the legal
process by encouraging settlement or abandonment of less
than meritorious claims. State v. Spruell, 243 La. 202, 142
So.2d 396 (1962); Bennett v. General Motors Corp., 420
So.2d 531 (La.App. 2nd Cir.1982); Comment,
LOUISIANA’S DISCOVERY ARTICLES: A MODERN
APPRAISAL, 22 Loy.L.Rev. 130 (1976).

Hodges, 433 So.2d at 129.

Conques v. Wal-Mart Stores, Inc., 00-619, pp. 5-6 (La.App. 3 Cir. 2/14/01), 779

So.2d 1094, 1098. Courts are to construe the discovery statutes both liberally and

broadly to achieve objectives cited in Hodges above.

Louisiana Code of Civil Procedure article 1354 (emphasis added) provides:

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A. A subpoena may order a person to appear and produce at the trial,
deposition, or hearing, books, papers, documents, any other tangible
things, or electronically stored information, in his possession or under
his control, if a reasonably accurate description thereof is given. A
subpoena may specify the form or forms in which electronically stored
information is to be produced. A party or an attorney requesting the
issuance and service of a subpoena shall take reasonable steps to avoid
imposing undue burden or cost on a person subject to that subpoena.
The court in which the action is pending in its discretion may vacate or
modify the subpoena if it is unreasonable or oppressive. Except when
otherwise required by order of the court, certified copies, extracts, or
copies of books, papers, and documents may be produced in obedience
to the subpoena duces tecum instead of the originals thereof. If the party
or attorney requesting the subpoena does not specify that the named
person shall be ordered to appear, the person may designate another
person having knowledge of the contents of the books, papers,
documents, other things, or electronically stored information, to appear
as his representative.

B. A person commanded to respond to a subpoena duces tecum may
within fifteen days after service of the subpoena or before the time
specified for compliance, if such time is less than fifteen days after
service, send to the party or attorney designated in the subpoena written
objections, with supporting reasons, to any or all of the requests,
including objection to the production of electronically stored
information in the form or forms requested. If objection is so made, the
party serving the subpoena may file a motion to compel compliance
with the subpoena and may move for sanctions for failure to reasonably
comply.

C. A person responding to a subpoena to produce books, papers, or
documents shall produce them as they are kept in the usual course of
business or may organize and label them to correspond with the
categories in the demand.

D. If a subpoena does not specify the form or forms for producing
electronically stored information, a person responding to a subpoena
may produce the information in a form or forms in which the person
ordinarily maintains it or in a form or forms that are reasonably useable.

E. A person responding to a subpoena need not produce the same
electronically stored information in more than one form.

F. A person responding to a subpoena need not produce books, papers,
documents, or electronically stored information from sources that the
person identifies as not reasonably accessible because of undue burden
or cost. On motion to compel production or to quash, the person from
whom production is sought shall show that the information sought is
not reasonably accessible because of undue burden or cost. If that
showing is made, the court may nonetheless order production from such
sources if the requesting party shows good cause. The court may
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specify conditions, including an allocation of the costs, for the
production.

G. When the person subpoenaed is an adverse party, the party
requesting the subpoena duces tecum may accompany his request with
a written request under oath as to what facts he believes the books,
papers, documents, electronically stored information, or tangible things
will prove, and a copy of such statement shall be attached to the
subpoena. If the party subpoenaed fails to comply with the subpoena,
the facts set forth in the written statement shall be taken as confessed,
and in addition the party subpoenaed shall be subject to the penalties
set forth in Article 1357.

H. Subpoenas duces tecum shall reproduce in full the provisions of this
Article.

First, the parties disagree whether the information sought by ARP is relevant

to the underlying suit given that the Lake is not a party to this matter. In Stolzle v.

Safety & Systems Assurance Consultants, Inc., 02-1197 (La.5/24/02), 819 So.2d 287,

our supreme court held a party seeking production of records from a non-party must

show relevancy and good cause. Here, according to ARP, its subpoena seeks

discovery from the Lake that is relevant and has good cause. We agree.

The basis for this suit is an allegation that Lourdes and LGMCs fail to pay

nephrologists for required, emergency on-call hours at hospitals in Lafayette for

reasons improper per La.R.S. 51:121-152. Clearly, after ARP learned the Lake does

pay nephrologists for emergency on-call hours in Baton Rouge, but Lourdes chooses

not to pay them in Lafayette raises questions relevant to the underlying suit, namely

why and what are the factors used in reaching that rate of pay. These questions are

relevant, and ARP has good cause for the request given both a party, Lourdes, and a

non-party, the Lake, are owned and run by the same entity. Moreover, ARP has the

burden to prove in its suit against Lourdes and LGMC to show what other hospitals

look at in determining pay and comparing that to what Lourdes and LGMC look to

in reaching their mutual decision not to pay nephrologists for emergency on-call

hours. Additionally, what or who determines the rate of pay the Lake pays those
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services in Baton Rouge, and if that entity is the same at Lourdes, is also intimately

tied to the cause of action in this suit.

Lourdes and the Lake counter the requested documents are not relevant

because the Lake’s pay rates are subject to a contract with the State of Louisiana,

while Lourdes is not. Additionally, Lourdes and the Lake point out that they are in

different markets, Lafayette and Baton Rouge.

First, according to the Lake, its contract with the state subjects it to provisions

for emergency on-call physician pay that is not applicable to Lourdes. While this

may be true, the amount the state chooses to reimburse the Lake for nephrologists to

perform emergency on-call services tends to impact this ongoing litigation. The

Lake answering why that amount is used or what basis determines that amount is,

again, at the heart of ARP’s claims against Lourdes and LGMC.

Next, Lourdes and the Lake assert that ARP’s subpoena seeks irrelevant

information to the underlying suit because the emergency on-call pay determinations

in Baton Rouge are based on different factors and criteria than those present in the

Lafayette market. This assertion does not render ARP’s subpoena requests irrelevant

or without good cause. Rather, the difference in markets between Lourdes and the

Lake may provide ARP at least some explanation as to why the Lake pays

nephrologists for emergency on-call services, but its sister hospital does not. The

why of that explanation could reasonably be based on factors present in both Baton

Rouge and Lafayette and help ARP prove that, while there are market differences

between the two cities, they are not such where the market differences can explain

away the severe difference of getting paid for work done versus not getting paid, at

all, for the same type of work. Further, whether there are market differences that

reasonably explain why the Lake pays nephrologists for emergency on-call hours,

but Lourdes does not, is directly related to ARP’s assertions in its petition. ARP’s
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case depends on proving what other hospitals do, how Lourdes and LGMC’s “pay”

is vastly different from those other hospitals, and whether Lourdes and LGMC’s

decision not to pay them is based on factors or actions impermissible under La.R.S.

51:121-152 or ARP’s other theories for recovery. Given the above, we find ARP

has shown relevancy and good cause for its subpoena duces tecum.

Next, ARP argues that the trial court failed to find that the Lake’s compliance

with its subpoena was unreasonable or oppressive, and this failure by the trial court

constitutes an abuse of its discretion. We find merit to this argument.

“When a trial court vacates a subpoena without first finding that the subpoena

is unreasonable or oppressive, [it] has gone beyond [its] authority under the

provisions of La. C.C.P. art. 1354. Francois v. Norfolk Sourthern Corp., 01-1954, p.

2 (La.App. 4 Cir. 3/6/02), 812 So.2d 804, 806.

Here, there is no evidence in the record the trial court made a finding that

ARP’s subpoena was unreasonable or oppressive. Contrarily, our reading of the

record from the September 20, 2021 hearing indicates the trial court thoroughly

fleshed out the issue and was not moved to rule one way or another until Lourdes

and the Lake argued that the trial court should deny ARP’s motion to compel to keep

its decision in line with its prior ruling that Lourdes did not have to fully comply

with ARP’s discovery requests.

Acadiana Renal Physicians II was pending before this court on September 20,

2021, the date this hearing transpired. After hearing arguments from both parties,

the trial court sought a resolution to this issue by attempting to point out that Lourdes

and the Lake had already complied with ARP’s subpoena. Thereafter, when faced

with arguments from ARP that the Lake had not satisfactorily complied with its

subpoena, Lourdes and the Lake noted that the trial court “didn’t require a party to

produce the information [ARP is now] requesting a non-party to produce. We’re at
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the appellate court right now on your other ruling.” (emphasis added). Directly after

this point was raised by Lourdes and the Lake, the trial court simply stated, “I’m

going to deny [ARP’s] request and we’ll see what they say.”

In fairness to the trial court, this basis can be deemed as reasonable given that

denying a similar motion to compel a party to produce discovery would intuitively

necessitate denying a motion to compel a non-party to produce similar discovery.

However, the jurisprudence is clear. A trial court cannot vacate a subpoena without

finding the subpoena unreasonable or oppressive. Doing so constitutes an abuse of

its discretion. La. C.C.P. art. 1354; Francois, 812 So.2d 804. Accordingly, we find

that the trial court abused its discretion in denying ARP’s motion to compel the Lake

to comply with ARP’s subpoena duces tecum.

ARP’s last remaining argument is that Lourdes and the Lake did not show any

inconvenience or difficulty with the production of the information sought as required

for the trial court to vacate or modify a subpoena. We find above that the trial court

abused its discretion when it denied ARP’s motion to compel without finding the

subpoena unreasonable or oppressive. The result of our finding reverses the

judgment of the trial court rendering ARP’s last remaining argument moot. We

already find that ARP is entitled to the relief it seeks in this argument.

CONCLUSION:

Acadiana Renal Physicians raises three assignments of error regarding the

trial court’s denial of its motion to compel a non-party, Our Lady of the Lake

Hospital in Baton Rouge, to comply with its subpoena duces tecum. We find

Acadiana Renal Physicians’ subpoena seeks relevant evidence for good cause.

Further, we find the trial court abused its discretion by failing to find that Acadiana

Renal Physician’s subpoena duces tecum was unreasonable or oppressive.

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As such, we reverse the trial court’s denial of Acadiana Renal Physicians’

motion to compel compliance with its subpoena. We assess all costs of this appeal

to Our Lady of Lourdes Hospital.

REVERSED AND REMANDED.

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