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

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-372

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. 20202289
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

WILBUR L. STILES
JUDGE

**********

Court composed of Shannon J. Gremillion, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

Bradberry, J., concurs.

MOTION TO STRIKE APPELLEE’S BRIEF DENIED.
AFFIRMED.

Jennifer L. Thornton
John P. D’Avello
Stanley, Reuter, Thornton & Alford, LLC
909 Poydras Street, Suite 2500
New Orleans, LA 70112
(504) 523-1580
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Acadiana Renal Physicians, A Medical Corporation
Dr. Anthony Blalock
Dr. Roderick Clark
Dr. Akshey Gupta
Dr. Melissa Harrington
Dr. Maximo Lamarche
Dr. Alfonso Lebron
Dr. Juan Zeik

John Alden Meade
Adam G. Young
Meade Young, LLC
556 Jefferson Street, Box 7
Lafayette, LA 70501
(337) 534-0200
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Acadiana Renal Physicians, A Medical Corporation
Dr. Anthony Blalock
Dr. Roderick Clark
Dr. Akshey Gupta
Dr. Melissa Harrington
Dr. Maximo Lamarche
Dr. Alfonso Lebron
Dr. Juan Zeik

Russell B. Kahn
Attorney at Law
322 South Market Street
Opelousas, LA 70570
(337) 948-6217
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Acadiana Renal Physicians, A Medical Corporation
Dr. Anthony Blalock
Dr. Roderick Clark
Dr. Akshey Gupta
Dr. Melissa Harrington
Dr. Maximo Lamarche
Dr. Alfonso Lebron
Dr. Juan Zeik

Randall K. Theunissen
Joseph A. Boustany
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANT/APPELLEE:
Our Lady of Lourdes Regional Medical Center, Inc.

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

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

Cearley W. Fontenot
Oats & Marino
100 E. Vermilion Street, Suite 400
Lafayette, LA 70501
(337) 233-1100
COUNSEL FOR DEFENDANT/APPELLEE:
Louis J. Perret, Lafayette Clerk of Court

STILES, Judge.

Plaintiffs, a physician group and its member physicians, appeal the judgment of

the trial court denying their Motion for Discovery Sanctions against the defendant

hospital. For the following reasons, we deny Plaintiffs’ pre-hearing Motion to Strike

Appellee’s Brief and, on the merits, affirm the trial court’s judgment under review.

FACTUAL AND PROCEDURAL HISTORY

As noted by a prior panel, the facts of this proceeding are not in dispute. 1

Plaintiffs, Acadiana Renal Physicians, A.M.C., Drs. Anthony Blalock, Roderick Clark,

Akshey Gupta, Melissa Harrington, Maximo Lamarche, Alfonso Lebron, and Juan

Zeik, filed this matter questioning Our Lady of Lourdes Regional Medical Center, Inc.’s

(OLOL’s) failure to pay the nephrologists for performing on-call services as required

by their hospital privileges. 2 Plaintiffs noted that similarly situated physicians

practicing in other specialties received pay for their emergency on-call services.

Plaintiffs alleged that OLOL’s conduct violated the Louisiana Monopolies Act, La.R.S.

51:121-152, and the Louisiana Unfair Trade Practices, La.R.S. 41:1401-1428.

As pertinent to this appeal, Plaintiffs filed a “Fourth Set of Discovery Requests”

in February 2022 seeking production of information associated with revenues generated

for OLOL by other physicians receiving pay from OLOL for on-call services. The

requests included:

1
This proceeding is the fourth pre-trial appeal in this matter and the third of which addresses
Plaintiffs’ complaints regarding compliance with discovery. See Acadiana Renal Physicians, A Med.
Corp. v. Our Lady of Lourdes Reg’l Med. Ctr., Inc., 22-16 (La.App. 3 Cir. 1/28/22), 334 So.3d 1, writ
denied, 22-343 (La. 4/5/22), 335 So.3d 833; Acadiana Renal Physicians, A Med. Corp. v. Our Lady
of Lourdes Reg’l Med. Ctr., Inc., 21-586 (La.App. 3 Cir. 10/4/21), 329 So.3d 418, writs denied, 21-
1614, 21-1615 (La. 1/12/22), 330 So.3d 624, 629; Acadiana Renal Physicians, A Med. Corp. v. Our
Lady of Lourdes Reg’l Med. Ctr., Inc., 21-289, 21-290 (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.
2
Although Plaintiffs initially named Lafayette General Medical Center, Inc. as a co-defendant,
the trial court granted Plaintiffs’ ex parte motion to dismiss and ordered dismissal of all claims against
LGMC with prejudice in October 2022. Plaintiffs sought the dismissal “by agreement of the parties[.]”

Interrogatories

1. For each of the physicians (or physician groups) identified in your
response to Supplemental Interrogatory No. 1 (made February 22nd,
2022), identify the total numbers of patients referred to You or
admitted to Your facilities or any facility owned by such physicians
(or physician groups), by year, from 2018 to 2021.

2. For each of the physicians (or physician groups) identified in your
response to Supplemental Interrogatory No. 1 (made February 22nd,
2022), identify the total revenue derived by You from each physician
(or physician groups), by year, from 2018 to 2021. (For purposes of
this interrogatory “revenue” should be stated in the manner booked
by You. For example, if You only book actual payments received,
then state that amount. If You book revenue another way, state that
amount and explain).

3. For each of your responses to Interrogatory No. 2 above, identify
the sources of revenues by physician, by payor type, e.g., private
insurance, Medicare, Medicaid, private payor, other.

Requests for Production of Documents

The following requests are limited to items created or received by
you from 2018 to the present:

1. All documents, records, or ESI[3] concerning or referencing numbers
of patients referred to You by any physician (or physician groups)
identified in response to discovery in this case. Any ESI should be
produced in native file format.

2. All documents, records, or ESI concerning or referencing revenues
derived by You from any physician (or physician groups) identified
in response to discovery in this case. Any ESI should be produced
in native file format.

3. All documents, records, or ESI concerning or referencing
competition for physician services in the Lafayette [sic] the broader
Louisiana market for physician services.

4. All documents, records, or ESI concerning or referencing any actual
or potential effort by you to recruit or retain any physician or
physician group on your medical staff.

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Electronically Stored Information.

2

On June 30, 2022, Plaintiffs filed a Motion to Compel Responses to Plaintiffs’

Fourth Set of Written Discovery noting that OLOL objected to its discovery requests on

the grounds of relevance and privilege. OLOL also suggested that the information was

in the possession of third parties rather than OLOL. Plaintiffs maintained that the

requested information was relevant to its allegation that OLOL merely uses call pay as

a disguised “kickback” for patient referrals and that, on the claim of privilege, OLOL

failed to make an attempt to establish privilege. Plaintiffs pointed out that OLOL had

not produced a privilege log. Similarly, Plaintiffs argued that OLOL claimed only that

the information sought was in the hands of third parties, not that the information did not

exist nor that OLOL did not have access to it. Plaintiffs thus sought an order directing

OLOL to further comply with discovery as well as for costs and attorney fees.

A hearing on the motion to compel was held on August 8, 2022. On September

19, 2022, the trial court rendered a Judgment Compelling Discovery Responses and

ordered:

1. For each of the physicians (or physician groups) identified in
Defendant’s response to Supplemental Interrogatory No. 1 (made
February 22nd, 2022), it must identify the total numbers of patients
referred to it or admitted to its facilities or any facility owned by
such physicians (or physician groups), by year, from 2018 to 2021.

2. For each of the physicians (or physicians groups) identified in
Defendant’s response to Supplemental Interrogatory No. 1 (made
February 22nd, 2022) it shall identify the total revenue derived by it
from each physician (or physician groups), by year, from 2018 to
2021. (For purposes of this interrogatory “revenue” should be stated
in the manner booked by Defendant. For example, if Defendant only
books actual payment received, then state that amount. If it books
revenue another way, state that amount and explain).

3. For each of Defendant’s responses to No. 2 above, it shall identify
the sources of revenues by physician, by payor type, e.g., private
insurance, Medicare, Medicaid, private payor, other.

4. Defendant must produce documents that discuss efforts to retain or
recruit physicians that are threatening to leave.

3

Although the trial court assessed costs against OLOL, it denied Plaintiffs’ request for

attorney fees.

In the months that followed, OLOL searched and collected information from

various document sources and compiled that information into two PDF spread sheets

(comprising forty-six pages) pertaining to the number of patient referrals and the total

revenue OLOL had received from each physician/physician group performing on-call

services. In response to the trial court’s directive to produce documents regarding efforts

to retain or recruit physicians, OLOL engaged a third party to “harvest” documents

potentially including the information sought and, thereafter, OLOL’s counsel began a

review of the documents for responsiveness.

On December 14, 2022, Plaintiffs filed a Motion for Discovery Sanctions asking

the trial court to sanction OLOL pursuant to La.Code Civ.P. art. 1471 for allegedly

failing to obey the trial court’s discovery order. A hearing was held on January 23, 2023.

After hearing oral arguments, the trial court denied Plaintiffs’ motion for sanctions. A

Judgment on Plaintiffs’ Motion for Discovery Sanctions was rendered on February 8,

2023, ordering the following:

1. The Plaintiffs’ Motion for Discovery Sanctions is
denied in its entirety.

2. Costs are deferred to the end of the case.

Separately, regarding the conduct of discovery in this case,
the Court finds the Defendant should respond more quickly
to the Court’s order of 9/19/2022 and therefore it is hereby
ordered, adjudged, and decreed as follows:

1. As soon as practicable, the Defendant shall identify to
Plaintiffs the search terms and the search methods,
including any algorithms, being used to respond to the
documents ordered produced by the 9/19/2022 [sic].

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2. The Defendant shall provide written updates to the
Plaintiff identifying the status of its document review
and production pursuant to the 9/19/2022 Order every
fifteen days.

On February 1, 2023, the trial court granted Plaintiffs’ Motion for Appeal “on the

Court’s judgment denying the Plaintiffs’ Motion for Discovery Sanctions against Our

Lady of Lourdes Regional Medical Center, Inc.” The trial court ordered “that this appeal

be returnable to the Louisiana Court of Appeals, Third Circuit, within thirty days of the

payment of estimated costs, pursuant to La. C.C.P. art. 2125.” Plaintiffs filed an “Art.

2126 Motion to Reduce Costs” on March 16, 2023, seeking to traverse the Clerk of

Court’s estimation of costs and asking that said costs be reduced. A hearing was

scheduled before the trial court on May 8, 2023. However, on May 5, 2023, Plaintiffs

filed an Ex Parte Motion to Dismiss Motion to Reduce Costs. The trial court signed the

attached Order on May 8, 2023, dismissing the motion to reduce costs and ordering

Plaintiffs to “pay the costs as estimated by the Clerk of Court within twenty days of this

order, pursuant to La. C.C.P. Art. 2126(C).” The appellate record in this matter was

lodged on June 12, 2023.

Plaintiffs assign the following as error in their appellants’ brief:

A. The trial court abused its discretion in denying any relief to the
Plaintiffs under La. C.C.P. Art. 1471.

B. The trial court abused its discretion to the extent that its February
8, 2023, order permits the Defendant to conduct a search of its
own records for responsive documents using its own designated
search terms and search methods, excluding the Plaintiffs from
the collection and search process.

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DISCUSSION

Motion to Strike Appellee’s Brief

On Tuesday, June 20, Plaintiffs filed a Motion to Strike Appellee’s brief in which

they asserted that OLOL violated Local Rule 28 by attaching evidence to its appellee’s

brief that has not been introduced into evidence. Local Rules – Court of Appeal, Third

Circuit, Rule 28 provides:

Appellate courts are courts of record and may not review or consider
evidence that has not first been properly and officially offered, introduced,
and considered in the proceedings below. See Denoux v. Vessel Mgmt.
Servs., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84. Thus, all briefs and
memoranda filed in this Court with attachments to be considered by this
Court as evidence, whether filed in conjunction with appeals, motions, or
writ applications, that contain attachments shall contain the following
certification:

“I hereby verify that all attachments to this brief or
memorandum, for the purpose of review and consideration as
evidence by this Court, have been entered and/or accepted
into evidence or proffered as evidence, and/or considered in
the lower court, to the best of my knowledge, information and
belief. I understand that failure to comply with this local rule
may result in this Court’s refusal to consider said attachments.
WILLFUL FAILURE TO COMPLY WITH THIS LOCAL
RULE MAY SUBJECT ME TO PUNISHMENT FOR
CONTEMPT OF COURT.”

No such attachment will be considered by this Court if not filed and/or
accepted or proffered, or considered in the lower court unless by Order of
this Court for good cause shown.1

Footnote 1 provides, “This local rule shall not be interpreted to prohibit, and this

certification shall not apply to, other non-evidentiary attachments required by the

Uniform Rules--Courts of Appeal, or allowed in practice to facilitate the Court’s

understanding of the issues and precedents involved.”

Plaintiffs contend that OLOL has willfully violated Local Rule 28 by attaching

Exhibit B, OLOL’s several supplemental discovery responses, in this proceeding, an

appeal of a ruling on a discovery matter. We find that good cause exists for considering

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these documents on three bases: the exigencies that arise from the expedited appellate

process in antitrust matters, the matter involves the trial court’s refusal to award

sanctions associated with allegedly insufficient discovery responses, and there can be

no surprise or undue prejudice to Plaintiffs, given that these responses were directed to

them.

Louisiana Revised Statutes 51:135 establishes that every interlocutory order in

an antitrust case is appealable and imposes a tight timeline within which the matter must

be heard and decided once the appeal is lodged, five and twenty days, respectively. This

expedited procedure necessitates that the court hastily become thoroughly familiar with

the relevant aspects of the case. The issue before this court regards the trial court’s

refusal to award sanctions to Plaintiffs for OLOL’s allegedly insufficient discovery

responses. A review of the submitted material convinces us of the value of the material

in arriving at a conclusion about whether the trial court abused its discretion. And

Plaintiffs cannot claim either surprise or undue prejudice to their appeal, as these

discovery responses were addressed to them, their sufficiency is at issue in this appeal.

There is no claim that these documents are not genuine, just that they were not

properly introduced at the hearing. With regard to this point, we note that Local Rule

28 does not provide a blanket prohibition of considering such information. As the

footnote clearly states, the prohibition does not apply to non-evidentiary attachments

required by the Uniform Rules or allowed in practice to facilitate the court’s

understanding of the issues. We consider the discovery responses to be very helpful in

facilitating the court’s understanding of this matter.

We therefore below deny Plaintiffs’ Motion to Strike Appellee’s Brief and turn

to the merits of this appeal.

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Standard of Review

Louisiana Code of Civil Procedure Article 1471 grants the trial court the power

to impose sanctions on a party or his attorney for the unjustified failure to obey a

discovery order. “The trial court has much discretion when choosing the appropriate

sanctions, under La.Code Civ.P. art. 1471, for a party’s failure to comply with a

discovery order, and we will not reverse its choice absent a clear showing that it abused

its discretion.” In re Wiley, 03-793, p. 5 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243,

1246-47; see also Rice v. Sagrera, 95-155 (La.App. 3 Cir. 5/31/95), 657 So.2d 419, writ

denied, 95-1657 (La. 10/6/95), 661 So.2d 470.

Denial of the Motion for Sanctions

As seen in the timeline above, Plaintiffs filed their motion for sanctions three

months after the trial court issued its order compelling OLOL to further comply with

Plaintiffs’ Fourth Set of Discovery Requests. In both their motion and at the resulting

hearing in January 2023, Plaintiffs focused on that aspect of the trial court’s order

directing OLOL to “produce documents that discuss efforts to retain or recruit

physicians that are threatening to leave.” Plaintiffs maintained that, despite the order

having been issued in September 2022, OLOL had not produced any documents

“responsive to the request.”

When the trial court inquired as to OLOL’s failure to respond, counsel noted that

Plaintiffs are all non-employed staff, not staff physicians who are direct employees of

the hospital. Referencing the deposition of OLOL executive Donna Landry, counsel

explained that OLOL only recruits and makes efforts to retain hospital-employed

physicians. Counsel stated that he was thus skeptical that there would be recruiting and

retention documents related to non-employed staff. Counsel therefore retained a third-

party to gather “potential” sources of the information. That effort resulted in “170,000

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plus” documents that his law firm staff began reviewing. The process was ongoing at

the time of the hearing. Despite having reviewed 19,000 documents with the use of

designated search terms, none of the documents were a “hit” for responsiveness.

Counsel explained that his team was reviewing 2,000 documents a day but that they

were “getting new algorithms” to possibly accelerate the pace. Counsel noted that,

although Plaintiffs referred to the September 19, 2022 order compelling the production

of the documents, his firm did not receive the documents until November and began its

review thereafter.

The trial court denied Plaintiffs’ request for sanctions and, instead, ordered OLOL

to “respond more quickly” to its September 2022 order. Plaintiffs acknowledge that a

trial court is afforded discretion in determining whether to award sanctions for a

discovery violation, citing Hutchinson v. Westport Ins. Co., 04-1592 (La. 11/8/04), 886

So.2d 438. In this instance, however, Plaintiffs maintain that they carried their burden

of demonstrating that OLOL has disobeyed the September 2022 discovery order.

Following review, we leave the trial court’s refusal to award sanctions

undisturbed. While Plaintiffs take the position that OLOL objectively violated the

discovery order and that sanctions must necessarily follow, the trial court did not make

such a finding nor does the record require that finding. Rather, the trial court accepted

OLOL’s explanation for its seemingly laborious process of reviewing a multitude of

documents and, as discussed below, directed the parties to work together to more

quickly fulfill the September 2022 order.

As OLOL did at the hearing, Plaintiffs reference Ms. Landry’s deposition in their

Appellants’ brief and point to Ms. Landry’s broad discussion of the hospital’s retention

and recruitment of physicians and her acknowledgement that writings in that regard

may exist. Plaintiffs suggest that “[t]his testimony indicates the existence of documents,

9

including email, internal memoranda, and potential other written communications,

regarding the recruiting and retaining of physicians, and specifically including

discussion of call pay as a factor in these negotiations.” It does not necessarily follow,

however, that OLOL has not complied with the discovery order, at least at the time of

the January 2023 hearing. Rather, the trial court accepted that OLOL’s review process

is significant and ongoing.

The E-Discovery Process

Plaintiffs second assignment of error is that the trial court abused its discretion

by entering the second portion of the February 8, 2023 judgment, by which it ordered

the following:

Separately, regarding the conduct of discovery in this
case, the Court finds the Defendant should respond more
quickly to the Court’s order of 9/19/2022 and therefore it is
hereby ordered, adjudged, and decreed as follows:

1. As soon as practicable, the Defendant shall identify to
Plaintiffs the search terms and the search methods,
including any algorithms, being used to respond to the
documents ordered produced by the 9/19/2022 [sic].

2. The Defendant shall provide written updates to the
Plaintiff identifying the status of its document review and
production pursuant to the 9/19/2022 Order every fifteen
days.

In their brief, Plaintiffs argue that the above order allows OLOL to determine its own

ESI protocol without cooperating with Plaintiffs, thereby excluding Plaintiffs from the

discovery process and permitting OLOL to unilaterally dictate the search terms and

methods it will use when searching for documents responsive to the trial court’s

discovery orders. Plaintiffs assert that since the February 8, 2023 judgment, OLOL “has

conducted its search according to its own terms, intermittently informing the Plaintiff

that though it has searched, it has yet to find responsive documents.” For these reasons,

10

Plaintiffs ask this court to remand the matter to the trial court for a status conference to

establish cooperative e-discovery protocols. In contrast, OLOL challenges Plaintiffs’

characterization of the progression of discovery since February 8, 2023 and instead

asserts that it has complied with the trial court’s order in offering Plaintiffs the

opportunity to modify the search terms.

We understand Plaintiffs’ frustration with the slow pace of the discovery process.

However, we leave the trial court’s order undisturbed. We are mindful not only of the

time period that has lapsed since the February 8, 2023 order but of the parties’

conflicting accounts of discovery since that time. Simply, we find no abuse of discretion

on the record before the court.

DECREE

For the foregoing reasons, Plaintiffs’ pre-hearing Motion to Strike Appellee’s

Brief is denied and the trial court’s February 8, 2023 Judgment on Plaintiffs’ Motion for

Discovery Sanction is affirmed. Costs of this appeal are assigned equally to Appellants,

Acadiana Renal Physicians, A Medical Corporation, Drs. Anthony Blalock, Roderick

Clark, Akshey Gupta, Melissa Harrington, Maximo Lamarche, Alfonso Lebron, Juan

Zeik and to Appellee, Our Lady of Lourdes Regional Medical Center, Inc.

MOTION TO STRIKE APPELLEE’S BRIEF DENIED.
AFFIRMED.

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