Accounting Expert Not Allowed to Opine on the Acuity or Need Level of Residents

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 Health Management Inc. 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 Sherrod into entering into an admission agreement and becoming a resident of the Facility. Mr. Sherrod resided at the Facility for a few months. Sherrod maintained 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.

Plaintiff Kathy Sherrod sought to limit the testimony of Defendants' expert witness Leon E. LeBreton.

Accounting Expert Witness

Leon E. “Ed” LeBreton is a licensed accountant and has served as chief financial officer and director of senior living facilities.

Get the full story on challenges to Leon LeBreton’s expert opinions and testimony with an in-depth Challenge Study.

Discussion by the Court

Plaintiff asked the Court to limit 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 Marrero Healthcare."

Defendants argued that this Court should accept LeBreton as an expert in these categories because he is a licensed accountant and has served as chief financial officer and director of senior living facilities. However, at LeBreton’s deposition, he was asked repeatedly if he had any experience or qualifications whatsoever that would allow him to opine on these issues at an expert level. Each time, LeBreton answered plainly, “No.” LeBreton disclaimed experience in any relevant vocation.

Moreover, LeBreton admitted he had “no expertise upon which to determine the acuity of the residents of any skilled nursing facility in the United States such as to comply with federal regulations to ensure the sufficiency of staff” and no “qualifications that would empower [him] to be an expert to determine the acuity or need level of residents in a skilled nursing facility for their medical needs.”

Defendants’ assertions as to the qualifications LeBreton does possess do nothing to cure the obvious and admitted inadequacy of LeBreton’s qualifications as an expert in the identified categories.

Held

The Court granted Plaintiff Kathy Sherrod's motion to limit the testimony of Defendants' expert witness Leon LeBreton.

Key Takeaway

Rule 702 requires that an expert must be properly qualified. Generally, 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.

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