Sherrod et al v. Nexion Health at Marrero, Inc., et al

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
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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;
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(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).
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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 Marrero Healthcare.
R. Doc. 111 at 1. Defendants argue that this Court should accept Mr. 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. R. Doc. 144 at 1–2. However, at Mr. 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. R. Doc. 111-4 at 6–14. Each time, Mr. LeBreton answered plainly,
“No.” Id. Mr. LeBreton disclaimed experience in any relevant vocation, as in the following exchange
at his deposition:
Q: Mr. LeBreton, you are a licensed administrator of skilled nursing facilities?
A: No.
Q: Certified nursing assistant?
A: No.
Q: Registered nurse?
A: No.
Q: Licensed vocational nurse?
A: No.
Q: You’ve served as the administrator of a skilled nursing facility?
A: No.
Q: You’ve served as a director [of] nursing at a skilled nursing facility?
A: No.
Q: You’ve assessed the acuity of residents so that their medical needs can be met?
A: No.
Q: In fact, you have absolutely no qualifications whatsoever to do so. Correct?
A: Correct.
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Id. at 6–7. Moreover, Mr. 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.” Id. at 7–8.
Defendants’ assertions as to the qualifications Mr. LeBreton does possess do nothing to cure
the obvious and admitted inadequacy of Mr. LeBreton’s qualifications as an expert in the identified
categories. Accordingly, the Court will grant Plaintiff’s motion and limit Mr. LeBreton from testifying
at trial as to these issues.
IV. CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Plaintiff’s Motion, R. Doc. 111, is hereby GRANTED.
New Orleans, Louisiana, this 8th day of October, 2026.
United States District Judge
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