# Assure Neuromonitoring Louisiana, LLC v. Fairway Medical Center, L.L.C.

> District Court, E.D. Louisiana · September 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10189882

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ASSURE NEUROMONITORING CIVIL ACTION
LOUISIANA, LLC

VERSUS NO. 21-cv-01489

FAIRWAY MEDICAL CENTER, SECTION “H”
L.L.C., d/b/a AVALA

ORDER AND REASONS
Before the Court are Defendant Fairway Medical Center, LLC d/b/a/
Avala’s Motion for Partial Summary Judgment for Failure to Mitigate
Damages (Doc. 40); Motion to Exclude the Opinion and Testimony of Plaintiff’s
Expert (Doc. 42); Motion for Judgment on the Pleadings (Doc. 41); and Motion
for Leave to File Supplemental Witness List (Doc. 81). For the following
reasons, Defendant’s Motion for Judgment on the Pleadings is GRANTED,
and all other Motions are DENIED.

BACKGROUND
Plaintiff Assure Neuromonitoring Louisiana, LLC brings this action
against Defendant Fairway Medical Center, LLC d/b/a Avala to recover
damages arising from Defendant’s allegedly wrongful receipt of compensation
for intraoperative neuromonitoring (“IONM”) services that Plaintiff provided.
Plaintiff alleges that it entered into a contractual agreement with Defendant
to provide IONM services in exchange for the “exclusive right to bill and collect
any fees from patients and third-party payors associated with” Plaintiff’s
services (“the Assure–Avala Agreement”).1 Plaintiff further alleges that at the
time that the parties entered into the Assure–Avala Agreement, Defendant
had a separate agreement with Blue Cross Blue Shield of Louisiana
(“BCBSLA”), a private insurance payor, under which Defendant was paid
directly by BCBSLA a bundled payment for each surgery, a portion of which
was for the technical component of the IONM services performed for each
surgery (the “BCBSLA–Defendant Agreement”). Plaintiff alleges that because
of the BCBSLA–Defendant Agreement it could not bill or collect payment from
BCBSLA for the technical component of the IONM services it provided.
Plaintiff also alleges that Defendant has not paid it for the IONM services
covered by BCBSLA for which it collected payment. Plaintiff further alleges
that Defendant knew of its arrangement with BCBSLA at the time that it
entered into the contract with Plaintiff, but it did not inform Plaintiff of this
arrangement or the fact that Plaintiff would not have the exclusive right to bill
and collect fees from patients with BCBSLA insurance for its services. Plaintiff
brings several claims against Defendant, including breach of contract,
negligent misrepresentation, mutual mistake, unilateral mistake, detrimental
reliance, and unjust enrichment.
Now before the Court are four Motions filed by Defendant: (1) Motion for
Partial Summary Judgment for Failure to Mitigate Damages; (2) Motion for
Judgment on the Pleadings as to Plaintiff’s unjust enrichment claim; (3)
Motion to Exclude the Opinion and Testimony of Plaintiff’s Expert Mark
Anderson; and (4) Motion to File Supplemental Witness List. The Court will
consider each Motion in turn.

1 Doc. 1.
LEGAL STANDARD
A. Motion for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”2 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”3
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”6 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the non-
movant would bear the burden of proof at trial.”7 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the

2 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004)
(internal citations omitted).
necessary facts.”8 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”9
B. Motion for Judgment on the Pleadings
Rule 12(c) provides that a party may move for judgment on the
pleadings, after pleadings are closed but early enough not to delay trial.10 The
standard for determining a Rule 12(c) motion is the same as a Rule 12(b)(6)
motion to dismiss.11 To survive a Rule 12(b)(6) motion to dismiss, a plaintiff
must plead enough facts “to state a claim to relief that is plausible on its face.”12
A claim is “plausible on its face” when the pleaded facts allow the court to “draw
the reasonable inference that the defendant is liable for the misconduct
alleged.”13 A court must accept the complaint’s factual allegations as true and
must “draw all reasonable inferences in the plaintiff’s favor.”14 The court need
not, however, accept as true legal conclusions couched as factual allegations.15
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true.16 The complaint must contain
enough factual allegations to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff's claim.17 If it is apparent from
the face of the complaint that an insurmountable bar to relief exists and the
plaintiff is not entitled to relief, the court must dismiss the claim.18 The court's

8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
10 FED. R. CIV. P. 12(c)
11 Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).
12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).
13 Id.
14 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
15 Iqbal, 556 U.S. at 678.
16 Id.
17 Lormand, 565 F.3d at 255–57.
18 Jones v. Bock, 549 U.S. 199, 215 (2007).
review is limited to the complaint and any documents attached to the motion
to dismiss that are central to the claim and referenced by the complaint.19

LAW AND ANALYSIS
A. Motion for Partial Summary Judgment for Failure to Mitigate
Damages
Plaintiff provided IONM services pursuant to the Assure–Avala
Agreement from January 2019 until June 25, 2021. Defendant contends that
Plaintiff was “informed in each of February 2019, March 2019, and April 2019”
by multiple sources that it would not be able to collect from BCBSLA for the
technical component of the IONM services it provided. Defendant argues that
Plaintiff failed to act on this information until late 2020 and continued to
provide IONM services at Defendant’s facility until June 2021. Defendant
argues that by April 2019 Plaintiff knew or should have known that BCBSLA
was not going to pay it for its IONM services, and any award of damages should
be reduced as of this date for Plaintiff’s failure to mitigate damages pursuant
to Louisiana Civil Code article 2002.
Article 2002 provides that “[a]n obligee must make reasonable efforts to
mitigate the damage caused by the obligor’s failure to perform. When an
obligee fails to make these efforts, the obligor may demand that the damages
be accordingly reduced.”20 “The failure to mitigate damages is an affirmative
defense, and the burden of proof is on the party asserting the defense.”21 Article
2002 “adjusts the conflict of interests that would otherwise exist when an
obligee neglects to mitigate his damages and thereby exposes the obligor to
further liability for consequences resulting from the obligor’s failure to perform

19 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
20 LA. CIV. CODE art. 2002.
21 MB Indus., LLC v. CNA Ins. Co., 74 So. 3d 1173, 1181 (La. 2011).
that were reasonably avoidable by the obligee.”22 “The scope of a party’s duty
to mitigate depends on the particular facts of the individual case, and a party
is not required to take actions which would likely prove unduly costly or
futile.”23 A duty to mitigate encompasses only “what a ‘reasonably prudent
man’ would have done to lessen his damages, given the facts known to him at
the time and avoiding the temptation to view the case through hindsight.”24
Defendant presents the following evidence in support of its position that
Plaintiff failed to mitigate its damages. Plaintiff initially utilized a third-party
vendor, Medical Practice Solutions (“MPS”), to bill BCBSLA. In February 2019,
MPS informed Plaintiff that it was struggling to collect from BCBSLA because
BCBSLA had taken the position that it does not pay the technical component
of IONM services to IONM providers. Then, in March 2019, Paul Webster,
Plaintiff’s 30(b)(6) representative, discussed the issue with a competing IONM
service provider who confirmed Mr. Webster’s understanding that BCBSLA
only pays the technical component of IONM services to the facility. In April
2019, a representative of Plaintiff communicated directly with BCBSLA
regarding the issue. The representative of BCBSLA stated: “BCBSLA will pay
for the physician who does the reading only. You will need to reach out to the
hospital to set up an arrangement for payment of the tech.”25 Plaintiff’s
representative forwarded this information on April 9, 2019 to Mr. Webster and
let him know that they would “need to recoup payment from the facility.”26
Despite this, Defendant avers that Plaintiff did not contact it regarding this
issue until August 2020. Based on these facts, Defendant argues that Plaintiff
knew on April 9, 2019 at the latest that BCSBLA would not pay for the

22 Lombardo v. Deshotel, 647 So.2d 1086, 1092 (La. 1994).
23 MB Indus., LLC, 74 So. 3d at 1181.
24 Id.
25 Doc. 40-2 at 50.
26 Doc. 40-2 at 61.
technical component of its IONM services and that it would need to seek
reimbursement from Defendant for those services. Yet, Defendant contends,
Plaintiff took no further action until late 2020 and continued to perform more
than 500 surgeries at Defendant’s facility during that time. Defendant argues
that because Plaintiff failed to mitigate its damage, Plaintiff’s damages must
be reduced to the amounts owed by Defendant for the services provided
between January 2019 and April 9, 2019.
In response, Plaintiff contends that although it knew that BCBSLA was
resisting payment for its services, it did not know the reason why. It contends
that it often had trouble getting payment from various private payors for its
services and that it reasonably believed that it would overcome the obstacles
preventing BCBSLA from reimbursing it. In February 2019, MPS assured
Plaintiff that BCBSLA’s position that it did not pay the technical component
was “wrong” and that “they will pay.”27 In May 2019, MPS told Plaintiff that it
had other clients that were receiving payment for the technical component
from BCBSLA. Plaintiff argues that BCBSLA’s publicly available policies did
not address the issue of reimbursement for the technical component of IONM
services until January 2020. It alleges that throughout 2019 and 2020 it was
engaged in efforts to negotiate with BCBSLA for payment, including a
potential in-network agreement.
Plaintiff alleges that at some point during its negotiations with BCBSLA
it became aware for the first time that BCBSLA had taken the position that
the technical component of Plaintiff’s services was subsumed in its bundled
payments to Defendant. Plaintiff contends that it raised the issue with
Defendant in June 2020, and Defendant represented that this was inaccurate.
Plaintiff contends that it was not until November 2020 when Defendant shared

27 Doc. 40-2 at 42.
the relevant language from the confidential BCBSLA–Avala Agreement with
Plaintiff that it understood why BCBSLA would not pay it for the technical
component of the IONM services it provided: because BCBSLA and Defendant
had expressly agreed that BCBSLA’s payments would include the technical
component of IONM services. Even so, Plaintiff contends that Defendant
continued to dispute this and encourage Plaintiff to seek payment from
BCBSLA. In February 2021, a representative of Defendant ultimately
admitted that the BCBSLA–Avala Agreement was “very clear” as to payment
for technical services and suggested that the parties should discuss Defendant
providing additional compensation to Plaintiff. Negotiations between the
parties continued, and Plaintiff continued to provide services, until Defendant
ultimately terminated their agreement in June 2021.
This Court finds that Plaintiff has presented sufficient evidence to create
a material issue of fact as to whether it acted reasonably in mitigating its
damages. Plaintiff has shown that although it was aware in April 2019 that
BCBSLA would not pay it for the technical component of its services, it believed
it could work out the issue of payment with BCBSLA, and it relied on MPS’s
representations thereto. Further, it provides evidence that it was not aware
that BCBSLA’s refusal to pay the technical component of its services was a
result of BCBSLA’s agreement with Defendant until November 2020. Stated
differently, Plaintiff was not aware that Defendant was in breach of the
Assure–Avala Agreement—which gave Plaintiff the exclusive right to bill
insurance payors for its IONM services—until that time. Accordingly, a jury
could find that Plaintiff acted reasonably in its efforts to mitigate its damages.
Summary judgment on this issue is denied.
B. Motion for Judgment on the Pleadings
Next, Defendant moves for judgment on the pleadings as to Plaintiff’s
unjust enrichment claim. On September 22, 2021, Defendant filed a Motion to
Dismiss Plaintiff’s unjust enrichment claim, arguing that because a valid
contract governs the parties’ relationship, Louisiana law does not permit a
claim of unjust enrichment.28 The Court acknowledged that Louisiana law
provides that a claim for unjust enrichment “will only be allowed when there
is no other remedy at law.”29 However, the Court denied Defendant’s claim,
explaining that because Plaintiff had also brought claims for mutual or
unilateral mistake, it had not yet been established that a valid, enforceable
contract existed. It held that the unjust enrichment claim could persist where
it was not yet clear whether Plaintiff had another remedy at law. The Court
invited Defendant to re-urge the Motion “[i]f this Court ultimately finds that a
valid and enforceable contract exists between the two parties.”30
Although no such finding has been made, Defendant now re-urges its
request for dismissal of Plaintiff’s unjust enrichment claim in its Motion for
Judgment on the Pleadings. Now, Defendant argues for the first time that
Plaintiff’s tort claims for negligent misrepresentation and detrimental reliance
preclude it from pursuing its unjust enrichment claim. Indeed, the Louisiana
Supreme Court has held that a plaintiff is precluded from bringing a claim for
unjust enrichment when it has pleaded a negligence claim.31 Accordingly,
Plaintiff’s claim for unjust enrichment is dismissed.

28 Doc. 4.
29 Doc. 17 (quoting Minyard v. Curtis Prods., Inc., 251 La. 624, 650 (La. 1967)).
30 Id.
31 Walters v. MedSouth Rec. Mgmt., LLC, 38 So. 3d 243, 244 (La. 2010).
C. Motion in Limine to Exclude Mark Anderson
Next, Defendant moves to exclude the testimony of Plaintiff’s expert
witness. In support of its claims, Plaintiff offers the expert testimony of Mark
Anderson, an expert in healthcare operations. Anderson offers three opinions:
1. Defendant received payment from BCBSLA for IONM services as part
of the bundled reimbursement;
2. Plaintiff reasonably relied on Defendant to disclose that its
agreement with BCBSLA included payment for IONM services; and
3. Plaintiff’s damages for the 531 services it provided at Defendant’s
hospital are between $2.3 and $2.9 million based on three different
reimbursement models.
Defendant moves to exclude Anderson’s testimony, arguing that he offers legal
conclusions and that his methodology is unreliable and irrelevant.
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702, which provides as follows:
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: (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.
The current version of Rule 702 reflects the Supreme Court's decisions in
Daubert v. Merrell Dow Pharms., Inc.,32 and Kumho Tire Co. v. Carmichael.33
The threshold inquiry is whether the expert possesses the requisite

32 509 U.S. 579 (1993).
33 526 U.S. 137 (1999).
qualifications to render opinion on a particular subject matter.34 Having
defined the permissible scope of the expert’s testimony, a court next inquires
whether the opinions are reliable and relevant.35 In undertaking this
tripartite analysis, courts must give proper deference to the traditional
adversary system and the role of the jury within that system.36 “Vigorous
cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.”37 As the “gatekeeper” of expert testimony, the
trial court enjoys broad discretion in determining admissibility.38
Defendant does not dispute that Anderson is qualified to offer opinions
on healthcare operations. Rather, Defendant argues that Anderson’s first two
opinions are legal conclusions inappropriate for expert testimony. Indeed, the
Fifth Circuit has repeatedly held that Rule 704 does not authorize experts to
offer legal conclusions.39 However, Federal Rule of Evidence Rule 704(a)
provides that an “opinion is not objectional just because it embraces an
ultimate issue.” Here, the Court does not agree that Anderson’s opinions offer
legal conclusions. Rather, Anderson offers opinions based on his experience
and knowledge of the healthcare industry and the customary ways in which
service providers and private payors contract and structure payments. Based
on this information, he opines on the way in which the Avala–BCBSLA
Agreement should be read in light of industry norms. He also explains the
confidential nature of agreements between hospitals and private payors, and

34 Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 799 (E.D. La. 2011); see also Wilson v.
Woods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow an expert witness to
testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.”).
35 See United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
36 See Daubert, 509 U.S. at 596.
37 Id.
38 Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).
39 Goodman v. Harris Cnty., 571 F .3d 388,399 (5th Cir. 2009); United States v. $9,041,598.68,
163 F.3d 238,255 (5th Cir. 1998); Snap–Drape, Inc. v. C.I.R., 98 F.3d 194,198 (5th Cir. 1996).
the effect of that confidentiality on negotiations between providers and
hospitals. Although these opinions may embrace ultimate issues in this case—
namely, the interpretation of the Avala–BCBSLA Agreement and the
reasonableness of Plaintiff’s reliance on Defendant—Anderson does not offer
legal conclusions. He does not opine that Defendant breached the Assure–
Avala Agreement or “merely tell the jury what result to reach.”40 Instead,
Anderson offers helpful context regarding the custom and standard practices
in the industry for the jury’s consideration of the issues.
Next, Defendant complains that Anderson’s methodology is unreliable
and irrelevant because he used out-of-network data to estimate in-network
payments.41 Specifically, Defendant contends that in its Complaint and
throughout much of the discovery in this case, Plaintiff has maintained that
its theory of recovery is that Defendant must reimburse it for the portion of the
bundled payments made by BCBSLA to Defendant pursuant to the BCBSLA–
Defendant Agreement that were for IONM services. Despite this, Defendant
argues, Anderson calculated Plaintiff’s damages based on the market value of
its services as determined by out-of-network reimbursement rates. Defendant
argues that utilizing out-of-network reimbursement data is not appropriate
because it is not tied to the amounts that BCBSLA paid Defendant for IONM
services in its bundled payments. Defendant argues that Anderson’s
“methodology completely ignores Plaintiff’s Complaint, making it wholly
unreliable and misleading to the jury.”42

40 FED. R. EVID. 704 cmt.
41 Relatedly, Defendant complains that Anderson did not consider whether the procedures
were inpatient or outpatient procedures. It argues that Defendant is reimbursed differently by
BCBSLA based on this distinction. As discussed above, however, Plaintiff need not tie its damages
calculation to the amount received by Defendant from BCBSLA.
42 Doc. 42-1 at 15.
This Court has already rejected similar arguments raised by
Defendant.43 This Court does not agree that Plaintiff’s Complaint limits its
theory of damages to in-network payments. Breach of contract damages “are
measured by the loss sustained by the obligee and the profit of which he has
been deprived.”44 Plaintiff is entitled to present expert testimony calculating
the amount of lost profits it believes it is owed. To the extent that Defendant
disagrees with the underlying data Anderson used in his calculations,
“[q]uestions relating to the bases and sources of an expert’s opinion affect the
weight to be assigned that opinion rather than its admissibility and should be
left for the jury’s consideration.”45 Defendant’s Motion is denied.
D. Motion for Leave to File Supplemental Witness List
Finally, Defendant moves to supplement its witness list. The deadline to
file witness lists in this matter was May 5, 2023. On August 14, 2023,
Defendant moved for leave to supplement its witness list to add a new fact
witness, Brandon Landry. Defendant contends that Landry is the CEO of
Neuro Diagnostic Monitoring, LLC, a company that Defendant hired in July
2023 to perform IONM services at its facility. It argues that good cause exists
to allow the late addition of Landry as a witness because it did not discover
him until he was hired in July 2023. Defendant contends that Landry will
testify as to “his knowledge of the current IONM practices at Defendant’s
hospital, his negotiations specifically with Defendant for IONM services, and
his negotiations with nearly 15 other Louisiana health care facilities for those
same services.”46

43 Doc. 78.
44 LA. CIV. CODE art. 1995.
45 United States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019), as revised (Aug. 9, 2019).
46 Doc. 81-1.
Clearly missing from the description of Landry’s anticipated testimony,
however, is any fact in his personal knowledge that is relevant to the Assure—
Avala Agreement or the issues in this case. Landry does not appear to have
been involved in any way in the Assure—Avala Agreement. Rather, it appears
that Defendant intends to elicit an expert opinion from Landry regarding the
customs and practices in the industry.47 Defendant’s request to add Landry as
a witness comes just one week after this Court denied some of its arguments
to limit the testimony of Plaintiffs expert.48 Accordingly, it seems clear to this
Court that Defendant hopes to introduce Landry’s testimony to rebut the
opinions of Plaintiffs expert. Defendant’s deadline to disclose expert opinions
in this matter was April 14, 2023. Defendant has not shown good cause for its
failure to timely identify an expert to rebut the opinions of Plaintiffs expert.
Defendant’s request to supplement its witness list is denied.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Judgment on the
Pleadings is GRANTED, and all other Motions are DENIED.

New Orleans, Louisiana this 7th day of September, 2023.
&,
g TRICHE Ly 5
UNITED STATES DISTRICT JUDGE

47 See E.Z. Aces Gaming Inc. v. Penn-Am. Ins. Co., No, 2:21-CV-01250, 2022 WL 17254889, at
*4 (W.D. La. Nov. 28, 2022) (“[Witness Riley’s] letter shows that he lacks personal knowledge of the
events underlying the suit, which is required as a fact witness under Federal Rule of Evidence 602.
Because of this, any evidence Mr. Riley could present at trial would be expert testimony and fall under
Federal Rule of Evidence 702.”).
48 Docs. 78, 81.
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189882. Public record. Not legal advice.