CAMBRE v. PRIORITY MANAGEMENT GROUP LLC LLC (2025)

In this suit arising from a wrongful death and survival action brought by plaintiff Drema Cambre, defendants Priority Management Group, LLC (“Priority”) and Riverlands Home Group, LLC d/b/a Chateau St. James Rehab & Retirement, (“Chateau”) appeal a November 13, 2024, final judgment in plaintiff's favor. The judgment reflects both a directed verdict on the issue of liability following court-imposed sanctions for discovery violations by defendants, as well as a jury verdict awarding plaintiff $4,016,273.04 in survival and wrongful death damages. Defendants also appeal a subsequent denial of a motion for new trial. The Louisiana Patient's Compensation Fund and Oversight Board (“PCF”) also appeal this judgment pursuant to the provisions of La. R.S. 40:1231.4. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND AND PROCEDURAL HISTORY

The unusual facts of this case, which include the shocking revelation of damning, unproduced evidence by a witness on the stand halfway through the trial proceedings and the exceptional sanctions thereafter imposed, necessitate a careful review of the procedural history, particularly the pre-trial discovery and the proceedings of the five-day trial.

Decedent, Grace St. Pierre, was a resident of Chateau St. James Rehab & Retirement, a nursing home facility located in Lutcher, Louisiana, from March 27, 2019, through September 1, 2021. The facility is managed by Priority, a third-party management group based in Texas that provides administrative services to numerous skilled nursing facilities in Louisiana and Texas. At the time she was admitted, the elderly Ms. St. Pierre was assessed by Chateau staff as high fall risk and requiring extensive staff assistance with regular activities for daily living, including ambulation, transferring, dressing, and toileting. Contrary to the care indicated in her plan, Ms. St. Pierre suffered numerous falls while living at Chateau some of which resulted in skin tears and bleeding. Family members who visited Ms. St. Pierre observed these wounds and complained to Chateau staff, at which time they were told there were not enough staff to help. Family members who visited in July 2021 on multiple occasions found Ms. St. Pierre lying in dirty bed linens with feces and urine in her clothes; requests by family members to staff for someone to clean Ms. St. Pierre and change the sheets went unanswered.

On approximately August 19, 2021, nursing staff at Chateau noticed Ms. St. Pierre had increased confusion and agitation, a known clinical sign of infection, and ordered lab tests to investigate further. On August 21, the lab results indicated that Ms. St. Pierre had a urinary tract infection (“UTI”) of the kind that results from failure to timely or promptly attend to personal hygiene. Records indicate that the staff at Chateau did not notify a doctor of these lab results (positive for E. coli) until August 23. Ms. St. Pierre's infection remained unaddressed and untreated even though notes from August 27 and 30 indicated that Ms. St. Pierre had an open wound and was experiencing signs of confusion and delirium. On September 1, 2021, Ms. St. Pierre was discovered nonresponsive by Chateau nursing staff. She was sent to St. James Parish Hospital where she was diagnosed with sepsis upon admission. She died later that same day.

On December 15, 2021, Drema Cambre, one of Ms. St. Pierre's four surviving children, acting individually and on behalf of decedent, filed a petition for damages. Specifically, she averred that Ms. St. Pierre's injuries, and lost chance of survival and wrongful death were caused by the negligence, deviations of the applicable standard of care, and fault of Chateau in conjunction with the negligence and fault of Priority. Plaintiff further averred that Priority's actions and failures in underfunding and understaffing the Chateau facility and in failing to properly supervise its staff or address complaints constituted administrative (or ordinary) negligence separate and apart from the claims against Chateau. Defendants, who elected to be represented by the same counsel throughout these proceedings, responded to this petition on February 1, 2023, with a jointly filed dilatory exception of prematurity and a peremptory exception of no cause of action wherein they argued that Ms. Cambre's claims for medical malpractice were premature because they had not yet been reviewed by a medical review panel as required under the Louisiana Medical Malpractice Act (“LMMA”). Defendants also argued that plaintiff's claims against Priority for administrative negligence actually sounded in medical malpractice and were subject to review by the panel pursuant to the LMMA. While initially set for contradictory hearing on March 14, 2023, these exceptions were abandoned following plaintiff's filing on March 1, 2023, of a new amended petition for damages. This amended petition stated claims for medical malpractice against Chateau, added claims for intentional fraud against Chateau, and reiterated the administrative negligence claim against Priority with additional supporting facts. A second amended petition was filed on September 26, 2023, which removed the intentional fraud claim, and further restated and refined plaintiff's claims. On April 4, 2024, defendants jointly filed an answer to plaintiff's petition denying generally and specifically all of plaintiff's allegations. Defendants neither asserted affirmative defenses nor raised additional exceptions with their answer.

Plaintiff's medical malpractice claims against Chateau were subjected to proceedings before the medical review panel. On April 23, 2024, defendant Chateau filed a motion for partial summary judgment on the issue of Priority's administrative negligence in which they again argued that plaintiff's claims against Priority sounded in medical malpractice. Plaintiff objected to this motion and filed a motion to strike, citing many deficiencies in the pleading, i.e., that it was untimely, failed to include a rule to show cause, and was filed by solely Chateau even though the administrative negligence claim was only asserted against Priority. In their response to this motion to strike, defendants Chateau and Priority requested that the court “look at substance over form” and disregard defendants’ failure to include Priority in its filing of the partial motion for summary judgment because the caption of the petition cites Priority. Following a hearing on matter, the trial court on June 12, 2024, granted the motion to strike on the basis that the motion for partial summary judgment was untimely filed. Defendants did not seek supervisory review of this judgment. The claims against Priority were never submitted to a medical review panel.

Discovery

Plaintiff filed multiple motions to compel during the course of discovery. Discovery commenced with Plaintiff's First Set of Interrogatories and First Request for Production of Documents served on defendant Priority on February 2, 2022. These requests for production included specific requests for documents relating to any resident complaints as to operations of the facility and for documents relating to any complaints by facility staff as to the operations of the facility, staffing issues, and/or the treatment being provided to residents. On September 13, 2022, plaintiff filed her first motion to compel, citing Priority's failure to respond to these initial discovery requests. According to court minutes, this motion was continued without date at plaintiff's request when some responses were provided prior to the hearing date. Priority's initial response to these specific requests for production of documents relating to complaints at Chateau was “[d]efendant is not in possession of any documents responsive to this request for production.”

Plaintiff filed a second motion to compel discovery on April 14, 2023, this time seeking to have Chateau designate an officer for a La. C.C.P. art. 1442 deposition and for such a deposition to be conducted within thirty days of the court's order. In the Notice of Deposition, plaintiff specifically requested the production of all documents referencing, evidencing, or pertaining to complaints regarding Chateau's provision of nursing care during Ms. St. Pierre's time as resident as well as all electronic mail transmissions from or to Chateau containing, inter alia, the terms “fall,” “neglect,” “staff,” “infection,” and “abuse”. According to court minutes, this motion was continued without date at plaintiff's request when some responses were provided prior to the hearing date.

Plaintiff filed a third motion to compel on June 22, 2023, directed towards Chateau for that defendant's failure to provide complete responses to plaintiff's First Set of Interrogatories and First Request for Production of Documents served on Chateau on March 9, 2023. Specifically, plaintiff sought information regarding the identity and location of persons having knowledge of discoverable matters directly relating to her malpractice claims against Chateau and her administrative negligence claims against Priority. Plaintiff also sought the production of documents, particularly documents evidencing any complaints regarding Chateau's provision of nursing care to residents during the time period of Ms. St. Pierre's residency as well as various documents exchanged between Priority and Chateau related to staffing at the facility. In its responses to some of plaintiff's interrogatories and production requests, Chateau objected and stated that the information sought or documents requested could be found in records already provided. In other words, Chateau's response to plaintiff's discovery requests was a reference to documents produced by Priority in response to plaintiff's requests. Chateau did provide documents responsive to the plaintiff's request in other instances.

With respect to the specific request for production relating to documents concerning complaints regarding the provision of nursing care, Chateau objected to the request as overly broad, but also stated that “documents responsive to this request for production which are related to the care and treatment provided to Grace St. Pierre have been requested and will be provided upon receipt.” Defendant Chateau did supplement its response to the discovery requests after being served with the third motion to compel. In response, plaintiff filed a reply memorandum in further support of her motion wherein she specifically pointed out Chateau's failure to provide documents in response to complaints concerning the facility's provision of nursing care or documents exchanged between Chateau and Priority concerning staffing levels at the facility.

According to court minutes, this motion to compel was heard by the trial court on September 25, 2023, with plaintiff's attorney present and an attorney appearing on behalf of both Priority and Chateau defendants. Specifically, regarding plaintiff's request for production of documents concerning patient complaints, the Court granted the motion and ordered defendants to produce all complaints filed between March 2019 and September 2021 regarding Chateau's care of residents within 30 days of the hearing date of September 25, 2023. Other parts of the motion to compel were denied. The minutes note that a formal judgment was to be signed upon presentation to the Court, but the record does not show that such a formal judgment was signed.

Plaintiff filed her fourth motion to compel on November 30, 2023, again seeking an order compelling full and complete responses to her Second Requests for Admission, Third Set of Interrogatories and Second Request for Production of Documents. Defendant provided responses to these requests following the filing of the motion to compel.

The trial court had on August 14, 2023 implemented a scheduling order setting the matter for jury trial on June 25-27, 2024 and setting a March 1, 2024 deadline for the completion of discovery, and a May 17, 2024 final status conference at which the parties were ordered to bring complete and final lists of all witnesses and all exhibits as well as originals or copies of each exhibit to be introduced at trial. Parties jointly filed and were granted two extensions for the deadline to complete all discovery. The discovery cutoff date remained May 17, 2024.

On May 14, 2024, plaintiff conducted a deposition of David Glass, Priority's Chief Compliance Officer. In the notice to the deposition, plaintiff asked Mr. Glass to produce all documents reflecting any communication between Mr. Glass and Chateau or Priority relating to Ms. St. Pierre or the subject matter of the litigation. At the deposition, Mr. Glass was questioned about emails of complaints and he testified that he did not have any documents in his possession reflecting his own actions taken in response to complaints. He did agree to search for other documents and produce them if found.

Prior to trial, pursuant to a motion filed by plaintiff, defendants agreed to stipulate as to the foundation and authenticity of the records identified as exhibits, reserving their right to contest the admissibility on other grounds. A judgment reflecting this agreement was signed on April 22, 2024. Following a May 24 status conference, the jury trial was reset to September 2024.

Trial

The jury trial commenced on Monday, September 23, 2024. Following jury selection and opening arguments, plaintiff commenced with the presentation of her case. She called as witnesses Dorothy Herbert, the former director of nursing at Chateau from December 2020 to December 2021, and Paige Meche, another former director of nursing at Chateau in 2020. These witnesses provided testimony about the staffing and care provided to residents at Chateau.

On the third day of trial, plaintiff called Priority's Chief Compliance Officer, Mr. Glass. While questioning Mr. Glass concerning how he handled complaints concerning the Chateau facility, Mr. Glass revealed the existence of other documents relating to his testimony that were unknown to plaintiff's counsel. Mr. Glass stated that he had given defense counsel these documents, which were responsive to plaintiff's requests for production and request during his deposition, sometime following his deposition. He also stated that he had printed copies of some of these documents in his truck. The Court excused the jury and instructed Mr. Glass to retrieve the documents; defense counsel was also instructed to review their files for documents described by Mr. Glass. Following this search, defense counsel produced approximately 101 documents from Priority that had not previously been turned over to plaintiff's counsel during the course of discovery. These included approximately 99 documents given by Mr. Glass to defense counsel in May of 2024 and another two documents that were given to defense counsel on Friday, September 20, 2024, the last business day before trial. The court and counsel then reviewed the documents.

The documents included emails of complaints sent to Mr. Glass concerning understaffing at Chateau that mention residents not getting proper care. One email from an employee stated:

I am writing this as a concerned employee at Chateau St. James. Our residents are not getting the correct treatment. Everything is overlooked and just put away while our residents continue to suffer due to lack of care. They are not getting their baths, like they should! We have been short with aides for months now to where the shower aides are pulled on the floor at least twice a week so no baths are given those days. Residents are not getting some of their medication due to terrible nursing skills. Simple UTI infections are not treated and the resident becomes septic due to sitting in urine for hours and hours at a time.1 Family members have called St. James Hospital to see if their loved ones urine was sampled or if any x-ray was needed and told ․ it was all done. That was a lie St. James Hospital confirmed no samples were sent to the labs while families were told multiple times the process has been done by the DON [director of nursing]. They were lied to directly to their face because the urine sample or x-ray was not done.

In addition to this damning email, the documents included additional emails that expressed concerns about the director of nursing, Ms. Hebert, identified witnesses to staff misconduct, and expressed concerns about a director of nursing stealing medication. Defense counsel was granted additional time to review the documents.

The trial was resumed, and plaintiff called additional witnesses to testify including: Dr. Perry Starer, an expert in internal medicine and the operation of skilled nursing facilities who testified as to the standard of care and causation; Carrion Johnson, who testified as to patient procedures and care at Chateau; and Nakeyta Smith, former director of nursing, who testified as to understaffing at the facility. Following this testimony, after the jury was again excused, the court took up the matter of the newly discovered documents. The court determined that it was in the interest of justice that defendants be allowed additional time to review the documents in order to state particular objections to their introduction into evidence. Plaintiff's counsel indicated that they would be filing a motion for sanctions for the discovery violation, and the court instructed all counsel to be prepared to argue the motion in the morning and to be familiar with La. C.C.P. art. 1471.

The court took up the matter again the next day, Thursday, September 26, at which time plaintiff filed a motion for sanctions and for default judgment, pursuant to La. C.C.P. arts. 1471 and 1473, against defendants for their repeated failures to participate in good faith discovery and willful concealment of relevant evidence in disregard of the trial court's September 25, 2023 discovery order. The court received this motion outside the presence of the jury. The court then heard defendants’ objections to particular documents and ruled on their introduction into evidence.

After hearing arguments, the court made the following particular findings: that the documents in question should have been produced prior to trial; that the late production of the documents significantly prejudiced the plaintiff in preparation for trial as well as the presentation of evidence; that the circumstances of the newly discovered documents had disrupted the trial proceedings and substantially interfered with the court's ability to maintain the order of trial proceedings resulting in a delay of the proceedings and inconvenience to the jury.

The court also found that the record reflected a September 25, 2023, hearing on one of plaintiff's motions to compel, at which time the court entered an order compelling defendants to produce documents responsive to plaintiff's discovery request within 30 days of the date of the order. The court found that the documents were responsive to plaintiff's request and should have been produced; and that the record reflected plaintiff sought the production of documents in multiple requests for production as reflected in the multiple motions to compel.

The court additionally stated that the production request that accompanied the notice of deposition sent prior to Mr. Glass's May 14, 2024 deposition also required the production of the subject documents, but that these were not produced by Mr. Glass at his deposition; and that Mr. Glass swore under penalty of perjury and under oath that he would provide a supplement of documents if such existed.

Statements from defense counsel, Mr. Raney, indicated transmittal of the subject documents from Mr. Glass to Mr. Raney on or about May 17, 2024. The court stated, “[t]here has been no testimony and no excuse or no plausible explanation why the Court's order was ignored by Priority Management, why Mr. Glass did not produce the documents during his deposition or why defense counsel did not produce the documents pursuant to his ongoing obligation to supplement discovery responses on receipt.”

While the court stated that it did not give significant weight to Mr. Glass's conduct, the court pointed out that Mr. Glass obviously believed the documents to be relevant and responsive, or he would not have given them to defense counsel or brought the documents to court. The court found the defendants’ conduct to be a willful violation of the court order to turn such documents over. After careful consideration, the trial court entered an order striking the defendants’ answer, including all general denials and defenses as alleged therein.

The court then allowed for the presentation of additional evidence. Mr. Glass again testified as to the complaints about the staffing and services provided at Chateau and actions taken in response to those complaints. The previously undiscovered emails were introduced into evidence at this time.

Plaintiff next called Charlotte Sheppard, a registered nurse, to testify; the court accepted her as an expert in the field of nursing and the operation of skilled nursing facilities. She testified that defendants had breached the standard of care in their treatment of Ms. St. Pierre, both in failing to provide adequate staffing to address her falls and in failing to report the positive infection test results to a physician in a timely manner.

Ms. Cambre herself also took the stand to testify. She testified that she was one of four surviving children to Ms. St. Pierre, and that her mother had lived with her for sixteen years prior to moving to Chateau. Ms. Cambre provided photographs she took of Ms. St. Pierre's injuries and wounds from falls while residing at Chateau. She testified that, after her mother was admitted to the hospital for the UTI, she stayed with her all day until her mother passed away later that evening.

Outside the presence of the jury, defendants moved to introduce into evidence defendants’ qualified health care provider certificates from the Patient's Compensation Fund. Plaintiff's counsel objected on the basis that the certificates were dated August 30, 2024, which was beyond the discovery deadline of May 17, 2024. The judge excluded the certificates on the basis that they were untimely as well as on the basis that they were prohibited by the trial court's previous order prohibiting additional evidence relating to unpled affirmative defenses. The court did accept the proffer of the certificates.

Defendants also attempted to proffer the testimony of Dr. Remedios. Prior to trial, plaintiff had filed a motion in limine to exclude the testimony of Dr. Remedios, which was granted. On the basis of the pre-trial ruling, the court did not allow the proffer of Dr. Remedios's testimony. The court did allow the defense to proffer two witnesses: Douglas Boulware, a certified nursing home administrator and principal of both Priority and Chateau; and Ronika Patterson, a licensed practical nurse and Chateau employee at the time, who testified that she called Ms. St. Pierre's doctor twice during the last few days Ms. St. Pierre was alive but did not get a call back. Ms. Patterson also testified that she was not at work on some of the days in question when the positive test result should have been communicated to the doctor.

Following the conclusion of the presentation of evidence, plaintiff's counsel moved for a directed verdict pursuant to La. C.C.P. art. 1810. The judge granted the motion for a directed verdict and ordered the use of a verdict form and jury instruction reflecting that liability had been established as to both defendants and leaving the issue of damages and allocation of fault to the jury for determination.

The trial concluded on Friday, September 27, 2024, with closing arguments and jury deliberations. There were no objections to the jury instructions. The jury returned a unanimous verdict in plaintiff's favor. The verdict reflected a judgment in the following amounts:

For Plaintiff, Drema Cambre, for her mother, Grace St. Pierre's, injuries suffered prior to her death:

Medical Expenses: $16,273.04

Physical Pain and Suffering: $2,000,000.00

Mental and Emotional Anguish: $950,000.00

Loss of Enjoyment of Life: $50,000.00

For Plaintiff, Drema Cambre, for the wrongful death of her mother, Grace St. Pierre:

Mental Anguish and Grief: $400,000.00

Loss of Love and Affection: $500,000.00

Loss of Society and Consortium: $96,000.00

Funeral Expenses: $4,000.00

Total Amount: $4,016,273.04

The jury assessed seventy-five percent (75%) fault to defendant Priority and twenty-five percent (25%) fault to defendant Chateau. Pursuant to La. R.S. 40:1231.2, defendant Chateau was decreed liable for $100,000.00 with the amount in excess of Chateau's limit in liability to be paid by the Patient's Compensation Fund.

Defendants filed a motion for new trial, or, alternatively, a partial judgment notwithstanding the verdict. The arguments supporting that motion are the same as those considered as assignments of error in our discussion below. This motion was denied, and defendants’ timely appeal followed.

Assignments of Error

On appeal, defendants Priority and Chateau raise the following assignments of error:

The trial court erred in granting sanctions pursuant to La. C.C.P. art. 1471 because there was no discovery order directed to Priority;

The trial court erred in granting the sanctions because neither Priority nor Chateau were at fault for the discovery violation;

The trial court's granting of plaintiff's motions for sanctions and directed verdict precluded the jury from allocating fault because “there was nothing for the jury to decided and no competing evidence to weigh.”

The trial court erred in excluding Priority and Chateau's Plaintiff Compensation Fund Certificates;

The trial court erred in denying defendant's motion for a new trial and alternative judgment notwithstanding the verdict;

The general damages awarded to Plaintiff are excessive and should be reduced to reflect Ms. Cambre's virile share as one of four survivors.

In addition to defendants’ appeal, an appeal is also taken by the Louisiana Patient's Compensation Fund and the Louisiana Patient's Compensation Fund Oversight Board. In their briefs on appeal, they argue the following assignments of error:

The trial court abused its discretion in granting a default judgment and directed verdict as a discovery sanction against defendants;

The trial court erred in disallowing defendant's to proffer their expert based on an interlocutory pretrial ruling;

The trial court erred in failing to grant defendants’ motion for a new trial and JNOV;

The jury abused its discretion in awarding unreasonably high damages to Ms. Cambre.

We consider these assignments of error en globo in our discussion below, beginning with the primary contention identified as error by appellants, the trial court's sanction for discovery violations.

LAW AND ANALYSIS

Discovery Violations and Sanction

A trial court's imposition of sanctions for discovery violations is subject to appellate review under the abuse of discretion standard. Mascaro v. Par. of Jefferson, 10-488 (La. App. 5 Cir. 11/23/10), 54 So.3d 715; Roccaforte v. Nintendo of Am., Inc., 05-239 (La. App. 5 Cir. 11/29/05), 917 So.2d 1143. The abuse of discretion standard is highly deferential to the trial court unless the court exercised its discretion based upon an erroneous view of the law. Tran v. Collins, 20-246, p. 5 (La. App. 4 Cir. 8/20/21), 326 So.3d 1274, 1279.

On appeal, defendants dispute as a factual matter whether Priority was subject to the third motion to compel heard by the trial court on September 25, 2023, and therefore subject to sanctions under La. C.C.P. art. 1471 for violating the court's order to turn over requested documents.² Plaintiffs argue, and the trial court found, that the court minutes from the hearing indicated that “the Court ordered that defendants must produce all complaints with[in] 30 days from today's date.”³ The minutes also reflect that defense counsel Mr. Patrick Woolbert made his appearance at the hearing on behalf of Priority and Chateau. In opposition, defendants argue that the motion to compel itself was directed solely at Chateau and that this is also reflected in the proposed judgment that was submitted but never signed, indicating that the order was directed at Chateau. Defendants go so far as to argue that Priority's constitutional rights of due process were violated when it was sanctioned for violating a motion to compel directed at Chateau.

Before analyzing these arguments, we first observe that defendants’ current position presents a complete reversal of their arguments made when Chateau filed the motion for summary judgment seeking dismissal of claims filed against Priority in April of 2024. At that time, defendants requested that the court “look at substance over form” and disregard defendants’ failure to include Priority in the filing of the partial motion for summary judgment. When it comes to their own filings, defendants seek to have the courts disregard whether one or both of the defendants’ names have been included in the filing. However, when it comes to filings made against them, such details become important again. Defendants offer no explanation for such inconsistency.

We find no error in the trial court's factual determination that both defendants, Priority and Chateau, were subject to the trial court's September 25, 2023, order granting in part plaintiff's motion to compel. More significantly, we reject the implied but unstated premise of defendants’ argument that Priority was under no obligation to turn over the emails in the absence of a court ordered motion to compel under La. C.C.P. art. 1471. Priority was also under an obligation to produce the subject emails pursuant to La. C.C.P. art. 1473.⁴ Plaintiff not only served Priority with discovery requests seeking all documents that Priority provided to Chateau “relating to the staffing levels,” she also requested the same information from Priority's Compliance Officer, Mr. Glass, during his deposition. Both requests were met with a response from Priority that it had no responsive documents, as discussed more fully below.

In a civil case, the duty to disclose to one's adversary arises through specific discovery requests. Wright v. Louisiana Power & Light, 06-1181, p. 18 (La. 3/9/07), 951 So.2d 1058, 1071. The failure to timely supplement discovery responses, when a duty to do so exists, may trigger sanctions. Guidry v. Savoie, 15-809, p. 15 (La. App. 5 Cir. 5/26/16), 194 So.3d 1184, 1194, writ denied, 16-1218 (La. 10/17/16), 207 So.3d 1064. La. C.C.P. art. 1428 states in pertinent part:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

․

(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that failure to amend the response is in substance knowing concealment.

Under this article, the duty to timely supplement discovery responses is continuing and affirmative. Guidry, supra. The article does not specify what sanctions should be imposed but provides the trial court with great discretion with regard to the admission of evidence when a party objects on the ground that his opponent failed to supplement discovery. Fidele v. Crescent Ford Truck Sales, Inc., 00-1934, p. 6 (La. App. 5 Cir. 4/11/01), 786 So.2d 147, 152.

The record indicates that as early as February 2, 2022, defendant Priority was on notice that plaintiff was seeking documents such as those produced at trial when they were served with plaintiff's first requests for production. These requests for production included specific requests for documents relating to any resident complaints as to operations of the facility and for documents relating to any complaints by facility staff as to the operations of the facility, staffing issues, and/or the treatment being provided to residents. At the time of its October 14, 2022 response, Priority stated that it had no documents in its possession responsive to plaintiff's requests. Defendant Priority had a continuing and affirmative duty to supplement the incomplete responses to these requests for production, a duty that Priority clearly and dramatically failed in this instance. Under the facts presented in this case, we find that the trial court acted within its discretion in sanctioning defendants for failing to turn over the documents.

We turn next to whether the trial court abused its discretion by striking defendants’ answer and the general denials and defenses alleged therein and ordering the use of a verdict form and jury instructions reflecting that liability had been established as to both defendants. When resorting to dismissal or default as a sanction for discovery violations, Louisiana courts consider four factors adopted by the Supreme Court in Horton v. McCary: (1) whether the violation was willful or resulted from an inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party's trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. 93-215 (La. 4/11/94), 635 So.2d 199, 203; see also Mascaro, 54 So.3d at 717. The trial court considered these factors and articulated his findings when granting plaintiff's motions for sanctions.

Concerning these first and fourth Horton factors, defendants argue that there is no support in the record for a finding of willfulness, fault, or bad faith by Chateau or Priority, and, at worst, the discovery violation resulted from inadvertence of counsel. In particular, defendants point to statements made by defense counsel, Mr. Raney, to the trial judge that the failure to turn over the documents given to him by Mr. Glass following his deposition in May of 2024 was his own because he forgot the documents were there and forgot to respond because he was “unduly busy”.

Defendants’ argument fails to address the specific factual findings of the trial court with respect to the conduct of Mr. Glass, who failed to bring these documents to his deposition despite the request and who brought the clearly responsive documents with him to court but left them in his truck while taking other documents inside with him. As the trial court correctly observed, such actions indicate that defendant's representative, Mr. Glass, was clearly aware that the documents in question were responsive to the plaintiff's request for production and relevant to the case. In other words, there was no misunderstanding or confusion. Defendants’ argument also disregards the fact that defendants decided to turn some documents over to defense counsel on the Friday before trial, a date well past the discovery cut-off set out in the pre-trial order.

We observe additionally that defendants should have known that defense counsel had not turned over the documents either well before trial when plaintiff provided her pre-trial witness and exhibit list or, alternatively, at trial when plaintiff called her first witness, Dorothy Hebert, and failed to question her about an email complaining of her conduct. The notion that defendants were simply unaware such highly relevant evidence, including an email from an employee stating that residents were contracting UTIs from lack of proper care, had not been turned over to plaintiff's counsel is an unreasonable assertion unsupported by the record. We agree with the trial court's finding that the discovery violation in this case resulted from willful misconduct that can be attributed to defendants.

Concerning the second Horton factor, defendants argue that lesser sanctions were adequate to address the violation. The record shows that the trial court carefully considered other sanctions, including admonishment, granting a mistrial, imposing monetary sanctions, and a jury instruction, but concluded that none of these would be effective. In particular, the judge found that granting a mistrial would be highly prejudicial to the plaintiff given that the proceedings had already commenced and considerable time and expense had gone into trial preparation. The judge also found that a jury instruction would only serve to confuse the jury. Defendant's argument that lesser sanctions were adequate rests primarily on its contention infra that the harm caused by their discovery violations was, in fact, not so harmful or prejudicial to plaintiff. We disagree, especially in light of the trial court's additional statements that defendants’ conduct disrupted the trial proceedings and substantially interfered with the court's ability to maintain the order of the trial proceedings, resulting in delays and inconvenience to the jury. We agree with the trial court that lesser sanctions such as admonishment or a jury instruction would have been inadequate here.

Concerning the third Horton factor, defendants argue that any prejudice to the plaintiff caused by the discovery violations were “largely cured” when the unproduced records were revealed in the presence of the jury during Mr. Glass's testimony and introduced into evidence “without objection.”⁵ Plaintiff argues that she was clearly prejudiced in the preparation and presentation of her case by the concealment and late production of documents in the following ways: (1) she was forced to prepare for trial without knowledge of emails directly relevant to her allegations, including the email about residents developing UTIs which were not being treated, the exact cause of death of Ms. St. Pierre; (2) she was unable to question a witness, Dorothy Hebert, about conduct mentioned in the withheld emails because they were not revealed until after the witness had been released from her trial subpoena; (3) she was unable to interview, depose, or present witnesses to Chateau staff misconduct identified in the concealed emails; and (4) some of the emails could have been used to bolster the credibility of witnesses previously called. The trial court specifically found that the clear and convincing evidence showed that plaintiff's preparation for trial and trial presentation was prejudiced by the concealed documents. We agree. Defendants’ argument that “the documents did make it into evidence after all, so no harm done” is unpersuasive and without merit.

Under the facts and circumstances presented in this case, we find no abuse of discretion of the trial court's decision to sanction defendants for their discovery violations. We also find that the trial judge acted within his discretion and correctly considered the Horton factors in striking defendants’ answer and the general denials and defenses alleged therein and ordering the use of a verdict form and jury instructions which reflected that liability had been established as to both defendants.

The Directed Verdict and Comparative Fault

Next, defendants argue that it was error for the trial court to grant a directed verdict generally as to “liability” and in striking defendants’ affirmative defense and evidence of comparative fault, thereby allowing the issue of comparative fault to be decided by the jury solely based on plaintiff's evidence.

Comparative fault is an affirmative defense. Mann v. Louisiana-1 Gaming, 21-83, p. 4 (La. App. 5 Cir. 12/15/21), 334 So.3d 894, 899. Louisiana law mandates that a defendant asserts its affirmative defenses, including the affirmative defense of the fault of others, in its answer. Amedee v. Aimbridge Hosp. LLC, 21-1906, p. 17 (La. 10/21/22), 351 So.3d 321, 332, (citing La. C.C.P. art. 1005.) The failure to set forth affirmative defenses waives those defenses and bars the introduction of evidence offered in connection with an affirmative defense. Id.

According to the record before us, defendants Priority and Chateau made no mention of comparative fault or negligence in their answer to plaintiff's petition for damages, and therefore they have waived that affirmative defense. We find no error in the trial court's granting of the directed verdict and barring presentation of defendants’ evidence relating to the unpled affirmative defense of comparative fault.

Exclusion of Patient's Compensation Fund Certificates

The trial court is granted broad discretion in its evidentiary rulings, which are not to be disturbed on appeal absent a clear abuse of discretion. Moonan v. Louisiana Med. Mut. Ins. Co., 16-113, p. 7 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 534, writ denied, 16-2048 (La. 1/9/17), 214 So.3d 869. On appeal, the court must consider whether the complained-of ruling was erroneous and whether the error prejudiced the party's case, otherwise a reversal is not warranted. Id. (citing La. C.E. art. 103(A)). The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case, and it is the complainant's burden to so prove. Detillieu v. Louisiana Med. Mut. Ins. Co., 23-226, p. 8 (La. App. 5 Cir. 7/9/24), 392 So.3d 918, 928.

We find no abuse of the trial court's broad discretion in his decision to exclude the PCF certificates as untimely. The record shows that the certificates were dated many months after the discovery cut-off date. We also find that the exclusion of the certificates did not prejudice defendants’ case. Defendants sought the introduction of the PCF certificates as proof that they are qualified health care providers as defined in the Louisiana Medical Malpractice Act, and therefore entitled to all of the LMMA's provisions, including the statutory maximum on any award of damages. The judgment reflects that the statutory cap on damages was applied to the medical malpractice claim against Chateau, but not to the administrative negligence claim brought against Priority. The LMMA and its limitations on tort liability for a qualified health care provider apply strictly to claims arising from medical malpractice, and all other tort liability on the part of the qualified health care provider is governed by general tort law. Campbell v. Seaside Behavioral Healthcare, LLC, 21-29, p. 2 (La. App. 5 Cir. 6/9/21), 325 So.3d 572, 575, writ denied, 21-992 (La. 11/3/21), 326 So.3d 897; Bonilla v. Jefferson Par. Hosp. Serv. Dist. #2, 16-234, p. 8 (La. App. 5 Cir. 12/28/16), 210 So.3d 540, 547, writ denied, 17-187 (La. 4/7/17), 215 So.3d 235. In this case, the exclusion of the PCF certificate would have only prejudiced defendant Priority if there had been a determination that plaintiff's claims against Priority sounded in medical malpractice rather than general negligence. No such determination was made in the trial court. Defendants’ argument is without merit.

Disallowing Proffer of Dr. Remedios Testimony

When a court excludes evidence, La. C.C.P. art. 1636 requires the court to either permit the party offering such evidence to make a complete record thereof or permit the party to make a statement setting forth the nature of the evidence. Detillieu, 392 So.3d at 940. La. C.C.P. art. 1636 is mandatory, not discretionary. Id.

The PCF argues on appeal that this error by the trial court denied the appellate court the opportunity to review Dr. Remedios's expert opinions on Ms. St. Pierre's care and treatment at Chateau and “severely prejudiced” the defendants at trial. We disagree. There is no indication that the trial court's decision to exclude this proffered testimony in any way prejudiced or affected the outcome of this case. This evidence had already been excluded pursuant to the properly granted sanction for discovery violations. To the extent the trial court erred in disallowing the proffer, such an error is harmless.

Motion for a New Trial

The appellate standard of review of the ruling on a motion for a new trial is whether the trial court abused its discretion. Giglio v. ANPAC Louisiana Ins. Co., 20-209 (La. App. 5 Cir. 12/23/20), 309 So.3d 416, 422. A new trial should be granted, upon contradictory motion, where: (1) the verdict or judgment is contrary to the law and evidence; (2) important evidence is obtained after the trial; or, (3) the jury was either bribed or behaved improperly. La. C.C.P. art. 1972. When a motion for a new trial is based on the contention that the judgment is clearly contrary to the law and evidence, no additional evidence may be presented at the hearing on the motion. Rivet v. State, Dep't of Transp. & Dev., 01-961, p. 5 (La. 11/28/01), 800 So.2d 777, 781. Additionally, a new trial may be granted if there is good ground therefore, except as otherwise provided by law. La. C.C.P. art. 1973.

Appellants argue that the trial court abused its discretion in failing to grant the motion for a new trial because the improper granting of sanctions and the improper exclusion of Dr. Remedios's proffered testimony constitute “good grounds” for granting a new trial. Having found that the trial court's granting of the sanctions was proper and within his discretion and the exclusion of the proffered testimony to be harmless error, we find that the trial court did not abuse his broad discretion in denying the motion for a new trial.

Judgment Notwithstanding the Verdict

A judgment notwithstanding the verdict (JNOV) is a procedural device by which the trial court may modify the jury's findings of fault or damages to correct a legally erroneous verdict. La. C.C.P. art. 1811. A JNOV is warranted when the facts and reasonable inferences point so strongly and overwhelmingly in favor of the moving party that the court believes reasonable jurors could not arrive at a contrary verdict, not merely where there is a preponderance of evidence for the mover. Aych v. State Farm Mut. Auto. Ins. Co., 23-89, p. 7 (La. App. 5 Cir. 10/31/23), 374 So.3d 1000, 1006. If there is evidence opposed to the motion that has such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment could reach different conclusions, the motion should be denied. Id. All reasonable inferences or factual questions should be resolved in favor of the non-moving party. Id. When a motion for judgment notwithstanding the verdict is denied, the appellate court simply reviews the record to determine whether there is legal error or whether the trier of fact committed manifest error. Id.

Appellants argue that the trial court erred in failing to grant the JNOV because the amount of survival damages awarded to Ms. Cambre by the jury, $3,016,273.04, should have been reduced to $754,068.26 to reflect Ms. Cambre's virile share as one of four surviving children of Grace St. Pierre. The case cited by appellants in support of this argument, Abadie v. Metro. Life Ins. Co., 00-352 (La. App. 5 Cir. 4/11/01), 804 So. 2d 11, 26, is factually and procedurally distinct from the present case. In this reported Abadie case, one of many arising from 129 consolidated suits brought by shipyard employees for asbestos exposure, this Court considered the appeal by defendants of a jury verdict that awarded wrongful death and survivor benefits to the widow and surviving children of one shipyard employee, Mr. Clark. The jury verdict form provided specific awards to each of the survivors, and there is no indication that there were unnamed survivors who were left out of the award. The “virile shares” at issue in that case were those of the liable defendants, which this Court reduced from 20 to 14. The total amount of the jury's damage award on the survival action, $2,641,330.00, was affirmed, but divided by 14 instead of 20 to reflect the virile shares of the liable defendants. The Abadie case is completely inapposite to the case before us.

More relevant is the cited case of Guilbeau v. Bayou Chateau Nursing Ctr., 05-1131, p. 9 (La. App. 3 Cir. 5/17/06), 930 So.2d 1167, 1174, writ denied, 06-1496 (La. 10/13/06), 939 So.2d 365. In Guilbeau, a wrongful death and survival suit brought by four of the five surviving children of a deceased nursing home resident, the Third Circuit considered the argument on appeal brought by the nursing home and the PCF that the survival action damages should be reduced by one-fifth to reflect that there was another surviving child who did not join as plaintiff to the suit. The court rejected this argument on the basis that there was no indication in the record that the trial court failed to take into consideration that only four of the decedent's five children brought suit, and because there was nothing in the record to indicate that the trial court included the nonparticipating child's virile share in the award.

Like the court in Guilbeau, we find that there is no indication that the jury in this case erred in fashioning its award for the survival action. The record shows that Ms. Cambre testified that she was one of four surviving children of Grace St. Pierre. It also shows that the jury verdict form asked the jury to “state the total amount of damages (in dollars and cents) which may fairly compensate the Plaintiff, Drema Cambre, for her mother Grace St. Pierre's injuries suffered prior to her death.” Defendants offered no evidence to show that the jury did not consider the fact that Cambre had siblings or that the jury included the non-party siblings’ virile shares in the award. We find no manifest error in the trial court's denial of the JNOV.

General Damages Award

Finally, appellants argue that the jury abused its discretion by awarding excessive general damages to plaintiff in the amount of $3,996,000.00.

A jury is given great discretion in its assessment of quantum for both general and special damages. Lawson v. Starr Indem. & Liab. Co., 24-379, p. 4 (La. App. 5 Cir. 4/30/25), 411 So.3d 890, 894. The jury's assessment of quantum or determination of the appropriate amount of damages is a determination of fact that is entitled to great deference on appeal. Id. at 894-95. On review, an appellate court must be careful not to reweigh evidence or substitute its own factual findings just because it would have decided the case differently. Id. at 895. The role of the appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but to review the exercise of discretion by the trier of fact. Id. Only after a finding of an abuse of discretion by the fact finder may an award be disturbed, and even then, the court may only lower (or raise it) to the highest (or lowest) point reasonably within the discretion afforded that court. Id.

Appellants argue that, based on the record, the jury's award was clearly excessive. They point to certified medical records that show no signs and symptoms of UTI leading to sepsis and a Medical Review Panel Opinion showing that Chateau did not breach the standard of care in its treatment of Ms. St. Pierre. They cite no cases from this Court in support of their argument that the award of damages is excessive.

Two cases cited by appellants in support of their argument, Moss v. State, 07-1686 (La. App. 1 Cir. 8/8/08), 993 So.2d 687 and Shilling v. State Ex Rel. DOTD, 05-0172 (La. App. 1 Cir. 12/22/05), 928 So.2d 95, concern wrongful death damages awarded to children after their parent was killed in an automobile accident. We do not find the facts and circumstances of these cases to be similar to this case.

Another case cited by appellants, Welch v. Willis-Knighton Pierremont, 45,554 (La. App. 2 Cir. 11/17/10), 56 So.3d 242, concerned the award of damages to survivors of a woman who died of a respiratory infection after aspirating the contents of a PEG tube feeding while she was in the ICU. This case concerned only a medical malpractice action brought by the survivors for care the decedent received while in the hospital. While it is interesting that appellants on the one hand point to their own evidence to suggest that Ms. St. Pierre did not suffer a UTI and Chateau did not breach the medical standard of care, and on the other hand point to a case involving a death caused by infection resulting from a medical provider's breach of the standard of care as illustrative of the damages that should be awarded, we are nevertheless unpersuaded. The facts and circumstances of the Welch case, which involved neither care provided in a skilled nursing facility nor claims of administrative negligence, are easily distinguished from this case.

On review, we find no abuse of the jury's broad discretion in its award of damages to Ms. Cambre. The evidence of the Medical Review Panel opinion pointed to by appellants was properly excluded pursuant the trial court's sanction for discovery violations and therefore cannot be considered here. In contrast, there is ample evidence provided by plaintiff of the injuries and pain suffered by Ms. St. Pierre while she resided at Chateau and of Ms. Cambre's own mental anguish and suffering from her mother's injuries and loss. We decline to disturb the jury's award.

CONCLUSION

This case presents an extraordinary instance of highly relevant and damning evidence being produced for the first time mid-trial: a shocking revelation of the exact kind that our rules of civil procedure are designed to prevent. We find no error or abuse of discretion in the trial court's carefully considered sanction for this discovery violation. Furthermore, we find no error in the jury's award of $4,016,273.04 in wrongful death and survival damages to plaintiff Drema Cambre for the death of her mother, Grace St. Pierre. For reasons more fully stated above, we find appellants’ arguments to be without merit. The November 13, 2024, judgment of the trial court is affirmed.

AFFIRMED

FOOTNOTES

1.   Emphasis supplied.

2.   La. C.C.P. art. 1471 provides in pertinent part:A. If a party․fails to obey an order to provide or permit discovery ․ the court in which the action is pending may make such orders in regard to the failure as are just, including․(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence.(3) An order striking out pleadings or parts thereof ․ or rendering a default judgment against the disobedient party upon presentation of proof as required by Article 1702.

3.   Emphasis supplied.

4.   La. C.C.P. art. 1473 provides that:If a party or an officer, director, or managing agent of a party ․ fails to ․ serve a written response to a request for inspection submitted under Article 1461, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under Paragraphs (1), (2), and (3) of Article 1471․.La. C.C.P. art. 1461 governs requests for production of documents and provides:Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, and sample any designated documents ․.

5.   A more accurate statement would be that defendants’ objections to the introduction of certain withheld documents were overruled by the trial court outside of the presence of the jury and defendants elected not to repeat those objections when the evidence was introduced during Mr. Glass's testimony.

MARCEL, J.