Talamo v. Fresenius Medical Care Management, AG et al

Filing 91

ORDER AND REASONS: ORDERED that Defendants' 56 Motion for Judgment on the pleadings is GRANTED in part. Count II is dismissed with prejudice, except that the remedy paragraph from Count II is merged into Count I; Count III is dismissed with p rejudice; the retaliation claims asserted in Counts IV and V are dismissed with prejudice as to the Individual Defendants; all of Talamo's conspiracy allegations in Counts IV, V, and VI are dismissed with prejudice, except for the claim that Melissa Lapworth and Heather Clark conspired to intentionally inflict emotional distress; and Talamo's defamation claim in Count VI is dismissed with prejudice. Signed by Judge Barry W Ashe on 5/29/19. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

UNITED STATES OF AMERICA ex
rel. CHERI TALAMO

NO. 17-3509
VERSUS
SECTION M (2)
FRESENIUS MEDICAL CARE
HOLDINGS, INC., et al.
ORDER & REASONS
Before the Court is a motion for partial judgment on the pleadings filed by defendants
Fresenius Medical Care Holdings, Inc., Spectra Laboratories, Inc., Bio-Medical Applications of
Maryland, Inc., Bio-Medical Applications of Louisiana LLC, Fresenius Medical Care Louisiana
Dialysis Group LLC, Renal Care Group, Inc., Bio-Medical Applications of Louisiana, Inc.
(“Corporate Defendants”), and Melissa Lapworth, Heather Clark, and Nancy Landrieu
(“Individual Defendants”) (collectively, “Defendants”),1 to which relator Cheri Talamo
(“Talamo”) responds in opposition,2 and in further support of which Defendants reply.3 Having
considered the parties’ memoranda and the applicable law, the Court issues this Order & Reasons.
I.

BACKGROUND
This qui tam relator action arises out of Talamo’s employment as a registered nurse to

provide self-care home peritoneal dialysis, a type of renal dialysis that treats end stage renal disease
covered by Medicare and other government healthcare programs under 42 U.S.C. §
1395rr(b)(14)(B).4 Renal dialysis is an artificial process that replaces a failing kidney’s function,
including extracting waste from blood, balancing body fluids, and forming urine. Generally, renal

1

R. Doc. 56.
R. Doc. 57.
3
R. Doc. 62.
4
R. Doc. 33 at 6-7, 9, 12.
2

1

dialysis is adequate if it achieves nearly the same level of function as a natural kidney. The
measurement of dialysis adequacy is represented as a value of “Kt/V.”5 Low levels of the Kt/V
measurement are dangerous to a patient’s health.
Congress enacted the end stage renal disease program in 42 U.S.C. § 1395rr to provide
Medicare coverage for renal dialysis services. Subsection (h) creates financial incentives for such
providers to deliver quality services. The Secretary of the Department of Health and Human
Services (“HHS”) monitors the quality of renal dialysis services of each provider to determine a
total performance score. If a provider does not meet or exceed a set score, its Medicare payments
may be reduced by up to 2.0%. Further, HHS established a standard of 1.70 Kt/V as the level for
adequate renal dialysis. In order to receive Medicare reimbursement, a provider must submit a
claim reporting its patients’ Kt/V levels.6
Talamo alleges that the Corporate Defendants (Fresenius Medical Care Holdings, Inc., and
its subsidiaries)7 offered peritoneal dialysis in a patient’s home, which was administered by a
nurse, such as Talamo, trained to use the dialysis equipment properly. A machine inserts a
dialysate solution into a port surgically implanted in a patient’s body. Waste products produced
from the dialysis process called peritoneal dialysate then collect in ultrafiltration bags. The

5

The National Institute of Diabetes and Digestive and Kidney Diseases explains the Kt/V measurement this

way:
Kt/V is another way of measuring dialysis adequacy. In this measurement,
 K stands for the dialyzer clearance, the rate at which blood passes through the dialyzer, expressed
in milliliters per minute (mL/min)
 t stands for time
 Kt, the top part of the fraction, is clearance multiplied by time, representing the volume of fluid
completely cleared of urea during a single treatment
 V, the bottom part of the fraction, is the volume of water a patient’s body contains
Hemodialysis Dose & Adequacy, NAT’L INSTITUTE OF DIABETES & DIGESTIVE & KIDNEY DISEASES,
https://www.niddk.nih.gov/health-information/kidney-disease/kidney-failure/hemodialysis/dose-adequacy
(last
visited May 28, 2019).
6
See R. Doc. 33 at 7-8.
7
R. Doc. 56-1 at 5.

2

machine monitors the volume of peritoneal dialysate expelled and adjusts the volume of dialysate
solution allowed into the body through an “IQ drive,” a thumb drive which controls the number
and volume of “fills” each night the machine runs. Patients purchase the dialysate solution from
Corporate Defendants, which are paid by reimbursement from Medicare and other governmental
healthcare agencies.8
Peritoneal-dialysis patients periodically come into the Corporate Defendants’ facility in
Metairie, Louisiana, to receive a check-up. Every three months, a patient provides nurses, such as
Talamo, with urine collected in the past 24 hours and the previous night’s bags of peritoneal
dialysate. Using scales and rulers, the nurses take several measurements, including the patient’s
weight, height, urine volume, and infiltration-bag weight. They write down the results and enter
them in the Corporate Defendants’ computer system, which calculates the Kt/V adequacy
measurement. The Corporate Defendants then submit this information to governmental health
agencies and insurance companies to receive reimbursement. This information is also used by the
patients’ physicians to make decisions about patient care, such as adjusting the volume of solution
or removing a patient from home dialysis.
Talamo alleges that the Individual Defendants were employees of Corporate Defendants
and were Talamo’s supervisors. Melissa Lapworth, who oversaw a group of nurses that provided
at-home dialysis service and also performed these services herself, was Talamo’s immediate
supervisor. Lapworth’s immediate supervisor, in turn, was Heather Clark, and Clark’s supervisor
was Nancy Landrieu.9

8

R. Doc. 33 at 9-10.
Id. at 6, 11-12. The Defendants say that Talamo and the Individual Defendants are all employees of
defendant Bio-Medical Applications of Louisiana, LLC d/b/a Fresenius Medical Care Crescent City Home Program.
R. Doc. 56-1 at 2-3.
9

3

Talamo alleges that she witnessed her supervisor Lapworth knowingly entering false
information into the computer system to maximize the payments received from Medicare. Talamo
lists eleven incidents of fraudulent activity, including, for example, several occasions where
Lapworth adjusted patients’ time and volume settings on the computer system inconsistent with
their doctors’ orders or IQ drive output, causing patients to use and order additional and medically
unnecessary bags of dialysate solution. On some occasions, patients died shortly after the alleged
tampering. On others, Talamo alleges that Lapworth revised the levels or cause of death that
Talamo had recorded, effectively concealing poor dialysis service. Talamo also claims that the
Corporate Defendants gave the Individual Defendants and other nurses bonuses to meet or exceed
the 1.70 Kt/V adequacy threshold, regardless of the patient’s actual data and condition, so as to
inflate their performance score for purposes of Medicare reimbursement.10 Such conduct, Talamo
asserts, amounted to a conspiracy among Defendants to defraud Medicare and other governmental
healthcare agencies to pay for greater amounts of dialysate solution than was medically necessary
and that would otherwise not be covered due to Corporate Defendants’ poor performance score.11
Talamo claims that she reported the fraudulent activity to the Individual Defendants but
was continually rebuffed by them.12 Further, Talamo says Defendants retaliated against her. In
January 2017, Individual Defendants called several meetings with Talamo and other employees,
during which Talamo was accused of being unhelpful and uncooperative. Talamo alleges that
Lapworth and Clark threatened another employee with the loss of her job if she did not act
aggressively towards Talamo at these meetings. Talamo also alleges that Lapworth and Clark
issued two “corrective action forms” that falsely accused her of wrongdoing. Thereafter, in mid-

10

R. Doc. 33 at 12-17.
See id. at 12-13.
12
Id. at 13, 18.
11

4

February 2017, Talamo sent written complaints to the Louisiana State Board of Nursing and the
Louisiana Department of Health and Hospitals. In March 2017, Corporate Defendants reassigned
Talamo from their facility in Metairie to a facility on the West Bank. As a result, Talamo claims
she was demoted and burdened by the commute.13
Talamo alleges that on or about June 8, 2017, she spoke with an officer from the U.S.
Inspector General’s Office about the content of her complaint to the Louisiana Department of
Health and Hospitals.14 During the summer of 2017, Defendants issued three additional corrective
action forms against Talamo, which she claims contain false allegations, and Talamo’s supervisors
texted her after hours to schedule meetings that pulled her away from her normal duties and
inconvenienced her commute. Further, Defendants allegedly delayed in paying Talamo mileage
reimbursement and refused to pay for her travel time. Talamo further alleges that Defendants’ acts
of retaliation caused her to take an emergency, unpaid leave of absence in August 2017, and that
Defendants wrongly terminated her benefits in December 2017. Finally, Talamo alleges that
Defendants’ actions caused her mental anguish and anxiety for which she has sought medical
treatment.15
In her second supplemental and amending complaint, Talamo brings six counts against
Defendants. First, Talamo alleges that Defendants knowingly presented or caused to be presented
false or fraudulent claims for payment to officials of the United States Government
(“Government”) in violation of 31 U.S.C. § 3729(a)(1)(A) of the False Claims Act (“Count I”).16
Second, Talamo seeks multiple damages and a civil penalty for each violation of the False Claims
Act for Defendants having knowingly conspired to defraud the Government by billing Government

13

Id. at 18-19.
Id. at 20.
15
Id. at 20-21.
16
Id. at 21.
14

5

healthcare programs for medically unnecessary services and equipment and by causing or getting
false or fraudulent claims allowed or paid, in violation of 31 U.S.C. § 3729(a)(1)(C) (“Count
II”).17 Third, Talamo seeks multiple damages and a civil penalty for each violation of the False
Claims Act for Defendants having knowingly made, used, or caused to be made or used false
records or statements material to an obligation to pay or transmit money or property to the
Government, or having knowingly concealed or knowingly and improperly avoided or decreased
an obligation to pay or transmit money or property to the Government in violation of 31 U.S.C. §
3729(a)(1)(G) (“Count III”).18 Fourth, Talamo alleges that the Corporate Defendants conspired to
retaliate against her in violation of 31 U.S.C. § 3730(h)(2) and 42 U.S.C. § 1981a(b)(1) (“Count
IV”).19 Fifth, Talamo alleges that Defendants, having known of Individual Defendants’ conduct
towards her, conspired to retaliate against her in violation of La. R.S. 23:967 (“Count V”).20 Sixth,
Talamo asserts that Defendants intentionally inflicted emotional distress upon and defamed her
under Louisiana tort law, and are solidarily liable for having conspired under Louisiana Civil Code
article 2324(A), as well as vicariously liable for their employees’ tortious actions (“Count VI”).
In support of her defamation claim, Talamo alleges that the issuance of corrective action forms
constituted defamatory publication.21
II.

PENDING MOTION
In their motion for partial judgment on the pleadings, Defendants argue that all of Talamo’s

claims that rely upon allegations of conspiracy (Counts II, IV, V, and VI) should be dismissed
because, inter alia, Talamo does not identify any agreement among Defendants as required by

17

Id. at 21-22.
Id. at 22-23.
19
Id. at 23.
20
Id. at 23-25.
21
Id. at 25-27.
18

6

federal22 and state law.23 Defendants further submit that Talamo’s claim for a conspiracy under
the False Claims Act (Count II and the conspiracy component of Count IV) fails because corporate
affiliates – namely, the Corporate Defendants, among themselves or with their employees, the
Individual Defendants – are incapable of conspiring under federal law’s intra-corporate conspiracy
doctrine.24 Additionally, Defendants argue that Count III, which asserts violation of the False
Claims Act’s reverse false claims provision, cannot stand because Talamo does not identify any
defendant’s obligation to pay the Government money, which obligation existed at the time of the
alleged false statement.25 Defendants further contend that Talamo’s claim against the Individual
Defendants for retaliation in Counts IV and V must be dismissed because the proper defendant for
such a claim is her employer, and the Individual Defendants are merely employees. Finally,

22

R. Doc. 56-1 at 6-10 (citing, inter alia, U.S. ex rel. Dekort v. Integrated Coast Guard Sys., 705 F. Supp.
2d 519, 548 (N.D. Tex. 2010) (dismissing False Claims Act conspiracy claim that failed to identify an unlawful
agreement among co-conspirators and the overt acts allegedly taken in furtherance of conspiracy); Wagemann v.
Doctor’s Hosp. of Slidell, 2010 WL 3168087, at *6 (E.D. La. Aug. 6, 2010) (dismissing False Claims Act claim for
failure to meet Rule 9(b)’s particularity requirement as to the existence of an agreement between defendants and at
least one overt act)).
23
Id. at 11-13 (citing, inter alia, CheckPoint Fluid Sys. Int’l, Ltd. v. Guccione, 2011 WL 3268386, at *12
(E.D. La. July 28, 2011) (“A conclusory allegation that [parties] ‘conspired’ is not an actionable claim under Louisiana
law[,]” especially where a plaintiff “make[s] no allegations that [the defendants] entered into an agreement to commit
an identifiable tort.”)).
24
Id. at 10-11 (citing, inter alia, U.S. ex rel. Ligai v. ETS-Lindgren, Inc., 2014 WL 4649885, at *15 (S.D.
Tex. Sept. 16, 2014) (“As a matter of law, a parent corporation cannot conspire with its own subsidiary.”); U.S. ex rel.
Woods v. SouthernCare, Inc., 2013 WL 1339375, at *6 (S.D. Miss. Mar. 30, 2013) (“Because a conspiracy requires
an agreement between two or more persons, the intra-corporate conspiracy doctrine provides that a corporation cannot
conspire with itself. … A corporation is, therefore, incapable of conspiring with its employees, and its employees,
when acting in the scope of their employment, cannot conspire among themselves.”) (quotations and citations
omitted)).
25
Id. at 16-19 (citing, inter alia, U.S. ex rel. Marcy v. Rowan Cos., 520 F.3d 384, 390 (5th Cir. 2008) (“In a
reverse False Claims Act suit, there is no improper payment by the government to a defendant, but rather there is an
improper reduction in the defendant’s liability to the government.”); U.S. ex rel. Porter v. HCA Health Servs. of OK,
Inc., 2011 WL 4590791, at *7-8 (N.D. Tex. Sept. 30, 2011) (rejecting reverse false claim count where defendants
allegedly received undue Medicare reimbursement as redundant of direct false claim count); U.S. ex rel. Branch
Consultants, L.L.C. v. Allstate Ins. Co., 668 F. Supp. 2d 780, 811-12 (E.D. La. 2009) (reverse false claims provision
“does not extend to potential or contingent obligations to pay the government fines or penalties which have not been
levied or assessed”) (quoting. Marcy, 520 F.3d at 391)).

7

Defendants submit that Talamo’s defamation claim must be dismissed because it relies solely upon
a communication made between employees, which is not defamatory under Louisiana law.26
Talamo concedes that she has not pleaded a reverse false claim under the False Claims Act
in Count III, that she has not pleaded a claim against the Individual Defendants for retaliation in
Counts IV and V, and that she has not sufficiently pleaded a conspiracy under the False Claims
Act in Counts II and IV.27 However, Talamo argues that the damages claimed in Count II do not
rely upon a finding of conspiracy, for Count II was “merely an inartful extension of Count I,”
which omitted a specific request for damages under the False Claims Act.28 Talamo further
submits that while the conspiracy allegations as to Defendants in Counts IV, V, and VI are
insufficient under Louisiana law, the Court should not dismiss these counts in their entirety
because she has adequately pleaded that Defendants individually retaliated against her.29
Simultaneously, Talamo insists that she has, in fact, adequately pleaded a conspiracy under
Louisiana law as to the Individual Defendants in Count VI to make them solidarily liable, because
Clark and Landrieu were aware of and condoned Lapworth’s conduct towards her.30 Finally,
Talamo acknowledges the inadequacy of her defamation claim and seeks leave to amend to add
allegations of defamatory statements to third parties including Defendants’ statements to
investigators from the Louisiana State Board for Nursing and the Louisiana Department of Health
and Hospitals that Talamo’s complaints to those state agencies were false.31

26

Id. at 19-23 (citing, inter alia, Danna v. Ritz-Carlton Hotel Co., 213 So. 3d 26, 34 (La. App. 2016) (“Intracorporate statements are not considered published to satisfy the publication requirement of defamation.”) (quoting
Brunet v. Fullmer, 777 So. 2d 1240, 1242 (La. App. 2001)).
27
R. Doc. 57 at 2.
28
Id. at 2-3.
29
Id. at 4.
30
Id. at 4-5.
31
Id. at 6.

8

In reply, Defendants acknowledge that dismissing Talamo’s conspiracy claims will not
result in the dismissal of the entirety of Counts IV, V, and VI, which properly allege certain
theories of direct liability.32 However, Defendants maintain that Count II, expressly captioned a
False Claims Act conspiracy claim, should be dismissed and suggest that the remedy paragraph
from Count II be merged into Count I.33 Next, Defendants submit that Talamo’s allegation of
conspiracy in Count VI as to the Individual Defendants still fails because she does not identify an
agreement, which is a required element of a conspiracy claim under Louisiana law.34

Finally,

Defendants urge that Talamo should not be granted leave to amend her defamation claim because
the proposed amendment comes too late and would be futile. While Talamo had knowledge of the
Defendants’ statements to the Louisiana agencies in early 2017, she did not include them in her
first three complaints. Furthermore, such amendment would be futile because Talamo fails to
identify any specific defamatory statements and the claim is time-barred, and, in any event,
Defendants assert that they are protected by a qualified privilege for statements made to
investigators of regulatory complaints.35
III.

LAW & ANALYSIS
A. Judgment on the Pleadings Standard
Federal Rule of Civil Procedure 12(c) permits a party to move for a judgment on the

pleadings. “A Rule 12(c) motion may dispose of a case when there are no disputed material facts
and the court can render a judgment on the merits based on ‘the substance of the pleadings and
any judicially noted facts.’” Linicomn v. Hill, 902 F.3d 529, 533 (5th Cir. 2018) (quoting Machete
Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015)). Courts will consider an amended

32

R. Doc. 62 at 2.
Id.
34
Id. at 2-3.
35
Id. at 3-5.
33

9

complaint when it supersedes earlier pleadings. Bosarge v. Miss. Bureau of Narcotics, 796 F.3d
435, 440 (5th Cir. 2015). “An adequate pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Linicomn, 902 F.3d at 533 (quoting Fed. R.
Civ. P. 8(a)(2)). Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the
claim must “‘give the defendant fair notice of what the … claim is and the grounds upon which it
rests.’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading
does not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the
elements of a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).
“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard
as a motion to dismiss under Rule 12(b)(6).” Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir.
2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). A claim is plausible on the face of the complaint “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but rather “it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S.
at 557). Thus, if the facts pleaded in the complaint “do not permit the court to infer more than a

10

mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
B. Analysis
The parties agree that certain claims should be dismissed, including all conspiracy claims
against the Corporate Defendants alleged in Counts II, IV, V, and VI, the reverse false claim as
alleged in Count III, and any retaliation claim against the Individual Defendants alleged in Counts
IV and V. As a result, they are hereby dismissed. The Court now turns to the issues that remain
in dispute.
1.

Conspiracy under the False Claims Act (Count II)

Count II seeks relief under the False Claims Act conspiracy provision, 31 U.S.C. §
3729(a)(1)(C), which makes “any person who … conspires to commit a violation of [the False
Claims Act] … liable to the United States Government for a civil penalty of not less than $5,000
and not more than $10,000 … plus 3 times the amount of damages which the Government sustains
because of the act of that person.” Because Talamo has admitted the insufficiency of her
allegations of conspiracy under the False Claims Act, Count II must be dismissed with prejudice.
Talamo omitted any request for relief, including damages, from her pleading of Count I (which
addresses making a false statement in violation of 31 U.S.C. § 3729(a)(1)(A)). However, the False
Claims Act provides the same penalty and damages for making a false statement as it does for
conspiring to make a false statement, which is the subject of Count II wherein Talamo did plead a
remedy. See id. § 3729(a)(1). Therefore, as Defendants observe, this pleading deficiency may be
and is hereby cured by merging the remedy paragraph of Count II into Count I.

11

2. Conspiracy under Louisiana Law (Count VI)
Under Louisiana Civil Code article 2324(A), “[h]e who conspires with another person to
commit an intentional or willful act is answerable, in solido, with that person, for the damage
caused by such act.” To prove a civil conspiracy under Louisiana law, a plaintiff must show “that
an agreement existed to commit an illegal or tortious act; that the act was actually committed and
resulted in plaintiff’s injury; and that there was an agreement as to the intended outcome or result.”
Crutcher-Tufts Res., Inc. v. Tufts, 38 So. 3d 987, 991 (La. App. 2010). Thus, “a plaintiff is required
to provide evidence of the requisite agreement between the parties; that is, a meeting of the minds
or collusion between the parties for the purpose of committing wrongdoing.” Quality Envt’l
Processes, Inc. v. IP Petroleum Co., 219 So. 3d 349, 370 (La. App. 2017) (citing Prime Ins. Co.
v. Imperial Fire & Cas. Ins. Co., 151 So. 3d 670, 677 (La. App. 2014)). Such evidence may be
the “actual knowledge of both parties or overt actions with another, or can be inferred from the
knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other coconspirator.” Marks v. Motor City, 265 So. 3d 86, 92 (La. App. 2019) (quoting Curole v.
Delcambre, 224 So. 3d 1074, 1082 (La. App. 2017)). Conspiracy is not itself an actionable tort in
Louisiana. Rather, proving a conspiracy establishes solidary liability among the co-conspirators
for the underlying tort. Quality Envt’l Processes, Inc., 219 So. 3d at 370.
Count VI alleges that “[t]he defendants had a meeting of the minds and colluded with each
other to carry out” the tort of intentional infliction of emotional distress against Talamo.36 Thus,
Talamo’s conspiracy charge includes all Defendants, both Corporate and Individual. To prove

36

R. Doc. 33 at 27. Talamo also charges a conspiracy to defame her, but later in this Order & Reasons, the
Court dismisses her defamation claim. As a consequence, defamation cannot be the basis for any conspiracy charge.
In addition, while Talamo contends that the Individual Defendants lied to state agencies about the veracity of her
written complaints, there is no explicit allegation that the Individual Defendants agreed to lie to the state agencies, nor
an allegation that each Individual Defendant knew that the others were making improper statements. Thus, Talamo
fails to allege that an agreement existed between the Individual Defendants to defame her, which omission is fatal to
a conspiracy claim.

12

intentional infliction of emotional distress in Louisiana, a plaintiff must show: “(1) that the conduct
of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the
plaintiff was severe; (3) that the defendant desired to inflict severe emotional distress or knew that
severe emotional distress would be certain or substantially certain to result from his conduct.”
White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). In the employment context, a cause of
action for intentional infliction of emotional distress “has usually been limited to cases involving
a pattern of deliberate, repeated harassment over a period of time.” Id. (citing Maggio v. St.
Francis Med. Ctr., 391 So. 2d 948 (La. App. 1980)).
There are no facts alleged by Talamo to show a plausible agreement between any of the
Individual Defendants and Corporate Defendants to commit the acts said to inflict emotional
distress. Thus, any claim against all Defendants for conspiring to commit this tort must fail. See
Guccione, 2011 WL 3268386, at *12 (dismissing conclusory allegation of conspiracy where no
other allegation showed defendants “entered into an agreement to commit identifiable intentional
tort”). Nonetheless, Talamo argues that she has adequately pleaded a conspiracy between the
Individual Defendants. But, at most, Talamo alleges that Lapworth and Clark colluded, either by
evidence of actual knowledge or by inference of each other’s knowledge of the impropriety of her
co-conspirator’s actions, to issue false corrective action forms, and to force Talamo to attend a
series of abusive meetings.37 This is enough to state a plausible claim against Lapworth and Clark
to have conspired to intentionally inflict emotional distress upon Talamo. But Talamo makes no
mention of Landrieu’s knowledge of these meetings or any way in which Landrieu directly affected
the conditions of her employment. While Talamo states a claim for conspiracy between Lapworth
and Clark in Count VI, she fails to do so as between all three Individual Defendants.

37

Id. at 18.

13

Count VI also presents a theory of vicarious liability.38 Under Louisiana Civil Code article
2320, employers “are answerable for the damage occasioned by their [employees], in the exercise
of the functions in which they are employed” when the employer “might have prevented the act
which caused the damage, and have not done it.” Thus, to the extent Lapworth and Clark acted
tortiously or conspired to act tortiously in the scope of their employment, any Corporate Defendant
established to be their employer may be vicariously liable.
In sum, Talamo’s claim for conspiracy as between all Defendants and all Individual
Defendants in Count VI is dismissed; but her claim for a conspiracy between Lapworth and Clark
to intentionally inflict emotional distress is not.
3. Defamation under Louisiana Law (Count VI)
To establish a cause of action for defamation in Louisiana, a plaintiff must show: “(1) a
false and defamatory statement concerning another; (2) an unprivileged publication to a third party;
(3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Lusich v.
Capital One, ACP, LLC, 198 So. 3d 1272, 1276 (La. App. 2016) (citing Costello v. Hardy, 864
So. 2d 129, 139 (La. 2004)). Moreover, to adequately allege a defamation claim, the plaintiff
“must set forth in the [complaint] with reasonable specificity the defamatory statements allegedly
published by the defendant.” Id. (quoting Fitzgerald v. Tucker, 737 So. 2d 706, 713 (La. 1999)).
“It is not necessary for a plaintiff to state verbatim the words on which he bases his cause of action,
but he must allege a state of facts or condition of things which would show fault under article
2315.” Badeaux v. Sw. Computer Bureau, Inc., 929 So. 2d 1211, 1218 (La. 2006).
Confessing the current inadequacy in the pleading of her defamation claim, Talamo argues
that she should be allowed to amend the defamatory statements alleged in Count VI to include the

38

Id. at 25.

14

assertion that “the defendants falsely told the investigators from the Louisiana State Board for
Nursing and the Louisiana Department of Health and Hospitals that Mrs. Talamo’s allegations
against the defendants were false.”39 Under Rule 15(a) of the Federal Rules of Civil Procedure, a
court has discretion to grant leave to amend “where justice so requires.” Generally,
[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason – such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of the amendment, etc. –
the leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed. R. Civ. P. 15(a)). A proposed amendment
would be futile where it fails to state a claim upon which relief could be granted. See Legate v.
Livingston, 822 F.3d 207, 211 (5th Cir. 2016).
Here, Defendants submit that Talamo’s proposed amendment comes too late: she does not
explain why she has not previously asserted these statements as the basis for her defamation claims
in any of her past three complaints. The Court agrees that granting Talamo leave to amend her
complaint at this late juncture (two months before trial) would unfairly prejudice Defendants where
Talamo has provided no explanation for her undue delay and repeated failure to cure the pleading
deficiency in her amended complaints.
Additionally, Defendants contend that Talamo’s amendment, if sought, would be futile. A
defamation claim has a one-year prescriptive period that runs from the date of the publication of
the allegedly defamatory remark. The doctrine of contra non valentum may apply to interrupt
prescription in some exceptional circumstances. Alexander v. Times-Picayune L.L.C., 221 So. 3d
198, 203 (La. App. 2017). Defendants argue that Talamo’s amendment would be futile because

39

R. Doc. 57 at 6.

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her defamation claim seems to have prescribed, noting that the allegedly defamatory statements
she seeks now to plead were made in the spring of 2017 and that Talamo first referenced these
statements over a year later, on September 4, 2018, when she filed her opposition to the instant
motion. Talamo makes no effort to show that the doctrine of contra non valentum interrupts the
prescription of Talamo’s defamation claim, and therefore any amendment of her claim would be
futile.
Defendants next argue that Talamo’s amendment is futile because it is not sufficiently
specific. In her opposition, Talamo asserts in conclusory fashion that the Individual Defendants
informed the Louisiana health agencies that Talamo’s complaints were false, without making any
effort to plead the specifics of the supposedly false statement. Talamo’s claim is not sufficiently
specific because she does nothing more than make a general accusation that the Individual
Defendants lied to the Louisiana health agencies. See Lusich, 198 So. 3d at 1276 (general
allegations of “false and defamatory statements” that “implied … petitioner was a thief” were
insufficient to state defamation claim); Williams v. Nexstar Broadcasting, Inc., 96 So. 3d 1195,
1200-01 (La. App. 2012) (allegation that news reports “state[d] and impl[ied] that [plaintiff] had
acted illegally, unprofessionally or incompetently” was conclusory). For this additional reason,
amendment of Talamo’s defamation claim would be futile, and thus her claim cannot withstand a
motion for judgment on the pleadings.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion for judgment on the pleadings (R. Doc. 56) is

GRANTED in part. Count II is dismissed with prejudice, except that the remedy paragraph from
Count II is merged into Count I; Count III is dismissed with prejudice; the retaliation claims

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asserted in Counts IV and V are dismissed with prejudice as to the Individual Defendants; all of
Talamo’s conspiracy allegations in Counts IV, V, and VI are dismissed with prejudice, except for
the claim that Melissa Lapworth and Heather Clark conspired to intentionally inflict emotional
distress; and Talamo’s defamation claim in Count VI is dismissed with prejudice.
New Orleans, Louisiana, this 29th day of May, 2019.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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