Labouliere v. Our Lady of the Lake Foundation et al
RULING: The 21 Motion to Dismiss and Alternative Motion to Stayfiled by Our Lady of the Lake Hospital, Inc. and Our Lady of the Lake Foundation, andthe 23 Motion to Dismiss and Alternative Motion to Stay filed by Dr. Todd A. Peavy and Imperial He alth, LLP are hereby GRANTED IN PART and DENIED IN PART. The Defendants' Motions are granted as to their request for a stay. The Clerk of Court is hereby ordered to administratively close this action, Labouliere v. Our Lady of the Lake Foundation et al. (16-cv-785), in his records. Once the medical review panel issues its decision, either party may move the Court to lift the stay in the instant matter. Signed by Judge James J. Brady on 9/29/2017. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KATRINA RIVERS LABOULIERE,
INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF KATHERINE SMITH
OUR LADY OF THE LAKE
FOUNDATION, ET AL.
Before the Court are two Motions to Dismiss and Alternative Motions to Stay filed
by Our Lady of the Lake Hospital, Inc. and Our Lady of the Lake Foundation (collectively
“OLOL Defendants”) and Dr. Todd A. Peavy and Imperial Health, LLP.1 Plaintiffs have
filed Oppositions to both Motions.2 The OLOL Defendants have filed a Reply.3 The
Court’s jurisdiction is pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary. For
the following reasons, the Motions shall be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Katrina Rivers Labouliere (“Labouliere”), who is hearing and a professional sign
language interpreter, has filed this lawsuit individually and on behalf of the estate of her
mother, Katherine Smith (“Smith”)(collectively Labouliere and Smith are referred to as
“Plaintiffs”).4 This case arises out of the alleged failure of Defendants, Dr. Todd A. Peavy
(“Dr. Peavy”), Imperial Health, L.L.P. (“Imperial Health”), Our Lady of the Lake Hospital
Doc. 21; and Doc. 23. In their memorandum in support of their Motion, Dr. Peavy and Imperial Health,
LLP, adopted the arguments made by the OLOL Defendants on standing and prematurity. Doc. 23-1, pp.
Doc. 29 and Doc. 32. In their memorandum in opposition to the Motion to Dismiss filed by Dr. Peavy and
Imperial Health, LLP, the Plaintiffs adopt their arguments raised in their Opposition to the OLOL Defendants’
Motion regarding prematurity, stay, and viability of Labouliere’s LCHR claims.
Doc. 1, p. 3, ¶5; Doc. 3, p. 3, ¶5; Doc. 16, p. 3, ¶5.
(“OLOL Hospital”), and Our Lady of Lake Foundation (“OLOL Foundation”), to provide
Smith, a deaf patient who communicated primarily through American Sign Language
(“ASL”), with auxiliary aids and services or other accommodations during her medical
visits and while a patient at OLOL Hospital.
On November 26, 2015, Smith allegedly had a medical appointment with her
regular family practitioner, Dr. Peavy.5 According to the Complaints, Smith requested, but
was not provided with a sign language interpreter for her visit, even though Dr. Peavy
knew of Smith’s condition and her need for an interpreter in order to communicate
effectively.6 Instead, Dr. Peavy allegedly attempted to communicate with Smith via
gestures, lip reading, and hand writing.7 During her visit, Dr. Peavy discovered a spot on
Smith’s lung and ordered that additional testing be conducted.8 Allegedly Smith was not
provided with any information about the spot, the diagnosis, or treatment options.9 Dr.
Peavy also diagnosed Smith as being anemic and issued her a prescription for iron pills.10
When Smith attempted to inform Dr. Peavy about pain she was experiencing in her back
and side, he prescribed her pain medications instead of investigating her complaints.11
Eventually, Dr. Peavy referred Smith to a specialist who diagnosed her with an enlarged
spleen.12 In approximately the third week of February of 2016, Smith went to West
Doc. 3, p. 6, ¶20; Doc. 16, p. 6, ¶20.
Doc. 1, p. 6, ¶¶20-21; Doc. 3, p. 6, ¶¶20-23; Doc. 16, p. 6, ¶¶20-21. Plaintiffs claim that Smith had limited
proficiency in written English. Doc. 1, p. 5, ¶15; Doc. 16, p. 5, ¶15.
Doc. 1, p. 6, ¶22; Doc. 3, p. 7, ¶24; Doc. 16, p. 7, ¶24.
Doc. 1, p. 6, ¶¶23-24; Doc. 3, p. 7, ¶¶25-26; Doc. 16, p. 7, ¶¶25-26.
Doc. 1, p. 6, ¶24; Doc. 3, p. 7, ¶26; Doc. 16, p. 7, ¶26.
Doc. 1, p. 6, ¶25; Doc. 3, p. 7, ¶27;Doc. 16, p. 7, ¶27.
Doc. 1, pp. 6-7, ¶¶26-27; Doc. 3, p. 7, ¶¶28-29; Doc. 16, p. 7, ¶¶28-29.
Doc. 1, p. 7 ¶28; Doc. 3, p. 7, ¶30; Doc. 16, p. 7, ¶30.
Calcasieu Cameron Hospital where she was diagnosed with liver failure and cancer of
The claims against OLOL arise out of Smith’s admission, treatment, and discharge
from OLOL Hospital in late February through early March of 2016.14 On February 27,
2016, the Plaintiffs allegedly went to OLOL Hospital’s emergency room because Smith
was “yellow like a lemon.”15 Although they demanded a sign language interpreter, they
claim that none was provided.16 Smith was ultimately admitted to OLOL overnight.17
Throughout Smith’s stay at OLOL Hospital, Plaintiffs claim that they made
repeated requests for an interpreter.18
For instance, although they requested an
interpreter in anticipation of Smith’s prescheduled biopsy and when Smith underwent a
CT Scan, an interpreter was not provided.19 Labouliere asserts that she requested that
the nurses use the Video Remote Interpreting (“VRI”) device during all visits with her
mother; however, because the nurses were unable to operate the machine, they could
not comply with Labouliere’s request.20 Inevitably, Labouliere claims that she had to
serve as her mother’s interpreter.21 On March 3, 2016, Labouliere had to translate for her
mother’s oncologist and inform her mother that she had stage 4 liver cancer and was not
a candidate for chemotherapy.22 Additionally, Labouliere had to inform Smith that she
could undergo more testing if she desired to determine the source of the cancer, and that
Doc. 1, p. 7, ¶29; Doc. 3, p. 7, ¶31; Doc. 16, p. 7, ¶31.
Doc. 1, pp. 11-14, ¶¶58-73; Doc. 3, pp. 12-14, ¶¶61-75; Doc. 16, pp. 11-14, ¶¶60-79.
Doc. 1, p. 11, ¶59; Doc. 3, p. 12, ¶61; Doc. 16, p.12, ¶61.
Doc. 1, p. 11, ¶60; Doc. 3, p. 12, ¶62; Doc. 16, p. 12, ¶62.
Doc. 1, p. 11, ¶60; Doc. 3, p. 12, ¶62; Doc. 16, p. 12, ¶62.
Doc. 1, p. 11, ¶¶61-62; Doc. 3, p. 12, ¶¶62-63; Doc. 16, p. 12, ¶¶62-63.
Doc. 1, p. 13, ¶69; Doc. 3, p. 13, ¶71; Doc. 16, p. 13, ¶71.
Doc. 1, p. 12, ¶66; Doc. 3, p. 13, ¶68; Doc. 16, p. 13, ¶68.
Doc. 1, p. 13, ¶67, 69, and 71; Doc. 3, p. 13, ¶¶ 69 and 71; Doc. 16, p. 13, ¶¶69, 71, and 73.
Doc. 1, p. 13, ¶¶70-71; Doc. 3, p. 14, ¶¶72-73; Doc. 16, p. 14, ¶¶72-75.
Smith had only one to two weeks to live.23 Plaintiffs claim that the next day, Smith was
discharged from OLOL Hospital without the assistance of an interpreter.24 On March 13,
2016, Smith passed away.25
Plaintiffs filed the instant lawsuit on November 23, 2016 asserting claims against
the Defendants arising under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§794 (“RA”), Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C.
§18116 (“ACA”), and the Louisiana Commission on Human Rights, La. R.S. § 51:2231,
et seq. (“LCHR”).26
Plaintiffs claim that the Defendants discriminated against Smith in violation of the
RA on the basis of her disability by denying her meaningful access to the services,
programs, and benefits that the Defendants offered to other individuals, and by refusing
to provide Smith with auxiliary aids and services to ensure effective communication.
Similarly, Plaintiffs allege that the Defendants violated the ACA by discriminating against
and continuing to discriminate against them on the basis of disability, by denying them
meaningful access to services, programs, and benefits offered to other individuals, and
by refusing to provide auxiliary aids and services necessary to ensure effective
communication. Plaintiffs further contend that the Defendants discriminated against
Smith by failing to provide sign language interpreters on site or through operable VRI
Doc. 1, p. 13, ¶71; Doc. 3, p. 14, ¶73; Doc. 16, p.14, ¶¶76-77.
Doc. 1, p. 14, ¶73; Doc. 3, p. 14, ¶75; Doc. 16, p. 14, ¶79.
Doc. 3, p. 8, ¶34; Doc.16, p. 8, ¶34.
Doc. 1. Plaintiffs have filed a First and Second Amended Complaint. Doc. 3 and Doc. 16, respectively.
In the original Complaint, Plaintiffs named Women & Children’s Hospital of Delaware, LLC, as a Defendant.
Subsequently, Plaintiffs filed a Notice of Dismissal as to Women & Children’s Hospital of Delaware, LLC.
Doc. 13. In their Second Amended Complaint, Plaintiffs added a new Defendant, Imperial Health, LLP, as
Dr. Peavy’s alleged employer. Doc. 16.
machines. Additionally, Plaintiffs contend that Defendants have violated the LCHR by
discriminating against them on the basis of Smith’s disability.
As a result of the Defendants’ alleged discriminatory treatment, Plaintiffs assert
that Smith suffered pain, invasion of her civil rights, anxiety, indignity, and death.27
Labouliere also claims that she has avoided jobs as a sign language interpreter, has
difficulty sleeping, experiences nightmares, and suffers from depression, anxiety, and
Labouliere seeks to recover, on behalf of herself and her mother,
compensatory damages, attorney’s fees, costs, and disbursements as authorized by the
respective statutes for Defendants’ alleged discriminatory conduct and deliberate
Before the Court are two Motions to Dismiss: one filed on behalf of the OLOL
Defendants, and another filed on behalf of Dr. Peavy and Imperial Health.29 In both of
the Motions, the Defendants assert that Labouliere lacks standing to bring a private right
of action under the RA, the ACA, and the LCHR.30 They also seek dismissal of all of the
Plaintiffs’ claims because they sound in malpractice, and have not been considered by a
medical review panel. In the alternative, Defendants request that the Court stay the
litigation pending review of the state law claims by a medical review panel. Defendants,
Dr. Peavy and Imperial Health, further object to venue in the United States District Court
for the Middle District of Louisiana. Plaintiffs disagree with the Defendants’ arguments.
Doc. 1, p. 9, ¶46; Doc. 3, p. 10, ¶48; Doc. 16, p. 10, ¶48.
Doc. 1, pp. 9-10, ¶¶47-51; Doc. 3, pp. 10-11, ¶¶49-53; Doc. 16, pp. 10-11, ¶¶49-53.
Doc. 21 and Doc. 23.
Dr. Peavy and Imperial Health adopt the arguments and citations made by the OLOL Defendants in
support of their Motion to Dismiss on the issue of standing and prematurity. Doc. 23-1, pp. 1, 5-6.
On a Rule 12(b)(3) motion to dismiss for improper venue, the court must determine
whether venue is supported by the federal venue statute, 28 U.S.C. § 1391. If venue is
not supported by 28 U.S.C. § 1391, then pursuant to 28 U.S.C. § 1406(a), “[t]he district
court of a district in which is filed a case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.”31 When analyzing a Rule 12(b)(3) motion for improper
venue, “the court must accept as true all allegations in the complaint and resolve all
conflicts in favor of the plaintiff.”32 However, Rule 12(b)(3) allows the court to look at all
evidence in the record “beyond simply those facts alleged in the complaint and its proper
At the motion to dismiss stage, the Court must accept the well-plead factual
allegations in the complaint as true.34 The Court views the complaint in the light most
favorable to the plaintiff, resolving all doubts in his favor.35 However, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
The Court will not “strain to find inferences favorable to the
plaintiff.”37 If the facts as plead allow the Court to conclude that plaintiff’s claims for relief
28 U.S.C. § 1406(a)(1996).
Braspetro Oil Services Co. v. Modec (USA), Inc., 240 Fed.Appx. 612, 615 (5th Cir. 2007).
Lighthouse MGA, L.L.C. v. First Premium Ins. Grp., Inc., 448 Fed.Appx. 512, 514 (5th Cir. 2011)(quoting
Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009)).
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Taha v. William Marsh Rice Univ., Civ. Action No. H-11-2060, 2012 WL 1576099, *2 (S.D.Tex. May 3,
2012)(quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353 (5th Cir. 2004)).
are “plausible,” the motion must be denied.38 To satisfy the plausibility standard, the
plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.”39
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
Is Venue Proper in the Middle District of Louisiana?
Dr. Peavy and Imperial Health challenge whether venue is appropriate in this
Court. Pursuant to 28 U.S.C. § 1391(b), venue is proper in:
a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that
is the subject of the action is situated; or
if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.
Additionally, for venue purposes, “an entity with the capacity to sue and be sued in its
common name under applicable law, whether or not incorporated, shall be deemed to
reside, if a defendant, in any judicial district in which such defendant is subject to the
court’s personal jurisdiction with the request to the civil action in question.”41
Dr. Peavy and Imperial Health argue that because they only practice or conduct
business in Lake Charles, Louisiana, and do not practice or conduct any business in the
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
28 U.S.C. § 1391(c)(2)(2011).
Middle District of Louisiana, venue in the Middle District is improper as to Plaintiffs’ claims
against them. This, however, is not the test for determining whether venue is proper.
Plaintiffs have alleged that both OLOL Hospital and OLOL Foundation are nonprofit corporations domiciled in Baton Rouge and doing business in Louisiana.42 Plaintiffs
have also alleged that OLOL Hospital and OLOL Foundation own, lease, and/or operate
OLOL Hospital and Emergency Room, located in Baton Rouge.43 Considering these
alleged contacts in the Middle District of Louisiana, the Court finds that OLOL Hospital
and OLOL Foundation would be subject to the Court’s personal jurisdiction. Plaintiffs
have also alleged that Dr. Peavy is resident of Lake Charles, Louisiana, and that Imperial
Health is a Louisiana limited liability partnership domiciled in Lake Charles, Louisiana.44
Defendants have not contested these allegations.
Therefore, the Court finds that
because all of the Defendants in this case are residents of the State of Louisiana, and
OLOL Hospital and OLOL Foundation are residents in the Middle District of Louisiana,
then the Middle District of Louisiana is a Court of proper venue per 28 U.S.C. § 1391(b)(1).
The Motion to Dismiss filed by Dr. Peavy and Imperial Health shall be denied on this
Standing: Labouliere’s Associational Discrimination Claims45
In this case, the Defendants’ Motions raise the issue of whether Labouliere has
statutory standing to assert a claim under the RA, the ACA, and the LCHR.46 Statutory
Doc. 1, pp. 4-5, ¶¶8-9; Doc. 3, pp. 4-5, ¶¶8-9; Doc. 16, pp. 4-5, ¶¶8-9.
Doc. 1, pp. 4-5, ¶¶8-9; Doc. 3, pp. 4-5, ¶¶8-9; Doc. 16, pp. 4-5, ¶¶8-9.
Doc. 1, p. 3, ¶6; Doc. 3, p. 3, ¶6; Doc. 16, pp. 3-4, ¶¶6-7.
In this case, the Defendants failed to identify in their respective motions and memoranda the legal
standard they were relying on to support dismissal of Plaintiffs’ claims (i.e., Rule 12(b)(1) or Rule 12(b)(6)).
In federal courts, Article III “standing is perhaps the most important of the jurisdictional doctrines.” United
States v. Hays, 515 U.S. 737, 742 (1995)(internal quotation marks and alterations omitted). “[T]o satisfy
Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
standing involves the merits-based question of whether a plaintiff “falls within the class of
plaintiffs whom Congress has authorized to sue” under a particular statute; that is,
whether the plaintiff has a cause of action under the applicable statute.47 Such an inquiry
“does not implicate subject-matter jurisdiction, i.e, the court’s statutory or constitutional
power to adjudicate the case.”48 Accordingly, the Court shall address the Defendants’
Motions under Rule 12(b)(6), rather than Rule 12(b)(1).49
Labouliere’s RA and ACA Claims
At issue in this case is how broadly the Court should interpret the associational
standing provisions under the RA and the ACA. Because the parties are in agreement
that Labouliere’s RA and ACA claims are analyzed in the same way,50 the Court’s analysis
of Labouliere’s RA claim will also apply to her ACA claim.51
Labouliere alleges individual RA and ACA claims for an injury she allegedly
sustained through her association with Smith. “Under both the RA and the ADA, nondisabled individuals have standing to bring claims when they are injured because of their
traceable to the challenged action of the defendant; and [(]3) it is likely, as opposed to merely speculative,
that the injury will redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000).
Joseph Paul Corp. v. Trademark Custom Homes, Inc., No. 3:16-Civ-A-1651, 2016 WL 4944370, *4 (N.D.
Tex. Sept. 16, 2016)(quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 138788 (2014)).
Id. (citing Lexmark Int’l, Inc., 134 S.Ct. at 1387 n.4 (citation and internal quotation marks omitted)).
“Unlike a dismissal for lack of constitutional standing, which should be granted under Rule 12(b)(1), a
dismissal for lack of prudential or statutory standing is properly granted under Rule 12(b)(6).” Harold H.
Hughes Realty, Inc. v. FNC, Inc., 634 F.3d 787, 808 n.2 (5th Cir. 2011).
“Section 1557 of the [ACA] incorporated the RA’s definition of disability and provides the same protections
for people with disabilities as the RA.” Doc. 21-1, p. 7 (citing Bernius v. Oschner Med. Ctr., No. 2:16-CivA-14730, Doc. 33, pp. 8-9 (E.D. La. December 15, 2016)); Doc. 29, p. 6 n.7.
Section 1557 of the ACA provides: “an individual shall not, on the ground prohibited under Title VI of the
Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), Title IX of the Education Amendments of 1972 (20
U.S.C. § 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.), or section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. § 794), be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under, any health program or activity, any part of which is receiving
Federal financial assistance . . . .” 42 U.S.C. § 18116(a)(2010).
association with a disabled person.”52 The Fifth Circuit has yet to address what standard
applies for determining whether a person has a sufficient “association with a disabled
person” to satisfy the standing requirement of the RA. In light of this void, the parties
have turned to the Eleventh and Second Circuits, which have addressed this very issue,
for support of their opposing positions.
On the one hand, the Plaintiffs argue that the Second Circuit decision, Loeffler v.
Staten Island Univ. Hosp., which supports a broader interpretation of the RA’s standing
provision, should control.53 In sharp contrast, the Defendants argue that the more narrow
interpretation set forth by the Eleventh Circuit in McCullum v. Orlando Reg’l Healthcare
System should apply.54 Defendants have also directed the Court to Bernius v. Oschner,
a recent decision in which Judge Barbier of the Eastern District of Louisiana employed
the narrow definition of associational standing from McCullum and the Loeffler dissent.55
Under the clear text of the ADA, “a non-disabled individual has standing to bring
suit under the ADA only if she was personally discriminated against or denied some
benefit because of her association with a disabled person.”56
Unlike the ADA’s
associational standing provision, the relevant section of the RA provision granting
standing to non-disabled persons, 29 U.S.C. § 794a(a)(2), is less clear. The RA’s
associational standing provision provides as follows: “[t]he remedies, procedures and
rights set forth in title VI of the Civil Rights Act of 1964 … shall be available to any person
aggrieved by any act or failure to act by any” entity subject to the RA.57 This statutory
McCullum v. Orlando Reg’l Healthcare Sys., 768 F.3d 1135, 1142 (11th Cir. 2014)(citations omitted);
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 279-80 (2nd Cir. 2009)).
Loeffler, 582 F.3d 268.
McCullum, 768 F.3d 1135.
Bernius, No. 2:16-Civ-A-14730, Doc. 33.
McCullum, 768 F.3d at 1142 (citing 42 U.S.C. § 12182(b)(1)(E)(1990)).
29 U.S.C. § 794a(a)(2)(2009).
provision does not stand alone. Rather, it is part of a larger statutory context that includes
29 U.S.C. § 794(a)—the RA’s statute prohibiting discriminatory treatment. Section 794(a)
provides that “[n]o otherwise qualified individual with a disability … shall, solely by reason
of her or his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program” covered by the RA.58 In this case, the
parties disagree about whether 29 U.S.C. § 794(a) limits the broader language of 29
U.S.C. § 794a(a)(2).
The Plaintiffs encourage the Court to adopt the reasoning of the Second Circuit in
Loeffler because they contend it is consistent with Supreme Court precedent and the plain
language of the RA and ADA. The Loeffler court construed the standing provision of 29
U.S.C. § 794a(a)(2) as being distinct from the provision prohibiting discriminatory
conduct, 29 U.S.C. § 794(a). The court explained that it would construe the standing
provision of the RA as broadly as possible under the Constitution, irrespective of 29
U.S.C. § 794(a).
The Loeffler court held that “the type of injury a ‘person aggrieved’
suffers need not be ‘exclusion from the participation in, … denial of the benefits of, or …
subjection to discrimination under any program or activity receiving Federal financial
assistance.’”59 Instead, a non-disabled plaintiff need only establish “an injury causally
related to, but separate and distinct from, a disabled person’s injury under the [RA].”60
Additionally, the Plaintiffs argue that the Supreme Court has repeatedly held that
the word “any” should be given an expansive meaning. Therefore, Plaintiffs contend that
29 U.S.C. § 794(a)(2009).
Loeffler, 582 F.3d at 280.
Hence, the Loeffler court concluded that it would construe the standing provision of the RA as broadly as
possible under the Constitution, irrespective of 29 U.S.C. § 794(a).
the phrase “any person aggrieved” should be given its broadest meaning and encompass
“any person,” whether they are disabled or not.
The Court has reviewed the decisions in McCullum and Loeffler. Ultimately, this
Court shares the same concerns as those expressed by Judge Barbier in Bernius and
Chief Judge Jacobs in his Loeffler dissent: that “[t]he [Loeffler] majority’s wide
interpretation of ‘any person aggrieved’ has no evident limiting principle . . . .”61 Hence,
this Court also adopts the holding of McCullum.
In expressly rejecting the holding in Loeffler, the McCullum court held that 29
U.S.C. § 794(a) limited the scope of 29 U.S.C. § 794a(a)(2). In its assessment of the
scope of 29 U.S.C. § 794a(a)(2), the court acknowledged that the word “any” is a
“powerful and broad word.”62 Nevertheless, relying on the language of the Supreme
Court, the McCullum court explained that the “broad language is not limitless” and “a
liberal construction nonetheless can find limits in a text’s language, context, history, and
Ultimately, the McCullum court concluded that “the threshold for
associational standing under both the RA and the ADA is the same: non-disabled persons
have standing to seek relief under either statute only if they allege that they were
personally excluded, personally denied benefits, or personally discriminated against
because of their association with a disabled person.”64
The McCullum court further reasoned that it could not construe the RA standing
provision more broadly than the ADA’s standing provision by covering injuries beyond
Bernius, No. 2:16-Civ-A-14730, Doc. 33, p. 12; Loeffler, 582 F.3d at 287.
McCullum, 768 F.3d at 1142 (quoting United States v. Fleet, 498 F.3d 1225, 1229 (11th Cir. 2007)).
Id. at 1143 (quoting Watson v. Philip Morris Cos., 551 U.S. 142, 147(2007)).
exclusion, denial of benefits, or discrimination that a plaintiff personally suffers.65
court explained that to allow such a broad construction would directly contradict the ADA’s
directive that it must not be construed to apply a lesser standard than the standards
applied under the RA.66 As in Bernius, this Court also declines to apply these lesser
Applying the McCullum standard, the Court finds that Labouliere has failed to
allege that she was personally excluded, denied benefits, or discriminated against
because of her association with Smith. Labouliere claims that because she was required
to interpret for her mother, she was personally denied “goods, services, facilities,
privileges, advantages, accommodations, or other opportunities.”67 As the Defendants
correctly point out, however, they were not required to provide any “goods, services,
facilities, privileges, advantages, accommodations, or other opportunities” to Labouliere
personally. The Court further finds no merit in Labouliere’s attempt to distinguish her
“injury” from the plaintiff’s injury in Bernius in order to show that that she has standing to
assert her claims, because Labouliere’s argument fails to take into account the applicable
standard for associational standing under McCullum.
Accordingly, the Court finds that
Labouliere lacks standing to assert a private right of action under the RA and the ACA,
and these claims shall be dismissed.
Doc. 29, pp. 6 and 8.
Labouliere’s LCHR Claims
Defendants also seek the dismissal of Labouliere’s LCHR claims because she
lacks associational standing to assert such claims. Labouliere does not address the
La. R.S. 51:2247 provides that “it is a discriminatory practice for a person to deny
an individual the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of a place of public accommodation … as defined in
this Chapter, on the grounds of … disability.”68 The LCHR allows for “[a]ny person
deeming himself injured by any alleged violation of [La. R.S. 51:2262 et seq.]” to bring a
civil cause of action.69 Courts interpreting the LCHR have consistently found that it does
not “provide for recovery for loss of consortium or any other derivative damages sustained
by persons other than the direct victim of the alleged discrimination.”70 This Court agrees
with the conclusion reached by these courts. Furthermore, Labouliere has failed to cite
to any case that extends the right of recovery to persons other than the victim of the
alleged discrimination. Accordingly, the Court finds that Labouliere lacks standing to
assert her individual claims under the LCHR and they shall be dismissed.
Are Smith’s Claims Premature Under the LMMA?
Defendants also seek dismissal of Smith’s federal and state law claims as
premature. According to the Defendants, “there can be no question that some, if not all,
LA. REV. STAT. § 51:2247 (1993).
LA. REV. STAT. § 51:2264 (1988).
Salard v. Lowe’s Home Centers, Inc., 904 F. Supp. 569, 572 (W.D. La. 1995); Dowlearn v. Baker Oil
Tools, Inc., 1997 WL 767721, *5 (E.D. La. Dec. 10, 1997)(federal courts “also recognize that the Louisiana
anti-discrimination statutes [i.e., La. R.S. 23:1006 and La. R.S. 51:2321] do not provide causes of action
for individuals other than the victim of the alleged discrimination”); See also, Imbornone v. Treasure Chest
Casino, No. 04-Civ-A-2150, 2006 WL 1235979, *4 n.7 (E.D. La. May 3, 20016)(citing Salard, 904 F.Supp
of plaintiffs’ claims on behalf of” Smith sound in medical malpractice.71
Defendants contend that the claims fall within the purview of the Louisiana Medical
Malpractice Act (“LMMA”), which requires a plaintiff to submit her medical malpractice
claims to a medical review panel for review prior to filing suit.72 To buttress their position,
the Defendants have submitted a copy of Plaintiffs’ request for a medical review panel,
which they contend alleges “nearly identical claims” as those pled in the Complaints
before this Court.73 The Plaintiffs do not dispute Defendants’ characterization of their
request for a medical review panel.
Under the LMMA, “[a]ll medical malpractice claims against health care providers
… other than claims validly agreed for submission to a lawfully binding arbitration
procedure, shall be reviewed by a medical review panel.”74 The LMMA provides that “[n]o
action against a health care provider …, or his insured, may be commenced in any court
before the claimant’s proposed complaint has been presented to a medical review
In conducting its analysis on prematurity, the Court will initially focus on Smith’s
federal law claims, and then address her LCHR claims.
Smith’s Federal Claims
As for the RA and ACA claims, the point of contention between the parties is
whether Smith’s federal claims are “so intertwined with any state law claims for medical
malpractice, or violation of the LCHR, that they cannot be reasonably separated” so as to
Doc. 21-1, p. 8.
Doc. 21-1, pp. 8-9.
Doc. 21-1, p. 9; Doc. 21-2 (The Medical Review Panel Request was submitted by Labouliere on behalf
of her mother on November 23, 2016.).
LA. REV. STAT. § 40:1231.8(A)(1)(a)(2017).
LA. REV. STAT. § 40:1231.8(A)(1)(a)(2017).
warrant their dismissal.76 The Defendants contend that the federal claims and the state
malpractice claims cannot be reasonably separated so that they may be litigated in their
respective courts. Therefore, allowing the federal claims to be litigated in federal court
while the state law claims are considered by a medical review panel “could potentially
result in inconsistent judgments” against the Defendants.77
The Plaintiffs disagree,
arguing that Smith’s federal causes of action need not comply with state law
administrative exhaustion requirements. Their argument relies upon principles of federal
conflict and preemption. After considering the parties’ differing opinions, the Court finds
merit in the Plaintiffs’ position.
As the Plaintiffs correctly note, the Fifth Circuit has held that “private individual
suits to enforce Section 504 rights can be brought without resort to administrative
remedies.”78 The Fifth Circuit has also held that “[a]lthough a plaintiff must exhaust his
or her administrative remedies before pursuing a Rehabilitation Act claim against a
federal agency, it need not do so before suing a federal grantee.”79 The Plaintiffs’
allegations that each of the Defendants are recipients of financial assistance has not been
disputed. Therefore, the Court finds that exhaustion of administrative remedies is not
The Defendants have also offered no authority for their argument that when federal
and state law claims are so intertwined, the federal claims should be dismissed. The lone
case cited by Defendants, Banks v. Wright, only involved state law claims that are clearly
Doc. 21-1, pp. 9-10; Doc. 29, pp. 12-14.
Doc. 21-1, p. 10.
Camenisch v. Univ. of Tex., 616 F.2d 127, 135-36 (5th Cir. 1990), vacated on other grounds 451 U.S.
Taylor v. City of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015)(emphasis original).
encompassed by the LMMA.80 Therefore, the Court finds no merit in the Defendants’
Overall, the Court finds that Judge Barbier’s reasoning in Bernius resolves the
Ultimately, the Supremacy Clause of the United States Constitution controls
the disposition of this issue. See U.S. Const. art. VI, cl. 2. Plaintiffs have
brought a federal claim pursuant to 28 U.S.C. § 1331. Congress did not
create an administrative exhaustion requirement when it passed the
Rehabilitation Act, and the Fifth Circuit has held that administrative
exhaustion is not required in the pursuit of a Rehabilitation Act claim when
the defendant is a federal grantee. See Taylor, 798 F.3d at 284. Congress’
purpose in passing the Rehabilitation Act was to “empower individuals with
disabilities to maximize employment, economic self-sufficiency,
independence, and inclusion and integration into society.” See 29 U.S.C. §
701(b)(1); see also Frame v. City of Arlington, 657 F.3d 215, 230-31 (5th
Cir. 2011)(discussing the purpose of the Rehabilitation Act and ADA). The
Rehabilitation Act attempts to achieve this goal by providing a private cause
of action to obtain relief in federal court. See Prewitt v. U.S. Postal Service,
662 F.2d 292 (5th Cir. 1981)(“Prewitt I”)(discussing the history and purpose
of the Rehabilitation Act). Requiring a Rehabilitation Act plaintiff to exhaust
state administrative procedures would stand in as an obstacle to the
congressional intent of the Rehabilitation Act. See Smith v. State of Ind.,
904 F.Supp. 877, 880 (N.D. Ind. 1995)(finding, in the ADA context, that
“[t]he defendant may not use the Indiana Medical Malpractice Act’s
requirement of presentation of claims to a medical review panel as a means
to trump the plaintiff’s claim under federal law”).81
Relying on the foregoing analysis from Bernius, this Court finds that the
Defendants’ Motions to Dismiss Smith’s RA and ACA claims as premature shall be
Banks v. Wright, 721 So. 2d 1063 (La. Ct.App. 1st Cir. 1998), 97-1869 (involving medical battery claims
for alleged failure to obtain informed consent).
Bernius, No. 2:16-Civ-A-14730, Doc. 33, pp. 18-19.
Because the Court has already dismissed Labouliere’s federal and state law claims in this Ruling for lack
of standing, the Motions seeking dismissal as to her claims on prematurity grounds are denied as moot.
However, the Court’s conclusion that a plaintiff asserting claims under the RA and ACA in federal court
need not wait until a medical review panel completes its review of a complaint before filing suit on his/her
federal claims applies with equal force to Labouliere.
Smith’s LCHR Claims
In response to the Defendants’ prematurity argument regarding Smith’s LCHR
claims, the Plaintiffs argue that Smith’s LCHR claims should not be dismissed if she has
alleged a claim of intentional discrimination. Under Louisiana law, malpractice is defined
as “any unintentional tort or any breach of a contract based on health care or professional
services rendered, or which should have been rendered, by a health care provider, to a
patient.”83 Importantly, Plaintiffs are not arguing that they have only alleged intentional
torts in their Complaints. In fact, the Plaintiffs’ request for a review by a medical review
panel for Smith’s medical malpractice claims indicates quite the opposite. Therefore,
assuming, without finding, that Smith has alleged some claims of intentional
discrimination, the Court finds that she has also alleged claims for unintentional torts that
sound in medical malpractice under Louisiana law.
Unlike Smith’s federal RA and ACA claims, her LCHR claims are subject to the
same procedural requirements as other Louisiana state law claims that have substantial
overlap with the LMMA.
As previously discussed, the Plaintiffs do not contest the
Defendants’ assertion that the allegations in their Complaints filed in this case are “nearly
identical” to those in their request for a medical review panel.
Therefore, pursuant to
LMMA, the Plaintiffs’ Complaints must be presented to a medical review panel prior to the
commencement of an action in any court.84 Accordingly, Smith’s LCHR claims shall be
dismissed as premature.
LA. REV. STAT. § 40:1231.1(A)(13)(2015).
La. R.S. 40:1231.8(B)(1)(a)(i) provides that “[n]o action against a health care provider . . . may be
commenced in any court before the claimant’s proposed complaint has been presented to a medical review
panel . . . .” (2017).
Is a Stay Warranted in This Case Pending the Outcome of the Medical
In the alternative, the Defendants argue that the Court should stay this case while
the state law claims are considered by the medical review panel. Defendants contend
that granting a stay would be in the interest of judicial economy. They specifically argue
that discovery in the proceeding before the medical review panel will be duplicative of the
discovery in the pending action because the claims are “inextricably intertwined,” and that
without a stay they are exposed to potential conflicting or multiple judgments.85
response, Plaintiffs argue that a stay will prejudice them by hindering their ability to
conduct discovery in accordance with the federal rules, cause a delay in the trial date,
and leave the parties without Court involvement to resolve any disputes that might arise.86
Plaintiffs contend that the medical review panel must have its decision issued by February
10, 2018; therefore, any concerns Defendants have can be factored into the drafting of
the Rule 26(f) Status Report.87
“A court’s authority includes the ‘general discretionary power to stay proceedings
before it in the control of its docket and in the interests of justice.’”88 However, the court’s
discretion is not limitless.89 When deciding whether to grant a stay, the courts “must
weigh competing interests and maintain an even balance.”90 The Court has carefully
considered (1) the potential for hardship and inequity imposed on the parties by
proceeding with the action, (2) whether prejudice will result if a stay is imposed, and (3)
Doc. 36, p. 4; Doc. 21-1, p. 11.
Doc. 29, p. 17.
Doc. 29, pp. 16-17.
Clark v. Chet Morrison, Inc., No. 08-Civ-A-4253, 2009 WL 425625, *1 (E.D. La. Feb. 18, 2009)(quoting
McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982); Bugay v. McCain, 2008 WL 2782869 at *1 (E.D.
Wedgeworth v. Fibreboard Corp., 706 F. 2d 541, 545 (5th Cir. 1983).
Id. (citing Landis v. N. American Co., 57 S.Ct. 163, 165-66 (1936)).
the interests of judicial economy.91 Although resolution of Smith’s federal RA and ACA
claims does not necessarily require resolution of her state law claims, her federal claims
are factually connected to her state law claims. The Court agrees with Defendants’
argument that by granting a stay in this case, duplicative discovery would be avoided.
And, as Plaintiffs have admitted, the medical review panel’s decision must be rendered
by February 10, 2018—less than five months away. Hence, the Court finds that Plaintiffs
will not be prejudiced by granting a stay under these particular circumstances.
Accordingly, the Court finds that it is in the interest of judicial economy to stay the instant
litigation pending the completion of the pending medical review panel proceeding among
these same parties.
For the foregoing reasons, the Motion to Dismiss and Alternative Motion to Stay
filed by Our Lady of the Lake Hospital, Inc. and Our Lady of the Lake Foundation, and
the Motion to Dismiss and Alternative Motion to Stay filed by Dr. Todd A. Peavy and
Imperial Health, LLP are hereby GRANTED IN PART and DENIED IN PART.92
The Motion of Dr. Todd A. Peavy and Imperial Health, LLP is denied as to venue.
The Defendants’ Motions are granted as to the claims brought by Plaintiff Katrina
Rivers Labouliere in her individual capacity under the Rehabilitation Act, the Patient
Protection and Affordable Care Act, and the Louisiana Commission of Human Rights.
Plaintiff Katrina Rivers Labouliere’s claims brought under the Rehabilitation Act, the
Falgoust v. Microsoft Corp., No. 0-Civ-A-0779, 2000 WL 462919, *2 (E.D. La. Apr. 19, 2000)(citations
Doc. 21; and Doc. 23.
Patient Protection and Affordable Care Act, and the Louisiana Commission on Human
Rights are hereby dismissed with prejudice.
The Defendants’ Motions are denied as to Katherine Smith’s Rehabilitation Act
claim and Patient Protection and Affordable Care Act claim.
The Defendants’ Motions are granted as to Katherine Smith’s Louisiana
Commission on Human Rights claims.
Katherine Smith’s claims brought under the
Louisiana Commission on Human Rights are hereby dismissed without prejudice.
The Defendants’ Motions are granted as to their request for a stay. The Clerk of
Court is hereby ordered to administratively close this action, Labouliere v. Our Lady of
the Lake Foundation et al. (16-cv-785), in his records.93 Once the medical review panel
issues its decision, either party may move the Court to lift the stay in the instant matter.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on September 29, 2017.
JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
The Court’s entry of a stay in 3:16-cv-00785, shall have no effect on 3:17-cv-00530, 3:17-cv-00509, and
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