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

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATHY SHERROD, SURVIVOR OF * CIVIL ACTION NO. 25-1248
SHELDON SHERROD
* JUDGE ELDON E. FALLON
VERSUS
* MAGISTRATE JUDGE
NEXION HEALTH AT MARRERO, INC. EVA J. DOSSIER
D/B/A MARRERO HEALTHCARE CENTER *
AND NEXION HEALTH MANAGEMENT,
INC. *
* * * * * * *
ORDER & REASONS
Before the Court is a Motion to Set Recoverable Damages filed by Defendants Nexion
Health at Marrero, Inc., d/b/a Marrero Healthcare Center (“Nexion Health at Marrero”) and Nexion
Health Management Inc. (“Nexion Management”) (collectively, “Defendants”). R. Doc. 176.
Plaintiff Kathy Sherrod opposes the motion. R. Doc. 184. Defendants replied. R. Doc. 188.
Considering the record, briefing, and applicable law, the Court rules as follows:
I. BACKGROUND
Plaintiff Kathy Sherrod is the surviving spouse of Sheldon Sherrod, a former resident of
Marrero Healthcare Center. R. Doc. 1-1 at 1. Marrero Healthcare Center is a nursing home owned
and operated by Nexion Health at Marrero and managed by Nexion Management. Id.
In August 2023, Mr. Sherrod was experiencing difficulties with breathing and balance, and
was no longer able to get out of bed, use the restroom, or bathe independently. R. Doc. 133-4 at
18. Plaintiff was unable to care for Mr. Sherrod at home in his condition. Id. On August 22, Plaintiff
visited Marrero Healthcare Center to inquire about her husband becoming a resident at the facility.
Id. at 22–26. Plaintiff asked facility representatives about the care provided to residents, including
residents’ meal schedules, the frequency with which staff members bathed the residents, and
whether staff members assisted residents in going outside. Id. at 31–32. Plaintiff testified in
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deposition that staff members told her that her husband “would be in good hands,” that there “was
nothing . . . to worry about,” and that “[Mr. Sherrod] would have the best care.” Id. at 32–33.
Plaintiff further testified she was informed the facility was “very well staffed.” R. Doc. 133 at 15.
As part of the registration process, Marrero Healthcare Center presented Plaintiff with a
Statement of Resident Rights form. R. Doc. 113-3. This form included an acknowledgement of
roughly two dozen rights Mr. Sherrod would hold as a resident at the facility, including rights to
“all care necessary,” to “safe, decent, and clean conditions,” to “be free from abuse and
exploitation,” and to “be treated with courtesy, consideration, and respect.” Id. at 11. Plaintiff
registered Mr. Sherrod by signing this form along with a Nursing Facility Admission and Financial
Agreement. R. Doc. 113-3.
Mr. Sherrod lived at the Marrero Healthcare Center for a period of roughly four months,
from August 22, 2023, to December 22, 2023. R. Doc. 1-1 at 1. Plaintiff maintains that the facility
was understaffed during this time, and that as a result, Mr. Sherrod received inadequate care
leading to the advancement of his medical ailments and premature death. Plaintiff proceeds in this
action against Defendants on a fraud claim pursuant to La. Civ. Code art. 1953. R. Doc. 15. Plaintiff
alleges that Defendants intentionally misrepresented and concealed their violation of statutory and
regulatory requirements governing the minimum staff necessary to adequately operate a nursing
home. Plaintiff represents that had she known Marrero Healthcare Center was understaffed, she
would never have signed the admission agreement and Mr. Sherrod would not have resided at the
facility. Plaintiff seeks damages and attorney fees under La. Civ. Code art. 1958. Doc. 1-1 at 11.
II. PRESENT MOTION
Defendants move for a judgment barring Plaintiff from recovering nonpecuniary damages
at trial and precluding Plaintiff from introducing evidence unrelated to pecuniary losses. R. Doc.
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176-1 at 1. Defendants maintain that the recovery of nonpecuniary damages is impermissible under
La. Civ. Code art. 1998 because Plaintiff did not hold a significant nonpecuniary interest in the
subject admission agreement. Id. at 2–3.1
Plaintiff opposes the motion. R. Doc. 184. First, Plaintiff maintains that the instant motion
is untimely because it is a dispositive motion subject to a non-evidentiary pretrial motion deadline
that Defendants failed to meet. Id. at 4–5. Second, Plaintiff argues that the recovery of
nonpecuniary damages under art. 1998 is permissible in the instant case because the admission
agreement was intended to gratify a significant nonpecuniary interest. Id. at 8.
III. DISCUSSION
La. Civ. Code art. 1998 governs the recovery of nonpecuniary losses in contract cases,
including fraud claims arising under art. 1953.2 Pursuant to art. 1998, “[d]amages for nonpecuniary
loss may be recovered when the contract, because of its nature, is intended to gratify a
nonpecuniary interest and, because of the circumstances surrounding the formation or the non-
performance of the contract, the obligor knew, or should have known, that his failure to perform
would cause that kind of loss.” Art. 1998. Unpacked, this provision permits the recovery of
nonpecuniaries where two conditions are satisfied: (1) the plaintiff “intended to gratify a
1 Defendants additionally argue that Plaintiff should be barred from seeking nonpecuniary damages pursuant
to Article 1958 because she never pled entitlement to this item of damages in her Petition for Damages. R. Doc. 176-
1 at 2 n.2. Plaintiff’s Petition sought “all damages resulting from” Defendants’ fraud “under La. C.C. art. 1958.” R.
Doc. 1-1 at 11. Article 1958 adopts the damage provisions set forth in the Code’s “general provision on contract
damages,” including Article 1998, which provides for nonpecuniary damages. See infra, note 2. Plaintiff’s invocation
of Article 1958 was sufficient to put Defendants on notice that Plaintiff may claim an entitlement to nonpecuniary
damages.
2 La. Civ. Code art. 1958 sets forth the damages available for Article 1953 fraud claims. Comment (c) to Article
1958 provides that “the general provisions on damages” found within the Code title “Conventional Obligations”
dictate recovery under art. 1958. See also Priority E.M.S. v. Crescent City E.M.S., 2001-2171, p. 16 (La. App. 4 Cir.
10/16/02), 829 So.2d 1066, 1076, writ denied, 2002-3111 (La. 2/21/03), 837 So.2d 632; Stutts v. Melton, 2013-0557,
p. 9 (La. 10/15/13), 130 So.3d 808, 814–18. Article 1998 is one such general provision.
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nonpecuniary interest” by entering the agreement; and (2) the defendant “knew, or should have
known, that his failure to perform would cause” the plaintiff to suffer a nonpecuniary loss.
Revision Comment (c) to art. 1998 defines a nonpecuniary interest as “one intended to
satisfy an interest of a spiritual order, such as a contract to create a work of art, or a contract to
conduct scientific research, or a contract involving matters of sentimental value.” The first
requirement—that the plaintiff “intended to gratify a nonpecuniary interest”—may be satisfied in
“hybrid, or mixed, situation[s]” where a plaintiff enters a contract “to gratify both pecuniary and
nonpecuniary interests.” Young v. Ford Motor Co., 595 So. 2d 1123, 1133 (La. 1992). The plaintiff
need only show that a nonpecuniary interest “constitute[d] . . . . one of the significant interests that
[they] intended to gratify” by entering the agreement. Id. “[T]he nature of the contract (including
the facts and circumstances attending its formation)” dictate whether the gratification of a
nonpecuniary interest constitutes a significant interest. Id. at 1124.
Plaintiff directs the Court to two cases permitting the recovery of nonpecuniary damages
under art. 1998 that she contends are analogous to the present matter. First, in Smith v. University
Animal Clinic, Inc., the Louisiana Third Circuit Court of Appeal allowed the recovery of
nonpecuniary losses in an action involving the breach of a contract to board a house pet. 2009-
745, p. 1, 3 (La. App. 3 Cir. 2/10/10), 30 So. 3d 1154, 1155, 1157, writ denied, 2010-0566 (La.
5/28/10), 36 So. 3d 247. In the court’s view, “[t]he contract to board [] went beyond simply paying
someone to feed a cat,” and clearly “involved matters of a sentimental value,” satisfying Revision
Comment (c)’s definition of a nonpecuniary interest. Id. at 1157. The boarding service had
advertised itself as providing “tender loving care” to the boarded pets to keep them “happy and
active.” Id. at 1157–58. The intrinsic nature of the business coupled with the defendant’s
representations was sufficient to find that the contract was made for the gratification of a
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nonpecuniary interest and the defendant knew or should have known that its failure to perform
would cause a nonpecuniary loss. Id. at 1157.
Second, Free v. Franklin Guest Home concerned a suit brought against a nursing home on
behalf of a resident for breach of contract and negligence. 463 So. 2d 865, 873 (La. Ct. App. 1985),
writ denied sub nom. Free v. Franklin Guest Home, 467 So.2d 535 (La.1985). Free was decided
under art. 1998’s predecessor, La. Civ. Code art. 1934, which similarly permitted the recovery of
nonpecuniary damages where the object of a contract was the gratification of a nonpecuniary
interest.3 There, the Louisiana Second Circuit Court of Appeal allowed the recovery of
nonpecuniary losses for the breach of the nursing home agreement, reasoning “[t]he contract was
not one simply for room, or board, or linens and beddings, but was one for [the resident’s] complete
care and well-being.” Id. at 874. The court further emphasized that, “[i]n a document entitled
‘Patient’s Rights,’ the home promised to treat [the resident] with ‘consideration, respect, and full
recognition of his dignity and individuality.’” Id.
The Court finds Smith and Free instructive, and consistent with their reasoning, concludes
that Plaintiff may recover nonpecuniary damages in the instant action.4 Like Smith’s boarding
service and Free’s nursing home, the nature of the contract involved matters of a sentimental
nature. Plaintiff contracted for the complete care of her husband, who, due to his medical ailments,
relied on the assistance of others to carry out the activities of his daily life in a safe, comfortable,
and dignified way. When Plaintiff visited Marrero Healthcare Center, she inquired about multiple
facets of the residents’ lives, from meal schedules, to the frequency of assisted bathing, to whether
mobility-impaired residents were given assistance in going outside. According to Plaintiff, staff
members represented that Mr. Sherrod “would be in good hands,” and that Plaintiff had “nothing
3 See Young, 595 So.2d at 1133 (art. 1998 “preserve[d] the substance of source article 1934(3)”).
4 The Court elects not to resolve whether the instant motion is timely.
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. . . to worry about.” R. Doc. 133-4 at 32–33. And Defendants, in presenting Plaintiff with a
Statement of Residents rights, held themselves out as providing a “safe, decent” environment
where Mr. Sherrod would be “treated with courtesy, consideration and respect.” Id. at 113-3 at 11.
In the Court’s view, these facts, alongside the intrinsic nature of the nursing home contract at issue,
are sufficient to conclude that Plaintiff entered the admission agreement for the gratification of a
significant nonpecuniary interest and Defendants knew or should have known that their
purportedly fraudulent conduct would cause a nonpecuniary loss. Pursuant to art. 1998, Plaintiff
may recover nonpecuniary damages.
IV. CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Defendants’ Motion to Set Recoverable Damages, R. Doc. 176, is
hereby DENIED.
New Orleans, Louisiana, this 12th day of October, 2026.
THE HONORABLE ELDON E. FALLON
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