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Dupont v. Costco Wholesale Corp.

United States District Court, E.D. Louisiana

November 13, 2019


         SECTION: "S" (4)



         IT IS HEREBY ORDERED that the Motion to Strike Claims for Medical Damages (Rec. Doc. 105) filed by defendant Costco Wholesale Corporation ("Costco") is DENIED.

         IT IS FURTHER ORDERED that Costco's Local Rule 72.2 Motion for Review of Magistrate's Order (Rec. Doc. 111) is DENIED, and the Magistrate Judge's Order is affirmed in all respects.


         On February 13, 2019, this court entered an order requiring plaintiffs counsel to produce an itemization of all paid medical expenses in this case, including any discount obtained, within ten days of entry of its order, barring which the claims would be stricken. Rec. Doc. 78. On February 22, 2019, plaintiffs counsel filed a declaration that he had not made any payments toward plaintiffs medical expenses, was unaware of any payments having been made, and neither he nor the plaintiff had negotiated any discounts with the providers. Rec. Doc. 81. Attached to the declaration was an itemization of charges for plaintiffs medical care, as reported and provided by Medport LA, LLC ("Medport"), the company who had purchased the receivables.

         The charges, itemized by provider, total $205, 673.78. In every instance the "Current Owner" of each medical expense is identified as Medport LA, LLC, one of two litigation financing companies reflected on plaintiffs medical bills as the "insurer." Each of the medical expenses listed was also identified as being "payable to Medport L.A." Costco maintains that this response was inadequate, because it does not reflect actual amounts paid on plaintiffs behalf, or any discounts obtained. The gist of Costco's complaint is that it believes that plaintiff and/or her attorneys have negotiated a discount for the medical costs, but she is seeking damages in the amount of the total billed and thus demanding an impermissible windfall. Accordingly, Costco served a subpoena on seven of plaintiffs medical providers, namely, DISC of Louisiana, D.I.S. Slidell, LLC, Fairway Medical Center/Avala Hospital, Omega Physicians, Lonseth Interventional Pain Centers, Orthopedic Center for Sports Medicine, and Diagnostic Monitoring Services, seeking:

Any and all documents in your possession regarding any payments received by your facility, including but not limited to any purchase or payment of your facility's accounts receivable, in whole or in part for treatment rendered at your facility to Lisa Dupont, 8614 Grant Street, New Orleans, La 70127, DOB 8/30/1960, S'SN REDACTED. This subpoena is to encompass any and all records of payments, any and all purchases of accounts receivable, in whole or in part, and any and all other agreements regarding the reimbursement, in whole or in part, of medical expenses billed by you for treatment rendered to the above identified patient, including but not limited to, copies of any and all correspondence, agreements, contracts, checks and any and all other documents representing communications between your facility and Medport LA, LLC and/or Total Medical Concepts, LLC.

         All of the providers objected to the subpoenas, and Medport also filed an objection. In response to the subpoena, Fairway Medical Center/Avala Hospital ("FMC") and D.I.S. Slidell, LLC, ("DIS") provided documentation of the amount billed and amount paid by Medport, not Lisa Dupont. FMC provided documentation that it received $81, 833.90 which was purchased by Medport for $32, 733.56. DIS produced records showing that it billed $3762.00 and received $1650.00. However, neither FMC nor DIS produced its contract with Medport. According to Coscto, DISC of Louisiana, Diagnostic Monitoring Services, and Omega Physicians failed to reply at all. The Orthopedic Center provided some records, including a letter to Total Medical Concepts indicating that the accepted costs for the patient's left knee arfhroscopy with partial medial meniscectomy and possible partial lateral meniscectomy and chondroplasty is $7, 333.00.

         Costco filed a motion to compel compliance with the subpoenas, which along with the providers' objections, were heard before the Magistrate Judge on September 25, 2019. At the hearing, the Magistrate Judge ordered that Medport produce a copy of its contract with all healthcare providers for in camera inspection by Friday, September 27, 2019. In an order entered on October 15, 2019, she granted in part and denied in part Costco's motion to compel. For those providers who had provided documentation of the amounts billed, the motion was denied. For those providers who had not provided documentation of the amounts billed, the motion was granted to the extent it required them to provide that documentation. As to the production of the medical funding agreement, the Magistrate Judge found that neither the funding agreement nor the actual amounts received were relevant nor probative of any claim in the case. Rec. Doc. 109, p. 10. She went on to state:

... the in camera review of the funding agreements further bolster this position because confidentiality is a term of the agreement between the funding company and the medical provider. Additionally, the provider transferred any entitlement to payment for services to the funding company and assigned its right to collect from the patient/plaintiff to the funding company. In exchange for not having to wait until the completion of the case it agreed to take less than it was entitled to recover for the services it rendered to the plaintiff. This however has no bearing on the plaintiffs entitlement to recover the full amount of medical costs because she is on the hook for the full costs.



         Motion ...

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