JOSEPH W. URQUHART
LARRY SPENCER, III, ET AL. JAMES NYE
ZURICH AMERICAN INC. CO., SYSCO NEW ORLEANS LLC & LARRY A. SPENCER JOSEPH W. URQUHART
LARRY SPENCER, III, SYSCO CORP. AND ZURICH AMERICAN INSURANCE CO. JAMES H. NYE
ZURICH AMERICAN INC., CO., SYSCO NEW ORLEANS LLC & LARRY A. SPENCER JOSEPH W. URQUHART
LARRY SPENCER III, SYSCO CORP., AND ZURICH AMERICAN INSURANCE CO. JAMES H. NYE
ZURICH AMERICAN INS. CO, SYSCO NEW ORLEANS LLC & LARRY A. SPENCER
FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 119-588 C\W
119-878, DIVISION "D" Honorable Kirk A. Vaughn,
Ippolito LAW OFFICES OF FRANK D. IPPOLITO, Gregory J. Noto
NOTO LAW FIRM COUNSEL FOR PLAINTIFF/APPELLEE/APPELLANT,
JOSEPH W. URQUHART
E. Mayeaux ROBERT L. MANARD, III, PLC D/B/A MANARD &
MAYEAUX Energy Centre, COUNSEL FOR
PLAINTIFF/APPELLEE/APPELLANT, JAMES NYE
A. Langlois, III Brittany A. Cooper GAUDRY RANSON HIGGINS
& GREMILLION, LLC COUNSEL FOR
DEFENDANTS/APPELLANTS/APPELLEES, LARRY SPENCER, III, SYSCO
FOOD SERVICES OF NEW ORELANS & ZURICH AMERICAN INSUSRANCE
composed of Judge Joy Cossich Lobrano, Judge Regina
Bartholomew Woods, Judge Paula A. Brown
A. BROWN, JUDGE
a tort suit. The defendants, Larry Spencer, III, Sysco Food
Services Of New Orleans ("Sysco") and Zurich
American Insurance Company, (collectively, the
"Defendants"), appeal the trial court's finding
of liability and award of damages in favor of the plaintiffs,
Joseph W. Urquhart and James M. Nye (collectively, the
"Plaintiffs"). Plaintiffs appeal the trial
court's damage awards, arguing the awards are abusively
low. For the reasons that follow, we affirm.
AND PROCEDURAL BACKGROUND
Urquhart and Mr. Nye were involved in a motor vehicle
accident with Mr. Spencer on May 9, 2012. Mr. Nye was the
driver of the vehicle and Mr. Urquhart was his passenger. At
the time of the accident, Mr. Spencer was within the course
and scope of his employment with Sysco.
trial in this matter was held on January 12, 13, and 14,
2015.At trial, Mr. Nye testified he was
traveling westbound on E. Judge Perez Drive in Chalmette,
Louisiana in the right lane of travel. At the same time, Mr.
Spencer made a U-turn from the eastbound side of E. Judge
Perez Drive, crossed into the right travel lane of the
westbound side of West Judge Perez Drive traffic, and
collided with Plaintiffs' vehicle. Mr. Spencer was
driving a tractor trailer.
Straub, an acquaintance of Mr. Urquhart, witnessed the
accident. He testified that his vehicle and Plaintiffs'
vehicle were in the right-hand lane of travel on E. Judge
Perez Drive. Mr. Straub said he saw the vehicle driven by Mr.
Spencer leave the left lane of travel, enter the right lane,
and strike Plaintiffs' vehicle.
Spencer, on the other hand, testified he was travelling
eastbound on E. Judge Perez Drive and was making a U-turn to
head westbound on E. Judge Perez Drive. When he initiated his
U-turn, he saw Plaintiffs' vehicle across the road in a
parking lot. He testified that he waited in the median area
to complete the U-turn; however, as he swung into the roadway
to complete his turn, Plaintiffs' vehicle ran into the
rear of his vehicle.
parties offered testimony from accident reconstruction
experts. Plaintiffs' expert, Raymond Burkhart, placed
fault for the accident on Mr. Spencer. Mr. Burkhart examined
the accident scene, photographs of damage to each vehicle,
and witness testimony, including the deposition of Mr.
Spencer. He testified the physical damage to Mr. Nye's
vehicle was totally inconsistent with Mr. Spencer's
version of the accident. Mr. Burkhart opined that the
accident was caused as a result of Mr. Spencer's failure
to check his right side view mirror before entering the right
lane of travel, and Mr. Spencer's failure to yield.
Defendants' expert, Joseph Blaschke, concluded Mr. Nye
was at fault for the accident. In reaching his conclusion,
Mr. Blaschke relayed that he inspected Defendants'
vehicle, the accident site, reviewed photographs of Mr.
Nye's vehicle, and the deposition testimony of Mr.
Urquhart, Mr. Spencer, the investigating police officer, Mr.
Straub, and Mr. Burkhart. Mr. Blaschke testified that Mr.
Spencer's testimony was more consistent with how the
accident occurred. Mr. Blaschke opined that Mr. Spencer
entered the roadway first, and as Mr. Spencer moved into the
right lane to complete his turn, Mr. Nye struck his vehicle,
thereby causing the accident.
medical records, bills and deposition testimony of Mr.
Urquhart were admitted into evidence. The medical records showed
Mr. Urquhart claimed injuries to his neck, back, knee, left
elbow and left hip; had complaints of radiating pain; and
required use of a walking cane for ambulation. Mr. Urquhart
obtained conservative medical treatment for nearly a year and
trial, Logan Urquhart and Damien Urquhart, Mr. Urquhart's
sons, testified on behalf of their father. Both admitted Mr.
Urquhart was disabled at the time of the accident; however,
they said he was active before the accident and became a
"couch potato" after the accident. Each further
testified that their father suffered on-going effects from
the accident until his death. Mr. Urquhart's medical
expenses totaled $10, 605.00.
Urquhart's medical records, along with his deposition
testimony, also showed he had more than a dozen heart
attacks, three accidents, and complained of chronic back,
neck, and hip pain before the May 2012 accident. He regularly
visited a pain management clinic where he received pain
medication in the months leading up to the May 2012 accident.
A medical report dated April 11, 2012, revealed Mr. Urquhart
associated his pain with a 1980 work accident and described
his pain as "disabling" and "unbearable."
Mr. Nye, he testified he injured his neck and back in the May
2012 accident. He underwent multi-level back surgery in
October 2012 and was later diagnosed with reflex sympathetic
dystrophy ("RSD"). Mr. Nye acknowledged he had
undergone two previous back surgeries in connection with a
2005 motor vehicular accident; however, he stated that he had
mostly recovered and was relatively healthy and active until
the present accident. He said he played basketball, golf, and
had started working as a personal trainer in 2010. He
testified that he had twenty-six clients who paid him roughly
$35.00 per session. Mr. Nye further testified that his
injuries from the May 2012 accident not only prevented him
from working as a personal trainer, but also derailed his
intent to return to work at Domino Sugar Refinery, his
Nye's sons, Tyler Nye and Hunter Nye, testified that Mr.
Nye was active before the accident, had worked as personal
trainer, and wanted to return to work. Likewise, Trent Diaz,
a friend and former Domino co-worker, testified that Mr. Nye
wanted to return to work at Domino.
Kenneth Vogel, Mr. Nye's neurosurgeon, who also performed
Mr. Nye's back surgery in 2008, related Mr. Nye's
October 2012 multi-level back surgery to the May 2012
accident. He also testified that Mr. Nye's RSD diagnosis
was caused as a result of the May 2012 accident. Dr. Vogel
recommended palliative medical treatment to deal with Mr.
Nye's on-going physical pain complaints.
Nye's vocational rehabilitation expert, Bobby Roberts,
testified that Mr. Nye could not return to work. He further
testified that Mr. Nye might possibly require a cervical
anterior fusion. Mr. Roberts consulted with Dr. Jonathan
Thompson-a neuroscience pain specialist who had evaluated Mr.
Nye-to develop a future medical needs costs treatment plan.
The plan included Dr. Thompson's recommendation that Mr.
Nye's future medical treatment consist of implantation of
a spinal stimulator, psychological counseling, pain
medication, physical therapy, MRIs, and attendant
care. Mr. Roberts said the costs for these
procedures amounted to $1, 816, 113.00. The parties
stipulated to past medical expenses of $167, 563.85.
Shael Wolfson, Mr. Nye's expert economist, testified that
Mr. Nye's injuries, and his inability to return to work
as a result of his injuries, resulted in lost wages and loss
of wage earning capacity, totaling $841, 728.00.
addition to the May 2012 accident, the evidence revealed Mr.
Nye's medical history included four previous
accidents-December 2005, June 2009, November 2010, and
February 2012-and a subsequent motor vehicle accident on
August 22, 2013. His medical records showed that he underwent
a micro-discectomy in 2006 and a multi-level cage fusion in
treated with Dr. William Batherson, a chiropractor, for neck
and back injuries resulting from the 2005, 2009, and the
February and May 2012 accidents. Dr. Batherson testified that
Mr. Nye's May 2012 accident caused the most neurological
damage to his lumbar spine. However, Dr. Batherson conceded
that he referred Mr. Nye for a neurological consult for
possible surgical intervention in 2010 and 2011, and that Mr.
Nye did not tell him about his subsequent August 2013
accident. His records also indicated that Mr. Nye's low
back pain and radicular symptoms had worsened after the
February 2012 accident and that Mr. Nye had reported on-going
low back, left leg, and left foot pain as recently as two
days before the May 2012 accident.
medical records of Dr. Steve Morris, III, a Mississippi pain
specialist, were introduced into evidence. They showed Mr.
Nye started monthly treatments with Dr. Morris in January
2009. Each month, Dr. Morris prescribed pain and anxiety
prescriptions, such as Roxicodone, Soma 350, Xanax, and
Ambien. On a scale of one to ten, Mr. Nye consistently
described his pain level-both before and after the May 2012
accident-as a "four" with medication and a
"ten" without medication.
cross-examination, Dr. Vogel admitted that Mr. Nye had given
him an incomplete medical history. He testified he was
unaware that Mr. Nye had worked as a trainer and did not know
about the amount of pain medication or level of pain
complaints noted in Dr. Morris' records. Dr. Vogel
conceded he relied on Mr. Nye to give an accurate medical
history in order for him to establish the causal connection
between Mr. Nye's May 2012 accident and his injury
complaints. Nevertheless, based upon his treatment of Mr.