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Urquhart v. Spencer

Court of Appeals of Louisiana, Fourth Circuit

July 27, 2017

JOSEPH W. URQUHART
v.
LARRY SPENCER, III, ET AL. JAMES NYE
v.
ZURICH AMERICAN INC. CO., SYSCO NEW ORLEANS LLC & LARRY A. SPENCER JOSEPH W. URQUHART
v.
LARRY SPENCER, III, SYSCO CORP. AND ZURICH AMERICAN INSURANCE CO. JAMES H. NYE
v.
ZURICH AMERICAN INC., CO., SYSCO NEW ORLEANS LLC & LARRY A. SPENCER JOSEPH W. URQUHART
v.
LARRY SPENCER III, SYSCO CORP., AND ZURICH AMERICAN INSURANCE CO. JAMES H. NYE
v.
ZURICH AMERICAN INS. CO, SYSCO NEW ORLEANS LLC & LARRY A. SPENCER

         APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 119-588 C\W 119-878, DIVISION "D" Honorable Kirk A. Vaughn, Judge

          Frank Ippolito LAW OFFICES OF FRANK D. IPPOLITO, Gregory J. Noto NOTO LAW FIRM COUNSEL FOR PLAINTIFF/APPELLEE/APPELLANT, JOSEPH W. URQUHART

          Paul E. Mayeaux ROBERT L. MANARD, III, PLC D/B/A MANARD & MAYEAUX Energy Centre, COUNSEL FOR PLAINTIFF/APPELLEE/APPELLANT, JAMES NYE

          Wade 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 COMPAY

          Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods, Judge Paula A. Brown

          PAULA A. BROWN, JUDGE

         This is 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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.

         A judge trial in this matter was held on January 12, 13, and 14, 2015.[1]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.

         Larry 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.

         Mr. 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.

         Both 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.

         Contrarily, 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.

         The medical records, bills and deposition testimony of Mr. Urquhart were admitted into evidence.[2] 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 a half.

         At 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.[3] Mr. Urquhart's medical expenses totaled $10, 605.00.

         Mr. 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."

         As to 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").[4] 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 previous employer.

         Mr. 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.

         Dr. 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[5] to deal with Mr. Nye's on-going physical pain complaints.

         Mr. 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.[6] 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.

         Dr. 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.

         In 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 2008.

         Mr. Nye 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.

         The 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.

         On 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. Nye, ...


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