Appealed from the Twenty-Sixth Judicial District Court for
the Parish of Bossier, Louisiana Trial Court No. 148883.
Honorable Michael Owens Craig, Judge
MORRIS, DEWITT & SAVOIE, LLC By: Brandon Trey Morris G.
Adam Savoie Meagan E. Shadinger Counsel for Appellant
OFFICES OF KYLE M. ROBINSON By: Kyle M. Robinson GIEGER,
LABORDE & LAPEROUSE, LLC By: Rachel Guajardo Webre
Michael D. Cangelosi Counsel for Appellees Starr Indemnity
& Liability Company and Humberton Mata
THOMPSON, COE, COUSINS, & IRONS By: Scott T. Winstead
Doris Ann Louise Royce Counsel for Appellee Yellowjacket
Oilfield Services, LLC
PITMAN, GARRETT, and STONE, JJ.
PITMAN, J., concurs in the result.
GARRETT, J., concurs in the result.
AND PROCEDURAL HISTORY
Perry (the "plaintiff") suffered back and neck
injuries in an automobile collision on September 14, 2015. He
was a passenger in a Ford F-250 driven by Humberto Mata
("Mata"), who crashed the F-250 into the rear end
of another vehicle. Mata was in the course and scope of his
employment for Yellow Jacket Oilfield Services, LLC
("Yellow Jacket"), at the time of the collision.
Starr Indemnity & Liability Company ("Starr")
issued a liability insurance policy covering Mata and Yellow
Jacket in connection with the subject accident. The plaintiff
filed a personal injury action against Mata, Yellow Jacket,
and Starr, which was decided via jury trial held in April of
early January of 2017, Dr. Donald Smith ("Dr.
Smith") conducted a physical examination of the
plaintiff pursuant to La. C.C.P. art. 1464. Dr. Smith
testified that, in his medical examination of the plaintiff,
the plaintiff denied having any pre-existing neck or back
trial court admitted Dr. Smith as an expert in spine surgery.
He testified that he reviewed the plaintiff's
pre-accident and post-accident medical records relating to
his back and neck pain. These records reflect that the
plaintiff obtained treatment for back and neck pain on
numerous occasions prior to the accident, as early as 2009,
when the plaintiff told his chiropractor that he felt
"90 years old." The pre-accident medical records
revealed that the plaintiff, at times, suffered significant
pain if he stood or sat for too long, and sometimes could not
sleep well because of his pain. He also rated his back pain
as high as "7/10, " and only as low as "5/10,
" months before the accident. The plaintiff underwent
treatment for these pre-existing conditions within the year
preceding the subject collision, and was diagnosed with a
herniated disc in 2015, prior to the wreck. Dr. Smith opined
that the post-accident MRIs of the plaintiff's spine
reflected pre-existing degenerative disc disease in two
joints of his cervical spine and two joints of his lumbar
spine. He further described the affected lumbar joints as
bulging discs. On cross-examination, the plaintiff admitted
that he suffered from pre-existing back injuries significant
enough that he once required emergency room treatment and
narcotic pain medication.
Smith opined that the wreck aggravated the plaintiff's
pre-existing conditions in both his low back and his neck.
However, Dr. Smith stated that he believed the aggravation in
the plaintiff's neck to be only temporary. Finally, Dr.
Smith testified that it was difficult to precisely judge the
extent of aggravation caused by the wreck (as opposed to what
the plaintiff's condition would be had the wreck not
Pierce Nunley ("Dr. Nunley") began treating the
plaintiff two days after the wreck. Dr. Nunley gave the
plaintiff steroid injections in his cervical spine and lumbar
spine to control his pain. The plaintiff had a total of six
cervical injections between December 28, 2015, and a week
before the trial in April of 2018. In January of 2017, Dr.
Nunley conducted a two-level lumbar fusion surgery on the
plaintiff. After the lumbar fusion surgery, the plaintiff
only had two lumbar injections. Dr. Nunley explained that,
during the first year after the surgery, these injections
were necessarily limited because the steroid could inhibit
the bone fusion that the surgery was intended to cause.
Nunley was deposed in June of 2017. Therein, he testified he
could not state that the plaintiff would probably need a
cervical fusion surgery in the future; however, he testified
he would be able to render a prognosis after the
plaintiff's one-year postoperative visit in January of
2018. Nonetheless, on June 27, 2017, (roughly 5 weeks after
his deposition) Dr. Nunley collaborated with the
plaintiff's lifecare planner, Lacy Sapp, and formulated
the following lifecare plan for the plaintiff:
Option 1. The plaintiff would receive
cervical and lumbar injections 3 to 4 times per year for the
rest of his life, and, 20 to 30 years later, would have a
second lumbar fusion at the levels adjacent to his prior
Option 2. The plaintiff would undergo three
additional spine surgeries: (1) a second lumbar fusion at the
adjacent levels; (2) a cervical fusion; and (3) a second
cervical fusion at the adjacent levels. Under this option,
the plaintiff would also receive lumbar injections 3 to 4
times per year for the rest of his life.
trial, Dr. Nunley was accepted as an expert in spine
research, spine treatment, and spine surgery. On direct
examination, he testified that the wreck aggravated the
plaintiff's pre-existing injuries and necessitated the
future treatment outlined in the lifecare plan. He also
testified that the wreck caused the plaintiff to go from
having neck and back pain intermittently to having such pain
constantly, and that this pain would continue for the rest of
the plaintiff's life.
Nunley stated at trial the plaintiff was more likely to need
the course of treatment reflected in "option 2"than
that reflected in "option 1."
on cross-examination, Dr. Nunley seemed to contradict himself
regarding whether it was more likely than not that the
plaintiff's need for the treatment in the lifecare plan
would be nonexistent but for the accident:
Q:… Do you agree that all the treatment that is in
your life care plan is related solely more probably than
not… to September 14, 2015 and what happened that
A:… I think to say that its solely I don't think
you can necessarily say that.
Q: Because some of that care he would have received anyway
because of the [pre-existing] condition of his back?
Q:… Can you say more probably than not that all of the
care that you have recommended in the lifecare plan is
related only to the [subject] accident…and nothing
A: Well see here is the quandary. I can't say more
probably than not that it wouldn't be.
Q: So can you say more probably than not ...