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Perry v. Starr Imdemnity & Liability Co.

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

BENJAMIN PERRY Plaintiff-Appellant

          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 Benjamin Perry

          LAW 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

          Before PITMAN, GARRETT, and STONE, JJ.

          PITMAN, J., concurs in the result.

          GARRETT, J., concurs in the result.

          STONE, J.


         Benjamin 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 2018.

         In 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 conditions.

         The 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.

         Dr. 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 occurred).

         Dr. 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.

         Dr. 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 fusion.[1]
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.[2]

         At 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.

         Dr. 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."

         However, 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 night?
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?
A: Possibly.
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 else?
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 ...

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