JOHN E. ACKER AND RAQUEL S. ACKER, INDIVIDUALLY AND AS ADMINISTRATORS FOR THEIR MINOR CHILDREN, ALYSSA ACKER AND DEVIN J. ACKER
AMERICA FIRST INSURANCE COMPANY, JIMMY LEE, AND EARL'S PLUMBING & HEATING, LLC.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 723-217, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, JOHN E. ACKER AND RAQUEL S.
ACKER James B. Guest
COUNSEL FOR DEFENDANT/APPELLEE, AMERICAN FIRST INSURANCE
COMPANY, JIMMY LEE AND EARL'S PLUMBING AND HEATING, LLC
Paul M. Elvir, Jr.
composed of Jude G. Gravois, Robert M. Murphy, and Hans J.
G. GRAVOIS JUDGE
John E. Acker and Raquel S. Acker, appeal damage awards
rendered in their favor by a jury, arguing that the jury
abused its discretion in awarding them inadequate general
damages and in failing to award loss of consortium damages in
favor of their minor children. They also argue that the trial
court erred in denying their motion for judgment
notwithstanding the verdict, or in the alternative for a new
trial, or in the alternative for additur. For the following
reasons, we affirm the trial court's judgment rendered
pursuant to the jury's verdict. We further affirm the
trial court's judgment that denied plaintiffs' motion
for judgment notwithstanding the verdict, or in the
alternative for a new trial, or in the alternative for
AND PROCEDURAL HISTORY
matter arises from a vehicular accident that occurred on
February 7, 2012 on Interstate Highway 10 ("I-10")
in Metairie, Louisiana, between plaintiffs' vehicle (a
Chevy Tahoe SUV) and a dump truck owned by defendant,
Earl's Plumbing & Heating, L.L.C. ("Earl's
Plumbing"), and being driven by its employee, Jimmy Lee.
On January 24, 2013, Mr. and Mrs. Acker filed a petition for
damages against Earl's Plumbing and Mr. Lee, seeking
damages they allegedly sustained as a result of said
accident.  A jury trial was conducted on the matter
on November 3 and 4, 2015.
accident in question occurred as plaintiffs were on their way
to pick up an insulin pump for their daughter, Alyssa, who
was seated in the back seat of their vehicle. Plaintiffs were
traveling in the right eastbound lane of I-10 near the
Veterans Boulevard overpass. Mr. Lee was also traveling
eastbound in the center lane of I-10 a short distance behind
plaintiffs' vehicle. As Mr. Lee drove up the overpass, he
changed into the right lane of travel in anticipation of
exiting the interstate at its next exit. As Mr. Lee came over
the overpass, he saw that plaintiffs' vehicle was braking
because of a slowed or stopped vehicle (hereinafter, the
"third party/unknown vehicle") in front of
plaintiffs' vehicle. Mr. Lee attempted to slow down and
also quickly attempted to avoid plaintiffs' vehicle by
changing back into the center lane, but in doing so, the left
side of his dump truck struck a Wal-Mart tractor-trailer. The
impact of that contact pushed Mr. Lee's dump truck back
into the direction of plaintiffs' lane of travel. Mr.
Acker testified that he saw the dump truck coming up quickly
behind his vehicle and attempted to avoid the dump truck by
steering his vehicle to the right. Mr. Lee was able to avoid
striking the back of plaintiffs' vehicle, but in the
process of passing along the left side of plaintiffs'
vehicle, scraped plaintiffs' vehicle, causing scuffing,
scraping, and other relatively minor damages to the
driver's side of plaintiffs' vehicle, including
knocking loose the left rear wheel fender trim of
plaintiffs' vehicle, as well as dislodging the
driver's side mirror of plaintiffs' vehicle.
the accident, after speaking with the police, plaintiffs
continued on their errand. The next day, after feeling his
back and neck "cramping up, " Mr. Acker went to see
Dr. Mitchell Brien, a chiropractor who had treated him
following a previous car accident in 2008. Mr. Acker
complained to Dr. Brien of not being able to fully turn his
neck, and also of hearing grinding when he did turn it, as
well as back pain. Following a full examination, Dr. Brien
released Mr. Acker to full duty at work as an equipment
operator and ordered conservative treatment twice a week for
several months. After about eight months, Mr. Acker's
back pain resolved, but not his neck symptoms. Consequently,
Dr. Brien ordered an MRI, which he determined showed bulging
discs in Mr. Acker's neck. In November of 2012, Mr. Acker
was referred to Dr. Lucien Miranne, a neurosurgeon. The
evidence shows that Mr. Acker did not further treat with Dr.
Brien after his referral to Dr. Miranne.
Miranne ordered that Mr. Acker undergo several additional
diagnostic tests, including a myelogram and an E.M.G. study.
These studies showed that Mr. Acker, who was 44 years old at
the time of this injury, had a "disc spur complex"
at "C4-5." Dr. Miranne, who testified as an expert at
trial, said that these findings indicated evidence of both
old and new changes to the disc area. Dr. Miranne had no
reason to doubt that Mr. Acker's neck symptoms were
caused by the instant accident, but felt that no surgery was
indicated at the present time and could not say that surgery
was definitely indicated in the future. Dr. Miranne testified
that Mr. Acker did not tell him about his previous accidents.
Acker testified regarding his past accidents and injuries. He
said that in 1986, he was in a car accident involving an
overturned vehicle, for which he filed a lawsuit. In 1998, he
was in a second car accident in which he sustained back and
neck injuries, for which he sought chiropractic treatment
from Dr. Brien. Mr. Acker also filed a lawsuit in connection
with that accident.
Acker slipped and fell at his work place in 1998, and was off
of work under disability for approximately two years while he
underwent conservative treatment for back symptoms. He
refused recommended surgery. That job entailed heavy lifting.
He testified that he was able to return to the same type of
work, labor and equipment operating, by practicing yoga,
martial arts, and weaning off of pain medication. In 2008,
Mr. Acker was involved in another car accident, injuring his
back again, for which he filed a lawsuit. His pain resolved
with chiropractic treatment, and according to him, he was not
symptomatic at the time of the instant accident.
Acker testified that he has always participated in martial
arts. He admitted that he was treated for a groin muscle
injury he sustained in 2013, after the instant accident,
while allegedly attempting to do a front or forward flip.
Acker, thirty-three years old at the time of the instant
accident, also sought treatment with Dr. Brien. Her
complaints to him after this accident consisted primarily of
lingering low back pain, with radiation to the left buttock,
though she also initially reported headaches and neck pain.
She was also treated conservatively by Dr. Brien for several
months, with twice weekly heat, stretching, massage, and
chiropractic adjustment, which she said helped alleviate her
symptoms for several days, but which would return after that.
When Mrs. Acker's reported symptoms did not abate, Dr.
Brien ordered an MRI, which was performed in October of 2012
and which showed a bulging disc at
"L4-5." She was also referred to Dr. Miranne for
Miranne compared the findings of Mrs. Acker's 2012 MRI to
a previous MRI scan of Mrs. Acker from 2008, when she had
injured her back at work, and opined that the disc herniation
was not present on the earlier scan. He related her current
symptoms to the 2012 accident at issue. However, he did not
recommend surgery for Mrs. Acker.
Acker testified to a history of several accidents as well. In
2008, she injured her back at work lifting heavy pallets. She
missed four months of work and was treated by Dr. Ralph
Gessner, a chiropractor. In 2009, she was in a car accident
that caused serious damage to her vehicle, for which she was
at fault. However, she denied being injured in that accident.
Acker testified at trial that she can no longer participate
in Zumba, or play basketball with her son, or ride ...