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Diamond Offshore Management Company v. Marks2/27/2003
he injury had on Marks's quality of life:
The undisputed credible evidence demonstrated that prior to his injury , Archie Marks enjoyed an active life working, assisting in household chores, and participating in the active raising of his children. Pre-injury, he was active with his children in church, Boy Scouts, baseball and basketball, and he was otherwise a physically healthy and robust individual. Post-injury, he is unable to play with his children in any active or meaningful way. He is unable to assist in the household chores as he once did. This has caused a dramatic decrease in his quality of life. His wife had to take on as many as three jobs at a time. During one period immediately after the incident, she worked two full time jobs. He has experienced difficulty paying his bills and even had a vehicle repossessed. He worries extensively about his economic future and that of his family. His injury has interfered with his marital relations with his wife and has adversely affected their sex life. He has suffered noticeable and permanent disfigurement and scarring. . . He can no longer sit in church due to the pain he suffers if he is not allowed to change positions often. He is unable to sleep well and, in fact, sleeps primarily in a chair, not in his bed with his wife.
. Donnie Carlisle, a vocational expert, testified at trial that Marks reads at a first-grade level, spells at a kindergarten level, and performs arithmetic at a kindergarten level, and that this places Marks in the lowest .02% (two hundredths of one percent) of the country in all three categories. Marks's previous work history entailed only heavy manual unskilled labor. It was Carlisle's considered opinion that Marks is permanently and totally disabled and is not capable of meaningful or gainful employment. Carlisle based this opinion on Marks's unskilled work history, permanent physical restrictions and impairment ratings, and his cognitive and intellectual deficits. The trial court found Carlisle's testing and testimony credible, supported by the greater weight of the evidence, and highly persuasive.
. Diamond's expert, Nancy Favolaro, testified that Marks was capable of gainful employment at between $5.50 and $6.00 per hour and could work an eight-hour day. She identified five available local jobs which he could perform: seafood processor, small parts assembly, pastry industry worker, sewing machine operator, and salad bar attendant. However, the trial court found Favolaro's testimony lacked credibility, for several reasons, including that she had never met Marks or performed any tests on him. Furthermore, she did not inform potential employers of his medical limitations, nor did she identify these potential employers which she claimed had available jobs, in order that Marks could submit a timely application to see if they would hire him. The trial court concluded that Favolaro's job search survey "appears to have been nothing more than an academic exercise with no practical consequence or objective in mind other than to offer a contrary opinion herein." The trial court concluded:
Mr. Carlisle's testimony is most consistent with the evidence and the demeanor of Archie Marks at trial. The FCE indicated that Archie Marks gave consistent effort. Mr. Carlisle stated that his efforts in the FCE demonstrated a person who was very motivated to return to work. The testimony of Tamara Marks also supports this. She indicated that she had assisted Archie Marks in submitting numerous job applications after his injury, but that no one had responded. Finally, the evidence at trial indicates that Archie Marks found it extremely difficult to perform even the most basic tasks. The uncontradicted testimony was that
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Mississippi Personal Injury Attorneys
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