Beam v. Watco Transloading, LLC

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KEVIN BEAM, Plaintiff, v. WATCO TRANSLOADING, LLC, Defendant.

No. 18-CV-2018-SMY

United States District Court, S.D. Illinois

November 8, 2022

MEMORANDUM AND ORDER

STACI M. YANDLE UNITED STATES DISTRICT JUDGE

Plaintiff Kevin Beam was injured on November 12, 2017, when he was struck by a metal cable while unloading coal barges on a floating dock at the Cora Illinois Terminal owned by his employer, Defendant Watco Transloading, LLC (“Watco”). At the time, Beam was working as a deckhand.

In a Second Amended Complaint, Beam asserted claims of negligence unseaworthiness, and maintenance and cure, pursuant to the Jones Act negligence, 46 U.S.C. § 30104. Liability having been established on summary judgment (Doc. 128), the case proceeded to trial on the issues of causation and damages.

Following a five-day bench trial (Docs. 173-177), the Court now makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

Prior Injuries and Treatment

In 2011, Beam was involved in a car accident during which he hit a tree. (Tr. Vol. II at page 253 lines 17-19). As a result of the accident, he suffered a sprain to his right arm and sought medical treatment. No surgery was required for his injury. (Id. at page 253 line 20 through p. 254 line 1). Beam did not miss any workdays due to the accident, and his injury did not affect his ability to do his job. (Id. at page 254 lines 7-12).

In 2015, Beam slipped and fell on a set of stairs. (Tr. Vol. II at page 252 line 23 through page 253 line 1). He sought medical treatment after his fall. (Id. at page 253 lines 2-6). His doctors diagnosed bruising. (Id. at page 253 lines 7-9). Beam did not miss any workdays due to the fall. (Id. at page 253 lines 10-16).

In June 2017, Beam was involved in a motor vehicle accident during which he was rear-ended. (Tr. Vol. II at page 249 lines 17-19). He received medical care following the accident including an x-ray of his hand and ribs. (Id. at page 249 line 25 through page 250 line 4). He later underwent an x-ray and CT scan of his back (Id. at page 250 lines 11-22) and received chiropractic care and a corticosteroid injection. (Id. at page 252 lines 5-15). Beam did not miss any workdays due to his June 2017 injuries. (Id. at page 252 lines 1-4).

Beam began treating with Dr. Jodi Buskohl, a licensed chiropractor, in January 2016. (Deposition of Jodi Buskohl page 6 lines 10-13). On January 15, 2016, he informed her that his back had been painful for 35 years. (Id. at pages 10-11; D. Ex. 88 at page 2). Prior to the subject incident, Dr. Buskohl determined that Beam was suffering from chronic neck, mid back and lower back pain as a result of “cumulative postural stresses over the years and previous injuries, the aging process, just everyday things that happen to humans.” (Deposition of Jodi Buskohl pages 20-21). When she last saw Beam on September 27, 2017 she concluded that he had suffered permanent injury to his spine in the area of his neck, back, and throughout his torso; attributable to his prior injury history and everyday postural stress. (Id. at pages 44-45). She anticipated that he would continue to experience pain in his neck, thoracic spine, and lumbar spine for the remainder of his life. (Id. at page 45).

Employment and the Accident

On November 12, 2017, Beam was employed by Watco and was working as a deckhand with the river crew. (Tr. Vol. II at page 260 line 22 through page 261 line 9 and page 262 line 911). When the incident occurred, he was standing towards the downriver end of the dock facing the river and the barge. (Id. at page 291 lines 14-19). He stepped up on the dock to give a dock reading, stepped back, and was hit on the right side of his hard hat, shoulder, and back by a large wire cable that was used to pull the barges along the loading area. (Id. at page 262 lines 15-19, 2024, page 263 lines 14-20, and page 289 line 23 through page 290 line 1). The cable weighed 5407.5 pounds (Tr. Vol. III at page 505 lines 16-19; 23-page 506 line 2) and was 1,545 feet long. (Id. at page 505 lines 20-22). Beam was transported to the hospital by ambulance. (Tr. Vol. II at page 265 lines 21-25).

Expert Testimony Regarding Force of Impact/Causation

Watco presented Rick van Hemmen as an expert witness. Van Hemmen is a licensed Professional Engineer and Diplomate in Forensic Engineering with experience in reviewing wire rope failures and the installation and evaluation of barge haul systems. He was retained by Watco to analyze the loads and forces associated with the broken cable and the injuries caused to Beam by the impact of the cable. (D. Ex. 7 at page 1). He offered the following testimony and opinions at trial:

The cable that struck Beam ran through a winch and pully system that was designed to move barges up and down the coal dock for loading between the most upstream cell (cell number 1) and the most downstream cell (cell number 8). (Tr. Vol. III at pages 472-475; D. Ex. 7 at page 2). The cable ran a total length of about 1,340 feet between cells 1 and 8, hanging in a catenary shape between two pulleys. (Tr. Vol. III at pages 480-482; D. Ex. 7 at pages 2-3). Beam was near the most downstream cell (cell 8) when the cable broke in its center section, a “thousand feet up” river from Beam's position. (Deposition of John Korando page 65; Deposition of Mark Williams pages 50-51). Beam was at a spot on the dock near cell 8 when he was struck by the barge haul cable. (Tr. Vol. II at page 290; D. Ex. 125).

The cable did not “whip” Beam; but, rather, it slackened and dropped down, with about 800 feet of the cable landing in the river. (Deposition of John Wingerter pages 22-23 & 55-56; Deposition of John Korando page 65). The combination of Beam's position near the downstream attachment point of the cable (cell 8) and the cable's deceleration after its break in the center section mitigated the cable's impact on Beam. (D. Ex. 7 at pages 7-11). Beam was not struck by the entire cable. Despite the significant total weight, most of the cable was already on the dock or in the river by the time part of the cable made contact with Beam, rendering that contact to have the force of a “strong and unexpected push in the back.” (Tr. Vol. III at pages 493-494 & 538).

The Court finds van Hemmen's opinions largely speculative and unreliable, based upon his failure to take key measurements and conduct relevant testing to support his conclusions: He did not conduct testing to determine the tension of the wire when it broke (Tr. Vol. III, at 498:520); he acknowledged that the location where the wire broke would affect the impact, but did not conduct testing to determine where the cable broke (Id. at 498:21-499:18); he opined that the wire would have been in a catenary shape when it broke, but did not conduct testing to determine the shape of the wire at the time of the incident (Id. at 502:22-503:15); he opined that the height of the wire at the time of the incident would affect the impact, but did not conduct testing to determine the actual height (Id. at 503:16-504:17); and he did not calculate the speed the cable was traveling when it struck Beam (Id. at 507:5-11). Additionally, he admitted on cross examination that he could not state with any reasonable degree of certainty the force that was involved when the cable struck Beam. (Id. at 513:22-514:2).

Medical Evidence

ER Treatment: The emergency medical technician that first treated Beam immediately after the incident in November 2017 noted his complaints of “upper back pain when he took too deep an upper breath” and pain in his right wrist. (D. Ex. 180 at page 5). She also noted that Beam “denied hitting his head or any loss of consciousness.. .“denied any head or neck pain and denied any neck or back pain (along his spine) upon palpation.” (Id.). After treating at Memorial Hospital on the date of the incident, Beam sought additional treatment at the Chester Clinic with his family practitioner, Dr. James R. Krieg, and Dr. Krieg's Physician's Assistant, Jamie Hess. (D. Exs. 83 and 84).

Dr. James R. Krieg: Jamie Hess' notes from November 14, 2017 indicate that Beam was experiencing pain in his “right shoulder, right elbow, right wrist and right fifth rib area.” (Id.). Her notes from November 28, 2017, indicate that Beam was still experiencing pain from his rib fracture and right shoulder pain. (Id.).

Dr. Krieg saw Beam on December 4, 2017. (Deposition of James R. Krieg pages 24-27). Beam reported that he was still feeling pain in the area of his rib fracture and tenderness in the area of his right elbow. (Id.). Beam made no complaint of pain in his back or spine, and noted that the pain in his shoulder had “basically resolved.” (Id. at page 27).

On December 18, 2017, Beam visited Dr. Krieg and made his first recorded complaint of back pain since the November 12, 2017, incident. (Id. at pages 32-33). Dr. Krieg noted tenderness in Beam's mid and lower lumbar region and noted that Beam's range of motion was adequate. (Id. at pages 33-34). As of Beam's follow-up visit with Dr. Krieg on January 10, 2018, he had no noted complaints of wrist pain. (Id. at pages 50-51).

Dr. Krieg referred Beam for additional medical imaging for his complaints of back pain to Dr. Swastik Sinha, a local orthopedic surgeon, for treatment. (Id. at pages 53-54; Deposition of Swastik Sinha at pages 9-11).

Dr Swastik Sinha: Dr. Sinha diagnosed Beam with an acute compression fracture at ¶ 7 disc protrusions at ¶ 7-8 and T11-12. (Deposition of Swastik Sinha at page 16). Dr. Sinha did not view this as a surgical condition. He prescribed a back brace and expected Beam's T7 fracture to heal within 6 to 12 weeks. (Id. at pages 19-20 & 30). In Dr. Sinha's...