EAST ST. LOUIS – Watco Transloading may test the bone density of tugboat deckhand Kevin Beam, U.S. Magistrate Judge Gilbert Sison ruled on June 21.
He found good cause for an independent medical examination.
Watco previously admitted liability for an accident that injured Beam in 2017, but it doesn’t admit liability for all the damages he has requested.
Sison resolved a dispute over the bone scan upon referral by District Judge Staci Yandle, who plans to hold trial in December.
Beam, a Randolph County resident, helped load coal into barges at Watco’s terminal on Route 3 in Rockwood.
In 2017, a steel cable snapped and struck his back.
His first diagnosis showed only a fractured rib.
Surgeons operated on his back in March 2018, and again two months later.
In October 2018, the firms of Meyers and Flowers in St. Charles, Ill., and Arnold and Itkin in Houston, Texas, filed suit for Beam.
Surgeons operated on him twice in 2019.
Last year they performed neck fusion.
His primary physician since the accident, Victoria Do, testified last October that Beam had no surgeries planned and his pain was mild.
This February, surgeons performed another fusion and redid the first surgery.
Watco’s expert John Mattingly stated that the last surgery wasn’t necessary because of the accident but because of osteoporosis or osteopenia.
Beam’s radiologist Amesur Sandeep stated that those conditions needed consideration, and he recommended a bone scan.
Watco moved for independent examination in May, after Beam missed an imaging appointment that Watco had scheduled in Fenton, Mo.
Watco counsel Colter Kennedy of the Fox Smith firm in St. Louis claimed Beam placed the condition of his bones at issue.
“It is the contention of plaintiff and his experts that his recent spine issues stem from the incident in question for this case,” Kennedy wrote.
“One of Watco’s contentions is that plaintiff’s medical issues were caused by an underlying degenerative condition.”
He wrote that a scan is not invasive and it should last about an hour.
Attorney Roland Christensen of Houston responded that an orthopedic surgeon examined Beam thoroughly for Watco.
Christensen claimed bone density wasn’t in controversy or relevant.
He claimed the force of the blow broke a vertebra.
He claimed a scan would provide no evidence of Beam’s condition at the time.
“Whether or not plaintiff’s bone density contributed to his need for a second surgery is irrelevant,” Christensen wrote.
“Plaintiff would not have needed any surgery if he had not been injured in the first place.
“No matter how strong or weak plaintiff’s bones are, forces were still needed to fracture them.”
Sison heard argument on June 4, and took it under advisement.
His order stated that a party moving for independent examination must demonstrate greater need than discovery rules require.
He wrote that demonstration of mere relevance is insufficient.
He wrote that Watco must show Beam’s potential underlying condition may affect the extent of damages.
“As the plaintiff has put his physical condition into controversy by asserting that he suffered an injury at the defendant’s hands, it is only fair to provide that he may not be permitted to recover his judgment unless he permits an inquiry into the true nature of his condition,” Sison wrote.
He found Beam requested damages for treatments that exceeded his initial diagnosis and the estimate of required treatments.
He quoted a decision from the Central District of Illinois that if a defendant aggravates a condition, it is liable only to the extent of the aggravation.
He wrote that in such a case, damages should reflect the likelihood that another cause would have injured the plaintiff regardless of a defendant’s actions.
Watco owns terminals along rivers and coasts around the nation, including one at Wood River and one at Cahokia.
Headquarters are in Pittsburg, Kan.