EDWARDSVILLE – Madison County Circuit Judge Sarah Smith plans to start trial Jan. 9 for former Lewis and Clark Fleeting tugboat worker Kevin Mogensen, who claims dust from corn and other products damaged his lungs.
Mogensen claims Lewis and Clark failed to provide a safe place to work and should have provided a respirator.
Lewis and Clark claims he chose to stop using an available respirator.
It adds that Mogensen's conditions existed previously and his injuries weren’t its fault.
Lewis and Clark claims Mogensen was treated for asthma as a child and from 1997 to 2002.
Mogensen worked on the Velda Taylor on March 17, 2018, as it moved loaded barges at the Granite City dock of the Chain of Rocks Canal.
He left when his shift ended and never returned.
Attorney Benjamin Tobin of East Alton filed suit for him later that year under federal law for injuries to seamen and general maritime law.
In 2020, Lewis and Clark filed suit in U. S. district court to apply federal law that limits a seaman’s injury award to the value of the vessel.
Lewis and Clark claimed the value of the Velda Taylor didn’t exceed $800,000.
The suit seeking to apply federal law remains pending before Chief District Judge Nancy Rosenstengel, who expects a joint report after trial.
Lewis and Clark counsel Neal Settergren of St. Louis moved for summary judgment in Madison County last June.
He claimed Mogensen admitted a respirator was impractical.
He also claimed Mogensen didn’t develop evidence to suggest Lewis and Clark should have equipped deckhands with respirators for outside work.
Settergren wrote, “The standard for seaworthiness is not perfection but reasonable fitness.”
Tobin responded that “even a temporary and unforeseeable malfunction or failure of a piece of equipment is sufficient to establish an unseaworthy condition.”
He argued that corn, wheat, and other material produced swirling clouds of dust.
Tobin claimed the ship frequently came close enough to a barge that crew members had no alternative but to inhale it.
Settergren replied that suggesting the existence of an alternative was insufficient to satisfy Mogensen’s burden of asserting an unseaworthy condition.
“The burden is on the plaintiff to actually produce evidence that the procedure or equipment used was unsafe and the vessel is not seaworthy,” he wrote.
Settergren claimed Mogensen moved to Alabama and subsequently to Florida.
He also claimed Mogensen earned more than $24 an hour in 2021, greatly exceeding his $14.10 wage at Lewis and Clark.
Judge Smith granted summary judgment to Lewis and Clark only on Mogensen’s claim that he suffered a first injury in February 2018.