MOUNT VERNON - Madison County Circuit Judge Sarah Smith properly preserved a trial that a witness nearly spoiled and her jury properly awarded Kevin Mogensen $3.31 million for lung damage, Fifth District appellate judges ruled on Feb. 4.
They found Smith didn’t abuse her discretion when she struck the pleadings of SCF Lewis and Clark Fleeting and proceeded only on damages.
They found Lewis and Clark Fleeting violated its own motion to sequester witnesses.
When it happened Smith sent jurors out and said she was extremely frustrated.
The Fifth District decision showed her frustration didn’t affect her judgment.
Mogensen worked on Mississippi River barges in Madison County, first for SCF Lewis and Clark Terminals and later for SCF Lewis and Clark Fleeting.
He sought workers' compensation from Terminals for a breathing emergency in February 2018 and sued Fleeting for an emergency in March 2018.
Joseph Hoefert of Godfrey and Benjamin Tobin of East Alton, both of the Pratt and Tobin firm, represent Mogensen.
Douglas Gossow and Giles Howard of Goldstein and Price in St. Louis represent Lewis and Clark Fleeting.
For trial in 2023, they all agreed to exclude any reference to the workers' compensation case.
Lewis and Clark Fleeting moved to keep witnesses out of the room except when testifying and Smith granted the motion.
Witness Billy Balcom who worked the shift with Mogensen testified that a fertilizer barge was supposed to have been cleaned but wasn’t.
He said workers cleaned it with leaf blowers.
“When they blow that stuff it goes everywhere,” he said.
He said it took at least 30 minutes.
“It’s as yellow as you can get and it stinks like pig manure,” he said.
“We looked like a couple of Minions out there afterward.”
Pulmonary doctor Thomas Hyers testified that Mogensen was treated at Veterans Hospital on Feb. 1, 2018, and was cleared to return to full duty in the middle of the month.
He said Alton Memorial admitted Mogensen after the March emergency and intubated his trachea for a day.
Emergency room doctor Salvador Lobianco told jurors Mogensen presented as purple.
Mogensen testified he was honorably discharged from the Marine Corps and went into underwater welding.
He said he dove 280 feet in the Gulf of Mexico.
He said after the February emergency he asked for transfer to Fleeting and was transferred.
He said after the March emergency he proceeded with the shift and tried to keep his wits about him so he didn’t fall off the barge.
His mother Joy Morris of Alabama testified he was the oldest of four children.
She said he was fun, witty and adventurous.
She said he was in a coma when she arrived at Alton Memorial and for a couple of days.
She said he moved to Alabama and she heard him hacking all night.
She said walking up stairs made him winded.
She said he coughed up what looked like pancake batter.
Terminal operations manager Scott Keehner testified that employees used hand held leaf blowers because of the danger in backpack straps over life jackets.
He said the barge was loaded with corn gluten feed.
He said it doesn’t smell like pig manure and it’s brown.
Mogensen’s counsel asked Keehner if anyone told him on that day about testimony that the product was bright yellow.
Keehner said, “Through the lawyers.”
Counsel asked if they told him what prior testimony was and he said yes.
Smith dismissed the jury and asked Keehner when he spoke with the attorneys.
He said almost every day.
She said, “Are you indicating to me that you were told what the color of the substance of the prior testimony was in this case?”
He said, “An orange substance or color, yes.”
Mogensen’s counsel moved to strike the pleadings.
Smith dismissed Keehner and said, “Now we have testimony from a key witness that directly contradicts another witness. I have to walk a very fine line here on attorney client privilege.”
She dismissed the jury for the day and brought Keehner back.
She clarified that Fleeting’s attorneys were attorneys in the workers' compensation case.
She ruled that Keehner worked for Terminals which was not a party and he was an independent witness who should have been excluded.
She asked him what they talked about that morning and he said he took it as preparing him for his testimony.
She asked about prior testimony and he said counsel told him they brought up an orange color and he told them he didn’t handle anything that would be discussed that was orange.
She excused him and told Gossow and Howard they made a specific motion invoking sequestration of witnesses.
She said sequestration ensures there is no collaboration.
“While I do understand that you’re indicating he was represented in the February first matter, the case law in Illinois is clear," she said.
“He is not your client in the facts and the issues that occur in this case.
“It was your own motion for your invocation of that and so I am extremely frustrated.
“This is a very key issue for the jurors to consider as far as not only the credibility of the witness but as far as the actual exposure of the plaintiff.
“I was going to great latitude for your arguments that these two parties are completely separate. Completely separate.
“By counsel’s own infraction you’re trying to indicate that no, it’s all one.”
She granted the motion to strike and gave the case to the jury the next day.
Jurors awarded $2,750,000 for past and future suffering and $500,000 for loss of normal life.
They awarded $60,000 for earnings Mogensen lost in two years after the March emergency.
On appeal, SCF Lewis and Clark Fleeting cited reversals of judges who struck pleadings.
Fifth District judges found those cases didn’t apply.
Justice Thomas Welch wrote, “The court merely granted a motion made by the defendant.
“It is illogical for the defendant now to argue that the scope of its motion was unclear or ambiguous.”
Welch found the jury’s award fair and reasonable.
He found Mogensen’s youth, permanent injuries, restrictions on daily activities and potential future treatments weighed in favor of the award.
Justices Michael McHaney and Judy Cates concurred.