Boston’s Big Dig tragedy expected to trigger new wave of litigation
When the family of Milena Del Valle, who was killed when part of the Big Dig tunnel ceiling crushed the car she was riding in, gets around to filing a wrongful death lawsuit, that suit is expected to trigger legal fights among all the parties that have been involved with the design, management and construction of the $15 billion public project, according to lawyers familiar with such cases.
“There will be lots of finger-pointing,” noted James Harrington, who adds there will be numerous legal, technical, insurance and other contractual issues to resolve. Harrington is a partner with Robins Kaplan Miller and Ciresi LLP in Boston.
“Whenever there is a tragedy like this, anybody who touches the project is at risk of being sued,” agreed Jim Dorr, a defense lawyer with the Chicago firm, Wildman Harrold.
Among the candidates to be defendants in any suit are the design firm and project manager, Bechtel/Parsons Brinckerhoff; the main contractor, Modern Continental (now part of Jay Cashman); the Central Artery Tunnel Project; the Massachusetts Turnpike Authority, and various subcontractors. Manufacturers could also be targeted if there emerges any proof they knew of a defect in their product.
Punitive damages
The stakes could be high. Massachusetts’ wrongful death statute permits punitive damages and any award could be “very substantial,” added Dorr.
While state law caps the liability of the public agency, the Turnpike Authority, at $100,000 in damages, there is no such cap shielding private firms.
Federal investigators are also looking into other tunnel construction projects around the country that used the same method to affix panels.
While lawyers agree there will be great pressure to settle out of court, they note that resulting litigation will still take at least three or four years and probably longer if criminal charges are pursued since parties will be restricted in talking.
It is not yet known exactly what went wrong but speculation has centered on the loosening of bolts that were used to secure the heavy ceiling panels to the roof of the tunnel. Questions have been raised about whether the bolts were installed correctly, whether the epoxy used with the bolts was properly mixed and applied, even whether the bolting method and panels used were appropriate.
Several state and federal investigations of the tunnel are underway. Inspectors have discovered hundreds of additional ceiling panels with potential problems. The Interstate 90- airport connector tunnel where the accident occurred has been closed indefinitely, as have two other tunnels.
Design/manage
Harrington says the troubles surrounding the Big Dig raise questions about the wisdom of contracts where the design firm doubles as project manager and whether there were sufficient checks-and-balances. He points out that instead of a technical expert overseeing Bechtel/Parsons Brinckerhoff, there was a political entity, the Turnpike Authority.
“Bechtel Parsons has an excellent reputation but we all make mistakes,” Harrington said. He said such projects should have another layer of expert monitoring, especially given that public safety is at risk.
Attorney General Tom Reilly is considering bringing criminal charges related to Del Valle’s death. His office has begun issuing subpoenas to firms with anything to do with the use of the ceiling panels, including the Turnpike Authority and designer/project manager Bechtel/Parsons Brinckerhoff.
Reilly has said that project managers knew of problems with the ceiling bolting system back in 1999 but might have ignored the warnings.
Reilly had been in negotiations to free the design and construction firms from future liability for claims related to some 200 alleged errors in construction in exchange for a lump sum payment of $108 million. However, Reilly suspended those negotiations after learning of the Del Valle tragedy.
Bechtel/Parsons Brinckerhoff defended its work. “Supporting concrete ceiling panels by anchoring bolts to the roof with epoxy adhesive is widely and successfully used throughout the construction industry,” the company said in a statement.
Modern Continental, the contractor of the section being investigated, has also defended its work. The company said that its work “fully complied with the plans and specifications provided by the Central Artery Tunnel Project. In addition, the work was inspected and approved by the Central Artery Tunnel Project.”
AIG is the lead insurer on the Big Dig under an owner-controlled insurance program for workers’ compensation and general liability.
The section of the Big Dig tunnel where the ceiling is being investigated connects the Mass Turnpike (Interstate-90) to the airport. It was one of the last sections of the mega-project to be completed; it opened in 2003.
The Big Dig buried one major interstate under the city, connected the state’s turnpike to the airport and erected the widest cable-stayed bridge in the world — all without shutting down the city. It has been hailed as a monumental engineering achievement. But it has come in for criticism for cost overruns and various problems, including water leaks and the alleged use of substandard concrete.