$6 Million Settlement in Big Dig Accident

NY Times ^ | 12.26.07

[Perdogg]

The family of a woman killed when a Big Dig highway tunnel collapsed on her car in 2006 has reached a $6 million settlement with the epoxy supplier blamed for the accident, family representatives and company officials said this week.

Powers Fasteners Inc. agreed to settle a wrongful-death lawsuit filed last year by the family of the woman, Milena Del Valle, Raipher Pellegrino, the lawyer who represented her widower, said Monday night.

[Perdogg]

Well, at least the engineers were cleared. Which I knew would be the case.

[tired1]

Company officials said they had informed engineers overseeing the project that the fast-set epoxy was intended only for “short-term loading.”

submit to the deal or be sued into oblivion.

[null and void]

submit to the deal or be sued into oblivion.

Pretty much.

The local goverment people decided to use an epoxy the supplier said wasn't good for that application.

Therefore, sue the supplier.

It's a wonder we have any manufacturing capability left in these United States. *sigh*

[Perdogg]

Did the engineers approved the use of epoxy?

[tired1]

Did the engineers approved the use of epoxy?

does it matter? the deal is done.

[razorback-bert]

Found a scapegoat.

[null and void]

Related story:

Boston's $14.8B Big Dig Finally Complete

[afortiori]

Nobody was cleared. Only the epoxy manufacturer settled. The plaintiffs now look to repeat this kind of settlement again and again with respect to each of the dozen or so defendants in the case to the tune of $50+ million. I'm not sure a jury would enrich the plaitiffs to the level they hope, however.

[null and void]

I'm not sure a jury would enrich the plaitiffs to the level they hope, however.

I bet the jurors are selected for their ignorance of any previous settlements, and da judge forbids enlightening them.

It's not inconceivable that each jury thinks they are hearing the only case the poor bereaved family that has any chance of making the eeeeeevil capitalists pay.

[the invisib1e hand]

the epoxy suppliers? so that's on whose space the ball of the roullette wheel of justice landed?

[null and void]

On the first turn of the wheel, yes...

[Diana in Wisconsin]

Who has this picture of Kerry and Fat Teddy dressed like bums, walking down a country road?

I blame those two Grifter Senators for all of this.

[afortiori]

Typically, the court will reduce the jury award by “offsetting” the payments obtained from other defendants who previously settled.

I still think a jury may be reluctant to make a huge award simply on order to enrich the plaintiffs beyond reason, depending on composition of the jury pool.

The exception would be a very strongly worded instruction for punitive damages that asks the jury to take into account the size of the defendant corporations and the amounts necessary to “punish” them. For that to happen, however, there would need be near criminal conduct, and the only defendant charged criminally has just settled for precisely that reason.

Altogether, that may explain why the remaining defendants will hang tough, unless some new damaging evidence surfaces.

[groanup]

I blame those two Grifter Senators for all of this.

You can bet all of the contractors and suppliers were big contributors.

[afortiori]

Here’s a well-written Globe article on the topic.

http://www.boston.com/news/traffic/bigdig/articles/2007/06/27/lawyers_eye_huge_big_dig_settlement?mode=PF

Excerpts:

Punitive damages in the hundreds of millions would be unprecedented in Massachusetts, where large jury awards are rare. In one of the biggest cases ever, a Suffolk County jury in 2000 awarded $27.5 million to the estate of a Russian immigrant who suffocated beneath a Green Line trolley as an MBTA rescue effort disintegrated into “a tragedy of errors.” A judge later reduced the penalty to $1 million, arguing that the MBTA was only careless and did not intend to harm the man.

“There haven’t been large punitive damage awards in Massachusetts,” said Andrew C. Meyer Jr., a leading malpractice lawyer in Boston.

However, he said, that could change if a lawyer can make a convincing enough case. “In a wrongful death case, if one is capable of proving gross negligence, the jury is entitled to award punitive damages, which are measured by the amount of money necessary to cause harm [to] — in fact, punish — the defendants.”

The [plaintiff’s] lawyers predicted juries would offer landmark punitive damages if the case is not settled, comparing the case to other lawsuits over wrongful deaths in which juries have awarded at least $98 million in recent years and as much as $450 million.

Outside lawyers said the Del Valle family may have a hard time persuading a jury or a judge to match those figures. They said that the US Supreme Court in recent years has tried to rein in large punitive damages cases by arguing that, in most cases, the punishment should not be more than nine times larger than the actual losses.

If the family gets $10 million for actual losses, that would suggest punitive damages of not more than $90 million.

However, the Del Valle lawyers argue that the limit on punitive damages is not strict and that the punishment has to be enormous for the companies involved to suffer significant pain: Bechtel Co., one of the world’s largest privately held companies, reported revenue of $20.5 billion last year, its fourth straight record year. The joint venture of Bechtel/Parsons Brinckerhoff estimates it made $140 million to $160 million in profit on the Big Dig.

“One can only imagine the potential future harm that can occur if we as a society do not send a clear unwavering message that corporate profit cannot come at the expense of human life,” they wrote.

[Alberta's Child]

Only the epoxy manufacturer settled. The plaintiffs now look to repeat this kind of settlement again and again with respect to each of the dozen or so defendants in the case to the tune of $50+ million.

I'm not a lawyer, but it would seem to me that this settlement with the epoxy manufacturer will be used as evidence to support the defense's cases in any future lawsuits . . . i.e., "How can you claim that my client was negligent when the company that produced the epoxy has already accepted responsibility?"

[afortiori]

Easy argument: Concurrent causation.

The epoxy manufacturer made and sold the product. The other defendant(s) used it in an improper manner. Other defendants came up with the completely stupid idea of a suspended ceiling made of heavy concrete slabs.

Think of the Station nightclub fire in Rhode Island. There you had plaintiffs argue: improper use of pyrotechnics; manufacture of flammable foam; improper use/installation of flammable foam; improper exists; no fire suppression system, etc.

The idea that concurrent causes do come together to cause only one unified injury, however, is accounted for by an offset against any jury award by prior settlements received from other defendants that I discussed above.

[Perdogg]

This seems so strange to me. I work in for an A&E/CE firm and there is a process in place so that the parties cover themselves involving all sorts of liability.

1) The contractor isn’t going to purchase the epoxy if the engineers don’t approve the submittals.

2) The expoy manufacturer isn’t going to supply the contractor unless the contractor orders the epoxy.

3) The client isn’t going to approve the design unless the engineers provide detail drawings and calculations showing the fitness of the design,

4)The contractor isn’t going to build it unless the drawing is stamoed and signed.

Where did the process fail here?

[ricks_place]

Well, at least the engineers were cleared. Which I knew would be the case.

The Engineering firms were not cleared; the NTSB Conclusions are below and linked. The Engineering firms, Construction Firm, Epoxy supplier, as well as the agency MTA where found to various degrees responsible.

NTSB Accident Report - Ceiling Collapse in the Interstate 90 Connector Tunnel

Conclusions

Findings

1. By July 2006, a significant portion of the adhesive anchors used to support the D Street portal ceilings had displaced to the extent that, without corrective action, several of the ceiling modules in the three portal tunnels were at imminent risk of failure and collapse.
2. Although it is unlikely that all the D Street portal adhesive anchors were installed in a manner that would ensure maximum anchor performance, improper or deficient anchor installation procedures or practices alone would not account for all of the anchor failures that were observed before and after the accident.
3. The anchor loading calculations developed by Gannett Fleming, Inc., for the ceiling in the D Street portal tunnel were consistent with the actual maximum loads sustained in service.
4. Based on published anchor strength test data, the calculated anchor loading for the D Street portal ceiling system, and the limited number of available alternatives, Gannett Fleming Inc. 's, specification of an adhesive anchoring system to support the ceiling system was not inappropriate.
5. Gannett Fleming, Inc., and Bechtel/Parsons Brinckerhoff failed to account for the fact that polymer adhesives are susceptible to deformation (creep) under sustained load, with the result that they made no provision for ensuring the long-term, safe performance of the ceiling support anchoring system.
6. Modern Continental Construction Company, Inc., was supplied with and used the Fast Set formulation of Power-Fast Epoxy Injection Gel when the company was installing the anchors in the D Street portal, including the anchors that failed in this accident.
7. The source of the anchor displacement that was found in the D Street portal tunnels and that precipitated the ceiling collapse was the poor creep resistance of the Power‑Fast Fast Set epoxy used to install the anchors.
8. Modern Continental Construction Company, Inc., was not aware, when its employees installed the adhesive anchors in the D Street portal, that the epoxy being used was susceptible to creep and was therefore unsuitable for this application.
9. Had Gannett Fleming, Inc., in the construction contract for the D Street portal finishes, specified the use of adhesive anchors with adequate creep resistance, a different anchor adhesive could have been chosen, and the accident might have been prevented.
10. Gannett Fleming, Inc., approved the D Street portal anchors without identifying which epoxy formulation was being used, even though the company was provided with information indicating that one version of the Power-Fast epoxy should be used for short-term loading only.
11. The information that was provided by Powers Fasteners, Inc., regarding its Power-Fast epoxy was inadequate and misleading, with the result that Modern Continental Construction Company, Inc., used the Fast Set formulation of the epoxy for the adhesive anchors in the D Street portal even though that formulation had been shown through testing to be subject to creep under sustained tension loading.
12. As shown by the displaced anchors in the D Street portal, the maximum load capacity of an adhesive anchor, which relates to short-term loading, does not indicate that the anchor will be able to support even lighter loads over time, and thus a larger design safety factor cannot compensate for an adhesive material that is susceptible to creep.
13. After unexplained anchor displacement was found in the Interstate 90 connector tunnel in 1999 and 2001, Bechtel/Parsons Brinckerhoff and Modern Continental Construction Company, Inc., should have instituted a program to monitor anchor performance to ensure that the actions taken in response to the displacement were effective. Had these organizations taken such action, they likely would have found that anchor creep was occurring, and they might have taken measures that would have prevented this accident.
14. Powers Fasteners, Inc.'s, response to the anchor displacements that occurred in 1999 in the high-occupancy tunnel of the D Street portal was deficient in that the company did not identify the source of the failures as creep in the Fast Set epoxy adhesive and took no followup action to ascertain why its product had not performed in accordance with the users Â’ expectations.
15. Had the Massachusetts Turnpike Authority, at regular intervals between November 2003 and July 2006, inspected the area above the suspended ceilings in the D Street portal tunnels, the anchor creep that led to this accident would likely have been detected, and action could have been taken that would have prevented this accident.
16. Because of the potential catastrophic effects of a failure of the D Street portal ceiling system, Bechtel/Parsons Brinckerhoff and Gannett Fleming, Inc., should have required that ultimate load tests be conducted on the adhesive anchors used to support the ceiling before allowing any of the anchors to be installed.
17. Installing adhesive anchors in overhead applications appears, by the nature of the task, to introduce voids into the adhesive that can reduce the ultimate load capacity of the anchor and thus the overall reliability of the anchoring system.
18. The circumstances of this accident demonstrate a general lack of knowledge and understanding among design and construction engineers and builders of the complex nature of epoxies and similar polymer adhesives, and in particular, the potential for those materials to deform (creep) under sustained tension loads.
19. Protocols or standards for the testing of adhesive anchors in sustained tensile-load applications will provide designers and builders with test methods designed specifically to accurately assess the long-term safety of those anchors.
20. National standards for the design of tunnel finishes, including tunnel suspended ceilings, will provide government entities or other organizations with ready access to information that could be useful in designing tunnel finishes that minimize potential risks to public safety.

[afortiori]

You’re right, it does seem completely upside-down that the epoxy manufacturer is at the front-line of responsibility.

Then again, it’s a small, out-of-state family-owned corporation, which leads some to suspect that the attorney general of Mass is attempting to scapegoat the actor with the least political pull.