The Big Dig: A Larger-than-Life Litigation

By: Jeannie Greeley
July 27, 2008

Just as the Big Dig has come to be one of the largest highway construction projects in the country's history, the litigation left in its wake could prove the largest and most complex the state has ever seen.

"It is a prodigious amount of work," says Jeffrey A. Denner, one of several attorneys involved in representing the family of Milena Del Valle, who was killed when a portion of the I-90 tunnel ceiling collapsed in July 2006, crushing the vehicle that she and her newlywed husband, Angel, were riding in. "If we were doing this on an hourly basis, I would bet the legal fees would be in the millions already."
In the time since the fatal accident, more than
one hundred lawyers have become involved in the case.
In the time since the fatal accident, more than one hundred lawyers have become involved in the case, including state and federal prosecutors, investigating dozens of defendants. In a scorched-earth approach, everyone from the project managers to the distributors of the fast-setting epoxy used to secure bolts in the ceiling panels have been targets of litigation.

Finally, after two years and countless man-hours, the plaintiffs' lawyers are starting to see the fruits of their labors, with two defendants recently settling claims for $10 million. The first, Powers Fasteners Inc., which supplied the epoxy, settled for $6 million in December 2007. A second company settled for $4 million in May, according to published reports and an attorney familiar with the litigation.

Brad Henry, of the Boston firm Meehan, Boyle, Black & Bogdanow, serves as plaintiffs' liaison counsel, coordinating the various litigation efforts on behalf of the Del Valle family. He says the case has presented attorneys with a Herculean discovery effort involving a trove of more than 3.5 million electronic documents, searchable by all lawyers involved in the case. Proceeding at a "very steady, solid pace," the plaintiffs' attorneys have amassed sixty days' worth of testimony in only eleven months.

"The case and the court's management of it has in some ways stood in contrast to the Big Dig," notes Henry. "The Big Dig was just fraught with cost overruns and expenses and all manner of delay. The case really has stood out in fairly sharp contrast to it."

"Which is not to say that half of us haven't gone blind looking at all of these documents!" Henry adds.

In addition to the sheer mass of the case is the steep learning curve for the attorneys, as much of the surrounding documentation requires an intimate knowledge of construction and design. Defense liaison William J. Dailey Jr. could not be reached for comment prior to deadline. But he has previously stated in The Boston Globe that the Big Dig case is the most complex litigation in his 40-plus-year career.

Further complicating the plaintiffs' litigation efforts were the simultaneous criminal and civil suits being brought by state and federal authorities. While grand jury probes of certain defendants did sometimes hang up the attorneys' pursuit, the investigations also helped the civil case in significant ways. Henry notes that the criminal investigation turned up several defendants that the plaintiffs then added to their suit, and that multiple investigations by the Commonwealth and the National Transportation Safety Board forced parties to turn over documents that were later used in the plaintiffs' case.

The fallout from state and federal actions also created a frenzy of counterclaims among the defendants, and a record $400 million settlement by project manager Bechtel/Parsons Brinckerhoff with the state.

Of the various counterclaims, Denner says, "I think when people start pointing fingers at one another, that's an advantage for the plaintiffs. If parties are pointing the fingers at each other, they're assuming that there is fault."

However, even with the current $10 million settlements, the plaintiffs' attorneys say they are far from done pursuing the remaining defendants in the case, of which there are still a dozen.

"Certainly if the case goes to trial, we are going to seek the absolute full measure of damages that we can recover—both compensatory and punitive," says Henry. "That's going to be, we feel, a significant verdict."

Bechtel/Parsons Brinckerhoff has denied the claims of gross negligence and reckless conduct stated in the plaintiffs' complaint.

Though Henry says a settlement could be possible, he's unsure that it would bring full resolution of the matter.

"We are not proceeding with the expectation of settlement. We're going to recover the best that we can in settlement, but we're not inclined to settle before we understand exactly how this tragedy happened and who was responsible for that. And we're still in that process now," he says. "In some ways, the cost of settling really is going to be a full understanding of what occurred, because that's the kind of justice the family needs."

Esdaile, Barrett & Esdaile


Lubin & Meyer


McLane, Graf,
Raulerson, & Middleton


Sugarman



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