Lawyers eye huge Big Dig settlement

Lawyers for Milena Del Valle's family are building a case for a landmark settlement of potentially hundreds of millions of dollars for what they describe as the outrageously egregious acts that led to her death in last summer's Big Dig ceiling collapse, according to a 15-page memo obtained by the Globe.

The lawyers did not specify a price for settling the family's lawsuit against an array of contracting firms and the Massachusetts Turnpike Authority, but said the case should be compared to those that have produced some of the largest jury awards in US history, including the $450 million in punitive damages awarded to the widow of a sheriff-elect in Georgia assassinated by his rival in 2000. If anything, the lawyers predicted, a Massachusetts jury would award the Del Valle family even more money.

"Once that jury has spoken, each defendant found responsible will bear a 'scarlet letter' likely to mark them permanently for reckless and grossly negligent conduct," warned the Del Valle lawyers Jeffrey A. Denner, Mario Garcia, and Leo V. Boyle in urging the defendants to settle the case before it goes to a jury.

The assertions are contained in a mediation report prepared by family's lawyers in preparation for this week's private settlement talks with the defendants. The document argues that the defendants deliberately and repeatedly cut corners to save money, then continued building the ceiling even when the bolts holding it up began to come loose. As a result, they wrote, "every user of the tunnel was placed at risk."

The parties to the lawsuit have promised not to speak publicly about the settlement talks, but the family's demands exceeded the expectations of some defendants who had predicted the Del Valle team would seek something closer to $75 million for actual and punitive damages combined. In wrongful death lawsuits, lawyers typically seek money for the emotional and financial loss to survivors, called compensatory or actual damages, but they can also seek additional money to punish the defendant, called punitive damages. These tend to be much higher.

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 defendants asked the Del Valle family to take part in settlement talks this week in hope of resolving the complex lawsuit before Attorney General Martha Coakley decides whether to pursue criminal charges in the July 10, 2006, accident. Coakley had been planning to complete her investigation by Saturday, but her office issued a statement yesterday saying that her investigators need "at least two weeks" more to decide whether to seek criminal indictments from a Suffolk County grand jury hearing evidence in the case.

Criminal charges could raise the price tag of settling for any company whose employees are indicted. On the other hand, if Coakley decides there is not enough evidence for a criminal conviction, it could weaken the Del Valle family's leverage. Another factor in the timing of the settlement talks is the final report from the National Transportation Safety Board, due by July 10.

In their report to the mediator overseeing this week's talks, the Del Valle lawyers divide their discussion of the case into two parts: the actual losses suffered by the Del Valle family in the accident and the much larger punitive damages.

The family lawyers say they cannot imagine that a jury would award anything less than $10 million in actual losses to Del Valle's husband, 51-year-old Angel Del Valle, and Milena Del Valle's three children in Costa Rica, who were receiving financial support from their mother at the time she died.

The lawyers say that Angel Del Valle was also nearly crushed in the accident and that he still suffers hearing and vision problems, as well as headaches and vertigo. "The emotional impact of the accident and the loss of Milena will certainly forever haunt Angel Del Valle," they wrote.

The lawyers argue that the punitive damages should be many times larger because the collective misconduct by the people who designed, built, and inspected the ceiling in the Interstate 90 connector tunnel was so "outrageously egregious."

For instance, documents show that Big Dig managers at Bechtel/ Parsons Brinckerhoff and designers from Gannett Fleming cut by half the number of bolts they originally planned to use to hold up the ceiling, while significantly increasing the ceiling's weight by making it out of concrete. These moves made the ceiling cheaper, the lawyers said, but less safe.

When construction began in June 1999, workers for Modern Continental Construction Co. made numerous mistakes installing the ceiling bolts, secured to the tunnel roof by epoxy, that weakened their strength, the lawyers wrote. In addition, crews may have used the wrong epoxy, a fast-setting type that has 25 percent less strength than specified for the job.

As a result of all these problems, the lawyers argue, some ceiling bolts began to come loose almost as soon as the ceiling was suspended from them.

"It is, however, the astonishing degree of actual knowledge on the part of the defendants that these epoxy bolts were failing -- even in the midst of installation in 1999 -- that makes the defendants' conduct so reprehensible and tragically egregious," the lawyers wrote, adding that work crews did not stop installing the ceiling despite unanswered questions about the performance of the bolts.

"The only questions they asked were how could they minimize their costs and maximize their profits," the lawyer wrote of the defendants.

The 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.

Estes can be reached at estes@globe.com. Allen can be reached at allen@globe.com.