BOSTON -- The state faces a difficult challengeto be successful in its lawsuit against the Big Dig firms who worked onthe highway tunnel where a ceiling collapsed, killing a motorist, legalexperts say.
State Attorney General Tom Reilly planned to file the multimillion-dollar lawsuit Tuesday alleging the Big Dig project manager, Bechtel/Parsons Brinckerhoff, and 14 other firms were negligent in the design and construction of the tunnel.
Michael Cassidy, an associate professor atBoston College Law School and the former chief of the attorneygeneral's criminal bureau, said that to prove negligence, the attorneygeneral's office would have to show that the work performed by thefirms fell below the industry standard for such work.
"What they've got to prove is that a reasonable contractor wouldn't have designed it this way," Cassidy said.
Reilly believes they've met that standard -- and then some.
He said the lawsuit is based on the belief thatthe project managers knew early on about problems with the epoxy boltsystem used to secure 4,500-pound cement ceiling panels but didn't takesteps to fix it.
"The clock was ticking. The fuse was lit. It was just a matter of time until this tragedy occurred," Reilly said.
The lawsuit seeks unspecified damages forrepairs, loss of tunnel use and toll revenue and other economicfactors. It will be filed against 15 firms involved in the management,design, construction or oversight of the Interstate 90 tunnel would benamed in the lawsuit.
The $14.6 billion project -- the most expensivein U.S. history -- has been plagued by problems throughout the twodecades it's taken to design and build. But it hit its nadir when fourthree-ton tunnel ceiling panels fell on the car in which Milena DelValle, 39, of Boston woman, was a passenger. Her husband, who wasdriving, survived. The family has filed its own lawsuit.
While all the firms face allegations ofnegligence in the lawsuit, Bechtel/Parsons Brinckerhoff faces a moresevere allegation of gross negligence -- a willful or recklessdisregard for the truth.
Legal analysts said the lawsuit could result ina multimillion-dollar award because if the gross negligence claims goto a jury, jurors would be allowed to award punitive damages.
"A jury is allowed not just to compensate thestate for its losses, but also to punish defendants," said JeffreyNewman, an attorney who represented more than 550 people who filedlawsuits against the Boston Archdiocese alleging negligence by churchsupervisors in the clergy sex abuse scandal. The archdiocese eventuallysettled the lawsuits for $85 million.
"It's not just making a mistake, but has to do with a willful disregard of known dangers," Newman said.
A separate criminal investigation is ongoing.Evidence is now being presented to a grand jury that will decidewhether criminal charges up to manslaughter will be brought, Reillysaid.
"I can tell you this: What I saw was a crime.... It will be up to the grand jury to decide whether it is," Reillysaid Monday in announcing the state lawsuit.
Since the accident, several state and federalagencies have launched investigations, and widespread problems with thebolt-and-epoxy system throughout the system have been called intoquestion and led to the closure of all or portions of the tunnels.
Besides questions about the security of theepoxy, evidence has also emerged about problems with bolts slipping orfailing. Despite those warning signs, management of the tunnel wherethe accident occurred was turned over to the Massachusetts TurnpikeAuthority in 2003 without any warning of the "potentially dangeroussituation," Reilly said.
Besides Big Dig project manager Bechtel/Parsons Brinckerhoff, the lawsuit will name: Modern Continental Construction Co. and Gannett Fleming,the firm in suburban Braintree that designed the I-90 connector tunnel;as well as companies that supplied the epoxy or ceiling bolts used tohold up ceiling panels, and three insurance companies.
All of the companies will be accused ofnegligence. Bechtel/Parsons Brinckerhoff, Modern Continental andGannett Fleming will also be sued for breach of contract.
Andy Paven, a spokesman for Bechtel/ParsonsBrinckerhoff, said the company would not comment on the lawsuit. "Wehave always said we will stand behind our work," Paven said.
Paul Andrew, a representative from Cambridge-based Modern Continental, also said he could not comment because he had not seen the lawsuit but said the company stands by its work.
Representatives of Gannett Fleming also did not respond to a call seeking comment.
Del Valle's family filed a wrongful deathlawsuit in August against many of the same companies as well as theMassachusetts Turnpike Authority, the state agency that oversees theproject.
Jeffrey Denner, a lawyer for the Del Valle family, said they are gratified that the state plans to sue.
"We're happy that the Commonwealth ofMassachusetts is now standing up and essentially saying who's at faulthere with their own investigation," Denner said.
Reilly said he was filing the lawsuit this weekto avoid a potential problem with the statute of limitations. Understate law, lawsuits over defective construction usually must be filedwithin six years of completion, and a ramp that is part of the projectin question was opened on Nov. 29, 2000.
The Big Dig replaced the old elevated CentralArtery that ran through the heart of Boston with a series of tunnels,ramps and bridges. The project has been plagued by leaks, fallingdebris, delays and other problems linked to faulty construction.
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