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Massachusetts to sue Big Dig companies, alleging negligence

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BOSTON -- The state faces a difficult challenge to be successful in its lawsuit against the Big Dig firms who worked on the highway tunnel where a ceiling collapsed, killing a motorist, legal experts 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 at Boston College Law School and the former chief of the attorney general's criminal bureau, said that to prove negligence, the attorney general's office would have to show that the work performed by the firms 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 that the project managers knew early on about problems with the epoxy bolt system used to secure 4,500-pound cement ceiling panels but didn't take steps 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 for repairs, loss of tunnel use and toll revenue and other economic factors. It will be filed against 15 firms involved in the management, design, construction or oversight of the Interstate 90 tunnel would be named in the lawsuit.

The $14.6 billion project -- the most expensive in U.S. history -- has been plagued by problems throughout the two decades it's taken to design and build. But it hit its nadir when four three-ton tunnel ceiling panels fell on the car in which Milena Del Valle, 39, of Boston woman, was a passenger. Her husband, who was driving, survived. The family has filed its own lawsuit.

While all the firms face allegations of negligence in the lawsuit, Bechtel/Parsons Brinckerhoff faces a more severe allegation of gross negligence -- a willful or reckless disregard for the truth.

Legal analysts said the lawsuit could result in a multimillion-dollar award because if the gross negligence claims go to a jury, jurors would be allowed to award punitive damages.

"A jury is allowed not just to compensate the state for its losses, but also to punish defendants," said Jeffrey Newman, an attorney who represented more than 550 people who filed lawsuits against the Boston Archdiocese alleging negligence by church supervisors in the clergy sex abuse scandal. The archdiocese eventually settled 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 decide whether criminal charges up to manslaughter will be brought, Reilly said.

"I can tell you this: What I saw was a crime. ... It will be up to the grand jury to decide whether it is," Reilly said Monday in announcing the state lawsuit.

Since the accident, several state and federal agencies have launched investigations, and widespread problems with the bolt-and-epoxy system throughout the system have been called into question and led to the closure of all or portions of the tunnels.

Besides questions about the security of the epoxy, evidence has also emerged about problems with bolts slipping or failing. Despite those warning signs, management of the tunnel where the accident occurred was turned over to the Massachusetts Turnpike Authority in 2003 without any warning of the "potentially dangerous situation," 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 to hold up ceiling panels, and three insurance companies.

All of the companies will be accused of negligence. Bechtel/Parsons Brinckerhoff, Modern Continental and Gannett Fleming will also be sued for breach of contract.

Andy Paven, a spokesman for Bechtel/Parsons Brinckerhoff, said the company would not comment on the lawsuit. "We have 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 death lawsuit in August against many of the same companies as well as the Massachusetts Turnpike Authority, the state agency that oversees the project.

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 of Massachusetts is now standing up and essentially saying who's at fault here with their own investigation," Denner said.

Reilly said he was filing the lawsuit this week to avoid a potential problem with the statute of limitations. Under state law, lawsuits over defective construction usually must be filed within six years of completion, and a ramp that is part of the project in question was opened on Nov. 29, 2000.

The Big Dig replaced the old elevated Central Artery that ran through the heart of Boston with a series of tunnels, ramps and bridges. The project has been plagued by leaks, falling debris, delays and other problems linked to faulty construction.

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Related Link:

Big Dig: www.massturnpike.com/bigdig/index.html

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