Seattle Tunnel Partners blamed a buried steel pipe for the 2013 breakdown and two-year repair of tunnel-boring machine Bertha, but the contractors lost six pipe fragments that a judge calls important evidence in a $624 million cost-overrun lawsuit against the state of Washington.
What’s more, the project journal kept by deputy project manager Greg Hauser during the Dec. 4, 2013, pipe strike and its aftermath also has gone missing.
On Monday, the judge handling the lawsuit released a ruling that chastised the contractors for failing to preserve the pipe fragments and two granite boulders also collected, and called for yet-to-be determined sanctions against Seattle Tunnel Partners (STP) for losing the evidence.
“By its actions and inactions, STP consciously disregarded the importance of the missing pipe pieces and boulders in failing to preserve them,” Thurston County Superior Court Judge Carol Murphy said in her findings. “The loss or destruction of the missing pipe pieces and boulders is not innocent or accidental.”
But Murphy also found “STP did not intentionally destroy or hide the missing pipe pieces and boulders.”
Given the loss of physical evidence, the judge wrote “the importance of the missing journal is heightened” because witnesses were unable to recall certain dates and communications about those items.
The ruling is the latest development in a lawsuit that blames Bertha’s breakdown on the machine striking the pipe, which the state left behind after groundwater testing. Bertha was repaired and finished digging the new Highway 99 tunnel that opened in February.
The pipe fragments were likely discarded into a recycling bin during an overnight job-site cleanup in January or February 2014, according to Murphy’s ruling.
The steel pieces and granite boulders were being stored on a wood pallet within a 5-acre yard near the downtown waterfront that was closed to the public but open to a variety of tunnel workers.
The evidence could have easily been moved to a locked building at Terminal 106 near the Duwamish River, but contractors didn’t do so, the judge wrote. She said the tunnel partners, Dragados of Spain and Tutor-Perini of California, committed spoliation of evidence by losing the material.
The Washington State Department of Transportation (WSDOT) is mounting a vigorous defense against STP’s claims that Bertha’s stall was the state’s fault.
Any extra money from the lawsuit would be in addition to the $1.44 billion STP is being paid through the contract. Any cost overruns would likely be paid through the gasoline tax, but Seattle city funds aren’t at risk.
The Highway 99 tunnel opened for traffic Feb. 4. The whole project costs $3.2 billion, which includes design, interchanges, street rebuilds, decommissioning of the old Battery Street Tunnel and demolition of the Alaskan Way Viaduct.
Chris Dixon, STP’s project manager, said in early 2014 that the pipe became tangled in Bertha’s cutting teeth, causing the machine to overheat. Grit was discovered later inside the seals of the cutter’s rotary axle.
Contractors and the state argued almost immediately about whether WSDOT gave sufficient notice of the buried pipe’s location. Court depositions since then indicate STP itself used the pipe to check groundwater before tunneling began.
Washington state officials say the 8-inch diameter, 3/8th-inch thick pipe couldn’t have stopped what was the world’s biggest tunnel drill, at more than 53 feet across. Matt Preedy, then a deputy Highway 99 administrator, attributed Bertha’s stall to “clogging in the machine,” court papers say.
Insurance companies, which are also being sued, say in court papers the machine was “underdimensioned” for heavy Seattle soils, while manufacturer Hitachi Zosen, of Japan, says it operated perfectly. Despite all the sniping, the contractors refurbished Bertha to complete the tunnel.
Contractors had a duty to preserve documents and materials related to claims against WSDOT, the judge’s ruling says. Among other factors, the pipe pieces were necessary for metallurgical testing and expert analysis of shear forces exerted by the cutter head against the pipe. The boulders were significant because they caused wear on the cutting teeth.
Hauser, who is known as one of the nation’s top tunnel engineers, intended to preserve the evidence and at one point told workers he wanted the items moved to a locked warehouse.
He was so upset about losing the pieces that he “was going to vomit,” “couldn’t believe it” and “didn’t want to believe it,” the judge wrote. He and a foreman looked through the waterfront work area, searching in vain.
Hauser didn’t immediately report the incident to his bosses for fear of being fired, the judge wrote. In a separate 2014 incident, a second, less-important journal and Hauser’s laptop were stolen from his pickup.
Both sides wondered whether pipe fragments penetrated all the way into the bearing seals, which contain oil that surrounds the axle.
An internal message in March 2014 by construction manager Juan Luis Magro cited a need to keep the pipe fragments, adding, “The fact is that if we could prove this happened, we’d be talking about being in a position to win a claim for at least 8 figures,” court records cited by Murphy say.
WSDOT said in a statement Monday: “We are pleased with the judge’s ruling. Because the case remains in active litigation, we are unable to comment further.” Tutor-Perini didn’t reply to phone and email messages Monday.
As for sanctions, insurers have suggested instructing any jury that hears the case to presume the missing evidence would have been unfavorable to STP, a precedent Murphy herself mentions in her analysis.
However, the missing parts don’t mean a full absence of evidence.
The pipe fragments were photographed, with several images made public through news reports. Inspections of the cutter face provided more information, and tunneling personnel have described their observations in depositions.
In addition, an unbroken 55-foot length of the steel pipe, and a small fractured piece, were kept and examined by a WSDOT expert for failure analysis, though the most-mangled shards are long gone.
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