By Julia Reischel
The mood was celebratory as a group of lawyers gathered in Judge Stephen E. Neel's courtroom in Suffolk Superior Court on Oct. 7. Surveying the nearly two dozen attorneys seated around tables and in the gallery, the judge remarked: "I see more smiles than I've seen in the last two years."
The occasion marked the final litigation conference in the Milena Del Valle wrongful-death lawsuit, and it was purely perfunctory. On Sept. 30, the lawyers representing the family of Del Valle - who was crushed to death in 2006 by a ceiling panel in the Big Dig I-90 connector tunnel - had agreed to settle the matter for more than $28 million.
But the joviality in Neel's courtroom belied the fact that the settlement was a somewhat anti-climactic conclusion to a case that many anticipated would have resulted in an unprecedented punitive damages verdict had it gone to trial early next year, as scheduled.
"It's big," observes Boston trial attorney Elizabeth N. Mulvey, who pulled in last year's largest jury verdict in Massachusetts, a $26.5 million award in a personal injury case. "They did a great job for their clients," Mulvey adds of the plaintiffs' lawyers, "but I didn't look at [the $28 million settlement] and say, 'Oh my God, that's nuts.' It sounded like there was pretty good liability. Plus, all your jurors hate the Big Dig."
Leo V. Boyle, a partner at Boston's Meehan, Boyle, Black & Bogdanow, which represented Del Valle's three children, doesn't disagree with Mulvey's assessment.
"It was a result that could have been a lot higher," he acknowledges. "We essentially only got compensatory damages, not punitive damages. … But there's great solace to a negotiated settlement that takes care of the family and gives them the answers they were looking for."
Jeffrey A. Denner, whose Boston firm Denner Pellegrino represented the husband of Milena Del Valle, claims that the case, from the beginning, was about accountability.
"It's the largest personal injury award in Massachusetts, if not New England, history," says Denner. "Our case spurred a lot of other related suits. People had to be accountable, and they have been, both in our case and in the related cases."
And according to Denner's partner, Raipher D. Pellegrino, the lawsuit initiated change in the public forum. "I guarantee that, in Massachusetts, you will never see a public project like the Big Dig again," he says.
Despite the fact that there was no blockbuster verdict, the Del Valle lawsuit will go down in history as an epic case, both for its daunting complexity and its sheer size. The seven plaintiffs' lawyers were pitted against 15 corporate defendants and about 100 lawyers from nearly every major law firm in Boston, and had to contend with millions of documents and four parallel criminal and civil cases.
"You had two grand juries that were looking at the matters, you had an indictment come down during the course of the case, and you had individuals who wanted to make sure that their constitutional rights were protected," says William J. Dailey Jr. of Sloane & Walsh, who served as defense liaison counsel. "And everyone had strong feelings in support of the clients that they represented."
Perhaps Neel put it best when he told the attorneys gathered in his courtroom earlier this month: "It's been an amazing case in many ways."
In the beginning
With state and federal investigations already under way in the wake of Del Valle's death in July 2006, plaintiffs' firms Denner Pellegrino and Meehan Boyle jointly filed a wrongful-death complaint accusing the many companies involved in the Big Dig project of negligence.
The two relatively small firms, with markedly different styles, essentially were thrown together on the case. The scrappy Denner Pellegrino was hired by the victim's husband, Angel Del Valle, through a referral and after an interview in which Spanish-speaking Denner and associate Stephanie A. Soriano reportedly played a central role.
The dogged and detail-oriented Meehan Boyle, meanwhile, came to the case as local counsel through a Florida lawyer who was representing Del Valle's children in Costa Rica.
After the firms agreed to jointly represent the plaintiffs, they decided there were two goals: one, to resolve the case on behalf of their clients as quickly as possible; and two, to shine a "bright light" on the facts.
"Those became our guiding and informing rules of the case," Boyle says. "[The family] wanted to know what happened. So we always fought to be right at the front of the line with them if they wanted information."
According to Boyle's colleague, Bradley M. Henry, the fear was that the case would "get bogged down, just like the Big Dig."
"It would get lost in a 10-year investigation, and we would never find out what happened," says Henry, who served as plaintiffs' liaison counsel.
Those rules kept the case simple but contentious. While state and federal grand juries were preparing the criminal case and Attorney General Martha Coakley continued with the state's "cost recovery action" against the Big Dig companies, members of the plaintiffs' team pushed to gather evidence and to go to trial. Meanwhile, scores of defense lawyers, along with the state and federal governments, tried to delay them.
Over the course of two years, 20 motions to stay or postpone the case were presented to Judge Neel to counter the plaintiffs' aggressive discovery efforts. Under Henry's direction, 70 days' worth of depositions were taken over the course of two years.
"Early on in the case, it was like driving a herd of dysfunctional cats," recalls Henry, who became known for his tight scheduling practices and his refusal to accept delays. "Once we were well underway, it actually became collegial. I would say that these are some of my closer professional friends now."
Surprise visit
By fall 2007, much progress had been made in determining why the ceiling tile had dropped onto Del Valle's car. The National Transportation Safety Board had issued a report detailing how the epoxy and bolts used in the tunnel had failed, and in August Coakley had charged the supplier of the glue, Powers Fasteners, with manslaughter.
The plaintiffs' lawyers had also made significant progress in investigating the underlying cause of the accident. Suddenly, it seemed possible that the wrongful-death trial might take place at the same time - or even before - the government completed its criminal case.
Fearful that the plaintiffs' lawyers would taint its evidence and give the defendants too much information, the government decided to act.
On Oct. 16, Fred M. Wyshak Jr., an assistant U.S. attorney who had been involved in the James "Whitey" Bulger case, paid a surprise visit to a litigation control conference in the Del Valle wrongful-death case.
Although he had not prepared a motion, Wyshak requested that the court stay the civil case pending the outcome of the criminal proceedings.
"I will tell the court that it's difficult, if not impossible, to try to maintain the integrity of any criminal prosecution while the civil discovery is ongoing," the court transcripts quote him as saying. "I just look around me and see all the lawyers sitting here and can imagine each one of them asking the witness endless questions. I'm sure they're all very clever lawyers, and they all have their own point of view, and that the witness's testimony will ultimately … be rendered, not useless, but severely marginalized after he is deposed, hour after hour, by an army of lawyers."
But the judge was not persuaded.
"Wouldn't this argument have had a lot more force in this case had it been made prior to the beginning of discovery?" Neel asked, adding, "I respond to motions brought sort of actively."
"Maybe at this juncture the horse's nose is out of the barn, but I believe that the whole horse is not out of the barn yet," Wyshak pressed. "In speaking with the victims' families in the Bulger case, as well as many other homicide cases that I worked on when I was an assistant DA, I believe that the victims are more interested that the guilty parties be brought to justice, criminal justice, than they are in a monetary recovery."
According to the transcript, Boyle bristled at that comment and rose to contradict Wyshak, but Neel moved on after gently chastising Wyshak for his unannounced visit.
Eventually, Neel would offer a compromise: He would allow the government to delay the depositions of some key witnesses on a case-by-case basis, but there would be no blanket override of the civil proceeding.
It was a "very creative modified order that allowed the case to proceed forward," says Pellegrino, adding that it allowed the plaintiffs to ramp up the pressure.
Mass cards
Meanwhile, far from the courtroom, divine intervention was allowing progress to be made on the plaintiffs' behalf.
Jeffrey Powers, the president of Powers Fasteners, had met the plaintiffs for the first time in the summer of 2007 at a global meditation meeting that, despite a week of talks, went nowhere.
After the company's indictment, Powers agreed to negotiate with the plaintiffs' lawyers separately. At a December meeting with the plaintiffs' team, Powers arrived bearing gifts: a Mass card for each set of plaintiffs noting that his church would regularly pray for Del Valle's soul.
Angel Del Valle and the three children, all devout evangelical Christians, clearly were touched by the gesture.
"That meant a lot to our clients," says Boyle. "They're not vindictive people. They weren't invested in people going to jail; they wanted accountability."
Denner Pellegrino's Soriano says that, because the family had difficulty "coming to terms with accepting monetary compensation for Milena Del Valle's death," Powers' gesture prompted a compromise between plaintiffs who were more interested in forgiveness than vengeance, and defendants who categorically refused to pay any sort of punitive damages.
Later in December, thanks to the breakthrough, Powers Fasteners settled its case with the plaintiffs, agreeing to pay them $6 million.
'Delay the state court action'
In January of this year, AG Coakley announced a blockbuster settlement with the most important Big Dig defendant. Bechtel/Parsons Brinckerhoff, an engineering and design consortium that oversaw the project, would be immune from criminal prosecution in connection with Del Valle's death in exchange for $400 million.
In response, the plaintiffs rolled ahead with their depositions. In February, multiple lawyers traveled to Costa Rica to depose Del Valle's children, and one plaintiff, Raquel Ibarra Mora, who was six months' pregnant, flew to the United States to testify.
By spring, a trial date was set for January 2009. In the meantime, another defendant had settled with the plaintiffs for $4 million.
In June, the U.S. attorney moved forward with its criminal case by indicting defendant Modern Continental Construction Co. for fraud. Shortly thereafter, Modern declared bankruptcy, and an automatic stay was imposed on all litigation, threatening to delay the plaintiffs' case for months.
But the plaintiffs' lawyers persisted. On the morning of July 9, they appeared before U.S. Bankruptcy Court Judge Joan N. Feeney to argue for relief from the stay; depositions in the wrongful-death case were scheduled for later that afternoon.
According to the transcript, in a courtroom packed with dozens of hastily hired bankruptcy lawyers representing various Big Dig defendants, the plaintiffs' bankruptcy lawyer, Jacob A. Esher of Boston's Altman, Riley, Esher, explained to the judge that, overnight, the plaintiffs had negotiated a stipulation with Modern that would allow them to continue discovery as long as they limited their claims to the insurance proceeds. Although the debtor and its creditor were in agreement, Esher said, the phalanx of lawyers representing Modern's insurer, AIG, wanted the judge to intervene and suspend the state court case.
When Feeney asked AIG's lawyer, Joseph P. Davis III of Greenberg Traurig, why, he said that the indictment against Modern "may alter the way the testimony will take place in those depositions."
"Stop," Judge Feeney responded. "My question is a simple one ... . Why is that your fight?"
Dissatisfied with Davis' response, the arguments of other defense lawyers and the U.S. Attorney's Office, Feeney issued a ruling from the bench allowing the stay to be lifted.
"The only parties who object to continuation of the case are the insurance companies who have the obligation to defend and cover the claims, and I frankly don't understand why they're objecting," she said. "The only reason I can conceive of is they want to delay the state court action[.]"
'In trouble'
The defendants' Hail Mary pass in the Bankruptcy Court had failed. The plaintiffs were getting ever closer to the sensitive punitive damages phase of discovery and had already amassed a significant amount of evidence.
There was a junior engineer's testimony that the lead structural engineer at Gannet Fleming had surreptitiously "whited out" his order warning against the installation of the faulty bolts.
There was the testimony of a lead field engineer explaining that, when ordered to draft a memo about the faulty bolts, he intentionally omitted information because, as he testified, "I'm not going to let them stick this on me."
And there was the handwritten note scrawled in the day planner of a project official that was uncovered by Meehan Boyle paralegal Naomi J. Katz. According to the note, another official was in "IN TROUBLE!" for the problems with the ceiling.
In September, Henry sent an e-mail to all the attorneys in the case reporting that, "by agreement between the plaintiffs," the next litigation control conference had been postponed. The e-mail, which marked the first time the plaintiffs had permitted a delay in the case, set off a firestorm of behind-the-scenes communications, says Henry.
And with that the case was over. With the assistance of Commonwealth Mediation's Paul A. Finn and Brian J. Mone, the parties had hammered out a settlement just as insurer AIG was teetering on the edge of financial collapse.
The security of a settlement ultimately fit their clients' needs best, the plaintiffs' lawyers say.
But they admit that there are some questions that have been left unresolved, including some complicated legal issues. One, says Meehan Boyle's Michael B. Bogdanow, is the "interesting constitutional issue" brought up by the repeated clashes between the rights of the state, the federal government and the private attorneys to a "trial on one side, versus a civil right of the tort plaintiff to pursue civil recovery on the other."
Another, Bogdanow says, is the question of whether the Massachusetts Turnpike Authority's liability was limited to $4,000 because of an arcane law.
But according to Denner Pellegrino's Charles E. Dolan, an associate who attended the majority of depositions in the case, the largest issue left unresolved by the settlement is the fact that while the civil case has revealed what went on in the Big Dig tragedy, the government is still searching for answers.
"There's still a criminal investigation ongoing," he says. "What the two law firms have done, the government hasn't done yet."
To read transcripts and documents from the Big Dig wrongful-death case, go to www.massachusettslawyersweekly.com.
October 27, 2008
