OLYMPIA — Instead of settling their five-year dispute, lawyers for Washington state took the offensive Thursday by asking a jury to award $57 million from its Highway 99 tunnel contractors for delays caused when tunnel-boring machine Bertha stalled in 2013.
Attorney David Goodnight, in his opening statement, sought to bury Seattle Tunnel Partners (STP) with allegations that its mistakes, not a steel pipe, damaged what was then the world’s largest rotary drill.
“STP was taking shortcuts,” Goodnight repeatedly said in Thurston County Superior Court, where jurors will decide whether the state should pay any of the hundreds of millions of dollars in cost overruns sought by the contractors for the breakdown.
Goodnight said the evidence will show Bertha’s operators failed to maintain a soil consistency like toothpaste that’s required for the machine to operate properly — so that muck either sprayed out the back of a conveyor screw, or clogs formed between spokes of the massive cutterhead.
STP’s lawyer, John Dingess, in his opening statement displayed a message by a state-affiliated tunnel expert that said tunneling “looks beautiful,” and a Washington State Department of Transportation (WSDOT) representative’s view that Bertha showed “several days of stellar performance” shortly before the stall on Dec. 6, 2013.
Dingess didn’t dwell on the eventual completion of the 1.7-mile dig in April 2017, without soil sinking or damage to downtown towers — though he did show a gee-whiz picture of the 120-foot-deep rescue vault and a crane used to access and raise Bertha’s 4-million-pound front end for repairs.
The trial is expected to last 10 weeks. To select 12 jurors and two alternates for that burden, the court worked through most of a 170-member jury pool, according to Karl Oles, another WSDOT-hired construction litigator.
In pretrial documents STP has claimed the state owes as much as $625 million, blaming the stall on a steel pipe struck by Bertha that was left over by the state from a groundwater test well sunk in 2002 and used through 2012.
However, Dingess showed the jury a figure of only $300 million in losses by partners Dragados USA and Tutor-Perini. Asked later about lowering the claim, he would say only that costs “in excess of $300 million” will be explained as the trial moves along.
Other litigation will sort out whether insurance companies must cover either side’s losses.
When the project began, Gov. Christine Gregoire lauded STP’s schedule to complete the tunnel under downtown Seattle by the start of 2016, while the contract required it to be driveable by May 2016. The tunnel opened Feb. 4, 2019, and carries 80,000 vehicles per day.
The tunnel machine stalled when Bertha’s round cutterhead turned without scraping soil as it dug next to the waterfront. Grit was later found inside bearing grease and seals, along with a cracked gear.
Rather than quit, STP and machine builder Hitachi lifted the massive front end for an unprecedented retrofitting project. Bertha finished the dig near Seattle Center on April 4, 2017.
WSDOT says the contractors are fully responsible for overruns, based on a “design-build” contract where the construction teams do final engineering and accept financial risks.
As expected, STP pinned its case on the pipe theory. Dingess’ slideshow featured photo after photo of at least six recovered pipe lengths, and other pieces knocked upward to the surface, spit out the conveyor screw in back, lodged in a rotary cutter spoke, and found within a muck-export bin on the dock of Port of Seattle Terminal 46.
His apparent aim was to deflate the fact STP lost the steel pipe fragments, along with a deputy project manager’s journal, in early 2014. Dingess even questioned whether pipe pieces were “crucial evidence,” causing Goodnight to object outside the jury’s presence.
That prompted Judge Carol Murphy, who earlier ruled the pipe fragments and journal are critical, to say she will issue adverse instructions to the jury early in the case, to say STP committed “spoliation of evidence” and to limit how the companies can portray those items.
State tunnel managers have long insisted that Bertha, then the widest drill on earth at more than 57 feet in diameter, could not have been crippled by a thin, 8-inch diameter pipe.
“The pipe was nothing more than a toothpick to the TBM [tunnel boring machine],” Goodnight told the jurors.
Dingess retorted, standing before a picture of the shiny pipe on the ground, “This is what Mr. Goodnight calls a toothpick. I don’t know if he’d like to use that as a toothpick, I wouldn’t want to use it.”
Neither side has blinked yet, some five years since STP manager Chris Dixon filed the original claim of $125 million.
Ron Tutor, CEO of STP member Tutor-Perini, is known as an avid litigator who has told investors that the company has fared well by suing public agencies that don’t pay. “What usually takes place on the courthouse steps [is] the first time serious negotiations happen,” he said in May.
WSDOT has insisted the state will prevail outright.