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Raquel Ibarra Mora, daughter of Milena Del Valle, and Angel Del Valle, who was driving when the tunnel ceiling collapsed.
Raquel Ibarra Mora, daughter of Milena Del Valle, and Angel Del Valle, who was driving when the tunnel ceiling collapsed. (Essdras M. Suarez/ Globe Staff/ File 2006)

Sides to talk settlement in tunnel death

Victim's kin, Big Dig firms to use mediator

The companies that designed and built the Big Dig tunnel ceiling that collapsed and killed a Jamaica Plain woman last summer plan to hold secret talks this week with lawyers for the woman's family in hope of reaching a quick settlement of the family's lawsuit alleging that negligence by the firms caused Milena Del Valle's death.

Lawyers and others involved in the high-stakes lawsuit say that a mediator from Chicago is scheduled to be in Boston all week to moderate talks between the Del Valle attorneys and representatives of the 15 companies, which they have sued for an unspecified amount. One other defendant -- the Massachusetts Turnpike Authority, owner of the Big Dig tunnel system -- is also expected to attend, those sources say.

The negotiations will take place as Attorney General Martha Coakley closes in on a self- imposed June 30 deadline to decide whether to seek criminal charges against any of the companies or their employees. Executives who fear they will face charges could have an incentive to settle the lawsuit before they receive the bad news, legal analysts say, while the family's lawyers may want to strike now, when every defendant has some uncertainty about Coakley's plans.

"The thought is that folks would really like to get this resolved before potential criminal charges come down," said an official for one of the companies invited to the talks. This official said negotiators would also like to reach a settlement before the much anticipated July 10 release of a report by federal investigators on the causes of the accident.

None of the parties to the talks contacted by the Globe would speak publicly, but Leo Boyle, one of the lead lawyers for the Del Valle family, is upset that word has leaked out about the sessions, in which he is expected to name his price to settle the lawsuit, according to a lawyer involved in the case. Boyle -- of the law firm Meehan, Boyle, Black & Bogdanow -- has said he wants all negotiators to sign a confidentiality agreement, the lawyer said.

Legal analysts say a settlement within days remains a long shot in such an unprecedented case. Estimates of the potential damages the Del Valles could obtain from a jury have ranged from a few million up to $75 million. Even if the parties could agree on the total due to Del Valle's husband and three children, the companies and the Turnpike Authority would have to agree on how to divide the cost.

Still, the talks underscore a widespread preference to settle the case, rather than to continue one of the most elaborate lawsuits in the history of the Commonwealth. The defendants have already filed a staggering 172 countersuits against each other over responsibility for the accident.

"When there are this many parties, scheduling a mediation is a monumental effort," said Anthony Tarricone of the Boston office of Kreindler & Kreindler, a law firm that specializes in litigation over aircraft accidents but is not involved in the Big Dig lawsuit. "The fact that the talks have been scheduled suggests that the parties are serious."

Nearly a year after the ceiling in the Interstate 90 connector tunnel collapsed on July 10, 2006, everyone will come to the bargaining table with a good idea about why it happened.

In a preliminary report last fall, the National Transportation Safety Board said that the concrete ceiling's design was faulty and that workers made numerous mistakes installing and testing it for safety. Investigators have also focused on the possibility that workers used the wrong epoxy to fasten ceiling bolts to the top of the tunnel, weakening the ceiling supports.

Until the report is released, no one knows for certain who will bear the most blame, but several companies appear to be at particular risk.

Bechtel/Parsons Brinckerhoff, the massive joint venture that managed the $14.6 billion Big Dig, supervised the ceiling's construction, while Modern Continental of Cambridge, the largest of the Big Dig contractors, built it. Engineers at Gannett Fleming in Braintree prepared the blueprints, and the ceiling bolts came from Powers Fasteners of New York.

In addition, there is evidence that the Turnpike Authority never thoroughly inspected the tunnel ceiling after the connector opened to traffic in 2003, possibly missing a chance to secure the slipping ceiling bolts before 20 ripped out almost simultaneously last July, releasing tons of ceiling panels onto a car driven by Angel Del Valle as his wife, Milena, rode in the passenger seat.

Big Dig engineers, designers, and construction companies are protected under professional liability insurance policy that might cover up to $20 million of the legal settlement, according to officials involved in the project. The company that provided a second $20 million liability insurance policy has gone out of business, these officials said, and is unlikely to pay any claim.

However, it's uncertain whether the insurance will be enough. Though some lawyers for the defendants have suggested that a payment in the range of $10 million to $20 million would be appropriate, they fear that the Del Valles' lawyers will demand as much as $75 million.

The exact amount of any settlement will depend heavily on how much money the negotiators believe a jury would give the family to punish the defendants. Punitive damages are rare in Massachusetts, but in 1999, a Beacon Hill bar was slapped with a $25 million verdict, mostly in punitive damages, after its patrons chased a man into oncoming traffic and he was killed.

The whole legal picture could change in a matter of days as Coakley's June 30 deadline approaches for deciding whether to seek criminal indictments from a Suffolk County grand jury now hearing evidence in the accident. In March, Coakley hired Paul F. Ware Jr., a prominent lawyer and a partner of Goodwin Procter LLP, to help her determine if anyone's actions were so reckless as to merit manslaughter charges.

Coakley has said that bringing criminal charges would be difficult, but her predecessor, Thomas F. Reilly, said of the accident scene last year that "what I saw was a crime."

Tarricone, the lawyer who specializes in lawsuits involving plane crashes, said the criminal probe puts pressure on everyone at the talks, including the Del Valle family. Their hope for a quick settlement would dissipate if there were criminal charges, because defendants are unlikely to settle the financial claims before the criminal case plays out . On the other hand, if Coakley does not seek charges, the plaintiffs' bargaining power would be weakened.

Tarricone predicted that tomorrow's bargaining session will be a complex affair, in which Boyle will make his pitch for a settlement and the defendants will form alliances depending on their level of liability and financial exposure. The mediator will then shuttle from group to group, looking for common ground among the dozens of lawyers likely to attend.

"It's going to be almost like watching a diplomatic chess match," Tarricone said.

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