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Secret talks stall in Big Dig suit

Victim's family rejects 1st offer of settlement

Secret mediation talks between the family of the woman killed last summer in the collapse of a Big Dig tunnel ceiling and the companies and the agency responsible for the structure fell apart this week, propelling the family's multimillion dollar lawsuit toward a possible courtroom battle.

The defendants made at least one settlement offer. But, according to two sources familiar with the talks, it was rejected as too low by lawyers for the family of Milena Del Valle, who are making the case for a payout in the hundreds of millions of dollars for what they call "outrageously egregious" acts that led to her death last July 10. Del Valle's husband and three children have sued 15 companies that designed and built the tunnel and the Massachusetts Turnpike Authority, which hired managers to oversee the project.

"There was quite a significant discrepancy between the two numbers," said one state official briefed on the negotiations, referring to the family's demand and the amount the defendants were willing to pay. "There was a big gap."

One lawyer involved in the case called the settlement offer insignificant.

The settlement talks, which were conducted by a mediator from Chicago, began Monday.

The family's lawyers will now move forward with the litigation. Depositions of top executives at Bechtel/ Parsons Brinckerhoff, the massive joint venture that managed the $14.6 billion project, have been scheduled for later in July, according to the sources in the lawsuit. The first depositions will take place in California, according to the court docket and a lawyer involved in the case.

A Boston litigation specialist said it is not uncommon for early mediation efforts to fail in complex, multimillion-dollar cases.

"Each party goes into mediation, especially a first round, with a bottom line or a top dollar in mind," said David White, a civil litigator and president-elect of the Massachusetts Bar Association. "A lot of it is trying to read the other side. If they're making very small increases in offers, you can sort of guess they're not going to make a big jump later. If they're not moving at all, it's time to go home.

"It's essentially the same process as bargaining at a flea market, though there is a lot more at stake and you have a facilitator to help you with the bargaining," he said.

White said that it is generally in everybody's interest to settle early, if possible, to save money on litigation costs. "In a case like this one, you will have dozens and possibly hundreds of depositions," he said. "That's a lot of lawyers spending a lot of time talking to witnesses in a case. That is literally millions of dollars in legal fees."

Lawyers will often return to the bargaining table later, he said, when there is a key development in the case -- if, for example, lawyers find a smoking gun or a weakness in their case as they proceed to deposition and possible trial. If Attorney General Martha Coakley decides to seek criminal charges against any of the companies or their employees and those indictments lead to a conviction, that could potentially push the companies toward a settlement, he said.

Coakley, who had been planning to decide whether to pursue criminal charges by today, now says investigators need at least two more weeks before deciding whether to seek indictments from a Suffolk grand jury hearing evidence in the case.

In a report prepared for the talks, lawyers for Del Valle's family did not say how much money they would accept to settle the family's lawsuit against the companies and the Turnpike Authority.

But they compared the case to some that have generated huge jury awards around the country, including the $290 million awarded by a California jury to the survivors of a family killed in the rollover of a 1978 Ford Bronco. They also cited the $250 million awarded to a South Dakota family whose vehicle was struck by a driver who was high on methamphetamine.

"There is not just a strong likelihood, but a great likelihood of a jury verdict . . . far greater than even those identified here," wrote the Del Valle lawyers, Jeffrey A. Denner, Mario Garcia, and Leo V. Boyle.

"Once that jury has spoken, each defendant found responsible will bear a 'scarlet letter' likely to mark them permanently for reckless and grossly negligent conduct," they wrote.

The lawyers allege the defendants deliberately and repeatedly cut corners to save money, then continued building the ceiling even when the bolts holding it up began to come loose. As a result, they wrote, "every user of the tunnel was placed at risk."

The parties to the case have promised not to speak publicly about the settlement talks.

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