STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT Case Type: Personal Injury /
Wrongful Death
In Re: I-35W Bridge Collapse Litigation Master Order File No.: 27 CV 09-7519 Hon. Judge Deborah Hedlund
Consortium Injury Cases: 27 CV 09-16994 Consortium Death Cases: 27 CV 09-16920 Consortium PCI Empl. Cases: 27 CV 09-16939
CONSORTIUM PLAINTIFFS' BRIEF TO ASSERT PUNITIVE DAMAGES AGAINST DEFENDANT URS CORPORATION
FOR ITS DELIBERATE DISREGARD FOR PUBLIC SAFETY
I. INTRODUCTION
Defendant URS is a foreign, multinational corporation with annual revenues exceeding
nine billion dollars.' URS promised our State that in exchange for hundreds of thousands of
taxpayer dollars it would assess the I-35W Bridge's "structural integrity." Despite URS's duty
to "hold paramount the safety, health and welfare of the public" and its false claim that "keeping
the public safe was URS's Number One Priority," URS consciously, knowingly, repeatedly, and
deliberately chose to disregard the public's safety. URS directly caused the Greatest Man-Made
Catastrophe in State History, killing 13 innocent people and injuring so many more.
URS knew that the Bridge was unsafe. Eleven months before the catastrophe, URS
documented that the Bridge was "clearly overstressed" and that "from a strength standpoint the
original design does not meet today's design specifications by a very significant degree." URS
documented that "collapse would be imminent." Four years before the collapse, URS's lead
1 Ex. 1 (URS Annual Report); Ex. 2 (Zhou Dep.) at 282:7-16. All exhibits are attached to Affidavit of Chris A. Messerly, filed concurrently herewith.
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engineer for the I-35W Bridge project documented: "Catastrophic." URS knew that any weak
link in the "fracture critical" and "non-redundant" Bridge (truly an engineering house of cards)
would be cataclysmic and would risk killing and maiming countless innocent people.
Not only did URS choose to hide from the public its knowledge of the Bridge's danger, it
lied, stating that the Bridge was safe. To use URS's own words, it "tried too hard to advise MN
DOT that the 9340 Bridge is okay." URS purposefully lured the State, which relied on the
engineering behemoth's claimed expertise, into a false sense of security about the Bridge's
structural integrity and the safety of the public using it.
URS also chose to cut corners and disregard safety by unilaterally deciding not to
perform work for which it was paid. In 2003, URS photographed bowed gusset plates, an
engineering red flag. Despite its promise to "develop tension and compression failure c teria for
connections" (i.e., gusset plates), URS chose not to, claiming it was "too much work." 2 Also,
URS photographed the Bridge's critical roller bearings that allowed the Bridge to expand and
contract with our significant temperature range from the coldest Minnesota winter day to our
hottest summer day. URS concluded that the roller bearings were "frozen," 3 but then chose not
to inspect them as it had promised and chose not to properly calculate the fatal danger presented
by the seized bearings. URS promised that in working on the Bridge it would employ its
mandatory Quality Assurance and Quality Control Program. However, it chose to completely
ignore its own program to assure quality and in doing so chose to place the public's safety at
risk.
2 Fourteen days after the catastrophe, URS calculated the lack of strength of the bowed gusset and confiinied its earlier prediction of the "Catastrophe." Knowing that hanging in the balance was the safety of millions of American traveling on similar bridges nationwide, URS also decided to keep its knowledge secret. See discussion at pp. 26-27 infra. 3 URS language is imprecise and misleading in that "frozen" is intended to describe that the bearings were seized due to corrosion and rust and not "frozen" with ice.
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No corporation in State history has acted with such deliberate disregard for the safety of
so many Minnesotans. URS has no remorse for the death and destruction it caused. When its
lead technical engineer on this project was asked if he took responsibility for URS's work on the
Bridge, he said: "Why should I?" 4 URS's intentional conduct was a direct cause of the Greatest
Man-Made Catastrophe in State History. The Consortium Plaintiffs present a clear and
convincing prima facie case for amending their complaint to allege punitive damages.
II. FACTS
A. The Bridge.
The Bridge opened to traffic in 1967. The Bridge carried people in more than 158,800
vehicles per weekday and 125,360 vehicles per weekend day. 5
The Bridge was a steel truss bridge. It was made up of
steel beams (also called "chords" or "members"). 6 The chords
met at large steel "gusset plates" (also called "connections").
The members were connected to the gusset plates by rivets.
4 Q. ... Are you prepared to stand up in court to take personal responsibility for all the engineering work that URS did on this bridge?
A. Take personal responsibility -- Q. Yes, sir. A. -- for all the engineering work? Q. Yes, sir. A. I would not. Q. Why not? A. Why would we? Why would I? It's -- it's a team effort. It is -- Q. Was there -- A. I was -- I was the project engineer, I was the technical lead, but why would we -- why
would I be taking the personal responsibility ... for all the engineering work. Ex. 2 (Zhou Dep.) at 251:20 — 252:9. 5 Ex. 3 (Dep. Ex. 414 — URS Draft Report) at IvIN0107724-26. 6 See attached Glossary for engineering terms used in this brief. See also Ex. 21 (Consortium Plaintiffs' Affidavit of Expert Identification) at 4-6.
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The Bridge had three spans. The main span across the Mississippi rested on two sets of
bearings (east and west) which in turn rested on concrete piers on each side of the river. Both
piers were located on land. Pier 6 was located on the south (downtown) side of the Bridge. The
bearings on Pier 6 were steel roller bearings.
Pier 7 was on the North side of the river. The Pier 7 was fixed and was not designed to move.
Bridges, like other structures, must expand and contract to accommodate temperature
changes. This is particularly true in Minneapolis where the coldest recorded temperature is -34°
and the hottest is l08°. 7 The effect of temperature on a bridge is called the "temperature load."
The temperature load on a steel bridge directly bears on the bridge's capacity to maintain its
structural integrity. The purpose of roller bearings on this type of bridge was to accommodate
thermal movement — i.e., to allow the Bridge to expand or contract with changes in
7 Ex. 4 (U of M Reference Temperature).
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temperature. 8 The massive Bridge was designed and intended to actually move back and forth
on the pier by movement of the bearing's rollers.
URS knew that the bridge did not have the safeguards of a modem bridge. The Bridge
was "non-redundant," meaning that, if a member failed, a collapse could occur. 9 The Bridge was
also "fracture critical," meaning that the failure of a "fracture-critical" member would result in
the collapse of the Bridge. 10
B. The History of the Bridge.
The State regularly inspected the Bridge and concluded that it was in the best interest of
motorists to hire a professional engineering company to provide expertise on the Bridge's safety.
The State gave URS a Request for Interest on March 7, 2003. 11 URS responded with
representations of extensive experience in the analysis and modeling of bridges like the 1-35W
Bridge:
Our URS team will provide Mn/DOT with the experience and expertise needed to complete this project in a professional, timely, and cost-effective manner that exceeds expectations. 12
URS was ultimately chosen to do the work because of these broad claims. 13 Put simply, the
State hired URS because URS brought a greater degree of expertise to the project than that held
by the State. 14
8 See Ex. 6 (McElwain Dep.) at 107:20 — 108:5. 9 See Ex. 5 (Flemming Dep.) at 60:6-21. 1° See Ex. 6 (McElwain Dep.) at 58:2-5. 11 Ex. 7 (Dep. Ex. 402 — MnDOT Request for Interest). 12 Ex. 8 (Dep. Ex. 403 — URS Response to MnDOT Request for Interest) at URS0006605; see also id. at URS0006606, URS0006608. 13 Ex. 9 (Dorgan Dep.) at 108:11-18. 14 Ex. 10 (Western Dep.) at 303:17 — 305:5.
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C. URS Promises.
1. Public Safety Was URS's "Number One Priority."
URS repeatedly stated that there was nothing more important than the safety of the
Minnesotans and others using the Bridge. URS proclaimed:
• Keeping the community safe was URS's number one priority: 5
• URS wanted Minnesota drivers to have confidence the 35W Bridge was completely safe: 6
O We [URS] are vital to predicting Bridge safety: 7
O URS believes every accident is preventable: 8
URS also agrees that it was fair for Minnesotans to assume:
O URS would put safety first;
O URS would not cut corners;
O URS would do thorough work;
* URS would fulfill its contractual promises; and
• The 1-35W bridge would not collapse on its watch. °
The Bridge collapsed on URS's watch.
URS's conduct is governed by the American Society of Civil Engineers' Fundamental
Canons. Canon 1 states:
Engineers shall hold paramount the safety, health, and welfare of the public.2o
15 Ex. 5 (Flemming Dep.) at 131:6-22, 389:12-20; Ex. 6 (McElwain Dep.) at 55:14-17; Ex. 11 (Long Dep.) at 44:12-14; see also Ex. 12 (Dep. Ex. 640 — URS document) at 1JRSP2093528. 16 Ex. 5 (Flemming Dep.) at 386:9-18; Ex. 6 (McElwain Dep.) at 55:22-25; Ex. 11 (Long Dep.) at 44:15-17. 17 Ex. 5 (Flemming Dep.) at 129:5-10; see also Ex. 13 (Mayes Dep.) at 159:19 — 160:10. 18 Ex. 6 (McElwain Dep.) at 56:1-5; Ex. 11 (Long Dep.) at 44:18-20; Ex. 13 (Mayes Dep.) at 42:10-12. 19 Ex. 6 (McElwain Dep.) at 56:6-20, 57:2-5, 57:15-18; Ex. 11 (Long Dep.) at 44:21 — 45:12.
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URS agrees that this accurately sets forth their duty. 21
URS promised to evaluate the structural integrity of the Bridge. 22 The Bridge's structural
integrity was paramount because people used the bridge every minute of every day of the year.
It was one of the busiest bridges in our state. Any question about the Bridge's structural integrity
would call into question the safety of the people using the bridge.
2. Safety Through Quality Assurance And Quality Control.
URS had developed a comprehensive and mandatory Quality Assurance and Quality
Control ("QAJQC") Program in order to assure the delivery of quality work for the benefit of
public safety. 23 URS promised in writing that it would use its mandatory QAJQC Program on all
of its work on the Bridge. 24 URS totally ignored and disregarded its QA/QC Program with
regard to its work on the Bridge.
3. URS's May 2003 Promises.
In May 2003, URS made promises to the State in Contract No. 85169. 25 URS promised
to actively participate in the Bridge's annual in-depth inspection. Exhibit "A" to this contract
20 Ex. 14 (ASCE Ethics Guide) at 13 (emphasis added); see also Ex. 15 (NSPE Ethics Guide) ("Fundamental Canons: "Engineers, in the fulfillment of their professional duties shall: 1. Hold paramount the safety, health, and welfare of the public."). 21 Ex. 6 (McElwain Dep.) at 54:10-14; Ex. 11 (Long Dep.) at 43:20-24; Ex. 13 (Mayes Dep.) at 31:23 — 32:7. 22 Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS0000693 ("In this Contract, the Contractor will perform an evaluation of the bridge truss-arch spans to evaluate its various components to deteunine their structural integrity.") (emphasis added). 23 Ex. 13 (Mayes Dep.) at 69:19-70:4, 73:15 — 74:7; Ex. 17 (Rangaraj Dep.) at 38:12-25. Relevant excerpts from URS's Quality Assurance Manual are at Ex. 18 (Dep Ex. 690 — URS QA/QC Manual) (CONFIDENTIAL AM) FILED SEPARATELY UNDER SEAL). 24 Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at U1R50000690,1133.1 ("Prior to approval and execution of this Contract, Contractor must have Quality Assurance and Quality Control (QA/QC) Program."). 25 Ex. 19 (Dep. Ex. 404 — Contract No. 85169).
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details the work that URS was to perform. 26 This project was to allow URS to perform a
preliminary assessment of the Bridge's structural condition for use in the other projects that URS
would be awarded. 27 Specifically, URS promised to:
• Review bridge plans, inspection data, and past research reports to detelinine what parts of the Bridge to inspect;
o Accompany the State on its annual inspection to determine the condition of the upper chords over the piers;
• Mark the roller bearings to see if the Bridge was moving due to temperature variations as designed; and
• Prepare a report of the findings. 28
4. URS's October 2003 Promises.
In October 2003, URS made more promises in Contract No. 85809. 29 Exhibit "A" lists
URS's promises:
Task 1 - Inspection of Critical Truss Elements and Bearings
The contractor [IJRS] will inspect the critical members, connections and fatigue details based on review of as-built plans and available data. The contractor will inspect and record expansion bearing and joint marks for movement and record temperatures ....
Task 2 - Inspection Report
The Contractor will prepare and deliver a brief report of findings including condensed tables and figures for the report. The contractor will perform QA/QC review of the report and revise as necessary. 3°
5. URS's December 2003 Promises.
In December 2003, URS made more promises in Contract 85907. 31 URS promised to
perform 13 tasks specified in Exhibit "A" to this contract, and to provide progress reports, a
26 Id. at URS0008695. 27 Id. 28 Id. 29 Ex. 20 (Dep. Ex. 406 — Contract No. 85809). 30 Id. at MN0307947.
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preliminary report, and a final report. 32 In addition, the contract required six progress meetings
with the State at various stages of the project. 33 The key tasks that URS was required to perform
are as follows:
• Key Work 1. Evaluate performance of expansion bearings and joints through visually monitoring and recording the movements of specifically made marks at different temperatures.
• Key Work 2. Develop a 3-D computer model that can reasonably predict truss member forces for dead, live, and temperature loads.
• Task 1.4 - Tabulate composition, attachment details and conditions for all primary and secondary members and connections.
• Task 2.1 - Inspect critical members, connections and fatigue details based on review of available data.
• Task 2.2 - Inspect expansion bearings and joints and mark bearings and joints for monitoring movements with temperature changes.
• Task 2.3 - Monitor and record bearing and joint marks for movement at a minimum of four (4) different seasonal temperatures. These will be compared to two observations undertaken in previous contracts.
• Task 2.4 - Determine bearing and joints conditions and movement-temperature relationships based on monitoring records.
• Task 4.2 - Perform stiffness analysis for DL [Dead Load] and T [temperature changes using four cases of support conditions: . . .
• Task 5.2 - Determine maximum tension and compression member forces due to temperature load from database considering the four support conditions.
• Task 5.3 - Compute tension and compression strengths of all primary and secondary truss members and store results in database.
• Task 8.1 - Develop tension and compression failure criteria for truss members and connections based on ultimate failure state as originally designed.
31 Ex. 16 (Dep. Ex. 408 — Contract No. 85907). 32 Id. at URS0000676-77. 33 Id. at URS0000697.
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0 Task 8.2 - Compute tension and compression failure forces for all primary and secondary truss members and connections and store in database. 34
III. THE STANDARD FOR GRANTING A MOTION TO AMEND TO INCLUDE A CLAIM FOR PUNITIVE DAMAGES.
Minnesota Statute § 549.191 sets forth the procedure for pleading punitive damages: the
party seeking punitive damages must file a motion to amend the complaint, alleging "the
applicable legal basis under section 549.20 or other law" and the "factual basis for the claim."
The substantive standard is detailed in Minn. Stat. § 549.20:
(a) Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.
(b) A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:
(1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or
(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.
Minn. Stat § 549.20, subd. 1 (2008) (emphasis added).
The standard for amendment is prima facie evidence: "if the court finds prima facie
evidence in support of the motion, the court shall grant the moving party permission to amend
the pleadings to claim punitive damages." Minn. Stat. § 549.191 (2008) (emphasis added). In
this context, prima facie evidence is evidence which, if unrebutted, would support a judgment in
the moving party's favor. Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn. App.
1990). Thus, a motion to amend should be granted if the supporting evidence reasonably allows
34 Id. at URS0000693-99.
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a conclusion that clear and convincing evidence may establish that the defendants acted with
deliberate disregard. Id.
At this stage, plaintiffs are not required to prove an entitlement to an award of punitive
damages, but only a right to allege punitive damages. Ulrich v. City of Crosby, 848 F. Supp.
861, 867 (D. Minn. 1994) (citing Fournier v. Marigold Foods, Inc., 678 F. Supp. 1420 (D. Minn.
1988)); McKenzie v. Northern States Power Co., 440 N.W.2d 183,184 (Minn. App. 1989)
(emphasis added). "Prima facie" does not refer to a quantum of proof, but, rather, to a procedure
for screening out unmeritorious punitive damages claims. Ulrich, 848 F. Supp. at 867; (citing
Swanlund v. Shimano Indus. Corp., Ltd., 459 N.W.2d 151, 154 (Minn. App. 1990), rev. denied
(Minn. Oct. 5, 1990). Prima facie evidence is "that evidence which, if unrebutted, would support
a judgment in that party's favor." McKenzie v. Northern States Power Company, 440 N.W.2d
183, 184 (Minn. App. 1989).
Minnesota Statutes § 549.191, directs the court to review evidence in support of a motion
to amend to plead a claim for punitive damages under a standard analogous to that of a directed
verdict. Ulrich, 848 F. Supp. at 867; Swanlund, 459 N.W.2d at 155. The defendant may not
oppose this motion with contrary factual inferences or arguments. Ulrich, 848 F. Supp. at 867
("[T]he Court makes no credibility rulings nor does the Court consider any challenge by cross-
examination or otherwise to the Plaintiff's proof."); Swanlund, 459 N.W.2d at 154 (motion to
amend for punitive damages under § 549.191 does not require any credibility determinations).
For that reason, in ruling on a motion to allow a claim for punitive damages, the court must
simply determine whether the plaintiff has submitted evidence which, if believed, would support
a punitive damages award.
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In substance, "acting with deliberate disregard for someone's safety means knowing facts
that create a probability of injury and then acting in disregard of those facts." American Family
Ins. Co. v. MB., 563 N.W.2d 326, 330 (Minn. App. 1997). Indeed, in Jensen v. Walsh, 623
N.W.2d 247 (Minn. 2001), the Minnesota Supreme Court ruled that the intent to do the act was
the key determination, not the kind of damage that resulted, allowing a claim for punitive
damages when defendants intentionally egged plaintiff's house, stole her electric meter, and
caused property damage totaling $5,500. "Indifference" is best defined in an opinion from Judge
Rosenbaum in Schaub v. County of Olmsted, 656 F. Supp. 2d 990, 997 11.4 (D. Minn. 2009):
"deliberate indifference" as a "deliberate choice to follow a course of action ... from among
various alternatives."
Here, the Consortium Plaintiffs seek the right to assert punitive damages against URS
pursuant to Minn. Stat. 549.20, subd. 2(c), which states in relevant part: "Punitive damages can
properly be awarded against a master or principal because of an act done by an agent only if: ...
(c) the agent was employed in a managerial capacity with the authority to establish policy and
make planning level decisions for the principal and was acting in the scope of that employment."
As will be set forth in more detail below, the URS Project Manager and the URS Project
Engineer, both of whom fall within the requirements of this provision, engaged in conduct giving
rise to the punitive damages that Plaintiffs seek.
IV. URS CHOSE TO ACT WITH DELIBERATE DISREGARD FOR PUBLIC SAFETY.
The evidence uncovered by the Consortium Plaintiffs clearly and convincingly supports a
prima facie case that URS acted with deliberate disregard and indifference to the public's safety.
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A. The Cause of the Collapse at 6:03 p.m. on August 1, 2007.
To put into context the egyegiousness of URS' deliberate disregard for public safety, one
needs to understand why the Bridge fell, killing and injuring so many. 35 Every engineer who
will testify at trial will agree that a steel truss bridge must have the ability to expand and contract
with changes in temperature. Every engineer will agree that steel expands when heated and
contracts when cooled. Accordingly, when the main span of a bridge is 456 feet long, the design
of the bridge must contain a mechanism to allow expansion and contraction of the bridge
members. In other words, the bridge must be allowed to "move." In the Bridge's design, the
expansion and contraction of bridge members was accommodated by the inclusion of roller
bearings. These roller bearings were intended to allow the bridge to "move" when it expanded
with warmer temperatures and contract with cold temperatures.
The Bridge collapsed into the river because the roller bearings at Pier 6 were, according
to URS, "frozen" due to rust and the accumulation of debris. 36 At the peak of the heat of the hot
day of August 1, 2007, the Bridge desperately needed to move. The Bridge's roller bearings
were designed for the sole purpose of accommodating that movement. But, because the roller
bearings were "frozen" and would not move, the steel members of the bridge took on the job of
trying accommodating the massive thermal forces. One such member near Pier 6's "frozen"
bearings was L9-11. 37 However, this steel member could not do the job of frozen bearings. As a
result, L9-11 "buckled" leading to the inevitable cascade of failures (including that of the U10
35 For an engineering explanation for the collapse, see Ex. 21 (Consortium Plaintiffs' Affidavit of Expert Identification) at 10-14. 36 Ex. 3 (Dep. Ex. 414 — URS Draft Report) at MN0107722-24; Ex. 22 (Dep. Ex. 407 URS Second Inspection Report) at 1-2; see also Ex. 6 (McElwain Dep.) at 138:16-18. 37 The L9-11 member is technically two separate members (L9-10 and L10-11) which are connected by the L10 gusset plate. The "L" refers to "lower" to distinguish it from the "upper" or "U" gusset plates and members.
81505012.1
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gusset directly above the L9-11 chord) on the "fracture critical" and "non-redundant" Bridge.
See diagram below.
U10
This is why the Bridge, and all of the people on it, crashed into the river below at 6:03 p.m. on
August 1, 2007.
B. URS Kept Secret Its Knowledge That the Bridge "Was Clearly Overstressed."
Eleven months before the "catastrophe," URS documented its clear and convincing
recognition that the Bridge was not safe for the people that used it. URS could have chosen to
tell the State that the Bridge was unsafe. Instead, URS lied to the State in one of the most
significant showing of deliberate disregard of the public's safety in state history.
URS prepared a draft report detailing its evaluation of the Bridge. 38 It delivered that draft
report to the State in mid-July 2006. 39 The State reviewed the report and, in mid-August 2006,
38 Ex. 3 (Dep. Ex. 414 — URS Draft Report). 39 Ex. 23 (URS Transmittal Sheet) at URS0001020.
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sent URS a list of questions about the report. ° URS's Project Engineer, Ed Zhou, prepared a
response. 41 He sent it to Don Flemming, URS's Project Manager, to review. 42
But, instead of responding to Zhou, Flemming went straight to his URS boss, Mark
Mayes. On September 1, 2006, Flemming warned his boss:
I am concerned that Ed [Zhou] is trying a little too hard to [ 43] advise Mn/DOT that the 9340 Bridge is okay even though it is clearly overstressed by today's design criteria when considering bending and secondary stresses of the members based on a 3 D analysis.
I feel that the bottom line is that the fatigue analysis does not result in alarming results but from a strength standpoint the original design does not meet today's design specifications by a very significant degree.
In addition, from a fatigue standpoint if a significant crack develops in any of the 10 most critical members collapse could be imminent in a short amount of time, even though the analysis says a crack is unlikely. 44
A mere five days later, on September 6, 2006, Flemming and Zhou met with State
representatives. At this meeting, Flemming could have told the State that URS knew that the
Bridge was "clearly overstressed." He could have warned the State that "Ed is trying a little too
hard to advise MnDOT that the 9340 Bridge is okay." But, he chose not to. 45 Flemming also
chose not tell the State that "from a strength standpoint the original design does not meet today's
design specifications by a very significant degree." 46 Eleven months later, the Bridge was in the
Mississippi River, killing 13 and injuring over 100 more innocent people.
40 See Ex. 9 (Dorgan Dep.) at 92:23 – 93:4. 41 See Ex. 24 (Dep. Ex. 632 – Zhou 8/29/06 email to Flemming) 42 Id.; see also Ex. 25 (Dep. Ex 559 – Flemming 9/01/06 email to Mayes) 43 In the original message, Flemming mistakenly put the word "not" here. Flemming testified that his concern was that Zhou was trying too hard to advise MnDOT that the bridge is okay — and not that Zhou was trying too hard to "not" advise MnDOT that the bridge was okay. Ex. 5 (Flemming Dep.) at 24:13-17. 44 Ex. 25 (Dep. Ex 559 – Flemming 9/01/06 email to Mayes) (emphasis added). 45 Ex. 5 (Flemming Dep.) at 35:14-19; Ex. 26 (Peterson Dep.) at 289:25 – 290:4. 46 Ex. 9 (Dorgan Dep.) at 365:24 – 366:20.
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URS's deliberate disregard for public safety was compounded by the deceitful manner in
which it tried "too hard" to advise the State that the bridge was safe despite knowing it was
"clearly overstressed." URS was required to use three separate, accepted, code-prescribed
engineering methodologies to analyze the Bridge. 47 Each method had a built-in safety factor.
URS created a 3-D computer model and used that model to calculate the members' stresses
under each engineering methodology. Those calculations showed that the bridge was
overstressed. 48
Then, in an unabashed attempt to make the Bridge appear safe when it was not, Zhou
performed a calculation that was not permitted by any engineering code, was not taught in any
engineering program, was never discussed in engineering journals, and was never used by URS
before or after this project. ° Zhou did not make a mistake; he was not simply careless; he did
not act thoughtlessly or inadvertently. 50 Zhou made a conscious decision to use an unaccepted
method of calculating the Bridge's strength that had no built-in safety factor. This allowed URS
to misrepresent that the Bridge was safe when it was not safe under the analytical methodology
set forth in the applicable codes.
47 Ex. 16 (Dep. Ex. 408 – Contract No. 85907) at M60000698-99. The three required standards were: 1. AASHTO LRFD Bridge Design Specifications; 2. AASHTO Guide Specification for Fatigue Evaluation of Existing Steel Bridges; and 3. AASHTO Manual for Condition Evaluation of Bridges. Id. 48 An "interaction ratio" is the ratio of load on the truss member to capacity of the member. See Ex. 6 (McElwain Dep.) at 66:8-13. Using the prescribed codes, URS learned that numerous members on the Bridge had interaction ratios greater than 1.0, several well over 1.25, and some in excess of 1.50. See Ex. 3 (Dep. Ex. 414 – URS Draft Report) at 35W0006766-71. An interaction ratio over 1.0 is a red flag. See Ex. 2 (Zhou Dep.) at 566:7-16. It is an indication that the load of the member exceeds the prescribed capacity — i.e., the member is overstressed. See Ex. 11 (Long Dep.) at 295:12-20. 49 Ex. 6 (McElwain Dep.) at 128:16 – 129:12, 196:11-19; 197:4-11, 198:7-15, 216:6-11, 216:22 – 217:10; see also Ex. 34 (Jenkins Dep.) at 161:6 – 162:6. 5° See Backlund v. City of Duluth, 176 F.R.D. 316, 323-25 (D. Minn. 1997) (distinguishing a negligent act — one done carelessly, thoughtlessly, heedlessly, inadvertently, from a willful, deliberate, or intentional act – one done knowingly, purposefully and without justifiable excuse).
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The State asked URS direct questions about the interaction ratios used by URS and its
indications for safety. Dan Dorgan, the State's Chief Bridge Engineer, asked:
The second paragraph notes that no interaction ratios greater than 1.0 were found using the unfactored load and the ultimate capacity [URS's concocted method]. Assuming some were close to 1.0, does this mean no traditional safety factor remains and there is no residual capacity beyond the design live loads? 51
The honest answer which URS chose to hide was a simple "YES." Yet, URS gave a four-page
answer that amounts to nothing more than engineering mumbo jumbo. 52
URS admitted that did not answer the State's legitimate question about the Bridge's
safety. URS engineer Brett McElwain, who created the 3-D model and made all of the
calculations, was asked about whether URS answered the State's safety question in its four-page
answer:
Okay. Then it goes on to say, "Assuming some were close to 1.0, does this mean no traditional safety factor remains and there is no residual capacity beyond the design live loads." Did I read that capaci -- did I read that correctly?
A. Yes.
Q. The answer to that question is yes; is it not?
A. I believe so, yes. 53
Q. Okay. Where in this four-page answer does URS tell the state the answer
to Mr. Dorgan's question is yes?
A. I did not see it in the response here. 54
Assistant State Bridge Engineer Gary Peterson, asked URS to "clarify that ultimate
capacity is the yield capacity of the member." 55 This question is significant for two reasons:
51 Ex. 27 (Dep. Ex. 554 — URS's Draft Responses to MnDOT Comments) at URS004280. 52 Id. at URS004280-83. 53 Ex. 6 (McElwain Dep.) at 269:1-9. 54 Id. at 270:13-16.
81505012.1
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first, it made clear that the State did not understand that "ultimate capacity" meant failure point
(not yield strength as the code provides) and second, it made clear that the State did not
understand the methodology used by URS because the concept of "yield strength" is used in one
of the three accepted engineering methodologies required by the contract.
URS knew the true answer to Mr. Peterson's direct question was "No, ultimate capacity
does not mean yield strength."56 But, URS refused to tell the truth. It chose instead not answer
the question at all. Indeed, at the time of his deposition on April 27, 2010, Peterson stated that
he still believed "ultimate capacity" meant "yield strength," and he did not recall that anyone
from URS tried to disabuse him of that inaccurate conclusion. 57 In fact, URS went on to
erroneously lead Mr. Peterson to believe that its methodology was really "Allowable Stress
Design," the code promulgated by AASHT0 58 under which the Bridge was designed in the early
1960s."
URS's lies directly contributed to the death and destruction of August 1, 2007. Had URS
told the State the truth — that the Bridge was overstressed to a "very significant degree," that the
answer to Dorgan's question was a simple "YES," and that "ultimate capacity" meant failure
point, not yield strength, the Greatest Man-Made Catastrophe in State History would not have
occurred. Kevin Western, the State's Bridge Design Engineer, testified:
55 See Ex. 27 (Dep. Ex. 554 – URS's Draft Response to MnDOT's Comments) at URS0004279. "Ultimate capacity" is the failure point, far beyond yield strength. Ex. 6 (McElwain Dep.) at 65:21-25. "Yield capacity" is the point at which the metal begins to deform, a point far short of failure. Id. at 65:12-20. 56 See Ex. 6 (McElwain Dep.) at 267:1-6. 57 Ex. 26 (Peterson Dep.) at 295:1-25. 58 American Association of State Highway and Transportation Officials (AASHTO) is a nonprofit association whose guides and specifications are used to evaluate a bridge's structural integrity. See http://www.transportation.org . 59 Ex. 26 (Peterson Dep.) at 297:25 – 298:15.
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Q. And as you sit here today hearing about this, in your mind are you wondering, if you had been told this, could you have prevented the collapse and saved all this destruction?
A. Not until you just asked that question.
Q. Are you now?
A. Potentially. °
Q. Wasn't okay for URS to hide this information from you; was it?
A. It would have been good to be shared with us, yes.
Q. This information may have caused the bridge collapse; didn't it -- couldn't it? And you don't know because you haven't done any analysis of the collapse, but it could have; right?
A. Could have prevented it from happening. 61
Gary Peterson agreed that the State would, at the very least, have done more investigation
into the strength of the Bridge. 62 And Dan Dorgan testified that: "if the answer had come back
simply as yes, we would have asked more questions and it would have -- What we are pursuing
is [sic] questions regarding safety." 63
Why did URS try so hard not to tell the State that the Bridge was "clearly overstressed"?
Why didn't URS tell the State to close the Bridge and replace it? The reasonable inference from
the evidence points to the usual suspect: money was the motive. Zhou advertised URS's services
by publishing several articles touting his ability to estimate the remaining service life of a bridge
far in excess of what a conventional analysis would offer. 64 In a December 2004 e-mail from
Zhou to colleague Tom Bryant in URS's Denver office, Zhou states: "The bottom line of our
60 Ex. 10 (Western Dep.) at 411:24-412:6. 61 Id. at 413:4-12. 62 Ex. 26 (Peterson Dep.) at 290:17-21; see also id. at 334:5-13. 63 Ex. 9 (Dorgan Dep.) at 362:25 — 363:12. 64 See Ex. 28 (Dep. Ex. 573 — Zhou article); Ex. 29 (Dep. Ex. 574 — Zhou article).
81505012.1
19
work is we usually can proof [sic] that aged bridges have longer service life than conventional
analysis indicates per design specifications." 65 Put differently, if Zhou estimates a longer service
life, he can recommend retrofit of the existing bridge (rather than construction of an entirely new
bridge) and Zhou and URS would be paid handsomely for monitoring the retrofit.
URS documented its knowledge that the Bridge posed a huge risk to public safety in its
"clearly overstressed" condition, yet URS consciously and deliberately chose not to tell anyone.
Indeed, URS misrepresented the true facts by concocting a methodology that made the bridge
appear safe when URS knew it wasn't. Had URS been truthful, the State would have acted
because, as Chief Bridge Engineer Dorgan put it "What we are pursuing is [sic] question
regarding safety." URS's conduct falls squarely within the requirements of Minn. Stat. § 549.20.
Plaintiffs have met their burden of setting forth a prima facie case to allege punitive damages
C. URS Knew That the Roller Bearings Could Cause a "Catastrophe."
URS was paid for its promise to inspect the Bridge's bearings at four different seasonal
temperatures. 66 It chose not to fulfill its promise. ° In 2003, URS photographed the roller
bearings at Pier 6. 68
65 Ex. 30 (Dep. Ex. 523 — Zhou 12/02/04 email to Bryant). 66 Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS 0000694, Task 2. 67 See Ex. 11 (Long Dep.) at 123:17 — 126:21. 68 The below photos were taken from Zhou's computer. The photographs are replicated as Exs. 42-43. Ex. 42 (Dep. Ex. 428 — URS Photo of Pier 6 Bearing); Ex. 43 (Dep. Ex. 429 — URS Photo of Pier 6 Bearing).
81505012.1
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Pier 6 Bearing Pier 6 Bearing
UTZS could tell by looking at them and by comparing them to photos of the Bridges' other
bearings that the Pier 6 bearings were severely deteriorated. See photos of Pier 8 below. 69
Pier 8 Bearing Pier 8 Bearing
URS wrote in their report to the State that the Pier 6 bearings were "frozen.""
"Frozen" (i.e., seized) bearings can have disastrous consequences. The textbook Bridge
Inspection and Rehabilitation states: "So it is clearly evident that maintaining a well functioning
bearing ... is extremely important, and that the consequences of a 'frozen' bearing ... would be
69 The below photos were taken from Zhou's computer. The photographs are replicated as Exs. 44-45. Ex. 44 (Dep. Ex. 432 — URS Photo of Pier 8 Bearing); Ex. 45 (Dep. Ex. 433 — URS Photo of Pier 8 Bearing). 70 Ex. 3 (Dep. Ex. 414 — URS Draft Report) at MN0107722-24; Ex. 22 (Dep. Ex. 407 — URS Second Inspection Report) at 1-2. "[B]earings can be considered as 'frozen,' where the bearings become 'locked' and no longer allow translation or rotation." Ex. 31 (Dep. Ex. 401 — Bridge Rehabilitation Guide) at 196.
81505012.1 21
3. Remove ono tension member in 1he model and check all members against failure criteria under DLA-LIA
4. Repeat Ihe process for all tension members in database
Evaluate effects of temperature load and bearing condlions (lixed and roller expansion bean -
Tabulate all fracture critical members in order of fatigue/fracture failure probabltty B.
severe. '171 The text goes on to warn: "The consequences of frozen bearings are often adverse
effects on the substructure units. ... [T]he large forces generated when movement is restricted
will find a weak link in the structural system and cause problems." 72
URS knew exactly what the dangers were from the frozen bearings. Buried in the
millions of documents produced by URS, the Consortium found a document showing that URS
predicted a "Catastrophe" for this Bridge related to the bearings. In a June 17, 2003 document,
URS Project Engineer, Don Flemming, wrote "Catastrophic" next to the condition of the roller
b earings . 73
Sub-Total Itam H.
Flemming related the "Catastrophe" directly to the condition of roller bearings. He even circled
line "5" for the bearing and drew a line from "Catastrophe" to the bearings reference. 74
URS knew that a "catastrophic" event would likely kill, or at least injure, countless
people who used the bridge high above the Mississippi River every day. URS had a choice.
URS internally considered recommending that the State replace or repair the seized bearings. 75
However, it chose not to make any recommendation at all to restore the bearings to working
71 Ex. 31 (Dep. Ex. 401 — Bridge Rehabilitation Guide) at 182. 72 Id. at 196. 73 Ex. 32 (Dep. Ex. 646 — Flemming's Notes) at URS0000291 (emphasis added). 74 Despite all this, Flemming's laughable story now is that he really meant his "Catastrophe" prediction to refer to some part of the bridge other than the bearings. See Ex. 5 (Flemming Dep.) at 204:10-25. 75 Ex. 5 (Flemming Dep.) at 181:16 — 183:3; Ex. 33 (Dep. Ex. 484 — URS Draft Section 8) at URSPI456712.
81505012.1 22
condition. 76 URS could have warned the State about the predicted "Catastrophe." But, it chose
not to.
URS's other choice was to keep its "catastrophic" concern secret and not tell anyone.
URS chose not to do or say anything. In doing so, it clearly and convincingly chose to totally
disregard the safety of the people using the bridge.
1. URS Chose the Most Unsafe Method To Measure the Roller Bearings.
Given URS 's "Catastrophic" recognition and its admission that the Pier 6 roller bearings
were "frozen," URS was obligated to analyze the resulting stresses resulting from the dramatic
temperature range in Minnesota from the coldest day in winter to the hottest day in summer. In
fact, URS promised to "[d]evelop a 3-D computer model that can reasonably predict truss
member forces for dead, live, and temperature loads."77
When it came to public safety, URS's acknowledged paramount duty, URS was required
to use the safest measurement of temperature load to assess the Bridge's structural integrity. The
engineering code (and Minnesota common sense) that governs the analysis of temperature effects
on bridges required URS to use a 150 ° F temperature range (or "load" in engineering terms). 78
But URS chose not to follow common sense or the engineering code. Instead, URS chose to use
an unrealistic 75 ° F temperature range. 79 Because use of such a limited temperature range did
not accurately reflect stresses on the coldest and hottest days in Minneapolis, URS's choice was
not safe. 8°
76 See Ex. 5 (Flemming Dep.) at 183:4-10; Ex. 11 (Long Dep.) at 96:8-15. 77 Ex. 16 (Dep. Ex 408 — Contract No. 85907) at 0000693 (emphasis added). 78 Ex. 11 (Long Dep.) at 117:20 — 118:10; see also Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS0000698-99 (requiring URS to comply with AASHTO design codes). 79 Ex. 6 (McElwain Dep.) at 108:24 — 109:2. 80 See id. at 111:6 — 112:5.
81505012.1
23
To compound its disregard for public safety, URS also chose to make an unfounded and
unsafe assumption of where in their range the roller bearings were "frozen." 81 (By "range," what
is meant is the position of the frozen bearings relative to the fully expanded or contracted
positions, or somewhere in between.) The safest and most conservative assumption would be
that the bearings were either fully contracted or fully expanded and then calculate the effect of
the temperature load at each extreme, knowing that the "true" answer was between the two
extremes. 82 However, without any basis in fact for doing so, URS chose the least safe
alternative: it chose to assume that the Pier 6 bearings were frozen somewhere in the middle of
their two extremes.
However, URS now admits that had it calculated the temperature load by first assuming
the bearings were frozen fully expanded and then assuming them to be frozen fully contracted,
URS would have had a far more accurate analysis of the danger caused by the temperature load.
URS agreed that, had it done the safest analysis, it would have confirmed its catastrophic
prediction: the compressive loads on Chord L9-L11 were very close to the chord's failure
point. 83 URS admitted that this is a fact that would cause an engineer to be concerned. 84
D.
URS Knew That the Gusset Plates Were Bent, But Chose Not To Analyze Them Because It Would Have Been "Too Much Work."
URS was paid to fulfill its promise to "[c]ompute tension and compression failure forces
for all primary and secondary truss members and connections and store in database." 85
81 Id. at 110:19 — 111:5. 82 See id. at 112:16 — 115:9. 83 See id. at 125:1 — 126:13. 84 Id. 85 Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at 1JRS0000696 (emphasis added).
81505012.1 24
Connections include gusset plates. 86 Gussets are the steel plates to which the steel bridge
members are connected with rivets.
In 2003, URS took pictures of the Bridge's gusset plates. Most of the gussets that URS
photographed were one inch thick. With one significant exception, all of the gusset plates that
URS saw were straight. URS's own photos, however, clearly showed that four U10 gusset plates
were thinner (only one-half inch thick). More importantly, URS's own photos showed that four
U10 gussets were bowed. 87
U10 West Truss
U10 East Truss
86 Ex. 34 (Jenkins Dep.) at 64:17-18. 87 The below photos were taken from Zhou's computer. The photographs are replicated as Exs. 35-38. Ex. 35 (Dep. Ex. 469 — ITIZS Photo of Ul OW Gusset); Ex. 36 (Dep. Ex. 470 — URS Photo of U1OE Gusset); Ex. 37 (Dep. Ex. 471 — URS Photo of U10'W Gusset); Ex. 38 (Dep. Ex. 472 — URS Photo of Ul O'E Gusset). URS acknowledged the bowing. See Ex. 6 (McElwain Dep.) at 28:18 — 29:12; Ex. 11 (Long Dep.) at 252:1-15; 252:23 — 253:11; 256:7-15.
81505012.1
25
1 I
4117
4441-41
4 :4 4 41 4
t 4.
t I f 9 I 4 94447 11
4* 4 41944
1 4 9144 4 41 i
4 i f
t!
4 1 1
U10' West Truss U10' East Truss
The gussets were not supposed to be bowed. 88 Based on photos it took of the U10 gusset
plates, URS knew that something was very wrong. URS admits that the bowed gusset plates
suggest that there was a pattern, increasing the likelihood that the bowing was caused by
overstress. 89
Given URS's duty to analyze the gussets, its alarming photographic findings, and its
knowledge that the Bridge was non-redundant and fracture critical with no safety back-ups, what
did it do? URS chose to do nothing. Despite being paid hundreds of thousands of dollars by the
State, URS concluded: "We will not calculate actual capacities of all the connections since
that is too much work, although that provides the most accurate results." 9°
URS's computer modeling was the foundation for its analysis of the Bridge's "structural
integrity." In its computer modeling used to assess the safety of the Bridge, URS also chose to
ignore the significance of the bowed gusset plates. 91 Thus, the model URS used for all of the
88 Ex. 6 (McElwain Dep.) at 32:15-24. 89 See Ex. 2 (Zhou Dep.) at 181:20 — 183:3, 183:15-25. 90 Ex. 39 (Dep. Ex. 475 — Zhou 3/15/06 Email re Connection Capacities) (emphasis added); see also Ex. 6 (McElwain Dep.) at 334:10-20. 91 Ex. 6 (McElwain Dep.) at 53:17-54:9.
81505012.1
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other calculations was not accurate and likely overstated the strength of the Bridge. 92 Instead, it
simply decided to tell the State that the U10 gussets were in "good condition." 93
Despite URS' s conclusion that it was "too much work," URS ultimately got around to
analyzing the safety of the bowed, one-half inch U10 gusset plates. URS always had the
infonnation. 94 Zhou ultimately reviewed it and performed the simple calculation in order to
confirm that the U10 gusset plates were too thin. Zhou found that the bowed, one-half inch
gusset plate "may fail," and that as a result, the Bridge "might fail." 95 Zhou performed the
analysis on August 15, 2007 — fourteen days after the catastrophe and before all of the
victims' bodies had been recovered.
With Zhou' s post-catastrophe finding, URS knew that hanging in the balance was the
safety of millions of Americans who used similar gusseted, non-redundant and fracture-critical
bridges across the county. URS, however, chose to keep its conclusions secret; telling no one. 96
What would have happened had URS chosen to perform its quick calculation before the
death of and injury to so many people? URS admitted that it would have "alerted the authorities
that there was a problem of major magnitude and potentially disastrous in the use of the 35W
bridge."97 Zhou was asked in his deposition: "If you'd done these calculations, you would have
told the State, 'Close that bridge;' right?" Zhou answered: "Again hypothetically, yes. 98 Yet,
92 Id. at 53:24-54:9; 103:16-22 93 Ex. 40 (Dep. Ex 405 — URS Initial Inspection Report) at MN0312088-89, MN0312091-92, MN0312104-05, MN0312107. Note that in this report, URS refers to the U10' gusset plates as U18. Ex. 11 (Long Dep.) at 251:15-17. 94 Ex. 2 (Zhou Dep.) at 290:25 — 291:9; Ex. 6 (McElwain Dep.) at 306:25 — 307:4; Ex. 41 (Dep. Ex. 608 — URS Gusset Calculations). 95 Ex. 2 (Zhou Dep.) at 235:8-14. 96 Ex. 6 (McElwain Dep.) at 315:6 — 316:10. 97 Ex. 2 (Zhou Dep.) at 236:4-17. 98 Id. at 236:18-22.
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27
when asked whether he took responsibility for URS's work on the Bridge, Zhou said: "I would
not .... Why would I?"99
E. URS Disregarded Its Own Safety System: Quality Assurance/Quality Control.
Given URS's recognition that its paramount duty is to public safety, it wanted to make
sure it could "assure" and "control" the quality of work it was paid to perform. URS so valued
quality that it created a mandatory Quality Assurance / Quality Control ("QA/QC") Program. 100
To make certain that it followed the program, URS documented the program it its own manual.
URS completely disregarded any attempt to use its own program to see that it did quality work
for the safety of the public. Their choice not to use their mandatory QA/QC Program further
shows their deliberate disregard for the public's safety.
In its proposal to the State that ultimately led to Contract No. 85907, URS identified
Thomas D. Jenkins, PE as the QA/QC Officer for this project. 101 URS promised:
Quality Assurance/Quality Control (QAJQC): URS is committed to providing quality and timely service to Mn/DOT. To ensure that this commitment is achieved, we have established a QA/QC program. The Project Manager and the Project Engineer will develop a detailed work plan for each assignment, including a detailed scope of work and schedule. This work plan will be distributed to all staff working on the assignment. Detailed checking will be performed for all analysis, design, and contract documents. The final documents/report will go through a thorough independent technical review by Mr. Jenkins, the URS QA/QC officer, before submittal to Mn/DOT.
In addition, Article 33.1 of Contract No. 85907 required URS to have a QA/QC Plan, and
then to follow it:
Prior to approval and execution of this Contract, Contractor must have a Quality Assurance and Quality Control (QA/QC) Program. During the teini of this Contract, Contractor must adhere to Contractor's QA/QC Plan, which was
99 Id. at 251:2 — 252:9. 100 Ex. 13 (Mayes Dep.) at 69:19 — 70:4, 70:10-14; 73:15 — 74:7. 1°1 Ex. 8 (Dep. Ex. 403 — URS Response to MnDOT RFI) at URS0006608.
81505012.1
28
prepared by Contractor and accepted by State's Authorized Agent, for this Contract. Contractor's QA/QC Plan is incorporated into this Contract by reference. With each deliverable submitted to State pursuant to this Contract, Contractor must certify in writing to State's Authorized Agent that there was compliance with the. QA/QC Plan. State may cancel this Contract for Contractor's failure to follow the QA/QC Plan for this Contract. 1°2
The URS Quality Assurance Program applies to all projects under the jurisdiction of
uRs. 103 = it required, among other things, that:
• A "principal-in-charge" be assigned to each project. 1°4 URS chose not to have a principal-in-charge.
o A Project Quality Assurance Plan for each project. 1°5 URS chose to have no Plan for the I-35W project.
O A Quality Assurance File be established for each project. 106
Perhaps most significantly, the program required an "Independent Technical Review" of all
substantial project deliverables. 107 The purpose of the independent technical review is to verify
the quality and integrity of the project tasks and written work products; to satisfy contractual
obligations; and to verify compliance with the standard of care of professional practice. 1°8
Indeed, to justify its profit, URS even budgeted 138 hours for its QA/QC review in Contract
85907. 1°9
102 Ex. 16 (Dep. Ex. 408 – Contract No. 85907) at URS0000690, ¶ 33.1 (emphasis added). 103 Ex. 18 (Dep. Ex. 690 – URS QA/QC Manual). 104 Ex. 13 (Mayes Dep.) at 77:24 – 78:9. 105 Id. at 99:24 – 101:12. 106 Id. at 103:8-20. 107 Id. at 84:6 to 85:7. The independent technical review is to be performed by one not associated with the work being done — one independent of the actual work. Id. at 85:14 – 86:24. 108 See id. at 84:15-24; Ex. 34 (Jenkins Dep. at 172:2-17). 109 Ex. 16 (Dep. Ex 408 – Contract No. 85907) at URS0000704.
81505012.1
29
In his capacity as URS's QA/QC Officer for this project, Jenkins was required to state
with clarity which deliverables should have had an independent technical review before they
went to the State:
O The photographs of the gusset plates should have been examined so that the condition shown in the photographs were accurately disclosed to the client. 110 URS chose not to examine the photos of the bowed gusset plates. 111 Instead, it falsely described the gusset plates' condition as "good."
O The 3-D model should have had an independent technical review. The soundness of the principles being applied, and the results, should have had a technical review. 112 URS simply decided not to review any of the principles or results. Indeed, Jenkins testified that he would never have approved of Zhou's concocted methodology using the ratio of unfactored load to ultimate capacity because "it does not have the level of safety that's expected." 113
O All deliverables to the State were to receive a review. 114 URS chose not to subject any deliverables to a technical review before delivery to the State. 115
Jenkins left URS in January 2005 — in the middle of the project. Before leaving, he did
nothing to fulfill URS's duties to Assure Quality or Control Quality: did not develop quality
assurance plan, prepare project management plan, or perfoim technical review. 116 Who did URS
replace Jenkins with? No one.
By choosing to ignore its own required QA/QC procedures on this project, URS insured
that: (1) the U10 gusset plates bowing was not disclosed to the State or considered in the 3-D
model, (2) the inaccuracies in the 3-D model were never discovered, and (3) the use of Zhou's
concocted methodology was used to falsely tell the State that the Bridge was safe when it was
not.
Ex. 34 (Jenkins Dep.) at 129:6-14. 111 See Ex. 11 (Long Dep.) at 54:10-24, 398:18 – 399:25. 112 Ex. 34 (Jenkins Dep.) at 174:11 – 176:18. 113 Id. at 164:22 – 165:18. 114 Ex. 34 (Jenkins Dep.) at 168:23 – 169:8. 115 Ex. 5 (Flemming Dep.) at 512:8-14. 116 See Id. at 32:3-15, 36:5 – 37:2; 144:25 – 145:2.
81505012.1
30
V. CONCLUSION
This is not a case where URS was simply negligent. URS was paid by taxpayers to make
sure the Bridge's "structural integrity" made it safe for the public. Knowing that nothing is more
important than the public's safety, URS time and time again made deliberate choices that
threatened the public's safety.
URS knew the Bridge was "clearly overstressed" and that "from a strength standpoint the
original design does not meet today's design specifications by a very significant degree." URS
knew that the roller bearings were "frozen." URS predicted the "catastrophe," relating it directly
to the bearings. URS knew the gusset plates were bent, but chose not to evaluate them because it
complained that it was "too much work." URS chose to say nothing. Instead, it lied to the State.
URS knowingly led the State into a false sense of security that the bridge was safe. By its own
choices, URS made it clear and convincing that it acted with deliberate indifference and
disregard to the public's rights and safety. Plaintiffs' Motion to Amend to assert punitive
damages should be granted.
DATED: June , 2010. ROBINS, KAPLAN, MILLER & C RESI L.L.P.
By:
Chris Mes (#177039) Philip Sie (#169845)
800 LaSalle Avenue 2800 LaSalle Plaza Minneapolis, MN 55402-2015 612-349-8500
LIAISON COUNSEL FOR CONSORTIUM PLAINTIFFS
81505012.1 31
GLOSSARY
American Association of State Highway and Transportation Officials (AASHT0): A nonprofit association whose guides and specifications are used to evaluate a bridge's structural integrity.
Bearing: A device located between the bridge structure and piers. See also Roller Bearing.
Capacity: The amount of load that a member can resist before it yields or fails.
Catastrophe: "A momentous tragic event ranging from extreme misfortune to utter overthrow or ruin." Webster's Ninth New Collegiate Dictionary, 214 (1986).
Compression: A force that pushes or presses from the ends toward the middle of a member.
Compression Member: A bridge truss member that is subjected to compression forces.
Connection: A bridge member that connects other structural members. See also Gusset Plate.
Fracture-Critical Member: A member within a non-redundant bridge, the failure of which would cause a partial or total collapse of the structure.
Gusset Plate: A metal plate used to connect multiple structural members of a truss. Gusset plates are also referred to as connections.
Interaction Ratio: An "interaction ratio" is the ratio of load on the member to capacity of the member. An interaction ratio over 1.0 is a concern because it is an indication that the member being evaluated is overstressed.
Load: The force applied from weight of structure itself or from traffic, wind, or temperature.
Member: An individual beam or plate that is an integral part of the bridge.
Non-redundant: The condition where fracture of a structural member could lead to a partial or total collapse of the entire bridge. A non-redundant bridge lacks redundancy in the design of its support structure. Such bridges are sometimes referred to as fracture critical.
Roller Bearing: A bridge bearing comprising rollers so as to peilnit longitudinal thermal expansion or contraction of a structure. A bearing is frozen when the bearings become locked and no longer allow for movement.
Structural Integrity: The ability of the bridge, or individual structural member, to resist load.
81554255.1
Temperature Load: The load induced in members based on temperature change.
Tension: A force that stretches or pulls on a material.
Tension Member: Any member of a truss that is subjected to tension forces.
Truss Bridge: A bridge composed of structural elements connected to form triangles. The ends of the members are connected with gusset plates.
Ultimate Capacity: The point at which a member is no longer able to resist loading and fails.
Yield Capacity: The point at which a member is no longer able to resist loading and begins to give or deform.
81554255.1 2