Judy’s lawyer, Bob Norton, addressed the crowd first, laying out the key clauses in the contracts and subcontracts that tied all the defendants to the project. Then Prescott took everyone through the correspondence that told the tortured history of the plugs and, in some cases, foretold the divers’ horror. Together the two lawyers hammered home all the systematic failures that, they argued, left each of the parties in the room liable for the diver deaths.
One pair of letters was particularly damning. All during the “memo wars,” when Kiewit had lobbied for permission to pull the plugs while the bag line was still in place, and Kaiser-PB-MWRA had refused, both sides had claimed worker safety was its paramount concern. Those arguments persisted even after Kiewit floated its plan to remove the plugs while the tunnel had ventilation and then install a temporary blockade at the venturi, which would have given workers several extra hours to evacuate in the event of a flood. However, PB had rejected that proposal. A memo from the tunnel designer321 explained that if a diffuser head sitting atop a riser became compromised, air in the sealed-off diffuser tunnel would try to escape up the failed riser at the same time the water was flowing down it. “The result would be a choking of the flow similar to what happens when a 2-liter bottle of soda is inverted,” the memo read. That would jack up the temperature in the failed riser, and “these elevated temperatures of greater than 300 degrees Fahrenheit would endanger the integrity of all 54 undamaged riser pipes and place the outfall tunnel’s future ability to operate in jeopardy.”
Kiewit had then altered its proposal to reduce possible temperature spikes. Instead of installing a blockade at the venturi, the contractor suggested erecting a fifteen-foot-high temporary dam in the main tunnel, about six miles from the shaft. But the designer had rejected that proposal as well, based on concerns that the tunnel could still sustain serious damage. A follow-up memo from PB said that even though the temporary dam would give workers ample time to make a safe escape, “this only serves to help evacuate the tunnel and does not address the recovery of the tunnel so that it can be placed into service after such an event.” So the rejection of the plan stood.
While it was understandable that the designer and owner would have little interest in being left with a damaged or even unusable tunnel in the event of a freak flood, this memo suggested that their “paramount” concern had not, in fact, been worker safety. It had been the integrity of the tunnel.
When Norton and Prescott finished speaking, Pelletier exhaled, feeling the first part of the presentation had gone well. For the second part, the lawyers had commissioned a sophisticated animation sequence to convey how impossibly remote and confined it was at the end of the tunnel. They asked Hoss to narrate as it flashed on the screen.
Hoss spoke in an even-keeled, matter-of-fact manner, like some tough but taciturn John Wayne character. Pelletier felt his narration was much more poignant because he had experienced the horror firsthand and barely survived it, yet he was recounting it in the most understated way. There was silence in the room as everyone strained to hear his low voice. Hoss recalled his final conversation on the comm wire, when a disoriented Tim confirmed how dangerously low the oxygen percentage had dropped. Hoss described finding Billy under the Hummer and Tim slumped over in the driver’s seat. As Hoss neared the end of his narration, he mentioned what had happened during their desperate drive back to the shaft, when they had stopped to check on Billy and Tim. He had been devastated to discover that in their race to make it out alive, driving through up to three feet of standing water, Billy and Tim’s bodies had been jostled around so much that Tim’s leg had been thrust over the side of the trailer, causing his foot to drag along the tunnel wall. This had resulted in his foot being worn down, through his boot, right to the bone.
There was something aching, almost confessional, about the way Hoss relayed this information. Despite the heroism he showed in saving the lives of DJ and Riggs and then assuming more risk by refusing to leave Billy’s and Tim’s bodies in the tunnel, Hoss seemed haunted by the notion that he had somehow failed his close friend by allowing his foot to be damaged. There was nothing rational about this feeling, but it didn’t make it any less palpable or honorable. Instead of trying to improve the size of the settlement by attacking the defendants for their wrongdoing, Hoss seemed to be using his audience with these seventy attorneys and insurance adjusters to admit to what he felt was his own failing. As he described discovering the deep wound on Tim’s foot, his voice finally cracked.
Instantly, Pelletier could feel her synapses overloading and her eyes watering over. Fearful that she would begin to sob, she put her head down on the table, using her arm to protect her eyes and ears.
The divers and families retreated with their lawyers to the hotel restaurant to begin their long wait. At one point, the union’s Dan Kuhs arrived to show his support for the divers and to introduce Joan Parker to them. The official from the AG’s office had talked to a couple of the divers over the phone, but this was her first chance to attach faces to the names that had preoccupied her.
In their opening salvo, Prescott, Pelletier, and Norton had pegged the value of the wrongful death claims for Billy and Tim322, factoring in the impact of punitive damages, to be $7.5 million each, and the value of DJ’s injury case to be $1.75 million. As was typical for negotiations like this, they had deliberately started high. In particular, they knew that the claim for DJ, like those for Hoss and Riggs, was inflated, considering there was no evidence of lasting physical injuries and considering that state law allowed punitive damages only for death cases.
Now the defense side made its first offers, and they were offensively low. The plaintiffs lawyers knew not to take it personally. This is how the process would unfold. For the divers, however, it was hard not to take umbrage.
When the second offer came in, only slightly higher, Hoss decided he had seen enough. “I’m not interested in playing these games,” he said to the others. He’d been in counseling for many months now, struggling to get his head straight. The costs for those sessions were covered by his worker’s compensation policy, but he’d been told that if he received any kind of settlement, his counseling tab would automatically be deducted from his settlement check. The lowball figures the defense was throwing out were scarcely enough to cover those costs. Hoss’s biggest goal with the lawsuit, aside from ensuring that Tim and Billy’s families were taken care of, was to see the responsible parties stand up and admit that they’d done wrong. That comported with the code he lived by: you work hard, strive to do your best, and if you fall short, you man up. The last thing he had wanted was to have to recount his hellish experience in front of a banquet room full of suits. Rather than try to amp up his story, he had told the unvarnished truth. He expected the other side to respond in kind, not act like they were haggling over the price of a key chain with some street vendor in Cancun.
Hoss expressed his frustration to Judy, who had signed on to the lawsuit for similar reasons. From her medical training, the psychiatrist had been taught that the best way to respond to a preventable death was what doctors called the “morbidity and mortality conference.” That was a regular session conducted at teaching hospitals where doctors gathered with their colleagues to review the care of a patient who had died or been harmed, trying to identify errors so they could be avoided in the future. The origins of this practice could be traced nearly a century earlier to Mass General, the same hospital where the divers had been treated after the accident. That postmortem was exactly what Judy wanted to see now, in response to her husband’s death.
321 (Chapter 14, note 42)
A memo from the tunnel designer: Eldon Abbot (Parsons Brinckerhoff project manager) to Dave Corkum, February 17, 1998.
322 (Chapter 14, note 43)
the value of the wrongful death claims for Billy and Tim: John Prescott, memo to John Fitzgerald, October 26, 2000.