While the lawyers were doing a lot to uncover what had gone wrong, Judy had come to realize that the responsible parties were never going to admit their mistakes unless they went to trial. Even then she understood that, given the number of well-heeled parties involved and the coiled nature of the case, a trial would take years, and still there would be no guarantee of either contrition or reform. During her fourteen years with Tim, Judy had relied heavily on denial, kissing him goodbye when he left for a dive job and going about her own life rather than being paralyzed by worry. Now, as much as she wanted to force all the players to do both soul-searching and root-cause analysis, she didn’t think she could bear to spend years having to hear, again and again, the awful events that had led to Tim’s death.
So when Norton approached her on the second morning of mediation and reported that the offer had climbed into the reasonable zone, to around $3 million, Judy knew what she needed to do. “Bob, I don’t care,” she told her lawyer. “Settle for anything.”
Norton could tell Judy was in pain, and ultimately it was nobody’s decision but hers. Yet he also knew it was his job to help guide her through the process. “I think there’s probably more to be gotten by negotiation,” he told her. He asked for her patience just until the end of the day, to see what he could do. She agreed.
Meanwhile, Olga Juse sat next to Nina Pelletier, holding her hand. Billy and Tim’s lawyers had put the same dollar figure on both death-benefit claims. After all, Billy and Tim had met the same horrible end in the tunnel. But the lawyers also understood that the other side wouldn’t see things the same way. Although justice may be blind, in the emotion-free eyes of the law, Billy’s life was worth less than Tim’s, primarily because Tim was married and Billy wasn’t. Tim’s wife would be entitled to his future earnings, based on the presumption that he would have helped support her (even if, as a physician, she earned considerably more). No one was entitled323 to Billy’s future earnings, however, because the law didn’t recognize his relationship with Michelle. It was only because he had no wife and no children that Olga and Bill had been entitled to file the lawsuit.
Olga and Bill would have paid any price to get Billy back, but of course, that wasn’t possible. While Judy had responded to her pain with passivity, telling her lawyer to take whatever the defense offered just so she could be done with the ordeal, Olga had responded in the opposite way. She wanted to honor her son’s life by making sure the defendants felt a real sting for their sins. Her complaint about unfairness had nothing to do with Tim, a man she had never met but whose soul she now prayed for every night. Her anger was with the corporations and agencies and insurers that she saw as hiding behind the law. They hadn’t put sufficient value on Billy’s life before he went into that tunnel. Now she would insist that they acknowledge his worth in the only language they all understood. Once she got a sense of the likely figure Judy would be offered, Olga drew her line in the sand. She informed her lawyers—as well as Billy’s father—that the defendants would have to meet her number of $2 million, and not a penny less, or they would go to trial.
Then Olga and Bill, who had checked out of their hotel room, retrieved their suitcases. Olga wheeled hers to a bench in the lobby, where she sat with Pelletier. “Do you think I’m being unreasonable?” Olga asked.
“You lost your son,” Pelletier responded reassuringly. “You’ve got to do what you feel is right.”
Pat Riley, the defense lawyer for the MWRA, stopped by to talk to Olga’s lawyers. Because Kiewit’s contract to build the tunnel had included an indemnification clause protecting the MWRA from lawsuits, Riley was representing the sewer agency, but he was actually being paid by Kiewit’s insurance company. He had been pushing for a settlement ever since he’d reviewed the damning memos and decided a strong argument could be made that his client and their consultants had placed a higher value on the integrity of the tunnel than on workers’ lives. Chatting in the lobby, he told Prescott he didn’t think the other defense lawyers would agree to meet Olga’s number, but he might be able to get close.
A little while later he returned with an offer that had been goosed to $1.9 million. Prescott was inclined to take it. Olga, however, stayed true to her word, saying she wouldn’t accept it and would hop in a cab so they could make their plane. Riley asked Prescott for one more chance. Olga remained on the bench and didn’t let go of Pelletier’s hand.
Eventually Riley returned, relaying to Prescott what he had told the other defense lawyers: “Let’s put these poor parents out of their misery and let them go.” After some resistance, he said, they had agreed.
Olga and Bill thanked him as well as their lawyers, then rushed to make their flight.
Once Norton succeeded in getting the settlement figure for Judy bumped up to $3.25 million, and the Juses settled for $2 million, the defendants quickly followed up with an offer of $725,000 for DJ’s claim, a number that fell on the high side of the range that Prescott and Pelletier had put forward in their last conversation with the mediator. DJ said yes. With those three claims settled, Hoss and Riggs agreed to the same figure that DJ had accepted. As part of the settlement, those amounts would be sealed in court records for ten years.
In the end, the dollar figures for the tax-free settlements were not huge324. After deducting legal fees, expenses, and worker’s comp payments, Judy received about $2 million, the Juses split about $1.3 million, and the surviving divers got somewhere between $400,000 and $500,000 each.
Although the divers and families were spared a draining trial, as it turned out a long process would go on in civil court without them—independent of any criminal charges the attorney general might decide to bring. That’s because although the many defendants had agreed to the settlement figures with the plaintiffs, they had failed to agree on how much each of them would have to pay toward that settlement. So the total settlement payments to the families were fronted primarily by the insurers for Kiewit and Norwesco, with a small remaining slice paid by the insurer for A-L Compressed Gases. Then those insurers went to court325 to demand reimbursement from the other parties, slugging it out for years.
One week after the civil case had settled, Joan Parker took her seat in a cavernous conference room on the twentieth floor of a building across the street from the gold-domed State House. Seven months after she’d been handed the Deer Island case, she was finally getting her audience with Attorney General Tom Reilly to advise him on whether to go forward with criminal prosecution.
In the last couple of months, Parker had received some conflicting messages from her superiors, especially after she sent them a detailed memo in September offering her strong argument for prosecuting Harald. Parker’s immediate supervisor was now sitting at the table with her, as was his own supervisor. She was grateful to have Mary McCauley, the detective who had become her friend, seated at her side. But the only person who mattered now was Reilly, the fifty-eight-year-old who had been elected attorney general two years earlier. As confident as Parker was about the merits of the case against Harald, she knew there would be plenty of other people appealing to the AG’s inner caution, arguing all the reasons he should avoid a high-stakes prosecution in this case.
She also couldn’t help but wonder if Boston’s power brokers, who were desperate to end the tortured saga of the harbor cleanup, were applying pressure to avoid a potentially messy criminal prosecution into the diver deaths. Tellingly, although no one from MWRA had ever been seriously considered as a potential target of criminal prosecution, deep in the file there was a court transcript of the MWRA’s lawyer cheering the district attorney’s decision not to charge anyone in the case. He told Judge Mazzone that the decision “was fortunately a relief326.”
323 (Chapter 14, note 44)
No one was entitled: Olga told me that even if the law didn’t recognize Michelle as Billy’s life partner, she did. That’s why, she said, she took the $75,000 payout she received from Billy’s insurance policy and turned it over to Michelle.
324 (Chapter 14, note 45)
the tax-free settlements were not huge: Joint Petition for Approval of Third-Party Settlement and Dismissal of Plaintiffs’ Claims, Suffolk, Superior Court, Commonwealth of Massachusetts. The order for these records to remain impounded expired in January 2011. Figures come from these court papers. The parties did not disclose settlement amounts.
325 (Chapter 14, note 46)
Then those insurers went to court:,
326 (Chapter 14, note 47)
“was fortunately a relief’: