Dispute over missing evidence in Bertha breakdown goes to court

VIDEO: Lawsuit concerning missing pipes from Bertha continues

Some pieces of the steel pipe the tunnel machine Bertha struck five years ago sat in a bucket Wednesday in a Thurston County courtroom.

But other fragments that actually went through the machine are missing, and the focus of a hearing in the lawsuit over the cause of Bertha's breakdown.

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"The only pieces they say caused damage to the cutterhead or the TBM (tunnel boring machine) are all lost or destroyed," said David Goodnight, an attorney representing the Washington State Department of Transportation.

Seattle Tunnel Partners claims Bertha required $642 million in repairs because it struck a steel pipe in December 2013 the state did not adequately disclose.

The state disputes that and says the contract protects taxpayers from paying for repairs.

STP stored pieces of the pipe on a pallet on the worksite beside a porta-potty.

As KIRO 7 first reported in December, piece of the pipe disappeared in 2014, probably sent to a recycler, after workers were told to clean up the job site.

"It was an accident," said John Dingess, attorney for Seattle Tunnel Partners. "There was no intent to throw them away, there was no motive to throw them away."

Also missing are handwritten journal entries from STP deputy project manager Gregory Hauser from the time of the breakdown.

"I have no explanation of it," Hauser testified. "I looked every place I could think of where they could possibly have been and I was unable to find them."

Thurston County Superior Court Judge Carol Murphy will consider sanctions against STP over the lost evidence.

Wednesday's hearing also provided a glimpse into the state's argument over the bigger question of liability for the breakdown.

"STP's operation (of Bertha) was a complete disaster," Goodnight told the judge. The cutterhead of the TBM was repeatedly clogged and the TBM was badly damaged even before it stopped."

STP's attorney responded that Bertha broke down early in the tunnel drive, a time experts typically recognize as having a "learning curve."

"Each of these machines is unique and the operators optimize the performance of the machine and the machine performance continues to get better during that learning curve period," Dingess said.

A trial over the liability for the breakdown could be held as early as this fall.

In December, WSDOT disclosed at the end of a blog post that the state's cost related to tunneling delays now totals $156 million for things like extended property leases and project administration.

The tunnel is expected to open next month, about three years late.