Pipe pieces at center of Bertha breakdown lawsuit are missing

SEATTLE — Key evidence is missing in the legal dispute over what caused the breakdown of the machine that dug the new State Route 99 tunnel.

The contractor, Seattle Tunnel Partners, claims Bertha, a tunneling machine, failed after chewing through a steel pipe in its path, and has filed a $642 million claim with the state to cover the repair bill.

According to court filings reviewed by KIRO 7, fragments of that pipe and boulders set aside by STP disappeared.

They were apparently placed on a pallet beside a portable toilet on the work site, but disappeared after a project leader ordered the night foreman to "clean up the yard tonight."

A week or two later, workers realized the pieces were missing. STP workers went searching for them in scrap yards but were unable to find them.

In addition, a detailed handwritten journal kept by STP's Deputy Project Manager, Gregory Hauser, is missing entries dated between December 2013 and February 2014.

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It was early December 2013 when Bertha struck the pipe and came to a halt on the Seattle waterfront, about a 1,000 feet into digging the new 2-mile tunnel beneath downtown to replace the Alaskan Way Viaduct.

Repairing and rebuilding the machine required a giant access pit, and the machine did not begin digging until two years after the breakdown.

Bertha finished drilling the tunnel in 2017, and it will open to traffic early in 2019, three years late.

The missing evidence is a key issue in two legal cases now before judges in both Thurston and King counties.

The Thurston County case focuses on liability for the breakdown.

Attorneys for the Washington State Department of Transportation have filed a motion for sanctions against STP over the missing evidence, writing in court documents that "STP's conduct was not merely negligent. It was intentional, or at a minimum, extraordinarily reckless."

In a court filing, STP's attorneys responded that "there is no evidence that STP intentionally destroyed any evidence and, in fact, the evidence is to the contrary."

The contractor's filing said, "STP intended to preserve all pieces and put measures in place to do so, but a STP worker made a mistake when cleaning the yard and inadvertently discarded" the pipe fragments and rocks.

STP's attorneys say WSDOT had the ability to inspect the pipe fragments soon after the breakdown, and the discarded pieces were extensively photographed.

STP's attorneys wrote that the request for sanctions "represents another effort to shift responsibility from WSDOT's own failure to disclose the steel well casing it installed by impugning the motives of STP."

WSDOT's court filing says its experts have not been able to test the fragments to determine whether they indeed came from the pipe.

"A party, paid over $1 billion but now making a $642 million claim against its client does not, in the face of preservation requests, inadvertently lose the most critical evidence," WSDOT lawyers wrote.

The Thurston County judge has set a hearing for next month to discuss evidence in the case.

Similar filings over the missing evidence were made in a separate insurance lawsuit in King County, where Judge Mary Roberts has already issued an order.

In her order, Roberts stopped short of issuing "more harsh and direct sanctions" against STP, but will allow WSDOT and insurers to propose jury instructions relating to the lost evidence.

STP claims that chewing through the steel well casing in Bertha's path caused the machine to break down and says the state failed to adequately disclose the presence of the steel pipe so that it could be removed.

WSDOT contends the pipe was fully disclosed and that the contract required STP to remove it.

State officials say the design-build contract puts liability directly on STP and that taxpayers are protected from covering direct costs of the breakdown.