Judge Demands to Know Why FIU Bridge Engineer’s Phone Has ‘Water Damage’
What to Know
When questions arose, FIGG assured the others there was no concern with safety, according to minutes prepared by its construction contractor
Text messages, photos and other data stored on a cellphone used by the engineer of record on the doomed Florida International University pedestrian bridge could be key evidence in understanding why the bridge collapsed.
But there’s a big problem with getting that evidence: somehow, at some point after the collapse, the phone used by the most important engineer on the project suffered “water damage.”
That’s what lawyers for the engineer’s employer, FIGG Bridge Engineers, are telling a state court handling lawsuits against FIGG and others involved in the project.
But some opposing counsel are skeptical, with one saying FIGG has “repeatedly stonewalled” their efforts to obtain information from or about the cellphone.
Now Miami-Dade Circuit Judge Jennifer Bailey, citing “very serious issues” raised by FIGG’s actions, also wants answers.
“Where are these text messages?” Bailey demanded of FIGG’s attorney at a hearing last month. “What is going on with these text messages and why don’t I have them” more than year after they were sought in pretrial discovery?
After FIGG requested another 90-day delay, Bailey had had enough and ordered FIGG to present testimony on the mystery of the soggy cellphone at a hearing Wednesday.
“I need somebody who is going to go under oath and tell me how this phone got water damaged and when it got water damage,” Bailey said, adding she wanted to see in court the phone’s user, C. Denney Pate.
Pate, the engineer of record, led FIGG’s technical design for the bridge and is the same engineer who left a voicemail two days before the collapse informing FDOT the bridge was cracking and “obviously some repairs or whatever will have to be done, but from a safety perspective we don’t see that there’s any issue there.”
Text messages recovered from other FIGG phones, described in previously unreleased court documents obtained by NBC6 Investigators, reveal Pate’s opinions as the bridge was cracking apart and how alarmed some at FIGG were.
On the same day he called FDOT, Pate was “still not clear on why (cracking) happened,” one FIGG engineer texted another.
“Oh wow. Sounds serious,” engineer Erica Hango responded.
“Don’t you worry,” replied fellow engineer Eddy Leon, adding Pate was going to travel from Tallahassee to Miami for a meeting “just to calm everybody down.”
But at that meeting two days later, convened just hours before the collapse on March 15, 2018, not everyone was calm as engineers discussed FIGG’s plan to address the cracking.
When questions arose, FIGG assured the others there was no concern with safety, according to minutes prepared for FIU by its construction engineering and inspection contractor, Bolton Perez & Associates.
But FIGG submitted what it calls “corrected minutes” to the National Transportation Safety Board that paint a somewhat different picture.
Attorneys for the Louis Berger Group, hired to double-check FIGG’s engineering work before any construction would take place, say FIGG’s minutes omit key facts – part, they say, of an effort by FIGG to minimize its responsibility for the events that led to the bridge collapsing, killing six.
Among the discrepancies Louis Berger cited between the FIGG and BP&A minutes, revealed here for the first time publicly:
- FIGG failed to mention that BP&A asked at the meeting whether FIGG’s repair plan had been reviewed by Louis Berger or anyone else. A FIGG executive “was involved in the decision to omit this reference of the need to peer review and involve Louis Berger,” the pleadings state.
- While BP&A’s minutes say FIGG assured the others there was “no concern with safety,” FIGG’s minutes instead say “no one expressed concern with safety.” Louis Berger’s lawyers argue there’s no evidence any “party other than FIGG offered a view on the safety of the bridge.”
- Asked whether “temporary shoring” would be needed, the BP&A minutes quote FIGG as saying “it was not necessary” to shore up the bridge during repairs. But FIGG’s minutes limited discussion of shoring to BP&A and the general contractor, Munilla Construction Management, saying those firms discussed “additional steps” and “potential options to implement in order to add reserve strength.”
- FIGG tried to minimize its knowledge of the severity of the cracking, saying in its minutes its engineers found the cracks were “more noticeable” in person that morning than they did when previously viewing photographs. The BP&A minutes quoted FIGG as saying the cracks were “more significant in person.”
- FIGG tried in its minutes to downplay its role during and after the move of the span from its roadside construction area onto a pylon and pier built on the north and south sides of SW Eighth St. BP&A’s minutes state it and FIGG inspected the bridge after the move was complete and it “showed nothing.” But FIGG’s minutes say it acted in only an “observing role” during the move and that BP&A did the inspection. In an email, though, a FIGG executive states the firm “did not observe” the cracking during its “inspection of the main span.”
Louis Berger cited those examples as part of its effort to persuade Judge Bailey to give it access to the draft minutes and communications FIGG and its lawyers created as it developed the “corrected minutes,” which were sent to NTSB six weeks after the collapse.
FIGG claims those records cannot be seen by others because they are privileged work product, created in consultation with its lawyers in anticipation of litigation.
Judge Bailey decided to review the underlying materials herself before deciding if FIGG made “any kind of factual alteration” in its drafts. If so, she said, it is possible she could override the privilege and allow others to see what FIGG and its attorneys were doing in preparing their version of the meeting.
Louis Berger has not yet seen the drafts and communications, but based on what it has seen in discovery, it is saying it appears FIGG did alter the facts.
“A comparison of the corrected minutes to contemporaneous handwritten meeting notes of FIGG employees and other contemporaneous documents confirm that FIGG counsel likely changed or permitted changes to the facts that resulted in corrected minutes that were not fully faithful to what transpired at the March 15 meeting regarding the cracking,” wrote Louis Berger’s attorney.
FIGG has responded in court papers to Louis Berger’s arguments, but has submitted them as confidential court documents and they are not available to the public. Its attorneys declined to comment on the matter.
Louis Berger’s attorneys, though, say they have “no confidence or faith in whatever” FIGG’s attorneys said in court last month, citing the mysteriously damaged cell phone and saying they are “very skeptical about where Mr. Pate’s phone is, what happened to it.”
Now Louis Berger is concerned a delay in Wednesday’s scheduled inquiry into the cellphone requested by one of the plaintiffs could be a “tactical ploy” to give FIGG time to file for bankruptcy protection, which would suspend the state court’s power over FIGG, at least until certain bankruptcy issues are resolved.
“FIGG has retained bankruptcy counsel and may be filing for bankruptcy imminently,” Louis Berger’s counsel wrote last week in a motion opposing any delay in Wednesday’s hearing.
The plaintiff’s motion requesting the delay said it did so because “significant progress toward resolution of this matter has been gathering momentum such that further inquiry into disputed discovery issues might be seen as counter-productive.”
But Louis Berger notes no settlements have been reported and, they say, any suggestion plaintiffs “are at present pursuing a global resolution against all parties is inaccurate.”
Bailey is overseeing 20 lawsuits filed by the families of those who died and others who claim they were victims of the collapse.
So far, mediation has failed to produce any settlements in the state court actions, although MCM’s bankruptcy has produced a $42 million pool of insurance money that will be distributed among victims under the auspices of the federal bankruptcy court.
The remaining defendants in state court will soon be allowed to file claims against each other, as the firms involved in the project seek to deflect blame before a judge or jury decides how responsible each party may be in the collapse.
As the case moves toward full litigation mode, Louis Berger is aggressively challenging FIGG – the firm whose engineering work it was supposed to double-check.
Attorneys for Louis Berger have said in court the firm had no idea that, after cracking was observed on the bridge, FIGG had ordered re-stressing post-tension bars that ran through a diagonal truss that was cracking. That procedure was underway when the bridge collapsed.
Pate had already left the worksite when disaster struck, heading back to FIGG headquarters in Tallahassee and texting his boss, firm owner Linda Figg: “Meeting went pretty well. FDOT and FIU were represented. Our attendance and information were appreciated. We will be working on some additional ideas to better the current situations. I’ll get you more details when I get back to the office.”
That text was recovered from Figg’s phone, but any other communications Pate had with others outside FIGG may be forever lost to the mysterious “water damage” his phone suffered.
Louis Berger’s attorneys asked FIGG when it was damaged and whether its data had been copied beforehand, but FIGG’s attorneys refused to answer, according to a motion by Louis Berger seeking to compel production of the text messages and information about the phone.
FIGG’s attorneys have “refused to answer simple questions regarding the alleged destruction of and potential data contained on Pate’s cell phone,” the motion states.
They are asking FIGG be ordered to answer questions, including how the phone was damaged, or potentially face sanctions from the court.