After a federal jury took just four hours to rule that HDR Engineering’s design did not cause the cracks at Tampa Bay Water’s six-year-old reservoir, the utility was left with nothing for its gamble on a $30-million settlement offer but an estimated $24 million in legal bills. Nevertheless, the utility is planning to roll the dice again and seek a new trial.
The latest legal move, announced April 16, precedes a motion to appeal, says the utility. In 2008, Gerald Seeber, the utility’s then-new general manager who advised his board of directors to proceed with the lawsuit against HDR, remains adamant that TBW was right to blame the engineer for the cracks.
“Our position is unchanged,” Seeber said a few days after the April 10 verdict. “We feel strongly that the public shouldn’t have to pay twice for a fully functioning reservoir.”
TBW says its lawyers indicate an appeal could cost $200,000 to $400,000. The utility has not stated the rationale it will use to argue for a new trial.
While jurors may agree with the sentiment of not paying twice for a facility, they evidently didn’t see that HDR’s design was to blame for the significant cracking that is still occurring at the 15.5-billion gallon C.W. “Bill” Young Regional Reservoir in Lithia. And Tampa Bay Water’s legal strategy at trial was focused squarely on proving a design error.
For example, even though HDR had quality-control responsibilities in its contract, TBW attorneys expressly stated during closing arguments that the utility was making no claim against the engineer for quality-control issues—and the court’s jury instructions reiterated as much.
That proved to be a key point. The jury’s final question to the court during its deliberations was, approximately, “Does execution of design fall under ‘quality control’?” U.S. District Court Judge James A. Whittemore led a discussion between the parties of what “execution of design” meant. After all three parties came to mutual agreement, the court crafted a response that stated that yes, overseeing construction to ensure it met design specifications fell under the heading of quality control. Within minutes, the verdict was in.
During both his opening and closing arguments, the utility’s lead attorney, Richard Harrison, had emphasized to the jury, “Tampa Bay Water doesn’t want one nickel that it’s not entitled to.”
Finding no fault of HDR’s design as cause of the cracks, the jury obliged Harrison and delivered $0—or an estimated $140 million less than TBW felt it was entitled to. (Harrison had tallied damages, starting from 2005, at $73.25 million; with interest, HDR estimates that would translate to more than $140 million.)
As HDR lead attorney Wayne Mason had reminded the jury, Tampa Bay Water had the burden to prove that its theory of excess pore pressure in the soil embankment was the cause of the cracks. But, as the jury’s verdict showed, the utility struggled in court to make the case.