The federal judge who oversaw the Tampa Bay Water v. HDR Engineering trial has rejected the utility’s motion for a new trial. In a ruling issued Aug. 3, Judge James D. Whittemore rejected TBW’s legal argument for a new trial that asserted that he had erred by rejecting key evidence and lines of inquiry from the original trial. Despite the ruling, the regional water authority plans to forge ahead with its appeal.

In April, after a nearly month-long trial, a jury took just under four hours to decide that HDR’s design was not responsible for the severe cracking occurring at the utility’s 15.5-billion-gallon reservoir in Lithia, Fla. And in his latest ruling, the judge strongly suggested that the jury got it right.

Wrote Whittemore: “On close examination, TBW’s contentions have little to do with the factual determination of the jury, which evidently concluded that TBW did not meet its burden of proof, an unsurprising conclusion, considering HDR’s evidence and the weaknesses in TBW’s evidence.”

The judge said the verdict was “well supported by the evidence,” and added that the utility’s case “showed signs of weakness at virtually every turn.” Whittemore concluded: “TBW has not shown any errors, much less errors that … had a substantial effect on the verdict.”

At trial, the utility had asked the jury to deliver $73.25 million in damages, dating back to 2005. HDR officials estimated that interest on that amount would have resulted in a final total of nearly $140 million. In deciding in favor of HDR, the jury found that HDR was not responsible for any damages.

In September 2011, Tampa Bay Water announced it had accepted a $30-million, mediator-initiated settlement with HDR. But the utility’s lawyers pointed out that the vote was invalid, and a month later the TBW board unanimously rejected the settlement.

After the victory in court, HDR filed for compensation of $20 million in legal fees. At the time, Tampa Bay Water reported its own legal expenses tallied approximately $10.6 million.

The utility and engineer both confirmed to ENR that their respective representatives will meet with a mediator on Aug. 10 to discuss legal fees. But HDR officials are not optimistic that TBW will be willing to come to a resolution.

In an email statement to ENR, HDR executive vice president Timothy Connolly stated: “Despite the jury’s swift decision and the judge’s strong opinion, we fully expect TBW will continue with costly ratepayer-funded appeals and litigation.”

In a memo to the Tampa Bay Water board about Judge Whittemore’s denial of a new trial, general manager Gerald Seeber reiterated the intent to continue with the appeal.

“While that decision was not unexpected, this is just the first step in the post-trial process,” Seeber stated. “Based on your unanimous authorization at the June board meeting, Tampa Bay Water is moving forward with its appeal of the recent reservoir trial verdict.  We will ask the appellate court to review the trial; we trust that the appellate justices will see that several significant legal errors were made at trial, including the exclusion of key evidence and witnesses, and grant our request for a new trial.”


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