A brief review of the history of this case reveals that reversal of the jury's verdict on appeal is about as likely as a man flying to the moon by flapping his arms. TBW initially brought the lawsuit not only against HDR, but also against TBW’s general contractor and construction manager. HDR was blamed for alleged design defects in the reservoir plans, and the construction manager andcontractor were blamed for improper soil placement during construction.

McConnell

In the lawsuit, TBW claimed damages of as much as $140 million, including prejudgment interest. After mediation efforts, TBW accepted settlements from the construction manager for $6 million and from the general contractor for $750,000. Apparently everybody thought there was some merit to the issue of improper soil placement. HDR offered a $30-million settlement in the mediation, and the TBW board initially voted to accept that sum and put an end to the case. However, a month later, the board reversed itself and directed its lawyers to take the case to trial against HDR.

While TBW and its trial lawyers could have blamed HDR for failing to discover the improper soil placement under HDR’s contractual responsibility for "quality control" during construction, TBW's trial lawyers conceded in their closing arguments to the jury that they were making no quality-control claims against HDR, probably because if a verdict against HDR was based in part on lack of quality control, TBW’s settlements of $6.75 million from the other parties would be deducted by the judge from any verdict against HDR. Judge James A. Whittemore instructed the jury accordingly.

After four hours of deliberations at the end of the case, the jury sent out a question to Judge Whittemore, asking whether "quality control" included "execution of design"—an obvious reference to the issue of improper soil placement. Upon the conclusion of the discussions with all the attorneys, Judge Whittemore answered the jury's question, stating that overseeing construction to ensure it met design specifications fell under the definition of "quality control." Within minutes afterward, the jury returned its verdict exonerating HDR.

If there were mistakes in these legal proceedings, they occurred first when TBW rejected HDR’s $30-million offer and then, in an effort to avoid an offset of the earlier settlements against any verdict in TBW’s favor, TBW’s trial lawyers conceded it was making no quality-control claims against HDR. For TBW to spend another quarter-million dollars or more in pursuing an appeal from this jury verdict is clearly throwing good money after bad.