Minnesota Lawyer Blog

Here's an interesting little tidbit from a story Minnesota Lawyer has posted about where the enactment of the I-35W bridge victims' fund leaves their litigation ...

The potential third-party defendants most often mentioned in the case are URS Corp., which inspected the bridge between 2004 and 2007, and PSA, the company that was working on the bridge when it collapsed.

If either or both of these companies are ultimately determined to be more culpable than the state for the bridge collapse, both the victims and the state will look to them for compensation. So, despite their recent success in the Legislature, the victims’ lawyers are continuing their preparation for trial. However, there is one big glitch.

“We’re waiting for the National Transportation Safety Board to graciously allow us to see the evidence,” said Minneapolis attorney Chris Messerly, who is representing some of the bridge-collapse victims pro bono. Noting that the board refused to hold a public hearing to discuss its conclusions on the bridge, Messerly added his own editorial comment: “Obviously they are afraid of something.”

Meanwhile, the NTSB has issued preliminary findings that point to a design flaw with beam-connecting gusset plates and heavy loads of construction equipment and material on vulnerable parts of the bridge. It has said that a public hearing would slow down the investigation.

Hmmm. Yes, I suppose things do tend to move faster when the opportunity for public input is removed. Phew! It's a good thing that federal agencies working on disaster sites have never been known to mess up ...

Last month, Rep. Jim Oberstar called the NTSB to task for its failure to hold a hearing. So far, the NTSB has spurned Oberstar's hearing demand. The agency's recalcitrance will make it difficult on trial lawyers trying to determine which, if any, of the potential third-party defendants their clients should consider suing. It's a terrible way of doing things that wastes the time of the victims, their lawyers, the court system and "innocent" companies needlessly subjected to the litigation process for the sole reason that the NTSB delays in releasing the evidence that would have exonerated them.

Editor's Note: Minnesota Lawyer received the following press release yesterday from the Minneapolis law firm of Schwebel, Goetz & Sieben.

Today the Minneapolis law firm of Schwebel, Goetz & Sieben representing several families of persons who died in the I35 bridge collapse, and numerous injured victims, filed a Motion to Compel Mn/DOT to release documents in its possession, and to allow for expert inspection of those portions of the collapsed bridge now assembled on the Bohemian River Flats.

Attorney Jim Schwebel stated that while Mn/DOT has made available many documents on its website it has withheld critical inspection reports conducted by the private engineering firm of Wiss, Janney, Elstner Associates, Inc. which it hired under a two million dollar contract to determine the cause of the collapse. This private engineering firm has had wide access to the bridge site while lawyers representing collapse victims and their families have had to go to court to receive only limited access. It is unconscionable that this vital information accumulated at taxpayers’ expense should be kept secret from Minnesota taxpayers, and particularly from the victims who have every right to know why this disaster occurred.

In addition, Schwebel, Goetz & Sieben seeks access to allow its bridge experts to inspect numerous portions of the bridge which have been reassembled at Bohemian Flats downstream from the bridge collapse site.

The motion is set to be heard before Hennepin County District Court Judge Herbert P. Lefler in Minneapolis on Nov. 15, 2007 at 8:30 a.m.

State Senator Ron Latz said in a press release yesterday that the Joint House/Senate Subcommittee on Claims has been studying the state’s responsibility to victims of the I-35W bridge collapse and will hold hearings to analyze options available to the state of Minnesota.

“We have been gathering information about the potential scope of claims, about how other states have handled similar situations and about the legal issues relating to the tort claims cap,” he said. “Now is the time to hear firsthand from the people whose lives were affected and who now must recover both physically and emotionally.”

Latz noted that this will be a detailed process and it will take time to determine both need and extent.

“Since the day after the bridge collapse, the subcommittee began gathering information and initiated consultations with the leadership in both the House and the Senate, the governor’s office and the attorney general’s office,” he said. “The time is now appropriate to request public input in this process we’re undertaking. The Claims Subcommittee’s role is to consider and respond to claims against the state and to think about the financial repercussions of such claims.”

Rochelle Olson has an interesting piece in today's Star Tribune on the lawyers handling the 35W bridge collapse litigation ("Lawyers seek cause in preparing for lawsuits").

As we have blogged here before, there is a group of local lawyers handling some of the victims' cases pro bono, and then there is Jim Schwebel (right) and his firm, Schwebel, Goetz and Sieben, handling the cases of a number of the victims -- reportedly 19 -- under the the typical contingent-fee arrangement.

While the pro bono effort is laudable in that it will help some of the victims, I also do not have any problem with a good personal-injury firm charging for representation. It's what they are in business to do, isn't it?

That said, I am not sure Schwebel is doing the image of P.I. lawyers much of a favor by having quotes like the one that concludes the Strib piece: "We wouldn't be on the top floor of the IDS building if we made a lot of bad judgments as to which cases to get involved in," Schwebel humbly told the Strib.

Hmmm. So much for the meek inheriting the Earth. In any event, I thought Eva Gabor (left) in the theme song from the TV show 'Green Acres' expressed Schwebel's underlying sentiment far more eloquently: "I just adore a penthouse view/ Darling, I love you, but give me Park Avenue."

Jim Schwebel reports that the Minnesota Department of Transportation and the Attorney General have allowed his expert witnesses on to the site of the 35-W bridge collapse. Five bridge experts employed by the law firm were finally allowed near the bridge collapse site on Thursday, Sept. 6, Schwebel said.

U.S. District Court Judge Patrick Schiltz denied the firm access to the site last month. But negotiations with the state proceeded. At this time, parts of the bridge site are controlled by the state and parts by the federal goverment. The state allowed access to "its" areas, said Schwebel.

The National Transportation Safety Board is another story, however. Schwebel reported that the NTSB still controls part of the site and has refused access--even to the extent of banning photographs taken from areas of the site it didn't control.
Schwebel calls this an example of "remarkable insensitivity" and a "turf war." They NTSB has offered no rational basis for refusing to allow photos, he said. Ultimately the NTSB's conclusions about the bridge collapse may be supported, but the NTSB isn't the only source of expertise in this area, Schwebel observed. However, he is confident that ultimately his experts will collect all the information his clients require, he added.

Bridge experts appearing on behalf of the survivors included representatives of Weidlinger & Associates Consulting Engineers, which in the past was involved in the investigation of the collapse of the World Trade Center Towers, Marcy Pedestrian Bridge, Tropicana Hotel & Casino parking ramp, and numerous other catastrophic structural failures, said Schwebel. Also present were representatives of Sam Schwartz, PLLC, and Barsom Consulting, Ltd., both of which are also internationally known for their expertise in fracture mechanics, failure analysis and bridge collapse, he said.

"We are grateful for MnDOT’s cooperation and for its recognition of the fact that the bridge survivors are entitled to have their own independent evaluation of this tragedy,” Schwebel said.

Volunteers to assist in the bridge pro bono lawsuits are increasing, reports Minneapolis attorney Chris Messerly. About 20 law firms across the state have signed up, some without clients as yet. Importantly, court reporters, document management companies, expert witnesses and mental health professionals have also come forward to assist. The "consortium" is meeting this week to start planning, Messerly said, adding that he is very pleased with the response.

Robins, Kaplan Miller & Ciresi attorney Phillip Sieff just advised me that the trial lawyers working pro bono on bridge cases have received offers of free assistance from some court reporters and one forensic expert. That's outstanding.

Some of Minnesota’s trial lawyers have announced their intention to represent bridge collapse victims pro bono, and I applaud their generosity. But some of these lawyers are from small shops, and even Robins Kaplan Miller & Ciresi doesn’t grow money on trees (well, maybe it does). No expert witnesses, investigators or other litigation support people have, to my knowledge, stepped forward to say they will work for free.

How can the rest of the legal community support the pro bono lawyers? Should we? Are these cases more important than other pro bono cases that cost money? Are some events to raise funds to pay the costs in order? Should the Minnesota Association for Justice members start washing cars on Saturdays?

On a related note, actor Gary Anderson has announced his interest in supporting the pro bono effort. (MSBA convention attendees will remember him from his excellent portrayal of Clarence Darrow.) Anderson recently told me that he is returning to Minnesota in December and would like to donate a performance as a fundraiser for the litigation costs. I’ll be doing more to get this information to the trial lawyers and see if they want to make that happen. What else can we do?

Several local plaintiffs' lawyers recently set the bar buzzing when they made a highly unusual offer -- they would handle the cases of victims from 35W bridge collapse without taking a fee. (Under a typical fee agreement in a personal-injury or wrongful death case, the client would agree to pay the lawyer anywhere between a third and 40 percent of the amount recovered.)

The offer to take the cases pro bono surfaced not long after it had been announced that the Minneapolis personal-injury powerhouse firm of Schwebel Goetz & Sieben had signed up several bridge-collapse victims as clients. The Schwebel firm is not part of the pro bono effort and will represent its clients pursuant to a standard contingent-fee agreement.

One of the firms spearheading the pro bono effort is Minneapolis-based Robins, Kaplan, Miller & Ciresi, which, ironically, pocketed one of the biggest fees in state history a few years back when it got $440 million for handling the state's $6 billion tobacco settlement. The Robins firm has already signed up several several bridge victims as clients, none of whom it is charging a fee.

The pro bono representation offer has the potential to generate some positive PR for trial lawyers -- or at least avoid some negative PR. There are plenty of individuals out there -- some of whom have already posted on this blog -- poised to cast lawyers as vultures seeking to capitalize on the bridge tragedy.

On the other hand, while it would be easy to criticize the Schwebel firm for not waiving its fee, personal injury lawyers do have a right to make a living. And these are likely to be very complicated cases involving a web of immunity, damage-cap and statute-of-limitations issues. Plus, while what happened to these people is horrific, many individuals who suffer equally terrible injuries or deaths still have a legal fee extracted from their or their families' recoveries. Why shouldn't we be waiving fees in those cases as well?

I don't have any answers here, but think the situation raises some pretty interesting issues. (Minnesota Lawyer has a full coverage of the pro bono offer in this week's issue.)

Some are calling for state lawmakers to establish a victims' compensation fund to provide some financial compensation to those affected by the 35W bridge collapse. For the precedent for such an action, one need only look to the victims' compensation fund set up by the federal government in the wake of 9/11. I think setting up such a fund is an excellent idea.

As it stands, the state's total exposure for all injuries and deaths stemming from the bridge tragedy is $1 million. There were 14 deaths and an as of yet undetermined number of people who received life-altering injuries. Officials say there were 100 or so cars they had to clear in the collapse area (90 of which have been cleared to date). If you divide that $1 million by even just the number of cars left at the bridge site, you get just $10,000 per car. It is unclear how the number of cars will ultimately correlate with the number of victims, but it gives you an idea of how paltry that $1 million cap is for an incident like this.

I think the state needs to take the initiative and set up a fund for the victims rather than trying to hide behind the liability cap -- not because it is legally required to do so (it isn't), but because it's the right thing to do.

Schwebel Goetz & Sieben has become the first law firm to make a court filing pertaining to the 35W bridge disaster.

The Minneapolis firm -- which has a well-known practice in the personal-injury and wrongful death areas -- has filed a petition in U.S. District Court in Minneapolis seeking access for two experts it wants to inspect the collapse site, according to the Star Tribune. The firm is reportedly representing three unidentified victims of the collapse and the families of two individuals who were killed. (Click here for the Strib article.)

Jim Schwebel told the Strib the firm wants access before the opportunity to examine the site is forever lost by the dismantling of the bridge's wreckage.

One Minneapolis lawyer estimated that potential claims from the collapse against private contractors and their insurers could yield $1 billion, the article says.

Minnesota Lawyer has a great piece this week telling the story of Will Barron, the Bowman and Brooke summer associate who helped victims of the 35W bridge collapse. Barron and his wife, Annie, who were driving in the area when the disaster struck, both got out of their car and rushed to the scene to help.

The Minnesota Lawyer piece, "A hero among us" (password required), is Barron's own description of what ensued. There are several really good anecdotes that he told to our reporter, Dan Heilman. For example, the couple came across a man in a truck with a broken arm and volunteered the use of their cell phone to let him speak with his wife. They got his home number, dialed it and handed him the phone. Before the poor guy could get his story out, an irate spouse on the other end could be heard yelling, "Where are you? You're late! Are you in a bar?" Flustered, the injured man simply blurted, "Woman, I just fell off a bridge! Turn on the TV!" And then hung up.

It's obvious from his eyewitness account that Barron is not only a humanitarian, but good at relating a story. I would encourage you to read the whole thing in this week's issue.

The Star Tribune has an interesting story today on the liability questions and potential lawsuits arising out of the collapse of the 35W bridge. (See "Question of liability rises.")

Given the limitations on state and municipal liability and the fact that the bridge was constructed 40 years ago, attorneys pursuing liability claims will likely have to focus on the private entities involved in the bridge's maintenance, the article correctly points out.

And there will, of course, also be a bevy of legal issues relating to insurance coverage that will crop up.

The most disturbing part of the article was an interview with Omar Jamal of the Somali Justice Advocacy Center. Once it became clear that a pregnant Somali woman and her 2-year-old daughter were among the victims, calls from attorneys looking for her family's contact info have not stopped, Jamal said. He reported at least a dozen in the article, starting within 24 hours of the collapse..

"This is the worst form of ambulance-chasing," Jamal told the Star Tribune. "The divers are still in the river looking, and the attorneys keep calling us."

It is unfortunate to hear that is going on. It plays into the worst stereotypes about personal injury lawyers.

Minnesota Lawyer has learned of at least one member of Minnesota's legal community who participated in the heroic rescue efforts following the collapse of the I35 bridge.

Bowman and Brooke summer associate Will Barron and his wife were in the immediate vicinity of the bridge when it collapsed last Wednesday evening. They were on the scene assisting victims immediately.

A photo of Will carrying an injured person out of the wreckage appeared in People magazine on Thursday Aug. 2. (He's in the gray shirt and blue pants.) A co-worker of Will's, Christopher Fowlkes, sent an e-mail around to other Bowman and Brooke employees today in which he states: "[Will] insists that he is not as bald as the picture depicts. Whether or not that is true I can't say. But I can say that what he did was truly heroic and I am glad to know him."