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Punitive Damages Brief with Glossary Attached0


									STATE OF MINNESOTA                                                           DISTRICT COURT

COUNTY OF HENNEPIN                                            FOURTH JUDICIAL DISTRICT
                                                                Case Type: Personal Injury /
                                                                            Wrongful Death

In Re: I-35W Bridge Collapse Litigation          Master Order File No.: 27 CV 09-7519
                                                 Hon. Judge Deborah Hedlund

                                                 Consortium Injury Cases: 27 CV 09-16994
                                                 Consortium Death Cases: 27 CV 09-16920
                                                 Consortium PC1 Empl. Cases: 27 CV 09-16939



         Defendant URS is a foreign, multinational corporation with annual revenues exceeding

nine billion dollars. 1 URS promised our State that in exchange for hundreds of thousands of

taxpayer dollars it would assess the I-35W Bridge's "structural integrity." Despite URS' s duty

to "hold paramount the safety, health and welfare of the public" and its false claim that "keeping

the public safe was URS's Number One Priority," URS consciously, knowingly, repeatedly, and

deliberately chose to disregard the public's safety. URS directly caused the Greatest Man-Made

Catastrophe in State History, killing 13 innocent people and injuring so many more.

         URS knew that the Bridge was unsafe. Eleven months before the catastrophe, URS

documented that the Bridge was "clearly overstressed" and that "from a strength standpoint the

original design does not meet today's design specifications by a very significant degree." URS

documented that "collapse would be imminent." Four years before the collapse, URS's lead

1 Ex. 1 (las Annual Report); Ex. 2 (Zhou Dep.) at 282:7-16. All exhibits are attached to
Affidavit of Chris A. Messerly, filed concurrently herewith.

engineer for the I-35W Bridge project documented: "Catastrophic." URS knew that any weak

link in the "fracture critical" and "non-redundant" Bridge (truly an engineering house of cards)

would be cataclysmic and would risk killing and maiming countless innocent people.

         Not only did URS choose to hide from the public its knowledge of the Bridge's danger, it

lied, stating that the Bridge was safe. To use URS's own words, it "tried too hard to advise MN

DOT that the 9340 Bridge is okay." URS purposefully lured the State, which relied on the

engineering behemoth's claimed expertise, into a false sense of security about the Bridge's

structural integrity and the safety of the public using it.

         URS also chose to cut corners and disregard safety by unilaterally deciding not to

perform work for which it was paid. In 2003, URS photographed bowed gusset plates, an

engineering red flag. Despite its promise to "develop tension and compression failure criteria for

connections" (i.e., gusset plates), URS chose not to, claiming it was "too much work." 2 Also,

URS photographed the Bridge's critical roller bearings that allowed the Bridge to expand and

contract with our significant temperature range from the coldest Minnesota winter day to our

hottest summer day. URS concluded that the roller bearings were "frozen," 3 but then chose not

to inspect them as it had promised and chose not to properly calculate the fatal danger presented

by the seized bearings. URS promised that in working on the Bridge it would employ its

mandatory Quality Assurance and Quality Control Program. However, it chose to completely

ignore its own program to assure quality and in doing so chose to place the public's safety at


2 Fourteen days after the catastrophe, URS calculated the lack of strength of the bowed gusset
and confirmed its earlier prediction of the "Catastrophe." Knowing that hanging in the balance
was the safety of millions of American traveling on similar bridges nationwide, URS also
decided to keep its knowledge secret. See discussion at pp. 26-27 infra.
3 URS language is imprecise and misleading in that "frozen" is intended to describe that the
bearings were seized due to corrosion and rust and not "frozen" with ice.

81505012.1                                          2
             No corporation in State history has acted with such deliberate disregard for the safety of

so many Minnesotans. URS has no remorse for the death and destruction it caused. When its

lead technical engineer on this project was asked if he took responsibility for URS' s work on the

Bridge, he said: "Why should I?" 4 URS's intentional conduct was a direct cause of the Greatest

Man-Made Catastrophe in State History. The Consortium Plaintiffs present a clear and

convincing prima facie case for amending their complaint to allege punitive damages.

II.          FACTS

         A.         The Bridge.

         The Bridge opened to traffic in 1967. The Bridge carried people in more than 158,800

vehicles per weekday and 125,360 vehicles per weekend day. 5

         The Bridge was a steel truss bridge. It was made up of

steel beams (also called "chords" or "members"). 6 The chords

met at large steel "gusset plates" (also called "connections").

The members were connected to the gusset plates by rivets.

4 Q. .... Are you prepared to stand up in court to take personal responsibility for all the
         engineering work that URS did on this bridge?
  A. Take personal responsibility --
  Q. Yes, sir.
  A. -- for all the engineering work?
  Q. Yes, sir.
  A. I would not.
  Q. Why not?
  A. Why would we? Why would I? It's -- it's a team effort. It is --
  Q. Was there --
  A. I was -- I was the project engineer, I was the technical lead, but why would we -- why
         would I be taking the personal responsibility ... for all the engineering work.
Ex. 2 (Zhou Dep.) at 251:20 — 252:9.
5 Ex. 3 (Dep. Ex. 414 — URS Draft Report) at MN0107724-26.
6 See attached Glossary for engineering terms used in this brief. See also Ex. 21 (Consortium
Plaintiffs' Affidavit of Expert Identification) at 4-6.

81505012.1                                            3
         The Bridge had three spans. The main span across the Mississippi rested on two sets of

bearings (east and west) which in turn rested on concrete piers on each side of the river. Both

piers were located on land. Pier 6 was located on the south (downtown) side of the Bridge. The

bearings on Pier 6 were steel roller bearings.

Pier 7 was on the North side of the river. The Pier 7 was fixed and was not designed to move.

         Bridges, like other structures, must expand and contract to accommodate temperature

changes. This is particularly true in Minneapolis where the coldest recorded temperature is -34°

and the hottest is 108°. 7 The effect of temperature on a bridge is called the "temperature load."

The temperature load on a steel bridge directly bears on the bridge's capacity to maintain its

structural integrity. The purpose of roller bearings on this type of bridge was to accommodate

thermal movement — i.e., to allow the Bridge to expand or contract with changes in

7   Ex. 4 (U of M Reference Temperature).

81505012.1                                       4
temperature. 8 The massive Bridge was designed and intended to actually move back and forth

on the pier by movement of the bearing's rollers.

             URS knew that the bridge did not have the safeguards of a modem bridge. The Bridge

was "non-redundant," meaning that, if a member failed, a collapse could occur. 9 The Bridge was

also "fracture critical," meaning that the failure of a "fracture-critical" member would result in

the collapse of the Bridge. 10

             B.     The History of the Bridge.
             The State regularly inspected the Bridge and concluded that it was in the best interest of

motorists to hire a professional engineering company to provide expertise on the Bridge's safety.

The State gave URS a Request for Interest on March 7, 2003. 11 URS responded with

representations of extensive experience in the analysis and modeling of bridges like the I-35W


          Our URS team will provide Mn/DOT with the experience and expertise needed to
          complete this project in a professional, timely, and cost-effective manner that
          exceeds expectations. 12

URS was ultimately chosen to do the work because of these broad claims. 13 Put simply, the

State hired URS because URS brought a greater degree of expertise to the project than that held

by the State. 14

8 See Ex. 6 (McElwain Dep.) at 107:20 — 108:5.
9 See Ex. 5 (Flemming Dep.) at 60:6-21.
10 See Ex. 6 (McElwain Dep.) at 58:2-5.
11 Ex. 7 (Dep. Ex. 402 — MnDOT Request for Interest).
12 Ex. 8 (Dep. Ex. 403 — URS Response to MnDOT Request for Interest) at URS0006605; see
also id. at URS0006606, URS0006608.
13 Ex. 9 (Dorgan Dep.) at 108:11-18.
14 Ex. 10 (Western Dep.) at 303:17 — 305:5.

81505012.1                                            5
             C.     URS Promises.

                    1.     Public Safety Was URS's "Number One Priority."

             URS repeatedly stated that there was nothing more important than the safety of the

Minnesotans and others using the Bridge. URS proclaimed:

             •     Keeping the community safe was URS's number one priority: 5

             •     URS wanted Minnesota drivers to have confidence the 35W Bridge was
                   completely safe: 6

             •     We [URS] are vital to predicting Bridge safety: 7

             •     URS believes every accident is preventable: 8

         URS also agrees that it was fair for Minnesotans to assume:

             •     URS would put safety first;

             •     URS would not cut corners;

             •     URS would do thorough work;

             •     URS would fulfill its contractual promises; and

             •     The I-35W bridge would not collapse on its watch. 19

The Bridge collapsed on URS's watch.

         URS's conduct is governed by the American Society of Civil Engineers' Fundamental

Canons. Canon 1 states:

         Engineers shall hold paramount the safety, health, and welfare of the public.2o

   Ex. 5 (Flemming Dep.) at 131:6-22, 389:12-20; Ex. 6 (McElwain Dep.) at 55:14-17; Ex. 11
(Long Dep.) at 44:12-14; see also Ex. 12 (Dep. Ex. 640 — URS document) at URSP2093528.
 6 Ex. 5 (Flemming Dep.) at 386:9-18; Ex. 6 (McElwain Dep.) at 55:22-25; Ex. 11 (Long Dep.)
at 44:15-17.
   Ex. 5 (Flemming Dep.) at 129:5-10; see also Ex. 13 (Mayes Dep.) at 159:19 — 160:10.
   Ex. 6 (McElwain Dep.) at 56:1-5; Ex. 11 (Long Dep.) at 44:18-20; Ex. 13 (Mayes Dep.) at
19 Ex. 6 (McElwain Dep.) at 56:6-20, 57:2-5, 57:15-18; Ex. 11 (Long Dep.) at 44:21 — 45:12.

81505012.1                                          6
URS agrees that this accurately sets forth their duty. 21

             URS promised to evaluate the structural integrity of the Bridge. 22 The Bridge's structural

integrity was paramount because people used the bridge every minute of every day of the year.

It was one of the busiest bridges in our state. Any question about the Bridge's structural integrity

would call into question the safety of the people using the bridge.

                    2.      Safety Through Quality Assurance And Quality Control.

         URS had developed a comprehensive and mandatory Quality Assurance and Quality

Control ("QA/QC") Program in order to assure the delivery of quality work for the benefit of

public safety. 23 URS promised in writing that it would use its mandatory QA/QC Program on all

of its work on the Bridge. 24 URS totally ignored and disregarded its QA/QC Program with

regard to its work on the Bridge.

                    3.      URS's May 2003 Promises.

         In May 2003, URS made promises to the State in Contract No. 85169. 25 URS promised

to actively participate in the Bridge's annual in-depth inspection. Exhibit "A" to this contract

  Ex. 14 (ASCE Ethics Guide) at 13 (emphasis added); see also Ex. 15 (NSPE Ethics Guide)
("Fundamental Canons: "Engineers, in the fulfillment of their professional duties shall: 1.
Hold paramount the safety, health, and welfare of the public.").
    Ex. 6 (McElwain Dep.) at 54:10-14; Ex. 11 (Long Dep.) at 43:20-24; Ex. 13 (Mayes Dep.) at
31:23 — 32:7.
    Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS0000693 ("In this Contract, the
Contractor will perform an evaluation of the bridge truss-arch spans to evaluate its various
components to determine their structural integrity.") (emphasis added).
23 Ex. 13 (Mayes Dep.) at 69:19-70:4, 73:15 — 74:7; Ex. 17 (Rangaraj Dep.) at 38:12-25.
Relevant excerpts from URS's Quality Assurance Manual are at Ex. 18 (Dep Ex. 690 — URS
    Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS0000690, I 33.1 ("Prior to approval and
execution of this Contract, Contractor must have Quality Assurance and Quality Control
(QA/QC) Program.").
    Ex. 19 (Dep. Ex. 404 — Contract No. 85169).

81505012.1                                            7
details the work that URS was to perform. 26 This project was to allow URS to perform a

preliminary assessment of the Bridge's structural condition for use in the other projects that URS

would be awarded. 27 Specifically, URS promised to:

             •   Review bridge plans, inspection data, and past research reports to determine what
                 parts of the Bridge to inspect;

             •   Accompany the State on its annual inspection to determine the condition of the
                 upper chords over the piers;

             •   Mark the roller bearings to see if the Bridge was moving due to temperature
                 variations as designed; and

             •   Prepare a report of the findings. 28

                 4.      URS's October 2003 Promises.

         In October 2003, URS made more promises in Contract No. 85809. 29 Exhibit "A" lists

URS's promises:

         Task 1 - Inspection of Critical Truss Elements and Bearings

         The contractor [URS] will inspect the critical members, connections and fatigue
         details based on review of as-built plans and available data. The contractor will
         inspect and record expansion bearing and joint marks for movement and record
         temperatures ....

         Task 2 - Inspection Report

         The Contractor will prepare and deliver a brief report of findings including
         condensed tables and figures for the report. The contractor will perform QA/QC
         review of the report and revise as necessary."

                 5.      URS's December 2003 Promises.

         In December 2003, URS made more promises in Contract 85907. 31 URS promised to

perform 13 tasks specified in Exhibit "A" to this contract, and to provide progress reports, a

26 Id. at URS0008695.
27 Id.
28 Id.
29 Ex. 20 (Dep. Ex. 406 — Contract No. 85809).
30 Id. at MN0307947.

81505012.1                                          8
preliminary report, and a final report. 32 In addition, the contract required six progress meetings

with the State at various stages of the project. 33 The key tasks that URS was required to perform

are as follows:

         •        Key Work 1. Evaluate performance of expansion bearings and joints through
                  visually monitoring and recording the movements of specifically made marks at
                  different temperatures.

         •        Key Work 2. Develop a 3-D computer model that can reasonably predict truss
                  member forces for dead, live, and temperature loads.

         •        Task 1.4 - Tabulate composition, attachment details and conditions for all primary
                  and secondary members and connections.

         •        Task 2.1 - Inspect critical members, connections and fatigue details based on
                  review of available data.

         •        Task 2.2 - Inspect expansion bearings and joints and mark bearings and joints for
                  monitoring movements with temperature changes.

         •        Task 2.3 - Monitor and record bearing and joint marks for movement at a
                  minimum of four (4) different seasonal temperatures. These will be compared to
                  two observations undertaken in previous contracts.

         •        Task 2.4 - Determine bearing and joints conditions and movement-temperature
                  relationships based on monitoring records.

         •        Task 4.2 - Perform stiffness analysis for DL [Dead Load] and T [temperature]
                  changes using four cases of support conditions: . . .

         •        Task 5.2 - Determine maximum tension and compression member forces due to
                  temperature load from database considering the four support conditions.

         •        Task 5.3 - Compute tension and compression strengths of all primary and
                  secondary truss members and store results in database.

         •        Task 8.1 - Develop tension and compression failure criteria for truss members and
                  connections based on ultimate failure state as originally designed.

31 Ex. 16 (Dep. Ex. 408 — Contract No. 85907).
32 Id. at URS0000676-77.
33 Id. at URS0000697.

81505012.1                                         9
             •     Task 8.2 - Compute tension and compression failure forces for all primary and
                   secondary truss members and connections and store in database. 34


         Minnesota Statute § 549.191 sets forth the procedure for pleading punitive damages: the

party seeking punitive damages must file a motion to amend the complaint, alleging "the

applicable legal basis under section 549.20 or other law" and the "factual basis for the claim."

The substantive standard is detailed in Minn. Stat. § 549.20:

         (a)       Punitive damages shall be allowed in civil actions only upon clear and
                   convincing evidence that the acts of the defendant show deliberate
                   disregard for the rights or safety of others.

             (b)   A defendant has acted with deliberate disregard for the rights or safety of
                   others if the defendant has knowledge of facts or intentionally
                   disregards facts that create a high probability of injury to the rights or
                   safety of others and:

                   (1)    deliberately proceeds to act in conscious or intentional disregard
                          of the high degree of probability of injury to the rights or safety of
                          others; or

                   (2)    deliberately proceeds to act with indifference to the high
                          probability of injury to the rights or safety of others.

Minn. Stat § 549.20, subd. 1 (2008) (emphasis added).

         The standard for amendment is prima facie evidence: "if the court finds prima facie

evidence in support of the motion, the court shall grant the moving party permission to amend

the pleadings to claim punitive damages." Minn. Stat. § 549.191 (2008) (emphasis added). In

this context, prima facie evidence is evidence which, if unrebutted, would support a judgment in

the moving party's favor. Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn. App.

1990). Thus, a motion to amend should be granted if the supporting evidence reasonably allows

34   Id. at URS0000693-99.

81505012.1                                          10
a conclusion that clear and convincing evidence may establish that the defendants acted with

deliberate disregard. Id.

             At this stage, plaintiffs are not required to prove an entitlement to an award of punitive

damages, but only a right to allege punitive damages. Ulrich v. City of Crosby, 848 F. Supp.

861, 867 (D. Mimi. 1994) (citing Fournier v. Marigold Foods, Inc., 678 F. Supp. 1420 (D. Mimi.

1988)); McKenzie v. Northern States Power Co., 440 N.W.2d 183,184 (Minn. App. 1989)

(emphasis added). "Prima facie" does not refer to a quantum of proof, but, rather, to a procedure

for screening out unmeritorious punitive damages claims. Ulrich, 848 F. Supp. at 867; (citing

Swanlund v. Shimano Indus. Corp., Ltd., 459 N.W.2d 151, 154 (Mimi. App. 1990), rev. denied

(Minn. Oct. 5, 1990). Prima facie evidence is "that evidence which, if unrebutted, would support

a judgment in that party's favor." McKenzie v. Northern States Power Company, 440 N.W.2d

183, 184 (Minn. App. 1989).

         Minnesota Statutes § 549.191, directs the court to review evidence in support of a motion

to amend to plead a claim for punitive damages under a standard analogous to that of a directed

verdict. Ulrich, 848 F. Supp. at 867; Swanlund, 459 N.W.2d at 155. The defendant may not

oppose this motion with contrary factual inferences or arguments. Ulrich, 848 F. Supp. at 867

("[T]he Court makes no credibility rulings nor does the Court consider any challenge by cross-

examination or otherwise to the Plaintiff's proof."); Swanlund, 459 N.W.2d at 154 (motion to

amend for punitive damages under § 549.191 does not require any credibility determinations).

For that reason, in ruling on a motion to allow a claim for punitive damages, the court must

simply determine whether the plaintiff has submitted evidence which, if believed, would support

a punitive damages award.

81505012.1                                           11
             In substance, "acting with deliberate disregard for someone's safety means knowing facts

that create a probability of injury and then acting in disregard of those facts."   American Family

Ins. Co. v. MB., 563 N.W.2d 326, 330 (Minn. App. 1997). Indeed, in Jensen v. Walsh, 623

N.W.2d 247 (Minn. 2001), the Minnesota Supreme Court ruled that the intent to do the act was

the key determination, not the kind of damage that resulted, allowing a claim for punitive

damages when defendants intentionally egged plaintiff's house, stole her electric meter, and

caused property damage totaling $5,500. "Indifference" is best defined in an opinion from Judge

Rosenbaum in Schaub v. County of Olmsted, 656 F. Supp. 2d 990, 997 n.4 (D. Minn. 2009):

"deliberate indifference" as a "deliberate choice to follow a course of action ... from among

various alternatives."

         Here, the Consortium Plaintiffs seek the right to assert punitive damages against URS

pursuant to Minn. Stat. 549.20, subd. 2(c), which states in relevant part: "Punitive damages can

properly be awarded against a master or principal because of an act done by an agent only if: ...

(c) the agent was employed in a managerial capacity with the authority to establish policy and

make planning level decisions for the principal and was acting in the scope of that employment."

As will be set forth in more detail below, the URS Project Manager and the URS Project

Engineer, both of whom fall within the requirements of this provision, engaged in conduct giving

rise to the punitive damages that Plaintiffs seek.


         The evidence uncovered by the Consortium Plaintiffs clearly and convincingly supports a

prima facie case that URS acted with deliberate disregard and indifference to the public's safety.

81505012.1                                           12
         A.     The Cause of the Collapse at 6:03 p.m. on August 1, 2007.

         To put into context the egregiousness of URS' deliberate disregard for public safety, one

needs to understand why the Bridge fell, killing and injuring so many. 35 Every engineer who

will testify at trial will agree that a steel truss bridge must have the ability to expand and contract

with changes in temperature. Every engineer will agree that steel expands when heated and

contracts when cooled. Accordingly, when the main span of a bridge is 456 feet long, the design

of the bridge must contain a mechanism to allow expansion and contraction of the bridge

members. In other words, the bridge must be allowed to "move." In the Bridge's design, the

expansion and contraction of bridge members was accommodated by the inclusion of roller

bearings. These roller bearings were intended to allow the bridge to "move" when it expanded

with warmer temperatures and contract with cold temperatures.

         The Bridge collapsed into the river because the roller bearings at Pier 6 were, according

to URS, "frozen" due to rust and the accumulation of debris. 36 At the peak of the heat of the hot

day of August 1, 2007, the Bridge desperately needed to move. The Bridge's roller bearings

were designed for the sole purpose of accommodating that movement. But, because the roller

bearings were "frozen" and would not move, the steel members of the bridge took on the job of

trying accommodating the massive thermal forces. One such member near Pier 6's "frozen"

bearings was L9-11. 37 However, this steel member could not do the job of frozen bearings. As a

result, L9-11 "buckled" leading to the inevitable cascade of failures (including that of the U10

   For an engineering explanation for the collapse, see Ex. 21 (Consortium Plaintiffs' Affidavit
of Expert Identification) at 10-14.
36 Ex. 3 (Dep. Ex. 414 — URS Draft Report) at MN0107722-24; Ex. 22 (Dep. Ex. 407 URS
Second Inspection Report) at 1-2; see also Ex. 6 (McElwain Dep.) at 138:16-18.
37 The L9-11 member is technically two separate members (L9-10 and L10-11) which are
connected by the L10 gusset plate. The "L" refers to "lower" to distinguish it from the "upper"
or "U" gusset plates and members.

81505012.1                                         13
gusset directly above the L9-11 chord) on the "fracture critical" and "non-redundant" Bridge.

See diagram below.

This is why the Bridge, and all of the people on it, crashed into the river below at 6:03 p.m. on

August 1, 2007.

         B.     URS Kept Secret Its Knowledge That the Bridge "Was Clearly

         Eleven months before the "catastrophe," URS documented its clear and convincing

recognition that the Bridge was not safe for the people that used it. URS could have chosen to

tell the State that the Bridge was unsafe. Instead, URS lied to the State in one of the most

significant showing of deliberate disregard of the public's safety in state history.

         URS prepared a draft report detailing its evaluation of the Bridge. 38 It delivered that draft

report to the State in mid-July 2006. 39 The State reviewed the report and, in mid-August 2006,

38 Ex. 3 (Dep. Ex. 414 — URS Draft Report).
39 Ex. 23 (URS Transmittal Sheet) at URS0001020.

81505012.1                                         14
sent URS a list of questions about the report. 4° 'CMS's Project Engineer, Ed Zhou, prepared a

response. 41 He sent it to Don Flemming, URS's Project Manager, to review. 42

         But, instead of responding to Zhou, Flemming went straight to his URS boss, Mark

Mayes. On September 1, 2006, Flemming warned his boss:

         I am concerned that Ed [Zhou] is trying a little too hard to [ 43] advise
         Mn/DOT that the 9340 Bridge is okay even though it is clearly overstressed
         by today's design criteria when considering bending and secondary stresses of
         the members based on a 3 D analysis.

         I feel that the bottom line is that the fatigue analysis does not result in alarming
         results but from a strength standpoint the original design does not meet
         today's design specifications by a very significant degree.

         In addition, from a fatigue standpoint if a significant crack develops in any of the
         10 most critical members collapse could be imminent in a short amount of
         time, even though the analysis says a crack is unlikely. 44

         A mere five days later, on September 6, 2006, Flemming and Zhou met with State

representatives. At this meeting, Flemming could have told the State that URS knew that the

Bridge was "clearly overstressed." He could have warned the State that "Ed is trying a little too

hard to advise MnDOT that the 9340 Bridge is okay." But, he chose not to. 45 Flemming also

chose not tell the State that "from a strength standpoint the original design does not meet today's

design specifications by a very significant degree." 46 Eleven months later, the Bridge was in the

Mississippi River, killing 13 and injuring over 100 more innocent people.

   See Ex. 9 (Dorgan Dep.) at 92:23 – 93:4.
   See Ex. 24 (Dep. Ex. 632 – Zhou 8/29/06 email to Flemming).
   Id.; see also Ex. 25 (Dep. Ex 559 – Flemming 9/01/06 email to Mayes)
   In the original message, Flemming mistakenly put the word "not" here. Flemming testified
that his concern was that Zhou was trying too hard to advise MnDOT that the bridge is okay —
and not that Zhou was trying too hard to "not" advise MnDOT that the bridge was okay. Ex. 5
(Flemming Dep.) at 24:13-17.
   Ex. 25 (Dep. Ex 559 – Flemming 9/01/06 email to Mayes) (emphasis added).
   Ex. 5 (Flemming Dep.) at 35:14-19; Ex. 26 (Peterson Dep.) at 289:25 – 290:4.
   Ex. 9 (Dorgan Dep.) at 365:24 – 366:20.

81505012.1                                        15
         URS's deliberate disregard for public safety was compounded by the deceitful manner in

which it tried "too hard" to advise the State that the bridge was safe despite knowing it was

"clearly overstressed." URS was required to use three separate, accepted, code-prescribed

engineering methodologies to analyze the Bridge. 47 Each method had a built-in safety factor.

URS created a 3-D computer model and used that model to calculate the members' stresses

under each engineering methodology. Those calculations showed that the bridge was

overstressed. 48

         Then, in an imabashed attempt to make the Bridge appear safe when it was not, Zhou

performed a calculation that was not permitted by any engineering code, was not taught in any

engineering program, was never discussed in engineering journals, and was never used by URS

before or after this project. 49 Zhou did not make a mistake; he was not simply careless; he did
not act thoughtlessly or inadvertently.        Zhou made a conscious decision to use an unaccepted

method of calculating the Bridge's strength that had no built-in safety factor. This allowed IJRS

to misrepresent that the Bridge was safe when it was not safe under the analytical methodology

set forth in the applicable codes.

47 Ex. 16 (Dep. Ex. 408 – Contract No. 85907) at URS0000698-99. The three required
standards were: 1. AASHTO LRFD Bridge Design Specifications; 2. AASHTO Guide
Specification for Fatigue Evaluation of Existing Steel Bridges; and 3. AASHTO Manual for
Condition Evaluation of Bridges. Id.
   An "interaction ratio" is the ratio of load on the truss member to capacity of the member. See
Ex. 6 (McElwain Dep.) at 66:8-13. Using the prescribed codes, URS learned that numerous
members on the Bridge had interaction ratios greater than 1.0, several well over 1.25, and some
in excess of 1.50. See Ex. 3 (Dep. Ex. 414 – URS Draft Report) at 35W0006766-71. An
interaction ratio over 1.0 is a red flag. See Ex. 2 (Zhou Dep.) at 566:7-16. It is an indication that
the load of the member exceeds the prescribed capacity — i.e., the member is overstressed. See
Ex. 11 (Long Dep.) at 295:12-20.
49 Ex. 6 (McElwain Dep.) at 128:16 – 129:12, 196:11-19; 197:4-11, 198:7-15, 216:6-11, 216:22
– 217:10; see also Ex. 34 (Jenkins Dep.) at 161:6 – 162:6.
50 See Backlund v. City of Duluth, 176 F.R.D. 316, 323-25 (D. Minn. 1997) (distinguishing a
negligent act — one done carelessly, thoughtlessly, heedlessly, inadvertently, from a willful,
deliberate, or intentional act – one done knowingly, purposefully and without justifiable excuse).

81505012.1                                          16
             The State asked URS direct questions about the interaction ratios used by URS and its

indications for safety. Dan Dorgan, the State's Chief Bridge Engineer, asked:

          The second paragraph notes that no interaction ratios greater than 1.0 were found
          using the unfactored load and the ultimate capacity {URS's concocted method].
          Assuming some were close to 1.0, does this mean no traditional safety factor
          remains and there is no residual capacity beyond the design live loads? 51
The honest answer which URS chose to hide was a simple "YES." Yet, URS gave a four-page

answer that amounts to nothing more than engineering mumbo jumbo. 52

          URS admitted that did not answer the State's legitimate question about the Bridge's

safety. URS engineer Brett McElwain, who created the 3-D model and made all of the

calculations, was asked about whether URS answered the State's safety question in its four-page


          Q.       Okay. Then it goes on to say, "Assuming some were close to 1.0, does
                   this mean no traditional safety factor remains and there is no residual
                   capacity beyond the design live loads." Did I read that capaci -- did I read
                   that correctly?
          A.       Yes.

          Q.       The answer to that question is yes; is it not?
          A.       I believe so, yes. 53

          Q.       Okay. Where in this four-page answer does URS tell the state the answer
                   to Mr. Dorgan's question is yes?
          A.       I did not see it in the response here. 54
          Assistant State Bridge Engineer Gary Peterson, asked URS to "clarify that ultimate

capacity is the yield capacity of the member." 55 This question is significant for two reasons:

51 Ex. 27 (Dep. Ex. 554 URS's Draft Responses to MnDOT Comments) at URS004280.
52 Id. at URS004280-83.
    Ex. 6 (McElwain Dep.) at 269:1-9.
54 Id. at 270:13-16.

81505012.1                                             17
first, it made clear that the State did not understand that "ultimate capacity" meant failure point

(not yield strength as the code provides) and second, it made clear that the State did not

understand the methodology used by URS because the concept of "yield strength" is used in one

of the three accepted engineering methodologies required by the contract.

         IJRS knew the trae answer to Mr. Peterson's direct question was "No, ultimate capacity

does not mean yield strength." 56 But, URS refused to tell the truth. It chose instead not answer

the question at all. Indeed, at the time of his deposition on April 27, 2010, Peterson stated that

he still believed "ultimate capacity" meant "yield strength," and he did not recall that anyone

from IJRS tried to disabuse him of that inaccurate conclusion. 57 In fact, URS went on to

erroneously lead Mr. Peterson to believe that its methodology was really "Allowable Stress

Design," the code promulgated by AASHT0 58 under which the Bridge was designed in the early

1960s .59

         URS's lies directly contributed to the death and destruction of August 1, 2007. Had URS

told the State the truth — that the Bridge was overstressed to a "very significant degree," that the

answer to Dorgan's question was a simple "YES," and that "ultimate capacity" meant failure

point, not yield strength, the Greatest Man-Made Catastrophe in State History would not have

occurred. Kevin Western, the State's Bridge Design Engineer, testified:

55 See Ex. 27 (Dep. Ex. 554 – URS's Draft Response to MnDOT's Comments) at URS0004279.
"Ultimate capacity" is the failure point, far beyond yield strength. Ex. 6 (McElwain Dep.) at
65:21-25. "Yield capacity" is the point at which the metal begins to deform, a point far short of
failure. Id. at 65:12-20.
56 See Ex. 6 (McElwain Dep.) at 267:1-6.
57 Ex. 26 (Peterson Dep.) at 295:1-25.
58 American Association of State Highway and Transportation Officials (AASHTO) is a
nonprofit association whose guides and specifications are used to evaluate a bridge's structural
integrity. See .
59 Ex. 26 (Peterson Dep.) at 297:25 – 298:15.

81505012.1                                       18
             Q.   And as you sit here today hearing about this, in your mind are you
                  wondering, if you had been told this, could you have prevented the
                  collapse and saved all this destruction?

             A.   Not until you just asked that question.

             Q.   Are you now?

         A.       Potentially. °

             Q.   Wasn't okay for URS to hide this information from you; was it?

         A.       It would have been good to be shared with us, yes.

             Q.   This information may have caused the bridge collapse; didn't it -- couldn't
                  it? And you don't know because you haven't done any analysis of the
                  collapse, but it could have; right?

         A.       Could have prevented it from happening. 61

         Gary Peterson agreed that the State would, at the very least, have done more investigation

into the strength of the Bridge. 62 And Dan Dorgan testified that: "if the answer had come back

simply as yes, we would have asked more questions and it would have -- What we are pursuing

is [sic] questions regarding safety." 63

         Why did URS try so hard not to tell the State that the Bridge was "clearly overstressed"?

Why didn't URS tell the State to close the Bridge and replace it? The reasonable inference from

the evidence points to the usual suspect: money was the motive. Zhou advertised URS's services

by publishing several articles touting his ability to estimate the remaining service life of a bridge

far in excess of what a conventional analysis would offer. 64 In a December 2004 e-mail from

Zhou to colleague Tom Bryant in URS's Denver office, Zhou states: "The bottom line of our

60 Ex. 10 (Western Dep.) at 411:24-412:6.
61 Id. at 413:4-12.
62 Ex. 26 (Peterson Dep.) at 290:17-21; see also id. at 334:5-13.
63 Ex. 9 (Dorgan Dep.) at 362:25 — 363:12.
64 See Ex. 28 (Dep. Ex. 573 — Zhou article); Ex. 29 (Dep. Ex. 574 — Zhou article).

81505012.1                                          19
work is we usually can proof [sic] that aged bridges have longer service life than conventional

analysis indicates per design specifications." 65 Put differently, if Zhou estimates a longer service

life, he can recommend retrofit of the existing bridge (rather than construction of an entirely new

bridge) and Zhou and URS would be paid handsomely for monitoring the retrofit.

         URS documented its knowledge that the Bridge posed a huge risk to public safety in its

"clearly overstressed" condition, yet URS consciously and deliberately chose not to tell anyone.

Indeed, URS misrepresented the true facts by concocting a methodology that made the bridge

appear safe when URS knew it wasn't. Had URS been truthful, the State would have acted

because, as Chief Bridge Engineer Dorgan put it "What we are pursuing is [sic] question

regarding safety." URS's conduct falls squarely within the requirements of Minn. Stat. § 549.20.

Plaintiffs have met their burden of setting forth a prima facie case to allege punitive damages

         C.     URS Knew That the Roller Bearings Could Cause a "Catastrophe."

         URS was paid for its promise to inspect the Bridge's bearings at four different seasonal

temperatures. 66 It chose not to fulfill its promise. 67 In 2003, URS photographed the roller

bearings at Pier 6. 68

65 Ex. 30 (Dep. Ex. 523 — Zhou 12/02/04 email to Bryant).
66 Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS 0000694, Task 2.
67 See Ex. 11 (Long Dep.) at 123:17 — 126:21.
68 The below photos were taken from Zhou's computer. The photographs are replicated as Exs.
42-43. Ex. 42 (Dep. Ex. 428 — URS Photo of Pier 6 Bearing); Ex. 43 (Dep. Ex. 429 — URS
Photo of Pier 6 Bearing).

81505012.1                                       20
     Pier 6 Bearing                                     Pier 6 Bearing
URS could tell by looking at them and by comparing them to photos of the Bridges' other

bearings that the Pier 6 bearings were severely deteriorated. See photos of Pier 8 below. 69


                                  JUN 1 'I 2'003

      Pier 8 Bearing                                     Pier 8 Bearing

URS wrote in their report to the State that the Pier 6 bearings were "frozen." 7°

         "Frozen" (i.e., seized) bearings can have disastrous consequences. The textbook Bridge

Inspection and Rehabilitation states: "So it is clearly evident that maintaining a well functioning

bearing ... is extremely important, and that the consequences of a 'frozen' bearing ... would be

69 The below photos were taken from Zhou's computer. The photographs are replicated as Exs,
44-45. Ex. 44 (Dep. Ex. 432 — URS Photo of Pier 8 Bearing); Ex. 45 (Dep. Ex. 433 — URS
Photo of Pier 8 Bearing).
   Ex. 3 (Dep. Ex. 414 — URS Draft Report) at MN0107722-24; Ex. 22 (Dep. Ex. 407 — URS
Second Inspection Report) at 1-2. "[B]earings can be considered as 'frozen,' where the bearings
become 'locked' and no longer allow translation or rotation." Ex. 31 (Dep. Ex. 401 — Bridge
Rehabilitation Guide) at 196.

81505012.1                                         21
severe. 1971 Tne text goes on to warn: "The consequences of frozen bearings are often adverse

effects on the substructure units. ... [T]he large forces generated when movement is restricted

will find a weak link in the structural system and cause problems." 72

         URS knew exactly what the dangers were from the frozen bearings. Buried in the

millions of documents produced by URS, the Consortium found a document showing that URS

predicted a "Catastrophe" for this Bridge related to the bearings. In a June 17, 2003 document,

URS Project Engineer, Don Flemming, wrote "Catastrophic" next to the condition of the roller

bearings. 73

                    3. Remove ono tension member in the model and check all members against failure criteria under DL+LL+I

                    4. Repeat the process for all tension Members in databaSe

                        Evaluate effects of temperature toad and bearing conditions (lixed and roller expansion bearing

                     6. Tabulate all fracture critical members in order ot fatigue/Sracture failure probability

                                                                         Sub-Total Item H.

Flemming related the "Catastrophe" directly to the condition of roller bearings. He even circled

line "5" for the bearing and drew a line from "Catastrophe" to the bearings reference. 74

         URS knew that a "catastrophic" event would likely kill, or at least injure, countless

people who used the bridge high above the Mississippi River every day. URS had a choice.

URS internally considered recommending that the State replace or repair the seized bearings. 75

However, it chose not to make any recommendation at all to restore the bearings to working

   Ex. 31 (Dep. Ex. 401 — Bridge Rehabilitation Guide) at 182.
   Id. at 196.
   Ex. 32 (Dep. Ex. 646 — Flemming's Notes) at URS0000291 (emphasis added).
   Despite all this, Flemming's laughable story now is that he really meant his "Catastrophe"
prediction to refer to some part of the bridge other than the bearings. See Ex. 5 (Flemming Dep.)
at 204:10-25.
   Ex. 5 (Flemming Dep.) at 181:16 — 183:3; Ex. 33 (Dep. Ex. 484 — URS Draft Section 8) at

81505012.1                                                        22
condition.76 URS could have warned the State about the predicted "Catastrophe." But, it chose

not to.

          URS's other choice was to keep its "catastrophic" concern secret and not tell anyone.

URS chose not to do or say anything. In doing so, it clearly and convincingly chose to totally

disregard the safety of the people using the bridge.

                 1.      URS Chose the Most Unsafe Method To Measure the Roller Bearings.

          Given URS 's "Catastrophic" recognition and its admission that the Pier 6 roller bearings

were "frozen," URS was obligated to analyze the resulting stresses resulting from the dramatic

temperature range in Minnesota from the coldest day in winter to the hottest day in summer. In

fact, URS promised to "[d]evelop a 3-D computer model that can reasonably predict truss

member forces for dead, live, and temperature loads."77

          When it came to public safety, URS's acknowledged paramount duty, URS was required

to use the safest measurement of temperature load to assess the Bridge's structural integrity. The

engineering code (and Minnesota common sense) that governs the analysis of temperature effects

on bridges required URS to use a 150 ° F temperature range (or "load" in engineering terms). 78

But URS chose not to follow common sense or the engineering code. Instead, URS chose to use

an unrealistic 75 ° F temperature range. 79 Because use of such a limited temperature range did

not accurately reflect stresses on the coldest and hottest days in Minneapolis, URS's choice was

not safe. 8°

76 See Ex. 5 (Flemming Dep.) at 183:4-10; Ex. 11 (Long Dep.) at 96:8-15.
77 Ex. 16 (Dep. Ex 408 — Contract No. 85907) at 0000693 (emphasis added).
78 Ex. 11 (Long Dep.) at 117:20 — 118:10; see also Ex. 16 (Dep. Ex. 408 — Contract No. 85907)
at URS0000698-99 (requiring URS to comply with AASHTO design codes).
79 Ex. 6 (McElwain Dep.) at 108:24 — 109:2.
80 See id. at 111:6 — 112:5.

81505012.1                                        23
          To compound its disregard for public safety, URS also chose to make an unfounded and

unsafe assumption of where in their range the roller bearings were "firozen." 81 (By "range," what

is meant is the position of the frozen bearings relative to the fully expanded or contracted

positions, or somewhere in between.) The safest and most conservative assumption would be

that the bearings were either fully contracted or fully expanded and then calculate the effect of

the temperature load at each extreme, knowing that the "trae" answer was between the two

extremes. 82 However, without any basis in fact for doing so, URS chose the least safe

alternative: it chose to assume that the Pier 6 bearings were frozen somewhere in the middle of

their two extremes.

         However, URS now admits that had it calculated the temperature load by first assuming

the bearings were frozen fully expanded and then assuming them to be frozen fully contracted,

URS would have had a far more accurate analysis of the danger caused by the temperature load.

URS agreed that, had it done the safest analysis, it would have confirmed its catastrophic

prediction: the compressive loads on Chord L9-L11 were very close to the chord's failure

point. 83 URS admitted that this is a fact that would cause an engineer to be concerned. 84

         D.     URS Knew That the Gusset Plates Were Bent, But Chose Not To Analyze
                Them Because It Would Have Been "Too Much Work."

         URS was paid to fulfill its promise to "[c]ompute tension and compression failure forces

for all primary and secondary truss members and connections and store in database." 85

81 Id. at 110:19 — 111:5.
82 See id. at 112:16 — 115:9.
83 See id. at 125:1 — 126:13.
84 Id.

85   Ex. 16 (Dep. Ex. 408 — Contract No. 85907) at URS0000696 (emphasis added).

81505012.1                                       24
Connections include gusset plates. 86 Gussets are the steel plates to which the steel bridge

members are connected with rivets.

             In 2003, URS took pictures of the Bridge's gusset plates. Most of the gussets that URS

photographed were one inch thick. With one significant exception, all of the guSset plates that

URS saw were straight. URS 's own photos, however, clearly showed that four U10 gusset plates

were thinner (only one-half inch thick). More importantly, URS's own photos showed that four

U10 gussets were bowed. 87

U10 West Truss                                       U10 East Truss

   Ex. 34 (Jenkins Dep.) at 64:17-18.
87The below photos were taken from Zhou's computer. The photogaphs are replicated as Exs.
35-38. Ex. 35 (Dep. Ex. 469 — URS Photo of UlOW Gusset); Ex. 36 (Dep. Ex. 470 — URS Photo
of Ul OE Gusset); Ex. 37 (Dep. Ex. 471 — URS Photo of U10'W Gusset); Ex. 38 (Dep. Ex. 472 —
URS Photo of U10'E Gusset). URS acknowledged the bowing. See Ex. 6 (McElwain Dep.) at
28:18 — 29:12; Ex. 11 (Long Dep.) at 252:1-15; 252:23 253:11; 256:7-15.

81505012.1                                         25
 U10' West Truss                                         U10' East Truss

             The gussets were not supposed to be bowed. 88 Based on photos it took of the U10 gusset

plates, URS knew that something was very wrong. URS admits that the bowed gusset plates

suggest that there was a pattern, increasing the likelihood that the bowing was caused by

overstress. 89

             Given URS's duty to analyze the gussets, its alarming photographic findings, and its

knowledge that the Bridge was non-redundant and fracture critical with no safety back-ups, what

did it do? URS chose to do nothing. Despite being paid hundreds of thousands of dollars by the

State, URS concluded: "We will not calculate actual capacities of all the connections since

that is too much work, although that provides the most accurate results.""

             URS's computer modeling was the foundation for its analysis of the Bridge's "structural

integrity." In its computer modeling used to assess the safety of the Bridge, URS also chose to

ignore the significance of the bowed gusset plates. 91 Thus, the model URS used for all of the

88 Ex. 6 (McElwain Dep.) at 32:15-24.
89 See Ex. 2 (Zhou Dep.) at 181:20 — 183:3, 183:15-25.
90 Ex. 39 (Dep. Ex. 475 — Zhou 3/15/06 Email re Connection Capacities) (emphasis added); see
also Ex. 6 (McElwain Dep.) at 334:10-20.
91 Ex. 6 (McElwain Dep.) at 53:17-54:9.

81505012.1                                          26
other calculations was not accurate and likely overstated the strength of the Bridge. 92 Instead, it

simply decided to tell the State that the U10 gussets were in "good condition." 93

             Despite URS's conclusion that it was "too much work," URS ultimately got around to

analyzing the safety of the bowed, one-half inch U10 gusset plates. URS always had the

information. 94 Zhou ultimately reviewed it and performed the simple calculation in order to

confirm that the U10 gusset plates were too thin. Zhou found that the bowed, one-half inch

gusset plate "may fail," and that as a result, the Bridge "might fail." 95 Zhou performed the

analysis on August 15, 2007 — fourteen days after the catastrophe and before all of the

victims' bodies had been recovered.

         With Zhou's post-catastrophe finding, URS knew that hanging in the balance was the

safety of millions of Americans who used similar gusseted, non-redundant and fracture-critical

bridges across the county. URS, however, chose to keep its conclusions secret; telling no one. 96

         What would have happened had URS chosen to perform its quick calculation before the

death of and injury to so many people? URS admitted that it would have "alerted the authorities

that there was a problem of major magnitude and potentially disastrous in the use of the 35W

bridge." 97 Zhou was asked in his deposition: "If you'd done these calculations, you would have

told the State, 'Close that bridge;' right?" Zhou answered: "Again hypothetically, yes. 98 Yet,

92 Id. at 53:24-54:9; 103:16-22
93 Ex. 40 (Dep. Ex 405 — URS Initial Inspection Report) at MN0312088-89, MN0312091-92,
MN0312104-05, MN0312107. Note that in this report, URS refers to the U10 gusset plates as
U18. Ex. 11 (Long Dep.) at 251:15-17.
94 Ex. 2 (Zhou Dep.) at 290:25 — 291:9; Ex. 6 (McElwain Dep.) at 306:25 — 307:4; Ex. 41 (Dep.
Ex. 608 — URS Gusset Calculations).
95 Ex. 2 (Zhou Dep.) at 235:8-14.
96 Ex. 6 (McElwain Dep.) at 315:6 — 316:10.
97 Ex. 2 (Zhou Dep.) at 236:4-17.
98 Id. at 236:18-22.

81505012.1                                       27
when asked whether he took responsibility for URS's work on the Bridge, Zhou said: "I would

not .... Why would I?"99

             E.     URS Disregarded Its Own Safety System: Quality Assurance/Quality

             Given URS's recognition that its paramount duty is to public safety, it wanted to make

sure it could "assure" and "control" the quality of work it was paid to perform. URS so valued

quality that it created a mandatory Quality Assurance / Quality Control ("QA/QC") Program.' 00

To make certain that it followed the program, URS documented the program it its own manual.

URS completely disregarded any attempt to use its own program to see that it did quality work

for the safety of the public. Their choice not to use their mandatory QA/QC Program fiirther

shows their deliberate disregard for the public's safety.

         In its proposal to the State that ultimately led to Contract No. 85907, URS identified

Thomas D. Jenkins, PE as the QA/QC Officer for this project. 101 IJRS promised:

         Quality Assurance/Quality Control (QA/QC): URS is committed to providing
         quality and timely service to Mn/DOT. To ensure that this commitment is
         achieved, we have established a QA/QC program. The Project Manager and the
         Project Engineer will develop a detailed work plan for each assignment, including
         a detailed scope of work and schedule. This work plan will be distributed to all
         staff working on the assignment. Detailed checking will be performed for all
         analysis, design, and contract documents. The final documents/report will go
         through a thorough independent technical review by Mr. Jenkins, the URS
         QA/QC officer, before submittal to Mn/DOT.

         In addition, Article 33.1 of Contract No. 85907 required URS to have a QA/QC Plan, and

then to follow it:

         Prior to approval and execution of this Contract, Contractor must have a Quality
         Assurance and Quality Control (QA/QC) Program. During the term of this
         Contract, Contractor must adhere to Contractor's QA/QC Plan, which was

99 Id. at 251:2 — 252:9.
1°° Ex. 13 (Mayes Dep.) at 69:19 — 70:4, 70:10-14; 73:15 — 74:7.
101 Ex. 8 (Dep. Ex. 403 — URS Response to MnDOT RFI) at 1JRS0006608.

81505012.1                                         28
             prepared by Contractor and accepted by State's Authorized Agent, for this
             Contract. Contractor's QA/QC Plan is incorporated into this Contract by
             reference. With each deliverable submitted to State pursuant to this Contract,
             Contractor must certify in writing to State's Authorized Agent that there was
             compliance with the. QA/QC Plan.            State may cancel this Contract for
             Contractor's failure to follow the QA/QC Plan for this Contract. 102

             The URS Quality Assurance Program applies to all projects under the jurisdiction of

URS. 103 It required, among other things, that:

             •     A "principal-in-charge" be assigned to each project. 1°4 URS chose not to have a

             •     A Project Quality Assurance Plan for each project. 1°5 URS chose to have no Plan
                   for the I-35W project.

         •          A Quality Assurance File be established for each project. 106

Perhaps most significantly, the program required an "Independent Technical Review" of all

substantial project deliverables. 107 The purpose of the independent technical review is to verify

the quality and integrity of the project tasks and written work products; to satisfy contractual

obligations; and to verify compliance with the standard of care of professional practice. 1°8

Indeed, to justify its profit, URS even budgeted 138 hours for its QA/QC review in Contract

85907. 1°9

     Ex. 16 (Dep. Ex. 408 – Contract No. 85907) at URS0000690, ¶ 33.1 (emphasis added).
     Ex. 18 (Dep. Ex. 690 – URS QA/QC Manual).
     Ex. 13 (Mayes Dep.) at 77:24 – 78:9.
    Id. at 99:24 – 101:12.
    Id. at 103:8-20.
    Id. at 84:6 to 85:7. The independent technical review is to be performed by one not
associated with the work being done — one independent of the actual work. Id. at 85:14
108 See id. at 84:15-24; Ex. 34 (Jenkins Dep. at 172:2-17).
1°9 Ex. 16 (Dep. Ex 408 – Contract No. 85907) at IIRS0000704.

81505012.1                                           29
             In his capacity as URS's QA/QC Officer for this project, Jenkins was required to state

with clarity which deliverables should have had an independent technical review before they

went to the State:

             •      The photographs of the gusset plates should have been examined so that the
                    condition shown in the photographs were accurately disclosed to the client. 110
                    URS chose not to examine the photos of the bowed gusset plates. 111 Instead, it
                    falsely described the gusset plates' condition as "good."

             •      The 3-D model should have had an independent technical review. The soundness
                    of the principles being applied, and the results, should have had a technical
                    review. I12 URS simply decided not to review any of the principles or results.
                    Indeed, Jenkins testified that he would never have approved of Zhou's concocted
                    methodology using the ratio of unfactorecl load to ultimate capacity because "it
                    does not have the level of safety that's expected." 113

             •      All deliverables to the State were to receive a review. 114 URS chose not to subject
                    any deliverables to a technical review before delivery to the State. 115

          Jenkins left URS in January 2005 — in the middle of the project. Before leaving, he did

nothing to fulfill URS's duties to Assure Quality or Control Quality: did not develop quality

assurance plan, prepare project management plan, or perform technical review. I16 Who did URS

replace Jenkins with? No one.

          By choosing to ignore its own required QAJQC procedures on this project, URS insured

that: (1) the U10 gusset plates bowing was not disclosed to the State or considered in the 3-D

model, (2) the inaccuracies in the 3-D model were never discovered, and (3) the use of Zhou's

concocted methodology was used to falsely tell the State that the Bridge was safe when it was


       Ex. 34 (Jenkins Dep.) at 129:6-14.
       See Ex. 11 (Long Dep.) at 54:10-24, 398:18 – 399:25.
       Ex. 34 (Jenkins Dep.) at 174:11 – 176:18.
       Id. at 164:22 – 165:18.
       Ex. 34 (Jenkins Dep.) at 168:23 – 169:8.
       Ex. 5 (Flemming Dep.) at 512:8-14.
       See Id. at 32:3-15, 36:5 37:2; 144:25 – 145:2.

81505012.1                                           30

             This is not a case where URS was simply negligent. URS was paid by taxpayers to make

sure the Bridge's "structural integrity" made it safe for the public. Knowing that nothing is more

important than the public's safety, URS time and time again made deliberate choices that

threatened the public's safety.

         URS knew the Bridge was "clearly overstressed" and that "from a strength standpoint the

original design does not meet today's design specifications by a very significant degree." URS

knew that the roller bearings were "frozen." URS predicted the "catastrophe," relating it directly

to the bearings. URS knew the gusset plates were bent, but chose not to evaluate them because it

complained that it was "too much work." URS chose to say nothing. Instead, it lied to the State.

URS knowingly led the State into a false sense of security that the bridge was safe. By its own

choices, URS made it clear and convincing that it acted with deliberate indifference and

disregard to the public's rights and safety. Plaintiffs' Motion to Amend to assert punitive

damages should be granted.

DATED: June                     , 2010.         ROBINS, KAPLAN, MILLER & CIRESI L.L.P.

                                                       Chris Mes      (#177039)
                                                       Philip Sie (#169845)

                                                800 LaSalle Avenue
                                                2800 LaSalle Plaza
                                                Minneapolis, MN 55402-2015

                                                LIAISON COUNSEL FOR
                                                CONSORTIUM PLAINTIFFS

81505012.1                                        31

American Association of State Highway and Transportation Officials (AASHT0):                 A
         nonprofit association whose guides and specifications are used to evaluate a bridge's
         structural integrity.

Bearing: A device located between the bridge structure and piers. See also Roller Bearing.

Capacity: The amount of load that a member can resist before it yields or fails.

Catastrophe: "A momentous tragic event ranging from extreme misfortune to utter overthrow
         or ruin." Webster's Ninth New Collegiate Dictionary, 214 (1986).

Compression: A force that pushes or presses from the ends toward the middle of a member.

Compression Member: A bridge truss member that is subjected to compression forces.

Connection: A bridge member that connects other structural members. See also Gusset Plate.

Fracture-Critical Member:         A member within a non-redundant bridge, the failure of which
         would cause a partial or total collapse of the structure.

Gusset Plate: A metal plate used to connect multiple structural members of a truss. Gusset
         plates are also referred to as connections.

Interaction Ratio: An "interaction ratio" is the ratio of load on the member to capacity of the
         member. An interaction ratio over 1.0 is a concern because it is an indication that the
         member being evaluated is overstressed.

Load: The force applied from weight of structure itself or from traffic, wind, or temperature.

Member: An individual beam or plate that is an integral part of the bridge.

Non-redundant: The condition where fracture of a structural member could lead to a partial or
         total collapse of the entire bridge. A non-redundant bridge lacks redundancy in the
         design of its support structure. Such bridges are sometimes referred to as fracture critical.

Roller Bearing:      A bridge bearing comprising rollers so as to permit longitudinal thermal
         expansion or contraction of a structure. A bearing is frozen when the bearings become
         locked and no longer allow for movement.

Structural Integrity: The ability of the bridge, or individual structural member, to resist load.

Temperature Load: The load induced in members based on temperature change.

Tension: A force that stretches or pulls on a material.

Tension Member: Any member of a truss that is subjected to tension forces.

Truss Bridge: A bridge composed of structural elements connected to form triangles. The ends
       of the members are connected with gusset plates.

Ultimate Capacity: The point at which a member is no longer able to resist loading and fails.

Yield Capacity: The point at which a member is no longer able to resist loading and begins to
       give or deform.

81554255.1                                       2

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