'True Colors'

A look back at the pro bono response to the I-35W bridge collapse

Published in 2021 Minnesota Super Lawyers Magazine

As with the Twins’ World Series victories in 1987 or 1991 or Prince’s death in 2016, most Minnesotans can tell you where they were on Aug. 1, 2007, when the section of the Interstate 35W bridge that spans the Mississippi River in Minneapolis collapsed. 

That evening, during rush hour, 13 people lost their lives and another 145 were injured. The worst man-made disaster in state history—and the second-deadliest bridge collapse in the country’s past 20 years—it is burned into many memories. 

Tom Conlin, a personal injury lawyer at Conlin Law Firm in Minneapolis, was at his home when the news hit. He immediately called fellow personal injury attorney Chris Messerly.

“I was in a medical malpractice trial in Wausau, Wisconsin,” says Messerly, then the president of the Minnesota Association for Justice. “Tom wanted to know what I was going to do about it. Because I was president, I felt that I in particular had an obligation to do something.”

Giving blood, and then helping to search for missing persons, crossed Messerly’s mind first. When he spoke with fellow Robins Kaplan partner Phil Sieff—who was getting calls from around the state—the two began weighing the collapse’s legal implications. They assumed, correctly, that the state either owned or maintained the bridge, meaning that representing survivors and victims’ families in a traditional arrangement was likely untenable due to caps and governmental immunities. 

“We reached the joint conclusion that providing pro bono representation best fulfilled our desire to help,” says Sieff. 

Adds Messerly: “I felt that, given the catastrophic, historic nature of it, the legal profession should really do this for free.”

The Consortium

By mid-August, the pair was reaching out to lawyers they knew, cold-calling ones they didn’t know, and fielding queries from interested firms statewide. They reached out to attorneys like now-Judge Nelson Peralta, who represented Spanish-speaking children on the school bus that fell; and Jerry Maschka and Renee Rubish of Maschka, Riedy, Ries & Frentz in Mankato, who represented the construction workers resurfacing the bridge that day.

In total, more than 50 lawyers and 17 firms joined the pro bono consortium, representing 112 clients in eventual claims against construction company Progressive Contractors Inc. and engineering firm URS Corporation. Sieff coordinated the entire effort, which—aside from attorneys being assigned to specific individuals—was broken into various teams: document review, written discovery, deposition, and legal research and briefing. A trial team was prepared, too, in case it went that far. 

Conlin’s role involved reviewing documents and representing a 51-year-old house painter named Bernie, whose Ford Explorer had fallen 50 feet. “The Explorer landed upright, which was extraordinary—just an amazing work of faith in his favor,” Conlin says. “But falling from such a height put an incredible unexpected load on his spine.”

None of the lawyers had been involved on a project of this scale. Though the teams largely operated on their own, there were meetings at which nearly every volunteer was present. Sieff says these moments taught him a few things: “In our world, we tend to have one lawyer in charge, and you do your thing. In managing and working with so many firms, I learned that the success of the endeavor was going to be heightened by listening and taking into account everybody’s thoughts, suggestions and ideas.

“You can imagine 20 to 40 attorneys all having a thought on how to do things,” he continues. “I’m not suggesting there were arguments, but it was, at times, challenging to remember to take a diplomatic approach—especially for me.”

The Investigation

Sieff also oversaw the investigation into what caused the collapse. Originally, the evidence and the site of the collapse were locked down by state agencies, then transferred to the National Transportation Safety Board. The consortium eventually got its hands on tens of thousands of documents, thanks to FOIA requests. And, perhaps most importantly, they had footage of the bridge collapsing. 

An early theory, says Maschka, was that the weight of the materials from the construction crew on the bridge that day, Progressive Contractors Inc., caused the collapse. “As time passed, I think there was an increasing level of questioning whether that happened,” he says. “The total weight of the equipment that PCI had on the bridge was negligible when compared to the mass of the bridge itself.”

By late 2008, the NTSB was claiming that wrong-sized gusset plates made the bridge unable to handle the load that day. But well before the announcement, the consortium lawyers set out to do their own investigation. Sieff spent months in 2007 finding engineering and metallurgical experts, eventually landing on engineering firm Thornton Tomasetti.

“They knew early on that it wasn’t an explosion, it wasn’t some sort of foul play,” he says. “They could rule out a number of scenarios based on the video of the bridge collapsing. Relatively early on they had deep suspicions about the bearings being inoperable or frozen. But they were extremely careful about not getting locked into a theory.”

The engineers built a computer model of the bridge, making alterations and running scenarios in an attempt to match the footage. Their conclusion, presented to the victims in the spring of 2009, was that one of the bearings was frozen, and thus couldn’t contract or expand properly with the changing heat and weight of the bridge. One of the steel beams then bent, which in turn caused the gusset plate to tear. 

Concurrently, handfuls of lawyers, for days at a time, reviewed documents to find out who was responsible. Messerly says the results were dumbfounding: The state had hired URS Corporation to make sure the bridge was safe, yet the company had not taken action despite having photographic evidence of the gusset plates and immobile bearings.

“The engineering company had essentially predicted that the bridge would collapse and essentially did nothing about it—and this is years before,” he says. “The more we saw, the sicker to our stomachs we got. … Getting the answer as to why the bridge fell, it really saddened a lot of our clients. I think a lot of them were hoping it was an act of God.”

The Legislation

In 2008, Minnesota’s total liability cap was still $1 million—too low to even pay for the average medical expenses of one victim, let alone over a hundred. “So we embarked on creating a special fund, which would essentially provide immediate funding, and longer-term funding, to all of the people on the bridge,” says Messerly. “I also played hockey every week with the governor, which allowed me to have his ear in the locker room.”

For nearly a month, Messerly was at the capitol each day for hearings, and each night he rewrote the bill. In the end, it wasn’t a hard sell for the legislators, and in early May 2008 the state agreed to create a $37 million fund, broken into smaller funds by types of damages. 

“The work Chris did to get money appropriated—nobody had ever seen anything like that happen before,” says Maschka. “In fact, I don’t think anything like that had ever happened before.”

Those who accepted compensation would release the state from all future claims which, Messerly notes, wasn’t much of a concern. Though the fund obviously wouldn’t cover all compensation, it would be divided up and doled out by a three-lawyer special master panel. 

The Panel  

The panel was appointed from its pool of applicants by the state Supreme Court’s chief justice at the end of May 2008. Susan Holden, a personal injury attorney at SiebenCarey in Minneapolis, was named its chair.

The statute had outlined for the panel what needed to be accomplished. Holden notes that there was plenty to do and time was short. “We had to design the whole claims process—everything from claims forms, the website, and release and settlement agreements that met the requirements of the statute, but still preserved people’s claims against other entities,” she says. 

The panel spent the summer setting up a claims process so that victims could submit forms by that October. The claims forms listed what documents victims would need to submit. Then, the individuals would choose to appear before the full panel, an individual panel member, or waive their right to meet. Holden says about 100 met with individual panel members, a handful opted out, and the rest met with the full panel. The panel listened to each presentation, then asked questions of lawyers and survivors. 

Maschka and Rubish presented before the special master panel in December 2008, approximately a year after they’d retained their 12 clients. A large focus of their presentation was on PTSD. 

“What I remember most is the expressions of sheer terror, and the trauma they went through,” says Maschka. 

“One of the workers lived down in southern Minnesota. On the day of the bridge collapse, he’s trying to get home, and he had to cross the Minnesota River bridge at Shakopee,” adds Rubish. “He got there, and had to stop his pickup because he was so anxious about crossing that bridge. Finally, he did, but that’s the stress and anxiety he had.” 

The two initially had a tough time getting the workers to open up. “Many had orthopedic injuries, which we were familiar in dealing with,” Rubish says. “But it was the PTSD that was challenging getting your arms around. I think we got through to them, and many of them did go in for treatment.”

Holden, too, says panel members had their eyes opened to the effects of PTSD. “There was so much of that, that wasn’t included as an injury for most of the survivors who were on the bridge,” she says. “And there were different degrees of it, ways it affected peoples’ ability to earn their livelihoods and engage in their lives.”

Hearings wrapped up in January 2009, and offer forms were sent to the survivors and families the following month. Holden notes that while the special masters did their best to fairly allocate money from each designated pool of the fund, it wasn’t an exact science—making it a stressful task.

“We needed to hear the cases and reach a decision on the total damages, and then figure out how much of those damages were appropriately compensated from each of the two pools of money in the fund,” she says. “Then we had to make sure, at the end, that we hadn’t spent more money than was actually appropriated. Of course, the total damages for people that had valid claims exceeded the appropriation available to pay them.”

By April 2009, the fund had been divided among 179 victims, and the panel wrapped up its paperwork that September. “This was a good example of how government can work well,” Holden says. “It was a bipartisan effort. It was a good process with strict deadlines. It gave the survivors an opportunity to tell their story, and get a fair result within limitations. 

“I firmly believe the reason this process was so effective and successful was that people could participate without having to waive anything. They could go through the process, decide whether they thought they were treated fairly, and consider their offer. And 100% of the claimants accepted.”

The Settlement 

The following summer, the consortium brought a motion for punitive damages—based on a brief Messerly wrote—against URS. 

“That was the catalyst to getting the case resolved,” says Sieff. “We had taken maybe 10 depositions. When we brought a motion for punitive damages, while the court had that under advisement, the court directed everyone to court-supervised mediation.”

A trial was set for March 2011, but on Aug. 21, 2010—after two years of discussion—the plaintiffs accepted a $52.4 million settlement. $42.4 million went to the victims represented by the consortium, while another $7.7 million went to 34 plaintiffs represented by Jim Schwebel of Schwebel Goetz & Sieben.

“When the judge walked in at 9 or 10 at night, saying, ‘You got your money,’ we were overjoyed for our clients,” says Messerly. “When we called a lot of them, they just cried, happy it was over.”

The distribution of a settlement can be tricky, but thanks to the special master’s panel having already laid out the formulas, it went smoothly. “We didn’t know whether they would use the numbers we reached or not,” says Holden. “It was gratifying to know that our work was meaningful for that process as well.”

A Reflection

Looking back on the tragedy and its aftermath, Messerly found his faith in the legal system strengthened.

“I was floored by everyone’s willingness to pitch in, without any expectation of compensation. Lawyers get a rap for being greedy. This was their true colors, I think,” he says. “I’m sorry that it takes the greatest manmade catastrophe in state history to bring people together, but it brought legislators together from diverse political perspectives. It brought lawyers together, it brought people together, it brought the medical community together.” 

Adds Sieff, who estimates he and Messerly put in a combined 6,000 hours of pro bono work: “It spoke enormously well of the legal profession that you had so many firms willing to do this on a pro bono basis—willing to work together without a lot of personal agendas involved in the endeavor.”

The new 35W bridge opened for traffic in fall 2008. In August 2011, survivors and families were invited to the unveiling of the 35W Remembrance Garden, paid for as part of the settlement. Situated near the Guthrie Theater, the event marked, for some, the end of the disaster from four years earlier. “They were also invited, as the bridge was dismantled, to take some raw material from the construction,” says Conlin. “[Our client] Bernie did that for himself, but he also delivered to us a section of twisted metal from the bridge—which we have in the office.

“But I think the most rewarding thing,” he continues, “is that this was a righteous cause pursued without a request for payment by some of the best lawyers in town, for the benefit of people who did nothing wrong but use the bridge that day.”

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