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Deep inside a legislative plan to compensate the victims of the Interstate 35W bridge collapse is a proposal that would also take care of someone else -- the University of Minnesota, whose researchers authored a 2001 study of fatigue cracking that confidently stated there was no need to replace the bridge.
The effort to release the university from potential legal claims has been largely overlooked as legislators have debated a proposal that would set aside as much as $40 million for the victims. House-Senate conferees are now considering whether language protecting the university, which is in the Senate version but not in a House version of the plan, should be included in the final legislation.
The chief author of the Senate bill, Sen. Ron Latz, DFL-St. Louis Park, said he added the provision after being approached by the university's general counsel, who wanted "some comfort" that victims accepting state compensation would waive legal claims against the university.
"I just got a note through the grapevine," said Latz, who said he spoke to Mark Rotenberg, the school's general counsel.
While Rotenberg downplayed the significance of the move, Latz said that he was aware of the 2001 study of the bridge and that he never attempted to hide his intent to protect the university legally. "No one is playing hide the ball," he said.
Rotenberg said he could not recall whether he initiated the dialogue with Latz, and he described the plan to protect the university as a formality because there were no indications any of the bridge-collapse victims were looking to sue the school. "Nobody has suggested even, let alone actually filed a claim, that there was anything wrong with that study," Rotenberg said.
Though the 2001 study did not focus on the bridge's gusset plates -- a factor that federal investigators are now investigating as a possible cause of the collapse -- it was notable for its straightforwardness in giving the bridge a clean bill of health. The study evaluated metal fatigue on the deck truss and concluded that the Minnesota Department of Transportation (MnDOT) "does not need to prematurely replace this bridge because of fatigue cracking, avoiding the high costs associated with such a large project."
Days after the bridge collapse last summer, former state Transportation Commissioner Elwyn Tinklenberg said the study's findings were stated so confidently that he remembered little else regarding the bridge during his tenure.
"Typically, those kinds of studies have -- you know how that stuff is written -- it has all kinds of caveats to it," he said in recalling the study this week. This one, said Tinklenberg, "seemed remarkably straightforward."
A stronger note of concern was raised by engineering consultant URS Inc. when it studied the bridge as a MnDOT consultant beginning in 2003. URS is a private firm that is not being sheltered from lawsuits by the legislation.
According to internal correspondence made public by MnDOT, URS at one point pushed a plan to reinforce the bridge with steel plates but later backed away from what would be a costly remedy. Like the university's study, URS made little mention of the gusset plates in its study.
Paul Bergson, a research fellow in the university's civil engineering department and one of three authors of the university study, said he welcomed language protecting the university. Bergson said the study was limited in scope and, though it used sensors placed near the bridge's "connection regions" to monitor fatigue, there was no indication that the bridge's gusset plates that served as connecting pieces were a cause of concern.
"It's good to hear that," Bergson said of the attempt to legally shelter the university. "I would imagine that anyone that worked on the bridge -- contractors, consultants -- probably would be part of whatever lawsuit [may come].
"We weren't tasked to look at the gusset plates," he said. "You're so limited in budget and scope." Bergson said he sent the study's documentation to the National Transportation Safety Board, which is conducting the formal investigation into the collapse and which he said has talked to him.
Bergson served as an assistant to the study's chief author, Robert Dexter, who has since died. The study's authors were also assisted by Don Flemming, who at the time was MnDOT's state bridge engineer. Flemming later joined URS, where he played a key role for URS in examining the I-35W bridge for MnDOT.
Dick Nygaard, an attorney representing some of the collapse victims, said he was aware of attempts to protect the university legally at the State Capitol. "If I was Rotenberg, I'd be asking for the same thing," he said.
While the U's study was limited in scope, said Nygaard, it has been difficult for the victims to learn how much the NTSB is drawing from the study. "The problem of course is, with the NTSB's cloak of secrecy over all this stuff, you don't know whether there's any relationship between the university study" and the reasons for the collapse, Nygaard said.
Language not obvious
The effort to protect the university at the Capitol has not been obvious. Even in the Senate version, the University of Minnesota is never mentioned by name.
When Latz's proposal passed unanimously in the Senate on March 13, the language said that any victim accepting money from the state would release the state from legal claims. "State," the proposed legislation added, "has the meaning given in Minnesota Statues, section 3.732."
That statute, which is not described in the bill, includes the university along with state departments, boards, agencies and commissions.
The House proposal, which passed in late February, is more straightforward, exempting the "state and its political subdivisions," such as a city, from any legal claims. It does not specifically release the university from claims by victims.
With a House-Senate conference committee now meeting to reach a compromise, Gov. Tim Pawlenty said he prefers the Senate proposal largely because it caps individual claims at $400,000. The House plan does not limit individual claims.
Rep. Ryan Winkler, the chief author of the House plan, said last week he is studying whether to support the language regarding the university.
"It's not an issue that came up in the House," Winkler said. "I just need more information to know why we want [to go] down that path."
Mike Kaszuba • 612-673-4388