The Project involved the installation of 24” to 48” sewer pipes at depths of over 50 feet.  The Project was mandated by the State of Michigan to prevent the discharge of raw sewage into the Detroit River.  The owner conducted numerous soil borings and gather other geotechnical, which indicated that the sewer would be placed primarily in clay soils containing occasional cobbles. However, the contractor encountered dozens of boulders several feet in diameter. This differing site conditions caused a delay of several years and millions of dollars in additional costs.

The case focused on whether the micro-tunneling contractor should have expected boulders and whether the contractor could have overcome the existence of boulders had it switched to a rock cutter head.  The challenge would be to counter these arguments in a way that the average juror could understand.

Numerous illustrations and other demonstrative exhibits were developed to demonstrate that the rock cutter head suggested by the Owner would only have made matters worse in clay soil.  A mock trial was held, which demonstrated the usefulness of the illustrations and the ability to convey such information to a jury. The results of the mock jury were shared with the Owner.

Over the course of several days of settlement discussions that began literally on the courthouse steps, the Owner increased its offer significantly, resulting in settlement of more than $7 million.  This case demonstrates that being prepared for trial is the best way to avoid one.

Marcus R. Sanborn was one of the attorneys representing the micro-tunneling contractor and played a significant role in the litigation including successfully presenting the micro-tunneling contractor’s case at the pivotal mock trial.

Source: The New-Herald, July 29, 2011