Judge rips T on ‘squishy’ arguments

Woodlock skeptical of agency’s claims in $91.5m suit on railroad ties

A federal judge ripped the MBTA yesterday for shoddy recordkeeping, “squishy” legal arguments, and depositions “designed to avoid the dangers of perjury” during a hearing in the agency’s $91.5 million suit against the manufacturer of faulty concrete ties.

US District Court Judge Douglas P. Woodlock was combative from the moment he got on the bench for the hearing on a summary judgment filed by Rocla Concrete Ties. Nearly all of Woodlock’s ire was aimed at the T and its high-powered lawyers from the Boston firm of Ropes & Gray.

Woodlock asked attorney Steven T. Hoort, one of the T’s lawyers, what evidence he had to disprove Rocla’s contention that there was a change in the warranty on the ties that limited the company’s liability to three years. Hoort said there was no record disputing Rocla’s claim, but then added that no one but the board of directors had the authority to approve such a change.

As Hoort continued, Woodlock interrupted him, the first of many times during the two-and-a-half hour hearing. “That’s a silly argument,” a livid Woodlock said. “This is a rope-a-dope strategy by the MBTA. I recognize that you have a client who doesn’t keep records very well. But I’m not going to let you slip and slide around here.”

Woodlock directed Hoort to a memo purportedly signed and initialed by former MBTA official William Boodry that indicates the T agreed to the warranty changes. But Hoort continued to argue that the former official did not have the authority for such decisions. Woodlock grew incensed.

 “I told you what to look at, now look at it,” he boomed. Later, he asked the veteran attorney, somewhat sarcastically, “Do you try cases?”

The MBTA is suing Rocla because the agency says the 147,000 concrete ties the company sold it for the Old Colony Commuter Rail line are breaking and crumbling nine years after the trains began running even though they were expected to last as long as 50 years.

The T argues the ties were sold with a 15-year warranty for full cost of replacement, including shipping, labor, and materials. But Rocla claims that, after it won the bid, company officials sought and received a reduction in that liability to just three years. After that, for the remainder of the 15-year warranty, Rocla claims it was only obligated to provide replacement ties or a credit with no further costs.

In January, Rocla, based in Denver, filed a motion for summary judgment, attaching a copy of the 1995 contract that had attached to it a letter from company officials outlining the warranty changes they said were agreed to in a meeting with MBTA officials.

Rocla also filed the Boodry memo that has become the center of the argument. The memo was signed and initialed by Boodry with a handwritten note that states, “Documents reflect accepted warranty language.”

Yesterday, Hoort said Boodry claims the handwriting is not his and he repeated what he said in his affidavit, that he has “no recollection” of the meeting or the memo.

Woodlock would have none of it, pointing out that Boodry could recall other aspects of the deal from 16 years ago but not the ones that were damaging to the T’s case.

“I’m familiar with people who have ‘no recollection,’” Woodlock told Hoort. “They have selective recollection. It’s designed to avoid the danger of perjury.”

CommonWealth first wrote about the ties in 2009, after industry and rail officials said all the concrete ties would fail as a result of a faulty concrete mix from Rocla’s Delaware plant. At the time, the story reported that all the ties would fail and have to be replaced at an estimated cost of $100 million. T officials vehemently denied it, despite being told a year before that it was the case.

In April of last year, new MBTA General Manager Rich Davey announced all 147,000 ties would be ripped up and replaced with nearly 200,000 wooden ties. Ironically, the T had originally planned to use wooden ties on the track construction but changed to concrete after heavy lobbying from Rocla and what the agency has inferred as pressure from then-Congressman Joseph Moakley.

Jonathan Sablone, Rocla’s attorney from Nixon Peabody, argued yesterday the warranty change reduced the company’s liability to, at most, $9 million, the original cost of the ties. But he said even that estimate was high because the T, in violation of the warranty, has begun to rip up all the concrete ties and replace them with wooden ties without allowing Rocla to inspect them.

“Many (of the ties) are not and will not go bad,” he said. “The T is going to have to submit evidence” in order to claim damages.

T lawyers had filed an amended complaint that included arguments against the warranty because their initial complaint did not address it. But Woodlock tossed that out, saying the T is “stuck with what they got.”

He allowed the agency to amend the complaint to strengthen their arguments on misrepresentation and fraud, a claim that in Massachusetts could result in treble damages if a jury finds for the MBTA. Woodlock said the evidence of that claim at this time is “squishy.”

“When I say there has to be bite, there has to be bite,” he told Hoort.

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Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

Woodlock took Rocla’s motion under advisement and said he was unsure whether to allow summary judgment on the liability question or let a jury decide. But he made it clear he is skeptical of the MBTA’s stance and its arguments, indicating the agency – and taxpayers – may be left writing the $90 million check to replace the ties.

“This is a case of ‘I’ve seen the enemy and he is us,’” Woodlock said. “This is not the strongest case in the world.”