Scene at FIU after bridge collapses on cars on SW 8th Street
Text messages on the cellphone of the engineer of record on the Florida International University bridge could provide pivotal evidence on why the bridge collapsed and whether warnings were ignored.
Unfortunately, the iPhone was run through a washer and dryer. And it no longer works.
The damaged cellphone belongs to engineer Denney Pate, vice president of FIGG Bridge Group, who placed his professional licensing seal on the final bridge design.
Miami-Dade Circuit Judge Jennifer Bailey was not pleased. She said it was her understanding — until learning otherwise in March — that there would be no problem gathering data from cellphones.
“That level of inaccuracy is not something the court could categorize as a mistake,” she said.
The collapse of the bridge, which killed five motorists and one worker, has spawned investigations by the National Transportation Safety Board and the Occupational Safety and Health Administration and a battery of lawsuits. All of those investigations and lawsuits require the retention of evidence. Additionally, when a lawsuit is filed, litigants are instructed by preservation letter to keep all relevant documents and communications.
One issue in the lawsuits, the subject of the hearing, is whether those responsible for design and construction of the span should have closed the road that ran beneath it while a crew attempted to address the cracks.
The Miami Herald reported Tuesday that the OSHA investigation had detailed a range of deficiencies, including a flawed design by FIGG.
In Wednesday morning’s hearing at the Miami-Dade County Courthouse, Pate stated that he continued to use his FIGG work phone in the months following the collapse. Pate did not own a personal cellphone and said he occasionally used his work phone to take personal pictures. According to Pate, FIGG made no attempt to back up, copy, or access the information on his phone until this February — nearly one year after the March 15, 2018, collapse.
At approximately 7:30 on the morning of the collapse, Pate walked to the bridge to inspect an area that was cracking, followed by a ride on an aerial lift around 8:30 a.m. to get a closer view. Pate was scheduled to meet with FIU and Florida Department of Transportation officials at 9 a.m. to discuss the growing cracks. He stated he did not take a notebook with him and did not use his cellphone to take notes or pictures of the cracks. The bridge fell early that afternoon.
Pate’s phone was damaged three months later when he went to the Gulf of Mexico on a Father’s Day fishing trip. He hopped on a boat with the same phone that contained records of his communications about the bridge. Pate said he disrobed to take a shower, leaving his phone in his pants pocket. His wife grabbed the dirty fishing clothes.
“When I was in the shower, the wife collected the clothes, put them in the washer,” Pate said. He said his wife, jarred by a clunk-clunk coming from the dryer, discovered the phone with the clothes.
Bailey criticized FIGG’s decision to leave the phone in Pate’s custody in the first place following the collapse, stating that it would have cost $400 to get him a new phone and keep the phone with records of the project safely in a drawer.
“One of the first names that came up was Denney Pate,” said Bailey. “Preservation letters went out immediately.”
In addition to a preservation letter, Pate received a records-hold order from FIGG’s general counsel on March 23, one week after the collapse, which he signed that same day.
“I was not to delete anything and save everything I have,” said Pate, explaining his understanding of the order. He claimed it never occurred to him that the phone should not come with him on the fishing trip.. He also thought by that time nobody needed the phone as evidence.
That didn’t go over well with the judge.
“I have no reason not to believe that Denney Pate is honest as the day is long, but he is the engineer of record on a bridge that collapsed and killed six people,” said Bailey. “Do you think we could trust, but verify? Seriously?”
Reading court transcripts from hearings earlier this year, Bailey pointed to inconsistencies in the statements made by FIGG’s legal defense. In February, a lawyer representing FIGG said the phones used to communicate about the project were “all personal phones,” yet FIGG provided its employees with company phones.
In March, FIGG’s lawyers told the court that all the phones had been collected and that the data would be made available to the litigants in two weeks. That was months ago.
Forensic cellphone expert Nolan Tracy testified that FIGG has not yet requested Pate’s full cellphone records from AT&T, another way potentially to get any bridge-related data. Tracy does not know if FIGG has contacted Apple directly to check for the existence of an iCloud backup account linked to Pate’s damaged phone. Tracy said he believes the phone can be repaired, but admitted this is the first washing machine water damage case that he has seen.
Tracy was hired by FIGG’s lawyers last week and has not yet examined the phone. At the moment, the phone is in the possession of a company called Cellebrite, one of a select few companies that have succeeded in cracking an iPhone’s passcode.
“Tracy got called in last Wednesday, right before the guillotine is about to drop,” said Bailey, referencing Wednesday’s hearing date. “Only now do I see the level of rigor that would have been appropriate last June.”
Bailey also expressed her desire to open an external audit of the steps FIGG took to gather and preserve evidence.
The state of Florida began a criminal investigation following the collapse but, according to statements in court Wednesday, has not asked for access to Pate’s phone. Ed Griffith, a spokesman for Miami-Dade State Attorney Katherine Fernández Rundle, was unable to confirm whether the state has requested the phone, citing the ongoing investigation.