Showdown in Surfside collapse saga, involving federal agency, could delay trial for years

Judge gave the parties 1 week to figure out evidence sharing

Miami /
Jan.January 28, 2022 06:00 PM

Surfside condo collapse site (Getty)

In a showdown during a court hearing on Friday, the judge chided Miami-Dade County for turning over evidence to the federal authority investigating the deadly Surfside condo collapse, a move that could potentially delay the trial for years.

The Miami-Dade Police Department, which has stored materials from the collapse in two off-site warehouses, recently turned over custody of the evidence to the National Institute of Standards and Technology, the federal agency that will investigate the collapse, according to Michael Goldberg, the court-appointed receiver for the Champlain Towers South condo association.

The county this week was served with a subpoena to allow Goldberg, as well as the plaintiffs and defendants in the litigation, access to the evidence, so that their experts can begin their own inspection to determine the collapse cause.

“In what I can only possibly describe as some sort of contemptuous conduct, the county entered into some sort of contract with NIST to basically say, ‘OK, we are no longer in custody of this, and we will hand it to you, NIST.’” Goldberg told the court on Friday, relaying information he gathered from a call with a NIST representative.

Champlain Towers South, at 8777 Collins Avenue in Surfside, collapsed on June 24, killing nearly 100 people.

In a letter to the county, NIST claimed exclusive control of the materials, citing a federal act, according to Goldberg, who also read the letter in court. But Goldberg countered that he “ripped through” the act and it does not give NIST exclusivity over evidence but mandates cooperation with others.

A spokesperson for NIST said in a statement to The Real Deal that the National Construction Safety Team Act requires NIST to preserve evidence related to building failures.

“NIST has therefore assumed custody and control of the evidence and will continue to cooperate while maintaining the integrity of its investigation,” the spokesperson said.

Technically, the property belongs to the condo association, but the county’s police department has stored it, as it is doing its own investigation as well, Goldberg said. Under Judge Michael Hanzman’s direction last week, Goldberg served the subpoena on the county as a way to speed up his and the litigants’ experts’ access to the warehouses to inspect the evidence.

Hanzman, who is presiding over the suit filed by survivors and families of victims, has pushed for the case to proceed quickly, often citing during court hearings the legal maxim, “Justice delayed is justice denied.”

“The victims of this tragedy have the right to have their cases heard on a timely basis,” Hanzman said on Friday.

If NIST gets exclusive access to the evidence, its investigation could take two to three years, delaying the trial by that much time, Hanzman said.

“I’m somewhat shocked, to be frank, that a federal agency would attempt to say, ‘These civil litigants should be precluded from evidence until we’re done with our investigation two to three years from now,’” he said.

Hanzman already allowed one extension of the trial date to March 2023, from the previous goal of this summer or fall, to allow attorneys for the defendants time to complete their own investigation of the collapse.

Hanzman pushed Assistant County Attorney Anita Viciana to answer whether Miami-Dade divested itself of the evidence, even though it was under a court subpoena to open access to the materials to others. When she did not immediately have the answer, he asked her to find out and report back at the same hearing.

Roughly 30 minutes later, Viciana said the county has not entered an agreement with NIST to turn over the evidence. But she also said that currently NIST, and not the county, has custody.

Miami-Dade argued in a court filing that if others are allowed to test the evidence, the county’s death investigation will be “compromised.” Hanzman denied the county’s pushback on the subpoena, mandating it to make all of the evidence accessible to the receiver and litigants.

Hanzman also said he has not been presented with a law that gives NIST exclusive control and prevents several inspections of the materials to be done at the same time.

Goldberg, the county and NIST must cooperate on a joint access protocol over the next week. If they fail to come to terms, then everyone, including a NIST representative, should appear in court at the next hearing on next Friday, the judge ordered.

In another delay, the stalking horse bidder for the collapse site, Damac Properties, received an extension from Hanzman for its due diligence, as a result of a delay with invasive testing and disagreements over how the cost would be shared.

The latest amended complaint filed by the survivors and families of the victims alleges that construction of the luxury condo tower next door, Eighty Seven Park, contributed to the collapse.

The defendants in the suit include the entities that developed Eighty Seven Park – 8701 Collins Development LLC, Terra World Investments and Terra Group – as well as project general contractor John Moriarty & Associates, geotechnical engineer NV5, and structural engineer DeSimone Consulting Engineers. The Champlain Towers South association; its law firm, Becker & Poliakoff; and engineering firm Morabito Consultants, which had inspected Champlain for its 40-year recertification, also are being sued.

Mediation, led by attorney Bruce Greer, is already underway between the plaintiffs and some of the defendants, though the case will likely still head to trial.








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