Later in September, a Cook County jury is expected to hear the case about a recipe change that one man alleges cost him big business.
Precast concrete company Terrell Materials Corporation – or TMC – is suing its supplier, Ozinga, accusing the major supplier of concrete of removing a key ingredient from the concrete mix it sold to them.
TMC further alleges in its 2019 lawsuit that the move was done without telling them or the Illinois Department of Transportation, which must approve design changes to concrete mixes that are used on public infrastructure.
TMC’s founder, Pat Terrell, says the net result of this change cost him contracts, forced him to lay-off employees – and ultimately – cost him his pre-cast business.
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“For a 95-year-old company to make a design change, it surprises me, it disappoints me and it certainly hurt our firm,” Pat Terrell told NBC 5 Investigates.
In his lawsuit filed in Cook County, Terrell alleges the company removed the chemical additive – AEA – from the concrete mix 4391 that was sold to his firm. The additive, Terrell says, helps ensure tiny air bubbles are evenly dispersed:
“That prevents cracking and prolongs the life of the concrete. So removing that is a very, very big deal,” Terrell said.
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Attorneys representing Ozinga declined to comment – citing the upcoming trial.
But the company itself did release a statement in response to NBC 5 Investigates’ questions. The Ozinga statement read:
“For over 95 years, our purpose has been to make positive impact on individuals, families and the community. Our mixes meet or exceed rigid internal quality standards before they are delivered, tested again, and ultimately accepted by end users, including the Illinois Tollway Authority and IDOT, at the job site.
Regarding this matter, it is Ozinga’s position that it did not change the mix design, but rather made permissible adjustments to meet the specifications of the contract, of which Terrell Materials Corporation was made aware.”
Emails and other documents included in the court file show that upon discovering the change in the mix being delivered by Ozinga to TMC, the Illinois Department of Transportation stopped Ozinga’s production temporarily in order to further investigate.
In a May 7, 2019 email from an IDOT engineer to a TMC representative, the engineer wrote: “IDOT mixture control engineer is shutting down Ozinga today until this get(s) straightened out. They are collecting component samples and contacted the Admix Rep for guidance at Ozinga to investigate. We are finding out that there is no (air entrainment) in most delivery batch tickets.”
Court documents show Ozinga was having trouble with its concrete - blaming the mix of fly ash and other components with causing "high air results."
In one particular email between Ozinga and TMC on May 14, 2019 an Ozinga representative writes: "...So unfortunately without consulting anyone the (quality control) tech took all the air Admix out of the mix to get an in spec reading on the job."
Terrell says the concrete mixes without the chemical additive were delivered to his company between April and May of 2019 and that when it was discovered by officials at the Illinois Department of Transportation, it led to a domino effect:
“There were structures at (O’Hare) airport that had to be destroyed on site. Structures in our inventory hundreds of structures…”
An IDOT spokeswoman declined to comment. She did not respond to follow-up questions from NBC 5 Investigates about why the structures were destroyed.
While Terrell’s lawsuit seeks damages, a judge rejected his legal team’s assertion that Ozinga committed fraud – adding that Terrell’s employees possibly could have discovered the design change on their own, if they had taken a closer look at the batch tickets coming in with each load.
The judge wrote:
“While it may have been reasonable for TMC personnel to rely upon the designation of mix 4391 upon delivery given the time constraints that require prompt use of the mix, there is no evidence that TMC personnel ever reviewed the batch tickets during the time in question. Ozinga fully disclosed the mix ingredients, and TMC failed or neglected to review the batch tickets. Again, while it may be reasonable to miss reviewing a batch ticket for a day or two, it is not reasonable to fail to do so throughout the period in question. From this, the Court can conclude that Ozinga’s full disclosure of the mix ingredients on the batch tickets belies an intent to deceive. Also, TMC’s reliance merely upon the 4391 designation, while ignoring the batch tickets, confirms that TMC’s reliance was not reasonable under the circumstances.”
When we asked Pat Terrell if there is anything he could’ve done to prevent this? He paused then said:
“…Is there anything we could’ve done? We are not out there to police, we are out there to test and to produce.”
In a May 2019 letter written to Ozinga, a consultant’s report found the quality of the concrete was likely not compromised by the lack of additional air entrainment additive. But Terrell alleges the products still did not meet specifications, which is why Terrell says the state forced the pre-cast concrete structures to be destroyed.
With only the one Ozinga mix approved for his use by the state, Terrell says he was forced to shut down his pre-cast business.
The trial is set to begin Sept. 11 and last through the end of the month.
