Mass Tort Litigation Blog

No, the Minnesota Bridge Compensation Deal is not a Mini-9/11 Fund

Yesterday, Gov. Tim Pawlenty signed a $38 million settlement for victims of the I-35W bridge collapse.  Here's the AP story in USA Today.  Interestingly, state legislator Phyllis Kahn, who co-authored the compensation bill, was quoted in this article in the Minnesota Daily as saying that the bill was modeled after the 9/11 Victim Compensation Fund, including the waiver of the right to sue the state.  For reasons I explained on Monday, the Minnesota compensation deal is better understood as an ordinary mass tort settlement rather than as an extraordinary government compensation package like the September 11 Fund.  There's an enormous difference between the government's using taxpayers' money to settle potential claims against that government (the Minnesota deal) and the government's using taxpayers' money to settle potential claims against others (the 9/11 Fund, which used federal government funds but required participants to release whatever claims they may have had against the airlines or Port Authority).  The former might occur anytime a government defendant faces mass tort claims.  That's why the Minnesota package makes me glad as long as both the claimants and the state are satisfied with its terms. The latter, however, can rarely be justified.  This is the point that special master Ken Feinberg made powerfully in his final report on the Victim Compensation Fund: the 9/11 situation and the government's generous response to it should be viewed as sui generis.  That strikes me as exactly right, which is why it makes me nervous to hear the 9/11 Fund invoked as a model for something that in fact is quite different and much less problematic.

HME

Compensation Deal for Minnesota Bridge Collapse Victims

The Minnesota state legislature appears on the verge of approving a $38 million compensation package to settle the claims of victims of the 2007 collapse of the I-35 bridge over the Mississippi River in Minneapolis, according to this AP story on law.com (via Point of Law):

Minnesota lawmakers reached agreement on a $38 million compensation package for victims of a deadly bridge collapse, culminating months of work to provide relief beyond the state's legal liability.  The deal struck in a joint committee of the House and Senate will offer everyone who was on the bridge up to $400,000, with an additional $12.6 million pool for the people who suffered the most severe injuries and losses. Thirteen people died in the Aug. 1 collapse and 145 were hurt. ...

The package is expected to be approved by the Legislature on Monday and sent off to Republican Gov. Tim Pawlenty, who called it "needed relief and support" for victims.

If victims agreed to take the money, they would have to sign away their rights to sue the state and other governmental entities in Minnesota. They would not be precluded from suing other parties in the collapse. ...

The National Transportation Safety Board is investigating the cause of the collapse. Officials have focused on a design flaw involving gussets, the plates that help connect steel beams, and the weight of construction materials at vulnerable points in the bridge. Victim lawsuits are on hold until a final determination is made.

As a legislative decision to compensate disaster victims, the package bears a passing resemblance to the September 11 Victims Compensation Fund.  It is better understood, however, as an ordinary mass tort settlement, in which a defendant (the state) offers to settle plaintiffs' claims against it.  Unlike the 9/11 Fund, which used government funds but required participants to release their claims against the airlines and other private parties, the Minnesota deal apparently requires only the release of claims against the state, just like any other settlement offer by a defendant.

HME

Special Compensation for Victims of Terrorist Attacks?

Robert Rabin (Stanford Law) and Stephen Sugarman (Boalt Hall) have just posted an intriguing article entitled "The Case for Specially Compensating the Victims of Terrorist Attacks: An Assessment" on SSRN. The paper was published in the Hofstra Law Review in 2007.  The abstract explains:

In light of the daunting prospect of terrorists striking again on the home front, what special measures, if any, should be taken to assure compensation to those killed or injured by such violence? The starting point for any discussion of the compensation of these victims (and their survivors), we believe, is an appreciation of the baseline arrangements our nation has in place for those killed or seriously injured regardless of cause. One policy option would be to leave victims of terrorism to whatever they might obtain from these baseline tort and social welfare compensation systems in default of special treatment. On what basis, if any, should terrorist victims be singled out for different treatment? Is there something about being victims of terrorism that should entitle them and their survivors to be better treated than they would be by Social Security, victims of violent crimes schemes, and the like? Is there something about tort law's application, or non-application to the terrorist setting, that makes a special compensation scheme appropriate for victims of terrorism?

In addressing these questions, there are two basic alternatives to the default solution. One would involve the creation, ex ante, of an ongoing victim compensation fund in anticipation of the occurrence of future terrorist acts. The other would involve the ad hoc creation of a fund established after the occurrence of a terrorist event to provide retrospective compensation to victims. Israel and Northern Ireland are examples of countries with longstanding experience with terrorism, which have adopted legislative schemes of the first sort. In the U.S., the 9/11 Victim Compensation Fund is an example of the ad hoc retrospective approach.

We begin by commenting on the 9/11 Fund itself, setting it in the context of other American compensation schemes that arose out of concerns about the appropriateness of having injury victims seek compensation through tort law. Next, we consider, in turn, the ex ante and ex post options for addressing the claims of terrorist victims. Finally, we return to the default systems mentioned above, raising the question of whether they offer in all, or most, circumstances the most sensible approach to dealing with future incidents of personal injury from terrorist acts.

ADL

No Immunity for NYC in 9/11 Claims

BNA Law Week reports that on March 26 the Second Circuit held that New York City and its contractors are not automatically entitled to derivative Stafford Act immunity for state law claims brought by various persons (police, firefighters, etc.) who helped clean up the site of the World Trade Center attacks of September 11, 2001.  In re World Trade Center Disaster Site Litigation, 2d Cir., No. 06-5324-cv, 3/26/08.  The opinion is available here, on the Second Circuit website.  

A quote from the opinion:

"Separation of powers animates discretionary function immunity; this doctrine does not permit us to extend limitless derivative immunity to ensure that, in the event of another attack, contractors are willing to assist in disaster recovery efforts. We are confined to the parameters of the derivative defense. Nonetheless, we observe that private contractors, unlike volunteers or conscripts, are paid for their services and able to pass along the cost of liability protection to the government, either by including the cost of liability insurance in their contract or by seeking indemnification from the government."

ADL

Hadfield on the September 11 Fund and Litigation

Gillian Hadfield (USC) has posted what promises to be a fascinating qualitative analysis on the decision of victims of the terror attacks of September 11, 2001 to litigate or obtain compensation through the September 11 Fund.  The Article, called "Framing the Choice Between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund" will be published in the Law and Society Review and is posted on SSRN.  This is a very important contribution to our thinking on what types of procedures ought to be used in mass tort cases.  Here is the abstract:

In this paper I report the results of a quantitative and qualitative empirical study of how those who were injured or lost a family member in the September 11, 2001 terrorist attacks evaluated the tradeoff between a cash payment - available through the Victim Compensation Fund - and the pursuit of litigation. Responses make it clear that potential plaintiffs saw much more at stake than monetary compensation and that the choice to forego litigation required the sacrifice of important non-monetary, civic, values: obtaining and publicizing information about what happened, prompting public findings of accountability for those responsible, and participating in the process of ensuring that there would be responsive change to what was learned about how the attacks and deaths happened. The results shed light on the framing component of the transformation of disputes, and in particular on how potential litigants see the decision to sue, or not, as a decision as much or more about how they understand their relationship to their community and their responsibilities as a citizen as how they evaluate monetary considerations.

ADL

New York's City Medical Examiner Says Detective's Death From Drugs, Not 9/11 Dust

Article in the L.A. Times -- Drugs, not 9/11 dust, cited in cop's death, from Newsday.  Here's an excerpt:

The death of New York police Det. James Zadroga, which was previously linked to his work in the rubble of the World Trade Center, was caused by injections of ground-up pills, the city medical examiner's office said Thursday.

"What caused the disease was the injection of the drugs into his bloodstream, as opposed to something he breathed," said Ellen Borakove, spokeswoman for Chief Medical Examiner Charles Hirsch.

The ruling outraged the family of Zadroga, 34, who became a symbol of post-Sept. 11 illness after his death last year.

The conclusion contradicted a previous pathologist's report that said Zadroga's death was the result of his work after the 2001 terrorist attacks.

One wonders about bias, given that New York is being sued by many workers for 9/11 ailments, and the city medical examiner is employed by New York.  Additionally, it's possible that any drug abuse was related to 9/11 ailments, as Detective Zadroga was taking as many as 14 medications for his health problems, as the articles notes.

BGS

NY Medical Examiner Rejects 9/11 Dust as Cause of Publicized Policeman's Death

Article on cnn.com -- Medical examiner rules 9/11 cop did not die from WTC exposure.  Here's an excerpt:

He became the face of post-September 11 illness after his death in early 2006, galvanizing lawmakers and health care advocates to lobby for research and treatment for thousands who breathed the debris-filled air at ground zero.

James Zadroga, the 34-year-old retired police detective who died of respiratory failure after working hundreds of hours at the World Trade Center site, was often cited by those advocates as a "sentinel case" -- the first health-related casualty linked to ground zero, suggesting there would be more to follow.

The city's medical examiner stunned that community this week with a letter declaring that Zadroga's death had nothing to do with the toxic air he breathed while working at ground zero.

Rejecting another medical examiner's autopsy, New York City Chief Medical Examiner Charles Hirsch said in a letter to Zadroga's family that his death was not caused by exposure to trade center dust.

"It is our unequivocal opinion, with certainty beyond doubt, that the foreign material in your son's lungs did not get there as the result of inhaling dust at the World Trade Center or elsewhere," said the letter to Zadroga's father. It was signed by Hirsch and another medical examiner, Michele Slone. The letter was obtained Thursday by The Associated Press.

The article also notes that "[t]he city is defending itself in a lawsuit filed by thousands of workers who say they were not properly protected from the dust."

BGS

Blog Roundup

Drug and Device Law Blog has posts on Tort Reform Works in Texas; Notes from the Scientific Underground; Preemption Scorecards; The Vanishing Trial; and Riegel Survives.

Food Law Prof Blog has posts on Cargill meat recall based on e.coli; Bush signs FDA Amendments Act of 2007; More on the Recall Process; CRS Report on Recall Authority; Roberts on Role of Regulation in Minimizing; Thinking About Recalls; and  Yet another meat recall -- this one enough for one picnic.

Point of Law has posts on Refik Kozic v. Merck; Absurd RI lead abatement plan developed; 
"Defendants See a Case of Diagnosing for Dollars"; and Zyprexa protective order enforcement VI: Egilman settlement.

Torts Prof Blog has posts on Topps Meat Recall: Let the Filing Begin; 9/11 Opt-Outers Settle; Lead Everywhere; Stent Safety and Patents;  USSC Denies Cert In Engle (Tobacco) Case; FDA Warns Against Use of Cold Meds by Toddlers; and Sebok's Part II on NJ Supreme Court's Vioxx Ruling.

BGS

14 September 11th Suits Settle

The New York Times (by Anemonia Hartocollis) reports today that 14 September 11th suits have settled.  This leaves only 21 of the 96 lawsuits originally filed arising out of the tragedy.  Judge Hellerstein had scheduled the first case of the bellwether trials on damages for next Monday.  Now that these cases are settled, the next one is not scheduled to go to trial until November 5.  You can access the orders on the SDNY website. The article provides some insight into the decision to sue, litigate and/or settle:

Settlement talks continue, and more settlements could result before the first trial ever takes place, Mr. Migliori said. But he said he expected that some families would refuse to settle and insist on a trial because they felt strongly that only a trial would bring the answers they wanted about how terrorists had bypassed security and managed to hijack four planes.

Although the court has barred parties to the settlements from talking about them or revealing how much money they received, Mr. Migliori said they felt vindicated by their decision to forgo the compensation fund.

“I think it’s fair to say that the folks that chose litigation knew they were going to get compensated whether they went into litigation or went into the fund,” he said. “But uniformly it was understood and appreciated that the fund was not going to provide the same level of compensation as litigation.”

According to the article, the settlements came in the wake of Judge Hellerstein's ruling that the cockpit recording from Flight 93 could be played to the jury.  This must have raised the stakes for defendants enough that they decided to offer a settlement plaintiffs could agree to.  In other words, Judge Hellerstein's tactics to encourage settlement by pushing cases to trial - even just a trial on damages - worked.   The discussion on this blog about the motives of the plaintiffs - truth or compensation - is answered somewhat by this article.  It would be interesting to do a mathematical analysis of the ultimate payout received by these plaintiffs to compare it to what they would have received from the fund.  I wonder why the Judge ordered the amounts be kept confidential, and whether there is a time limit on that order.  Perhaps its because the order gives the parties 30 days to reinstate the actions.

McFarland and Garner on terrorism tort claims

Robert McFarland and Donald Garner of Faulkner University have posted a paper on SSRN suggesting that American law supports viable tort claims against Saudi Arabia for certain terrorist acts.  The paper -- Suing Islam: Tort, Terrorism and the House of Saud -- is forthcoming in the Oklahoma Law Review.  Here's the abstract:

This paper examines the Kingdom of Saudi Arabia's vital role in propogating Wahhabism, a peculiarly intolerant form of Islam justifying violent jihad, and argues that Saudi Arabia is liable for the resulting harm.

The Kingdom's role in creating terrorism is a subject of great national concern. The need for reform in Saudi Arabia's Wahhabist religious establishment is frequently discussed in the Congress. This paper argues that the federal judiciary, in addition to Congress, has a vital role to play, not only in generating compensation for terrorism victims, but also in winning the ideological war on terrorism. 9/11 and other contined manifestations of terrorist jihad are causally intertwined with the Sunni Wahhabism practiced and promoted by Saudi Arabia. Upon that understanding we build our tort theories and upon that understanding America can more thoughtfully defend itself in the ideological war on terror.

Part I discusses Saudi Arabia's historic and continued committment to Wahhabism. Part II argues that American tort law supports two viable causes of action against the Kingdom for harm inflicted by Wahhabi jihadists: (1) negligent incitement of terrorism; and (2) special relationship liability. Finally, in Part III, the question of Saudi Arabia's sovereign immunity is discussed with special attention given to the analysis of Saudi Arabia's immunity in the 9/11 litigation.

HME

September 11 Lawsuits Heading to Trial

Today's New York Times contains a front-page article about the 9/11 tort litigation, offering an interesting description of the plaintiffs as well as news about upcoming trials before Judge Alvin Hellerstein in the Southern District of New York.

Perhaps the most striking feature of the 9/11 litigation is the self-selected nature of the plaintiff group.  Each of these plaintiffs, in contrast to the vast majority of 9/11 victims' families, declined the compensation offered by the federal September 11th Victim Compensation Fund.  By passing up guaranteed and generous compensation and electing to sue defendants such as American Airlines, United Airlines, Boeing, and airline security companies, these plaintiffs demonstrated an uncommonly strong desire to impose accountability through a public process.

The nature of these plaintiffs -- reporter Anemona Hartocollis calls them an "angry, stubborn, sorrowful and stalwart group" -- makes the court's procedural choice about the upcoming trials particularly surprising.  Judge Hellerstein has set a first trial date of Sept. 24, and the Times describes the trial process as follows:

In a reversal of the usual legal procedure, Judge Hellerstein has ordered six trials for damages to take place before any trial for liability, in the hope, he said, that both sides may use those figures as a road map toward settlement.

In other words, the court plans to conduct bellwether trials using reverse bifurcation.  It is not uncommon in mass torts for judges to use bellwether trials to provide the parties sufficient information about likely outcomes to enable settlement.  Nor is reverse bifurcation rare in mass torts.  "Reverse bifurcation" refers to phased trials in which damages are tried before liability.  They have proved useful in asbestos litigation where liability was not seriously contested and where verdicts on individual damages could produce settlements.  Reverse bifurcation also was used in the Prempro litigation.

I have to wonder, however, whether either bellwether trials or reverse bifurcation makes sense for lawsuits involving the September 11 tragedy.  If these plaintiffs were looking for compensation, the Victim Compensation Fund offered a more appealing option than litigation with its risks, costs, and delays.  Although the Times article emphasizes that many of these plaintiffs would have received awards at the lower end of the fund's payout scale, the fund nonetheless offered guaranteed payments in sharp contrast with the uncertainties of litigation.  Those who opted for litigation presumably are seeking something more.  If they are seeking their day in court, the majority of the plaintiffs may be left unsatisfied by bellwether trials that allow only the bellwether plaintiffs to tell their stories in a public forum.  Moreover, even the bellwether plaintiffs may be unsatisfied by a reverse-bifurcated phased trial process that allows them to describe their own grief but gives them no opportunity to hold the defendants accountable.  If I am correct about what distinguishes these plaintiffs from the vast majority of the victims' families, then Judge Hellerstein may find that phased bellwether trials -- often effective devices for encouraging mass tort settlements -- do less to promote settlement in the uncommon context of the 9/11 litigation.

HME

Assessing the 9/11 Victim Compensation Fund

Article in the ABA Journal -- Accounting for Lives: The 9/11 Victim Compensation Fund Worked.  But What About Next Time?, by Jill Schachner Chanen and Margaret Graham Tebo.  The ABA is also hosting a teleconference -- Compensation Funds: Are They Enough?, on September 19.  Here's an excerpt from the article:

Mari-Rae Sopper thought she was embarking on a new stage in her life when she boarded American Airlines Flight 77 the morning of Sept. 11, 2001, at Washington Dulles International Airport. Sopper had decided to leave behind her law practice in Washington, D.C., and return to gymnastics, the passion of her youth. After the flight reached Los Angeles, Sopper would go to her new job as head coach of the women’s gymnastics team at the University of California at Santa Barbara.

Sopper never made it to that new life. Instead, she and everyone else on Flight 77 died when terrorists took over the plane and crashed it into the Pentagon.

Sopper’s griefstruck parents wanted answers. Her mother, Marion Kminek of Cape Coral, Fla., says her initial inclination was to file a lawsuit in efforts to get them. But after consulting with two leading plaintiffs lawyers in Chicago, Kminek says, she decided to heed their advice that she avoid the frustration and delays of litigation and seek compensation, if not resolution, through the September 11th Victim Compensation Fund of 2001. Congress created the fund to handle claims by victims of the terrorist attacks as part of leg­islation providing relief to the airline industry.

Going through the fund didn’t give Kminek all the answers she was looking for, but it did give her some measure of closure through a relatively simple administrative process that resulted in a compensation payment after a relatively short time. But after going through the process, Kminek knows she will never get the information she really wanted about the events that led to her daughter’s death, and she wonders what would have happened if victims and their families had banded together and sued the airlines and government bodies.

“The lawsuits serve a purpose in that you don’t get changes made or the discovery done without them,” Kminek says. “Look at the tobacco lawsuits. If that was not done, I don’t think a lot of that information would be out there. None of us were doing this for the money. We were doing it for the discovery. But none of us will get the answers.”

BGS

Feinberg to Dispense Virginia Tech Shooting Fund

Article in the New York Times -- Lawyer Who Directed Sept. 11 Compensation to Oversee Virginia Tech Program, by Ian Urbina.  Here's an excerpt:

Kenneth R. Feinberg, the Washington lawyer who directed the federal program to compensate relatives of victims of the Sept. 11 terrorist attacks, will oversee the distribution of the $7 million that has been donated to Virginia Tech after the April campus massacre, university officials said Thursday.

“There is no script for a tragedy of this magnitude and depth of pain,” the university’s president, Charles Steger, said. “I am very pleased to have someone of Ken Feinberg’s caliber, experience and long career to help guide us.”

In November 2001, Mr. Feinberg was appointed special master of the Sept. 11 Victim Compensation Fund by then-Attorney General John Ashcroft. A former chief of staff for Senator Edward M. Kennedy, Mr. Feinberg has extensive experience in mediating complicated compensation disputes, including those that arose over the Agent Orange defoliant used in the Vietnam War and the Dalkon Shield birth control device.

While Mr. Feinberg’s job will involve the difficult responsibility of assigning monetary values to human lives, he said his current task would be much smaller and less complicated than his work on the Sept. 11 case.

BGS

NYT Review of Post-9/11 Lack of Safety for Rescue Workers

Article in the New York Times -- Ground Zero Illnesses Clouding Giuliani’s Legacy, by Anthony DePalma.  Here's an excerpt:

Anyone who watched Rudolph W. Giuliani preside over ground zero in the days after 9/11 glimpsed elements of his strength: decisiveness, determination, self-confidence.

Those qualities were also on display over the months he directed the cleanup of the collapsed World Trade Center. But today, with evidence that thousands of people who worked at ground zero have become sick, many regard Mr. Giuliani’s triumph of leadership as having come with a human cost.

An examination of Mr. Giuliani’s handling of the extraordinary recovery operation during his last months in office shows that he seized control and largely limited the influence of experienced federal agencies. In doing that, according to some experts and many of those who worked in the trade center’s ruins, Mr. Giuliani might have allowed his sense of purpose to trump caution in the rush to prove that his city was not crippled by the attack.

Administration documents and thousands of pages of legal testimony filed in a lawsuit against New York City, along with more than two dozen interviews with people involved in the events of the last four months of Mr. Giuliani’s administration, show that while the city had a safety plan for workers, it never meaningfully enforced federal requirements that those at the site wear respirators.

At the same time, the administration warned companies working on the pile that they would face penalties or be fired if work slowed. And according to public hearing transcripts and unpublished administration records, officials also on some occasions gave flawed public representations of the nature of the health threat, even as they privately worried about exposure to lawsuits by sickened workers.

BGS

Blog Roundup

Point of Law's Walter Olson has a post criticizing the upcoming Roger Williams conference on Genuine Tort Reform as only representing pro-plaintiff perspectives.

Point of Law's Ted Frank has a post on Vioxx class actions.

Civil Procedure Prof's Jeremy Counseller has a post with more links on E-Discovery.

Products Liability Prof's Michael Steenson has a post on assessing damages on pet deaths from recent pet-food poisonings.

As noted by Torts Prof Blog's William Childs, Anthony Sebok has posted on Findlaw the second part of his article examining the expansion of the 9/11 fund.

BGS

NYC Residents and 9/11 Illnesses

Article in the New York Times -- After 9/11, Ailing Residents Find a Place to Turn, by Anthony DePalma:

They say they suffer the same rasping cough, shortness of breath and gastrointestinal pains as thousands of rescue and recovery workers who fell ill from the dust and smoke at ground zero. They worry, as the others do, that the future may bring more health problems.

Yet residents, workers and students who returned to Lower Manhattan after the Sept. 11 attack say that their medical problems have largely been overlooked as officials focus increasing attention on the responders who were more exposed to the hazards.

***

Mr. Chaves, 53, developed asthma and severe acid reflux about a year and a half after Sept. 11, 2001. As his condition worsened, he tried to find out whether it was connected to the dust he had breathed in after the twin towers collapsed. Then last fall he heard that the city was giving millions of dollars to Bellevue Hospital Center to treat people excluded from other programs, like the one that monitors and treats recovery workers at Mount Sinai Medical Center.

Since that announcement in September, the number of people being treated at the W.T.C. Environmental Health Center at Bellevue Hospital has doubled to more than 900. Several hundred more people are on a waiting list, including many low-income residents of Chinatown and the Lower East Side, and immigrant workers without health insurance. And after Mayor Michael R. Bloomberg last week encouraged residents who might have been exposed to the dust to be checked by the clinic’s specialists, the number of patients is expected to rise substantially.

BGS

Mayor Bloomberg Urges More Funding to Treat 9/11 Worker Illnesses

Article in the New York Times -- Bloomberg Urges More Aid for Those Ailing After 9/11, by Anthony DePalma:

Mayor Michael R. Bloomberg called on the federal government yesterday to increase health spending sharply for thousands of people who became ill after the Sept. 11 attack on the World Trade Center, and called for the creation of a special fund to compensate those who are sick.

Mr. Bloomberg said he would lobby the Bush administration for $150 million a year to cover the cost of screening, treating and monitoring rescue workers, business owners, residents and others who might have been affected by the smoke and dust released by the destruction of the twin towers.

The current federal budget proposal includes $25 million for such programs.

At a City Hall news conference yesterday, Mr. Bloomberg said he was hopeful that a Congress controlled by Democrats would respond positively to the city’s needs.

Although his past statements about 9/11 health issues have been measured, Mr. Bloomberg yesterday strongly linked the trade center dust that blanketed Lower Manhattan to respiratory, digestive and mental health problems that have been diagnosed in recovery workers and residents.

BGS

Bill to Require Sick 9/11 Workers Honored in Ground Zero Museum

Article in the Washington Post -- Bill Would Honor Sick Sept. 11 Workers, by the Associated Press:

The museum planned for ground zero should include a memorial to workers who died after becoming ill during recovery and cleanup of World Trade Center debris, two state lawmakers said Sunday.

***

The Bush administration, along with state and local governments, have been criticized for being slow to acknowledge that many people developed debilitating illnesses from exposure to toxic materials at ground zero.

***

The event came a day after the funeral of police officer Cesar Borja, 58, who died of lung disease believed to have resulted from ground zero recovery activity.

BGS

Not Enough Money to Treat 9/11 Workers

Article in the New York Times -- Money to Treat 9/11 Workers Will Run Out, Officials Say, by Sewell Chan:

The roughly $40 million that was set aside by the federal government to treat rescue workers, volunteers and firefighters who became ill after helping with the 9/11 cleanup and recovery will run out in months, physicians and federal officials said yesterday.

Members of Congress from New York and New Jersey secured $75 million a year ago to pay for health care expenses — including $40 million for treatments like drugs and medical procedures — for about 32,000 workers who reported ailments after working at ground zero. Distribution of the treatment money did not begin in earnest until October.

Officials at the two major monitoring and treatment programs, one run by Mount Sinai Medical Center and the other by the Fire Department, said yesterday that at the current spending rate, the treatment money would run out by spring or summer. They told top federal health officials that unless more financing was provided, they would be forced to notify thousands of patients that their treatment could soon end.

BGS

A New 9/11 Fund?

Very interesting op-ed in the New York Times -- A Fair Deal for 9/11’s Injured, by Kenneth Feinberg, who was the special master who administered the 9/11 Fund.  Mr. Feinberg notes that thousands of 9/11-related claims are pending in the courts, relating to those who were diagnosed with 9/11 injuries after the 9/11 Fund deadline and also potentially tens of thousands of claims in the future from those who suffered toxic exposures during the clean-up after 9/11.  Mr. Feinberg advocates creating a new fund for these individuals, utilizing leftover funds from the 9/11 Fund and additional contributions from defendants in the litigation:

More than $1 billion in public funds is currently available for distribution as part of the initial federal appropriation earmarked for New York City’s 9/11 recovery. If you add financial contributions from those contractors and others involved in the litigation, and supplement that with funds from various city charities, a total of at least $1.5 billion is available to settle the pending lawsuits — more than sufficient to pay all eligible claims, as well as lawyers’ fees and costs.

Eligibility for compensation under the settlement would require proof that the victim was in the general proximity of the World Trade Center during the cleanup period. Each claimant would also supply medical documentation of an illness caused by exposure to harmful air at the site (the medical criteria would be negotiated as part of the settlement to avoid a rush of spurious claims).

New York City and the other defendants would not admit they were at fault for these injuries; they would merely agree to use available funds to pay all documented claims. (It remains an open question whether the defendants are legally responsible for such injuries.) Up to half of this money should be set aside to pay for claims stemming from future diagnoses of injuries caused by breathing the toxic air.

BGS

9/11 Cleanup

Article in the New York Times -- 9/11 Cleanup to Resume, E.P.A. Says, by Anthony DePalma:

More than five years after contaminated dust from the World Trade Center seeped into apartments and offices throughout Lower Manhattan, the federal Environmental Protection Agency announced plansyesterday to start a final indoor cleanup program next month, despite widespread criticism that the program is seriously flawed.

Agency officials said residents and owners of commercial buildings below Canal Street would have 60 days to sign up for the voluntary program, which will test for asbestos, lead, vitreous fibers and harmful soot that may have come from the collapse of the trade center.

If any one of the contaminants is found, the space will be professionally cleaned at no cost to the resident or owner.

The new program is almost identical to one that was rejected in November 2005 as inadequate by the agency’s advisory panel of experts as well as by community groups, labor unions and the city’s Congressional delegation. The City Council passed a resolution condemning that program, calling it “technically and scientifically flawed.”

BGS

SDNY Deals with Influx of 9/11 Cases

The November 2006 issue of The Third Branch, the newsletter of the federal courts, features an article on the judicial burden of handling 9/11-related lawsuits.  It anticipates that 6000 such cases will be filed in the Southern District of New York, representing about a sixty percent increase in the district's civil caseload.  Judge Alvin Hellerstein, overseeing the litigation, has appointed a mediator and is trying to ensure that the most serious cases move forward first.  For the massive number of claims alleging respiratory injury, he intends to appoint a special master, and looks toward the  creation of a matrix of settlement values. Here's an excerpt from Litigation Landslide Tests Organization, Creativity:

Now cases involving claims arising out of, resulting from, or relating to the terrorist-related aircraft crashes of September 11, 2001, are being filed in federal court. The plaintiffs—alleging wrongful death, personal or respiratory injury, or property damage—may have lived near or worked on the site, and include city governments, the Port Authority of New York and New Jersey, private contractors and thousands of firemen, policemen, paramedics and construction workers. It is anticipated that 6,000 cases—all related to September 11, 2001—will be filed in the Southern District of New York, for an estimated 60 percent jump in the district’s civil caseload. As the influx of cases begins, the creativity and organizational abilities of the entire court, beginning with the clerk’s office, are being tested.

...

All of these cases are ultimately the responsibility of Judge Hellerstein, a native New Yorker and eight-year veteran of the federal bench. He and his two law clerks “use a lot of self-organization,” he said, to deal with the mass of litigation. All Hellerstein’s orders, announcements of conferences, and directions to counsel on the filing of correspondence are posted to the court’s website, at www.nysd.uscourts.gov/Sept11Litigation.htm. He has assigned most of the litigation to tracks and subtracks, separating the cases into, for example, a property damage track, with a subtrack that includes Building 7 claims, and another subtrack with claims among insurance companies. He also holds frequent status conferences on the cases consolidated into wrongful death airline cases, respiratory injury cases, insurance coverage cases and property damage cases, “with the goal of keeping on track and moving the cases along.” Meanwhile, discovery goes forward on a group of wrongful death cases.

But even Hellerstein feels that special handling may not be enough. Many of the wrongful death cases are being mediated with the help of a mediator specially appointed by Hellerstein upon the joint recommendation of plaintiffs and defendants. The more than 3,000 cases— with the potential of growing to 7,500—that allege respiratory injury, “are likely to become unmanageable,” he wrote, and he will be recommending to the parties the appointment of a special master. “The number and complexity of these cases, and the public interest in their speedy resolution, requires a greater urgency in progression, and a closer supervision of proceedings, than heretofore has been possible. The involvement of a Special Master has become necessary.”

Hellerstein’s idea is to have the Special Master work with the parties to develop a matrix of key facts that will enable the parties to place values on categories of cases that can, in turn, lead to groups of settlements.

He is especially concerned that the cases alleging wrongful deaths and personal injuries move forward. “They deserve to go first,” Hellerstein said, “because they involve the immediate victims who died in the airplanes that the terrorists hijacked, or in the infernos this produced.” Many of those cases are currently in mediation, an option Hellerstein encourages.

HME

Relatives Struggle With 9 / 11 Discoveries

Article in the New York Times -- Relatives Struggle With 9 / 11 Discoveries, by the Associated Press:

Mary Jane Waring has waited five years for someone to find her brother so she can bury a small part of what she lost on Sept. 11, 2001.

But since the recent discovery of hundreds more bones in long-buried places at ground zero, she has become afraid of the emotions that could be stirred up.

''If they do find something, it would be very upsetting for everybody,'' said Waring, whose brother, James Waring, died in the top floors of the World Trade Center's north tower.

Some people who never received any remains of their family members are uncertain about what they want to find. Others, who have already buried some remains, face the possibility of another funeral or burial.

BGS

WTC site yields more remains

Article in today's Los Angeles Times -- WTC site yields more remains, from Times Wire Reports: "Workers found three bone fragments in a second manhole at the World Trade Center site in New York, close to where about 200 bones had already been recovered, officials said."

BGS

NYC Mayor Observes Search at WTC Site

Article in the New York Times -- NYC Mayor Observes Search at WTC Site, by the Associated Press:

Mayor Michael Bloomberg quietly visited the World Trade Center site, thanking crews for their work on the renewed search for remains of Sept. 11 victims, according to those at the site.

After human bones were inadvertently found in a manhole at ground zero last month, the city launched a wider effort to examine other subterranean areas that may have been overlooked during the months-long cleanup years ago. Some 200 pieces of remains have since been found.

In a spontaneous visit Friday afternoon, Bloomberg walked along the western edge of the site where workers are digging into several cavities beneath a service road.

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Remains of Three 9/11 Victims Identified

Article in the Washington Post -- Remains of Three 9/11 Victims Identified, by Bill Brubaker:

The remains of the 40-year-old head flight attendant on American Airlines Flight 11, which crashed into the World Trade Center's north tower, have been identified, along with two other victims of the Sept. 11, 2001, attacks.

The announcement today by the New York medical examiner's office came as an alliance of 9/11 support groups planned a rally at Ground Zero this afternoon to demand a more thorough search for remains around the Twin Towers site.

To date, the medical examiner has identified 1,601 of the 2,749 World Trade Center victims.

BGS

Mayor Expands Search for 9/11 Remains

Article in today's New York Times -- Mayor Expands Search for 9/11 Remains, by David W. Dunlap:

    The Bloomberg administration said yesterday that it would cast a net well beyond
    ground zero, from Broadway to the Hudson River, from the bottom of manholes
    to the top of nearby skyscrapers, in its search for human remains from Sept. 11, 2001.

    The chief medical examiner is to inspect the roofs of the Millenium Hotel and 1
    Liberty Plaza, opposite the World Trade Center site. Tiny bone fragments may be
    found there, mixed in with the stone ballast, as they were atop the former Deutsche B
    ank building, according to a report prepared for Mayor Michael R. Bloomberg.

    Key downtown redevelopment agencies have headquarters in the 53-story Liberty Plaza
    tower. It is also where victims’ family members can visit privately in a room set aside
    for them on the 20th floor.

BGS

More Human Remains Found at Ground Zero

Article in the New York Times -- More Human Remains Found at Ground Zero, by the Associated Press:

    Searchers found more bones believed to belong to Sept. 11 World Trade Center attack
    victims Sunday in manholes and utility areas, areas that were apparently overlooked
    years ago.

    Deputy Mayor Ed Skyler, who is overseeing the recovery effort, also said that search
    officials had identified 12 additional underground areas that will be examined in coming
    days.

    Utility and city officials have excavated about five underground areas, yielding more
    than 100 pieces of human remains, since construction workers discovered bones earlier
    in the week in a manhole excavated as part of work on a transit hub.

BGS

Court backs rulings on WTC insurers

Article in the Chicago Tribune -- Court backs rulings on WTC insurers, compiled from Tribune news services: "A federal appeals court Wednesday upheld jury verdicts requiring insurance companies to pay developer Larry Silverstein $4.6 billion to rebuild the World Trade Center complex but preventing him from getting the $7 billion he had sought."

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Many Ground Zero Workers Gain Chance at Lawsuits

Article in today's New York Times -- Many Ground Zero Workers Gain Chance at Lawsuits, by Anthony DePalma:

    A federal judge has rejected the city’s claim that it is protected by law from being sued
    over the way it handled rescue and recovery operations at ground zero. The ruling opens
    the way for lawsuits by thousands of workers who say they were made sick by exposure
    to toxic substances during the 10-month cleanup.

    Judge Alvin K. Hellerstein of United States District Court in Manhattan rejected the city’s
    motion to dismiss the lawsuits. In a 99-page decision released yesterday afternoon, he
    stated that state and federal statutes do provide some immunity for the city, its private
    contractors and the Port Authority of New York and New Jersey for actions undertaken
    in response to an enemy attack. However, the judge said that protection is not universal
    and varies by time and place, making it necessary to hear the details of individual cases.

    “The fact-intensive nature of the issue makes its resolution unsuitable for resolution by
    motion,” Judge Hellerstein concluded. “Discovery, additional proceedings and a more
    extensive factual record, and perhaps a trial, will be required.”

BGS

Lost in the Dust of 9/11: From society's margins, janitors were drafted for an epic cleanup around ground zero. Then 'the cough' racked their lives.

Interesting extended article in today's Los Angeles Times -- Lost in the Dust of 9/11: From society's margins, janitors were drafted for an epic cleanup around ground zero. Then 'the cough' racked their lives, by Ellen Barry.  The article traces the lives of two janitors who assisted in the clean up of the toxic dust in the buildings close to the World Trade Center site.  Given the chaos, the city's Department of Environmental Protection did not oversee the removal of the dust, according to the article.  The article also mentions a class action against the owners of buildings near the site, and refers to the role of workers compensation benefits.  Overall, the article nicely interweaves the human story with the legal themes.  Here's an excerpt:

    There is no voice left in Manuel Checo's voice. He speaks in a granular rasp that fades,    
    occasionally, to whispery puffs of air. Sometimes, for periods as long as two days, he is
    unable to speak at all.

    When that happens, Checo carries a pad of paper with him so he can scribble down notes
    if he needs something. But for the most part, he will simply disappear into his rented
    room, ignoring his cellphone when it rings.

    Checo, a janitor, spent six months cleaning dust from office buildings around ground zero
    after the World Trade Center attack. Five years later, the lining of his lungs is pocked with
    scars and densities that do not belong there — possibly a sign of a disease that can cause
    lung tissue to become so stiff that it can no longer carry oxygen, wrote a radiologist who
    examined a scan of his lungs last year.

BGS

Govt Defends Remarks by Former EPA Chief

Article in the New York Times -- Govt Defends Remarks by Former EPA Chief, by the Associated Press:

    The former Environmental Protection Agency chief should not be blamed for telling
    residents near the World Trade Center site that the area was safe after the 2001
    terrorist attacks, the government told an appeals court Thursday.

    Federal officials also argued that a lower court judge was wrong to force Christine
    Todd Whitman to face a 2004 lawsuit by people in lower Manhattan and Brooklyn who
    said they were exposed to hazardous dust and debris from the fallen twin towers.

On Teaching 9/11

All of us who teach subjects such as torts and mass tort litigation have likely this week considered our special responsibility and opportunity to discuss in class the terrorist attacks of September 11, 2001.  Apart from being the catalyst for two wars and radical changes in American and international political life and culture, the attacks of September 11 were also a mass tort that took without warning the lives of 2,973 people, many of whom left behind deeply traumatized families.  In addition, a recent study concluded that nearly 70% of those who worked at Ground Zero after the attacks now suffer from respiratory ailments, and the death of a New York police officer has been determined to have been caused from his inhaling toxic dust at the site after the attacks.

Although we are teachers of cases involving personal injuries, 9/11 poses particular challenges as a topic of classroom discussion because our students', and our own, emotional wounds may still be unhealed.  For those of us who were in or around the attack sites in New York, Washington, or Pennsylvania, or who personally knew victims, undertaking such discussions may be more difficult still.  On the morning of September 11, I sat in disbelief looking at the burning Twin Towers from my office window in Times Square in New York and saw the first tower fall.  That event, and the difficult period that followed -- learning of neighbors who had died and trying to resume life in the tumult that followed in New York -- made me reluctant to discuss 9/11 in class.

Nevertheless, I believe discussing 9/11 in class is worth navigating such emotions.  Of course, 9/11 provides a lens for discussing tort concepts, goals, and alternatives.  For example, my torts class, after initial hesitation, leapt into analyzing potential claims for intentional torts and negligence stemming from the attacks.  We then discussed why Congress created the 9/11 compensation fund, rather than simply defer completely to traditional tort litigation, and talked about the extent to which the 9/11 fund effectuated tort goals.  In my mass tort litigation class, we also discussed the reasons why 9/11 tort solutions may or may not be possible for other mass torts.

But as important, 9/11 also provides an opportunity for students to see in their own pain a shared humanity with the type-faced tort victims who populate our casebooks, and with bystander victims of emotional distress, whose suffering the tort system for many reasons has been reluctant to recognize.  I recall Judge Guido Calabresi saying that he saved such identification of the student with the victim for the last day of his torts class, because a measure of distance and humor are essential if the class is to discuss such serious personal injuries throughout the course.  I share Judge Calabresi's fondness for humor and professional distance in discussing tort cases, and recognize the risk of personalizing too closely the cases we read.  But surely the significance of 9/11, for torts in particular and our society generally, is worth taking that risk.

I welcome comments anyone might be interested in posting with their thoughts on, or approaches to, discussing 9/11 in law classes.

America Marks a Grim Anniversary: President Visits Three Sites Where Nearly 3,000 Died

Article in today's Washinton Post on the fifth anniversary of the attacks of September 11, 2001 -- America Marks a Grim Anniversary: President Visits Three Sites Where Nearly 3,000 Died, by Michael Powell, Josh White and Theresa Vargas:

    In three wounded communities yesterday, the nation commemorated the worst
    terrorist attack in American history, as bells sounded, thousands murmured prayers
    and the families of victims once again read the names of their lost loved ones.

    On the fifth anniversary of the Sept. 11 hijackings, there was an aching familiarity to
    the rituals. In New York, family members recited 2,749 names, punctuated by violins
    and the wail of bagpipes, to the drawn and tearful faces of the families of the victims.

Congress Criticizes Federal Response to Illnesses After 9/11 and Seeks More Spending

Article in the New York Times -- Congress Criticizes Federal Response to Illnesses After 9/11 and Seeks More Spending, by Anthony DePalma:

    After listening to recovery workers at ground zero and downtown residents
    emotionally describe how they had been ignored and insulted as they sought
    help for health problems after 9/11, members of a Congressional subcommittee
    roundly criticized the federal response yesterday and called for sharply increased
    medical spending.

    Subcommittee members, joined by Senators Hillary Rodham Clinton and Charles
    E. Schumer, accused the Bush administration of ignoring the health problems that
    arose among workers who toiled at ground zero and the claims of downtown residents
    who say they were also sickened by the dust. The administration has done little to
    prepare for a similar disaster in the future, they said.

    “Today it appears the public health approach to lingering environmental hazards
    remains unfocused and halting,” said Representative Christopher Shays, a Republican
    from Connecticut, and chairman of the House Subcommittee on National Security,
    Emerging Threats and International Relations, which held the hearing in Lower
    Manhattan, a block from ground zero. “The unquestionable need for long-term
    monitoring has been met with only short term commitments.”

Hearing Addresses WTC Health Problems

Article in today's Washington Post -- Hearing Addresses WTC Health Problems, by Devlin Barrett of the Associated Press:

    The father of a police detective who died after breathing in dust from ground zero
    wreckage told lawmakers Friday that the government has spent too much time studying
    the health problems that killed his son.

    "We must make the first priority the treatment of the heroes to improve their heath and
    save their lives. The studies should be secondary," Joseph Zadroga, father of New York Police    
    Department Detective James Zadroga, told a House subcommittee hearing near the World
    Trade Center.

Memos: NYC told Ground Zero air was unsafe

Article on cnn.com -- Memos: NYC told Ground Zero air was unsafe:

    The city allowed people to return to Manhattan after the collapse of the World
    Trade Center towers even though officials were told the air was not yet safe,
    according to an internal memo from a New York City Health Department official.

    The October 6, 2001, memo states that the city Office of Emergency Management
    -- called OEM -- and the Department of Environmental Protection -- referred to as
    DEP -- disagreed over the air quality following the September 11, 2001 terror attacks.
    But it suggests commercial interests trumped safety concerns.

    Kelly McKinney, associate commissioner of the health department, wrote that the
    mayor's office was under pressure from building owners and business owners to open
    more of the "red zone."

9/11 Toxic Legacy

9-11