9/11 Followup: Sweeping the (Toxic) Dust Under the Rug

According to the article below a settlement proposal between the City/World Trade Center insurance carrier parties and emergency workers who claimed damages resulting from their work at or near near Ground Zero has been approved by the federal district judge. 95% of the workers must accept the approved settlement for it to become effective. The article notes that the lawyers for all parties now encourage the settlement, but fails to disclose the plaintiffs' attorney fees (usually 30-40% of the total settlement amount, plus expenses-- so likely in the ballpark of $300M) as a likely inducement for plaintiffs' counsel. The article also does not address whether the plaintiffs waive any further right to sue if they accept the settlement, but this is typically a basic element of any such settlement. Notably, the Court has made no findings of fact on the toxicity of the WTC dust, and in fact seems to have encouraged plaintiffs to accept the settlement so that this admittedly difficult scientific evidence would not have to be approved in Court. Depending on your perspective, the proposed settlement and waiver either represents a long-sought, judicially efficient victory for the plaintiffs or, to the cynic, a relative bargain for the WTC insurers, City of New York and other government types in avoiding any true scientific or judicial evaluation of how so many people developed such terrible diseases through exposure to the WTC dust, usually days after the bombing/demolition/attack. All of this begs the question, what was in the aerosol/dust that allegedly caused cancers and other alleged ailments? If this settlement is approved, we may never know.

Hellerstein Approves Respiratory Illness Settlement for 9/11 Workers

Mark Hamblett
06-24-2010
Originally printed in the New York Law Journal

Southern District Judge Alvin K. Hellerstein yesterday approved the settlement in the 9/11 respiratory illness litigation at the end of a nearly seven-hour long hearing.

The judge and lawyers for the parties in the litigation pushed hard to persuade World Trade Center rescue and cleanup workers exposed to allegedly toxic dust at the site to accept a settlement that could run as high as $716 million.

Although billed as a "fairness hearing," the session was clearly an effort to convince at least 95 percent of 10,000 claimants to opt into the settlement. The deal requires 95 percent acceptance in order to go into effect.

Kenneth R. Feinberg, who was appointed by Judge Hellerstein to hear appeals from compensation decisions, spoke by conference call from Washington, D.C., and addressed the principal uncertainty confronting plaintiffs—legislation being negotiated on Capitol Hill to provide more money to 9/11 first responders and cleanup workers.

"If you opt out in the hope that there will be a better legislative alternative down the road, I believe personally, you will be making a mistake," said Mr. Feinberg. "The legislative process grinds slowly and after waiting over five years for the legislation to be enacted, it is still not enacted."

Judge Hellerstein had rejected an initial settlement on March 19 as providing inadequate compensation to those injured at Ground Zero.

Yesterday, he defended the latest deal during the seven-hour session that included emotional testimony from some plaintiffs as well as presentations by lawyers.

Retired NYPD Detective Candace Baker, who claims the 400 hours of overtime she put at Ground Zero caused her breast cancer, and retired firefighter Kenneth Specht, who claims his cancer was caused by exposure to toxic dust, both criticized the settlement for not providing enough money for solid tumor cancers.

The judge told Ms. Baker he understood her frustration. But, he said, "This is a settlement system and not a compensation system, so I have to pay attention, and the lawyers have to pay attention, to what is provable."

Later, he added, "I hope that when Ms. Baker and Mr. Specht go home and think about this, they vote to approve the settlement and opt in—not because it's perfect, it's far from perfect. It's good. It's the best we could do."

In the morning, Judge Hellerstein praised Margaret Warner of McDermott Will & Emery, the lawyer for the entity that holds the purse strings, the World Trade Center Captive Insurance Company. The judge said Ms. Warner's "indefatigable energy and intelligence really drove the settlement."

The lead lawyers, including Ms. Warner, although described by the judge as "protagonists," are now united in their interest in having the settlement approved.

Plaintiffs' co-liaison counsel Paul Napoli, of Worby Groner Edelman & Napoli, Bern, and James Tyrrell of Patton Boggs, lead lawyer for the city and its contractors, both worked hard to close the deal.

Under the agreement, plaintiffs could receive anywhere from a few thousand dollars to almost $2 million, depending on the severity of their injury and the degree of exposure at Ground Zero.

Mr. Napoli said that the amount was "fair, reasonable and more than adequate." He added that the legislation in Congress was "the elephant in the room," but he cautioned plaintiffs that "very few bills," between 2 percent and 3 percent, that are proposed in Congress actually become law.

'Potent' Defense

Mr. Tyrrell laid out the obstacles for those who choose to litigate rather than settle, including the possible immunity afforded the city and its contractors in responding to a civil emergency.

Mr. Tyrrell said plaintiffs would have an enormous hurdle in establishing a causal link between the allegedly toxic dust and injuries suffered by those at the site.

"In the federal courts, only good science gets to go to the jury," Mr. Tyrrell said, and Judge Hellerstein as "the gatekeeper" would "have to look, in advance, at the science both sides have offered."

This would mean, "very difficult, lengthy hearings on the different evidence" with respect to 383 separate diseases claimed to have been caused by the conditions at the disaster site.

Judge Hellerstein agreed, saying Mr. Tyrrell was prepared to present "extraordinarily potent defenses" against the claims.

Mr. Specht later said he was "shocked to the core" to hear the defenses Mr. Tyrrell would present in litigation.

But Judge Hellerstein stopped him.

"You have to understand we have an adversary system of justice and Mr. Tyrrell is doing his job and it's his job to present the defense as vigorously as he can," just as it is Mr. Napoli's job "to present the conditions of the plaintiffs."

If Mr. Tyrrell did not do the job he did, the judge said, the city "would have been eaten alive with all kinds of claims," legitimate and illegitimate.

Corporation Counsel Michael A. Cardozo spoke in favor of the settlement.

"How do we fairly compensate the heroes who went down to the pile who worked tirelessly to put this city back on its feet?" Mr. Cardozo said. "It wasn't the fault of the contractors or New York City, at least, in our view, that these people were injured, but there is no question that some people were injured and they suffered damages."

Tiered System

The settlement calls for the slotting of plaintiffs along four tiers based on the severity of their injuries, with tier four including the most serious health problems, such as lung cancer.

Ms. Warner explained that 50 percent of the 10,000 plaintiffs are expected to qualify for tier four and will received 94 percent of the cash in the settlement that will range between $625 million and $716 million, depending on the number of people who opt in and future claims made over the next five years.

Ironworker Richard Prager angrily told the judge the $10,000 he would receive for a physical injury he suffered at the site does not begin to compensate him for his health problems, including respiratory difficulties.

"This isn't fair to me, this is not fair to my family," he said. "I'm insulted. I didn't go to Ground Zero to sue. I went there because this is my home."

Mr. Napoli rose to say that Mr. Prager is an example of "one size does not fit all" in the settlement and Mr. Prager may well be one of those people who opt out.

Retired NYPD Detective Joseph Greco rose to speak in praise of the settlement. Mr. Greco, who has severe asthma, said he was one of the initial test cases set for trial in May before the parties reached a settlement.

Mr. Greco, who said he is on steroid medication, said his young son recently asked him how the family would pay the bills if something happened to him. The settlement, Mr. Greco said, "puts my mind at ease."

Judge Hellerstein approved the settlement despite familiar opening remarks by Mr. Tyrrell that the settlement was private and did not need judicial approval.

The deal still leaves several defendants in the case, including the Port Authority of New York and New Jersey; insurers of workers who toiled at the Fresh Kills landfill on Staten Island, where the debris was shipped; and insurers for the barges that transported the debris from lower Manhattan.

Judge Hellerstein expressed hope that the current settlement would lead to the resolution of the claims against those defendants.

UPDATE:  

House rejects bill to aid sick 9/11 responders

By ANDREW MIGA and DAVID B. CARUSO, Associated Press

A bill that would have provided up to $7.4 billion in aid to people sickened by World Trade Center dust fell short in the House on Thursday, raising the possibility that the bulk of compensation for the ill will come from a legal settlement hammered out in the federal courts.

The bill would have provided free health care and compensation payments to 9/11 rescue and recovery workers who fell ill after working in the trade center ruins.

It failed to win the needed two-thirds majority, 255-159. The vote was largely along party lines, with 12 Republicans joining Democrats supporting the measure.

For weeks, a judge and teams of lawyers have been urging 10,000 former ground zero workers to sign on to a court-supervised settlement that would split $713 million among people who developed respiratory problems and other illnesses after inhaling trade center ash.

The court deal shares some similarities with the aid program that the federal legislation would have created, but it involves far less money. Only the most seriously ill of the thousands of police officers, firefighters and construction workers suing New York City over their exposure to the dust would be eligible for a hefty payout.

But supporters of the deal have been saying the court settlement is the only realistic option for the sick, because Congress will never act.

"Ladies and gentlemen, you can wait and wait and wait for that legislation ... it's not passing," Kenneth Feinberg, the former special master of the federal 9/11 victim compensation fund, told an audience of ground zero responders Monday in a meeting on Staten Island.

Democratic leaders opted to consider the House bill under a procedure that requires a two-thirds vote for approval rather than a simple majority. Such a move blocked potential GOP amendments to the measure.

A key backer of the bill, U.S. Rep. Peter King, a Long Island Republican, accused Democrats of staging a "charade."

King said Democrats were "petrified" about casting votes as the fall elections near on controversial amendments, possibly including one that could ban the bill from covering illegal immigrants who were sickened by trade center dust.

If Democrats brought it to the floor as a regular bill, King said, it would have passed with majority support.

GOP critics branded the bill as yet another big-government "massive new entitlement program" that would have increased taxes and possibly kill jobs.

To pay the bill's estimated $7.4 billion cost over 10 years, the legislation would have prevented foreign multinational corporations incorporated in tax haven countries from avoiding tax on income earned in the U.S.

Bill supporters said that would close a tax loophole. Republicans branded it a corporate tax increase.

New York City Mayor Michael Bloomberg called the vote an "outrage." He said it was clearly a tactic designed to stall the bill.

"This is a way to avoid having to make a tough decision," Bloomberg said, adding that the nation owes more to "the people who worked down at 9/11 whose health has fallen apart because they did what America wanted them to do."

John Feal, a ground zero demolition worker who has lobbied extensively for the legislation, expressed disgust.

"They pulled the rug out from beneath our feet," Feal said. "Whatever member of Congress vote against this bill, whether Republican or Democrat, should go to jail for manslaughter."

The bill would have provided up to $3.2 billion to cover the medical treatment of people sickened by trade center dust and an additional $4.2 billion for a new fund that would have compensated them for their suffering and lost wages.

The potential promise of a substantial payout from the federal government had caused some ground zero workers to balk at participating in the proposed legal settlement, which would resolve as many as 10,000 lawsuits against the city.

Initially, the bill would have prohibited people from participating in the new federal compensation program if they had already been compensated for their injuries through a lawsuit, but a change was made in recent days eliminating that restriction.

Nevertheless, with the House rejecting the bill and no vote scheduled on a similar Senate version, it appears almost guaranteed that there will be no new federal law by Sept. 8, the date by which ground zero workers involved in the lawsuits must decide whether to accept the settlement offer.

Under the terms of the deal, 95 percent of those workers must say yes for the court settlement to take effect.

The compensation system set up by the court would make payments ranging from $3,250 for people who aren't sick but worry they could fall ill in the future to as much as $1.5 million to the families of people who have died. Nonsmokers disabled by severe asthma might get between $800,000 and $1 million.

About 25 percent of the money would go to pay legal fees. Contested claims would be heard by Feinberg, who would act as an appeals officer.

Researchers have found that thousands of New Yorkers exposed to trade center dust are now suffering from breathing difficulties similar to asthma. Many have also complained of heartburn or acid reflux, and studies have shown that firefighters who worked on the debris pile suffer from elevated levels of sarcoidosis, an inflammatory disease.

Many of the workers also fear that the dust is giving people cancer, although scientific studies have failed to find evidence of such a link.

The exact number of sick is unclear. Nearly 15,900 people received treatment last year through medical programs set up to treat Sept. 11-related illnesses, but doctors say many of those people suffered from conditions that are common in the general public.

The House bill is named for James Zadroga, a police detective who died at age 34. His supporters say he died from respiratory disease contracted at ground zero, but New York City's medical examiner said Zadroga's lung condition was caused by prescription drug abuse.