While one might dispute the matter of guilt and disparage the idea of gaining money or recognition from tragedy, the reality is that not all the information was given out after 9/11. While no lawsuit will change what happened that day one thing that can change is how a government treats its citizens- whether it trusts them with their own health decisions or not .
9/11 brought more than death, destruction and sadness. It brought up a number of questions. Questions ranged from whether or not the government knew about the attacks, to questions that are much more banal, at least to people not directly affected by the tragedy. These are matters of seeming minutiae that profoundly affect the victims, their families, the first responders, and the residents of lower Manhattan. When there are questions, there are lawsuits.
“The system is full of holes to this day,” says Stephen Gale, counterterrorism expert, of the
If safer way of flying was available, but not implemented, should airlines be held accountable for deaths from hijackings that may have been preventable?
Lawsuits brought to light the complicated nature of building safety and liability in the wake of 9/11. Contractors, airlines, the city of New York, the Environmental Protection Agency, the Port Authority, the Federal Aviation Administration and the government of Saudi Arabia have all been litigants in claims brought by victims, their families, and workers in the 95 complaints which were filed after 9/11. Of the original 95 lawsuits on behalf of 96 victims, 53 cases were settled right away. Others, including the large class-action suits by first responders, against the city, Port Authority and EPA, remain unresolved.
In one major case against the city, which has more than 4,000 plaintiffs, the United States Court of Appeals for the Second Circuit upheld an earlier decision by
For some victims and some attorneys involved in 9/11 cases the court that matters most now for them is that of public opinion. Others simply feel that their exclusion from the compensation fund was unfair and are seeking a legal route to recompense.
For Joel Kupferman of the Environmental Law and Justice Project, the goal of the suits is noble, not predatory. “I don’t want the head of the EPA lying to us. I don’t want bad people promoted for leaving a disaster like this. I want medical monitoring and proper clean up for people” at risk for dust inhalation, he says.
Kupferman says toxic tort cases, while vitally important to improving safety, sadly often carry a gag order. This prevents others whom the toxins might effect from learning about the situation and about the legal and environmental remedies available to hem.
The city has admitted that the World Trade Center has sent aloft dust that has made people sick. Mayor Bloomberg has asked that the compensation fund be re-opened to allow first responders to be compensated for their suffering as well.
Only families of victims who opted out of the compensation fund offered by the government and responding workers, who were excluded from the fund, are able to bring suits because the terms of the pay-out from the government gave airlines and the government immunity. The fund was established by Congress to compensate the victims of the attack or their families and was closed in December 2003. In accepting money from the fund, the victim automatically relinquished any right to sue the city, any branch of government or the airlines.
Although it was drafted very quickly after the disaster, it was decisively immunizing for any remotely liable party. The effect has been that those left out of the fund have ignited a debate as to their legitimacy as 9/11 victims and as recipients of payouts, either from lawsuits or from the compensation fund. Many of these are first responders, but this also includes residents of lower Manhattan who claim the city should have advised them not to return to their homes while toxic dust billowed in the air.
The city has been sued by thousands of responding workers in various capacities. The contractors the city employed to assist fire fighters by assessing the buildings’ structural integrity were sued for negligence because under a New York law there is “an obligation on all contractors, including engineers, who direct workers to perform jobs in and around contamination to provide those workers with personal protective equipment,” according to attorney Paul DiNapoli.
The EPA is also a litigant in a suit. However, are government entities just the deepest pocket in a web of liability surrounding the kind of unprecedented event that people are not prepared for legally? Or, does the logic of the law help us carve out where the oversights, assumptions, laziness and disorganization that conspired to allow such a tragedy to happen were located, and thus, help us prevent the next one?
The attorneys in the cases not only think otherwise, but firmly believe that litigation is the only real way to navigate safety jurisdiction. Kupferman believes that laziness, incompetence and greed were the real issues. Kupferman claims that internal correspondence at city government shows that economic interests pushed the re-opening of lower Manhattan, and that warnings from the EPA were ignored by the city. He also alleges that hired experts, such as doctors and structural engineers, were told to not to find the area to be dangerous by city officials so that business could re-open quickly.
In contrast, DiNapoli, a lawyer assisting in the first-responders’ case, has recently come under scrutiny because of alleged abuse of settlement funds dispersed after he won his first big class-action suit- the “fen-fen” diet pill case. Although the actual numbers are protected by gag order, many believe that suit resulted in a pay-out of over $1 billion. DiNapoli has said publicly that he wants settlements for his clients in the 9/11 case. Napoli,
Michael Eatroff worked on the first responders’ case against the city and the Port Authority. He says his firm “represented different workers from different agencies,” in a class action against the city “for all emergency workers who worked at the site after it fell and within the first two years.” But most of them were people who were there that fateful day. They claim to suffer from respiratory problems, and allege that the problems will become more problematic over time because they were caused by asbestos or another toxin, not the dust that the city said was, in Rudy Giuliani’s words, “just the 9/11 cough.”
While it might not seem at all relevant to 9/11 if you have trouble breathing and you lived in lower Manhattan as long as two years after the towers fell, some evidence shows the contrary. Lower Manhattan should not have been called in habitable for some time, according to Kupferman. The city is now liable for failing to give residents, workers, and students at Stuyvesant High School the appropriate information to make adequately informed decisions about their health.
Whistleblowers from government agencies, the Department of Health and research physicians all admit that asbestos, dust and fiberglass could still have been an issue for as long as 2 years. And that it could be an issue even if everyone followed proper safety regulations, which, there is evidence, many private contractors hired to remove 9/11 debris did not.
During three and four hour depositions Eatroff saw workers thoroughly questioned about physical symptoms, mental and emotional problems, and respiratory problems. “City attorneys wanted to show that there were other causes of our clients’ respiratory problems. Emotional problems were discussed also; spouses were asked how their relationships had changed,” said Eatroff. The city did not issue protective gear, and the vast majority of the people involved in the suit were city employees. Kupferman says that masks were denied because “the city did not want to alarm people.”
The question of whom to sue when a building falls on you or poisons you with asbestos and particulate matter as it crumbles is profound, as are questions about why the victims have chosen the defendants they have. No one has sued the FBI, because it is known to be very difficult to do so, however, the FBI would technically be as culpable as the FAA, according to attorney Mark Conlin, as quoted in Salon.com.
Similarly, whether or not to sue at the federal level or the city level is a difficult decision. Kupferman felt federal jurisdiction was the easiest to go after, but, as he says, “there are 3 or 4 different layers of government here” that one could construe as responsible for your safety in an event such as 9/11. “You would think that would help you be safer,” says Kupferman, “but it was the opposite.”
In the wake of the tragedy, logistical concerns quickly arose that the city had to manage. Among them was removing all the actual debris from the site. They selected a private contractor for this duty, representatives of whom would later state at a public meeting that they needed to have “workers' mother on site to admonish them to comply,” with the safety regulations the city stipulated.
Students at Stuyvesant High School were allowed to return to school in October, although studies have shown lower Manhattan may have been a toxic site for up to two years after 9/11 in particular places, especially the elementary school that the trucks drove past with debris from the site. Independent testing has shown that the material the trucks carried contained levels of asbestos and fiberglass that were unlawful to transport through public streets. Responsibility for the procedure is shared by Port Authority, the Lower Manhattan Development Corporation, the City and the EPA.
“The real problem with port authority is that they are being lax right now during reconstruction,” says Kupferman. The Port Authority and LMDC are unique entities: hybrids of the public and private, staffed and funded by both. This causes jurisdictional conflicts and difficulties in assigning culpability. Activist Sally Regenhard, of the Skyscraper Safety Coalition, says was “a massive failure at the federal, city, state and definitely the Port-Authority level.”
All that was decided in the most recent legal episode was that in fact the city’s immunity would have to be decided on a case by case basis. How other entities will fare, and /or if they will be subsumed legally under the category of “city government” is left to be seen.
Detective James Zadroga died in 2006 from respiratory failure linked to his work at the World Trade Center site. Mention of him still incites immediate controversy. Many claim that it cannot be proven that he died from 9/11 dust. But are people skeptical because they think his family is in search of the deepest pocket or because they are afraid to acknowledge how massive a public safety failure post-9/11 clean-up may eventually prove to be?
Kupferman says the firemen he represents only wanted one thing. “They want someone to have told them ‘Don’t wash your clothes with your kids’ clothes,’” says Kupferman. “What cuts across the left and the right is that people want the government to give the correct information.” And that seems reasonable. People want to be able to make decisions for themselves and their families independently, with all the available information.
Sources-
Michael Eatroff, Attorney- Patton Boggs LLP
Joel Kupferman,
Stephen Gale, Associate Professor University of Pennsylvania- Department of Political Science, as quoted by salon.com
Paul DiNapoli, Attorney- Napoli, Bern, Ripka, LLP
Sally Regenhard, CEO- Skyscraper Safety Campaign
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