Liability or the Deepest Pocket- Will Post 9/11 Suits Help Push Reform?

By Guelda Voien

New York, May 2--Lawsuits are the American way. Even as we vilify them, we can thank lawsuits for seatbelts, fire escapes, even mandatory heating in our apartments.

In the wake of 9/11, government 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. Of the original 95 lawsuits on behalf of 96 victims, 53 cases were settled quickly. Others, including the large class-action suits by first responders and the residents of lower Manhattan against the city and Port Authority, remain unresolved.

These lawsuits claim to be motivated by a desire to help the public gain better access to pertinent information. But, do plaintiffs in 9/11 cases just want their share of large government payouts? Or, will the logic of the law help us carve out where the oversights, assumptions and disorganization that allowed mishandling to occur were located, and thus, help us institute reforms?

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 people promoted for leaving a disaster like this. I want medical monitoring and proper clean up for people [who are at risk for dust inhalation,]” he says.

On March 27th, the United States Court of Appeals for the Second Circuit upheld an earlier decision by the Federal District Court in Manhattan, which will allow one major case against the city, one that has more than 4,000 plaintiffs, to go forward. The opinion stated that the purpose of the suit was to determine if the city was immune from prosecution because 9/11 was an extraordinary circumstance, and that it would have to determine that on a case by case basis, meaning the case could easily go on for years. On April 22nd, the former head of the EPA was found not personally liable for the “conscience-shocking” assurances she gave to New York City residents, entreating them to return to homes and schools covered in toxic dust.

But Kupferman says toxic tort cases, while vitally important to improving safety, are ineffective in spurring reform because they often carry a gag order. This prevents others whom the toxins might affect from learning about the situation and about the legal and environmental remedies available to them. Both the amount of the payout and the exact details of the case are often kept secret as a condition of settlement.

The city has admitted that the World Trade Center’s destruction sent aloft dust that has made people sick. Last May, Mayor Bloomberg asked that the compensation fund for 9/11 victims be re-opened to allow first responders to be compensated for their suffering caused by the toxic dust that the towers’ demolition spewed into the air. He has not said that residents of lower Manhattan should be compensated. But for the plaintiffs in Kupferman’s case, change, not recompense, is the primary goal. The court that matters most to them is that of public opinion, as the issue of toxic dust has not been widely discussed since the 2006 death of detective James Zadroga, whose status as a first responder was so scrutinized that people now seem reticent to state publicly that their health concerns are directly related to 9/11.

The Environmental Justice Project has launched a civil suit against the EPA, stating that the Fifth Amendment rights of their clients to be free from bodily harm were violated when the government failed to alert residents to the risks of returning to work, school and residence in lower Manhattan. The suit seeks unspecified damages. It differs from a toxic tort case in that it could also result in an injunction that requires some action on the part of the city, rather than a settlement. Kupferman says money is incidental. The real hope is that Christine Todd Whitman, head of the EPA during the disaster, will testify about the mistakes that were made. The litigants in this suit are interested in the city and various federal agencies’ responsibility for the children who were allowed to go back to school two months after the attacks, when the dust had barely settled, and for the city inspectors who visited sites all over downtown without face masks because the city was afraid of causing alarm.

Not everyone feels that residents have strong claims against the city, let alone the federal government, for failing to ensure their safety. The question of whom, if anyone, to sue when a falling building poisons you with asbestos, is difficult to parse. Some think the city, Port Authority, and EPA are not responsible, that common sense about the risks involved ought to have prevailed.

“It’s not as though [they] got black lung,” says Adam McClelland, who lived in Soho during the attacks, and went to the World Trade Center site as the towers fell to hand out coffee to firefighters for days. “It’s just that it was an extraordinary circumstance, and it’s gotten a lot of attention,” he says. McClelland does not recall having any respiratory problems after the attack, but admits that “everyone is different, and we still don’t know what will happen in 15 years.”

Kupferman felt federal jurisdiction was the easiest to go after, and so his suit focuses on the EPA, 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.”

However, are government entities just the deepest pocket in a web of liability surrounding an unprecedented tragedy? Kupferman believes that laziness, incompetence and greed were the real issues, and litigation is the only way to force government to behave differently. He says 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 engineers, were told to not to find the area dangerous by city officials, who hoped to mitigate the disaster’s impact on the city’s economy.

Carrie Crow worked in lower Manhattan shortly after 9/11 and could have been party to a suit, though she is not. “I felt like I was pressured, there was this patriotic campaign that said you should show up to work, you should go out and buy things, you should take your kids to school and resume life as normal,” she says, but now she thinks this was not the best course of action. “I think the EPA and the city, they gave out totally incorrect information, it was a huge mistake. They let their constituencies down,” Crow says. She felt she was assured that it was safe to go to work, and now knows it may affect her respiratory health later in life. “The city lied,” Crow says.

Some questions remain as to the good faith of some post-9/11 litigants, however. Paul DiNapoli, co-counsel 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 payout of over $1 billion. DiNapoli has said publicly that he wants settlements for his clients in the 9/11 case. Napoli, Bern, and Ripka LLP, his firm, says they need to settle well in order to break even because they have already spent millions on expensive medical research for their 9/11 case.

Michael Eatroff worked on a 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.” 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,” said Eatroff. His clients claim not only that they suffer from chronic respiratory problems, but that the problems were caused by asbestos, not the mere dust that the city said was, in Rudy Giuliani’s exact words, “just the World Trade Center cough.”

Research physicians, such as Robin Herbert, of Mount Sinai Medical Center, have said that asbestos, dust and fiberglass could still have been an issue for as long as two years in lower Manhattan. Some first responders “continue to have persistent upper and lower respiratory symptomatology — coughs and sinus problems,” Herbert said in an NBC interview in 2003.

And even if all the safety regulations during clean up had been strictly followed, the levels of asbestos and other toxins might still have been too high to be safe or legal, especially for children. However, the private contractors hired to dispose of 9/11 debris did not always follow the regulations, as the contractors themselves have admitted. Representatives of the company would eventually state at a public meeting that they would have needed to have “workers' mothers on site to admonish them to [effectively] comply,” with the regulations the city stipulated.

Students at Stuyvesant High School, located across the street from the World Trade Center, were allowed to return to school in October, although studies have shown that area was still replete with toxins. Independent testing has shown that the material that trucks removing 9/11 debris carried contained levels of asbestos and fiberglass that were unlawful to transport through public streets, according to Kupferman. 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 government and private enterprise. This causes unique jurisdictional conflicts and as well as a murky landscape of motives. It is not unreasonable to assume that business interests would be part of the decision-making for the LMDC. Activist Sally Regenhard, of the Skyscraper Safety Coalition, says the clean-up was “a massive failure at the federal, city, state and definitely the Port-Authority level.” “It all comes down to money,” says Regenhard.

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 is left to be seen. On Wednesday April 30th, the Port Authority of New York and New Jersey was found liable for damages incurred in the 1993 World Trade Center attacks, according to The New York Times.

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 people say it cannot be proven that he died from 9/11 dust, and even if he did, questions remain as to whether certain equipment would necessarily have prevented his death. 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 have been?
Kupferman says the firemen he represents only wanted one thing. “They wanted someone to tell them ‘Don’t wash your clothes with your kids’ clothes,” he says. “What cuts across the left and the right is that people want the government to give the correct information.”

Guelda Voien is a graduate student in journalism at New York University, specializing in reporting on national issues. She has worked as a research associate for a commercial real estate brokerage, as a creative assistant for an Emmy-award winning screenwriter and has interned for the American Civil Liberties Union.