Lawsuits Filed Over 9/11 Deaths Move Forward

To Loretta Filipov, it was never about the money.

Her 70-year-old husband, Alexander, an electrical engineer, was on Flight 11 with 91 other people when it crashed into the World Trade Center's North Tower on Sept. 11.

Sixteen days later, Congress created the September 11th Victim Compensation Fund to provide for the survivors of the nearly 3,000 who died that day, if they agreed not to litigate their claims.

By the time the sign-up deadline arrived in December of 2003, some 97 percent of the eligible families had decided to go through the now-closed Fund - but Filipov was not among them.

A resident of Concord, Mass., Filipov had attended a meeting in Boston called by Kenneth R. Feinberg, special master of the Fund, along with her lawyers.

"It was terrible," she recalled. "People were asking questions like, 'My son worked at Cantor Fitzgerald [a law firm at the World Trade Center] and he was due for a raise. ' Then somebody else would say, 'WHAT? You're going to give him a raise? What about MY son?' I said to my lawyers, 'Can we leave?'"

She did nothing for more than a year and a half. Then one of her lawyers called to say that attorneys from a South Carolina firm were in Boston and were interested in talking with people who had refused to file with the Fund. The firm was Motley Rice, an 80-lawyer firm that made its mark in asbestos and tobacco litigation.

Filipov met with their lawyers, signed on and filed a lawsuit claiming that the airline and airport security providers had been negligent in failing to deter the terrorists.

Depositions begin

Last week, as the nation observed the fifth anniversary of 9/11, lawyers are pressing forward with some 60 lawsuits, including Filipov's, in U.S. District Court in New York, where litigation has been consolidated before Judge Alvin K. Hellerstein.

When Congress passed the legislation enabling the Fund, it also provided that family members of the victims could opt out and file suit in federal court in New York. More than 90 such suits were filed, the large majority of them by survivors of individuals who died on the planes. Only about a dozen lawsuits were filed by survivors of the "ground victims. "

The reason for the small numbers, according to lawyers involved in the Sept. 11 litigation, is that family members of those victims were more deterred by the $15 billion cap on the airlines' liability established by Congress. Further, the defendants have argued that these plaintiffs are ineligible to recover, notwithstanding the language of the Fund's enabling statute (which states that all victims may sue), because neither federal law governing airline security nor state tort law would impose liability for the ground claims. They also argue that the events of 9/11 were an act of war.

On Sept 9, 2003, Hellerstein rejected a defense motion to dismiss and specifically stated that the ground victims were entitled to sue - but if that finding is overturned, those plaintiffs could recover nothing.

The plaintiffs who have sued are claiming that their loved ones' deaths were preventable events resulting from airline and security company negligence. Depositions are scheduled to begin Sept. 12, and the first trial could happen next year.

Hellerstein has reportedly been urging the litigants to settle. But Donald Migliori, a partner in the Providence office of Motley Rice, said the plaintiffs and their lawyers are adamant about going to trial.

"We feel very confident that even without further discovery, the evidence to prove fault is already out there in the public record - especially given the 9/11 Commission report," which was released in 2004 and identified security lapses at the airports where the commandeered flights originated, he said.

Marc S. Moller, a partner at Kreindler & Kreindler in New York City who is serving as a liaison between the plaintiffs' lawyers and the judge, acknowledged that Hellerstein is exerting settlement pressure, but agreed with Migliori about the plaintiffs' resolve.

"The plaintiffs absolutely want to stay the course until the proper result is reached that provides the answers they are seeking and the compensation they are entitled to," he said. "What the litigating families want even more than money is to establish the accountability of the airlines and the security companies for their wrongs, lapses and negligence that contributed to 9/11. "

Prior knowledge

Plaintiffs' lawyers say they can show that the defendants were well aware of terrorist threats prior to Sept. 11.

"We intend to show that there was sort of a divergent path between the quality of security leading up to 9/11 and the increase in risk," Migliori said. "That is, it became more and more clear that a threat to aviation security existed before 9/11, but at the same time the evidence is that the quality of security at these airports was going down. It was a fiscal issue. Security costs money, and they didn't want to spend the money. "

While plaintiffs' lawyers contend that there's plenty of evidence in the public domain to support their cases, they also say that the federal government is making their job more difficult. The Transportation Security Administration, created by Congress two months after the terrorist attacks, has been withholding potentially important information - memoranda to the airlines warning them of terrorist threats, analyses of weaknesses in airport security, etc. - on the grounds that it is "sensitive security information. "

U.S. District Courts don't have jurisdiction over the TSA, so any challenge to its efforts to withhold information must be made before the 2nd Circuit. Moller said that plaintiffs are pursuing that avenue, arguing that the TSA's decision is arbitrary and capricious.

Attorney Michael J. Kuckelman is representing nine insurers who paid on 9/11 property claims and have filed subrogation claims against the airlines and security companies, arguing that they should bear part of the cost.

He said that in his case, the TSA "has gone so far as refusing to produce documents utilized and referred to by the 9/11 Commission, and even documents that were provided to convicted terrorist Zacarias Moussaoui and his counsel. "

Kuckelman, a lawyer with Warden Triplett Grier in Overland Park, Kan., said that his clients are seeking $700 million from the 9/11 defendants.

Desmond T. Barry Jr., a partner at Condon & Forsyth in New York City who is serving as liaison between the defendants and Hellerstein, told Lawyers USA that the defense attorneys in the New York litigation have adopted a policy of not commenting on the case.

Security breaches and 'terror damages'

The plaintiffs view their case as an open-and-shut breach of security claim.

"This isn't a typical aviation case," Migliori said. "The law is: If the sterile airplane environment is breached with weapons or items that are not permitted on planes like box cutters and pepper spray - that, in and of itself, meets the burden for the plaintiffs in proving a case against the airlines and the security operators. "

Initial reports that box cutters were permissible items were incorrect, Migliori said.

The plaintiffs' lawyers believe that once the first case goes to trial, it should expedite settling the remaining suits.

"One trial will resolve the liability issues for everybody," noted Moller.

To date, about one third of the 90 lawsuits filed by survivors who opted out of the Fund have settled. Settlements are confidential, but a clue to their value may be provided by the average amount per family paid by the Fund - more than $2 million.

The lawyers representing the families of victims who died on the hijacked planes are seeking what they call "terror damages. "

"It's basically what the passengers experienced between hijacking and crash," Migliori said. "Under most state laws that we're operating under, that has a compensable component and we are trying to quantify it as best we can. "

He contends that courts have already recognized that victims can recover for their pain and suffering during the time between the commencement of a lethal threat and death. For example, in Campbell v. Diguglielmo, 148 F. Supp.2d 269 (S.D.N.Y. 2001), a plaintiff received $2.5 million for the pain and suffering of his father in a fatal shooting. Part of the award was for the mental anguish the victim suffered for one or two minutes prior to his death. The verdict was upheld on appeal.

This effort to obtain greater amounts for "terror damages" is reportedly a factor in the low settlement rate to date. Another reason is that many of the plaintiffs are financially well off enough that they don't need to settle and want a trial to expose shortcomings they believe caused their loved ones' deaths.

Motley Rice, which represents 53 of the 60 remaining plaintiffs, has set up a "9/11 and Anti-Terrorism" practice group. Migliori said that five partners, including himself, six associates and about 40 support staff are involved in the New York cases. The firm is also pursuing a separate suit against terrorist organizations, banks and charities that allegedly act as fronts for individuals and countries connected to the 9/11 attacks. Migliori said that his firm is representing more than 8,000 plaintiffs in that matter.

Meanwhile, Loretta Filipov said that she really isn't paying attention to what's happening in the Southern District of New York. But she remembers the events of Sept. 11 clearly. Her husband flew off that morning for what was supposed to be a two-day trip to California to visit a client. He was winding down a successful career and looking ahead to the couple's 44th wedding anniversary on Sept. 14. They were planning a trip to Hawaii to celebrate.

Since then, Filipov has created the Al Filipov Peace and Justice Forum, which is connected to the Trinitarian Congregational Church in Concord, where she is an active member. She is also active in another pacifist organization, September 11th Families For Peaceful Tomorrows. "If money comes," she said, "those two foundations are where it will be going. "

Ground Zero workers sue for negligence

As the 9/11 suits against the airlines and security companies move toward trial, separate claims are being filed by Ground Zero workers who allege they are suffering health problems that could have been prevented if they had been issued proper respiratory protection.

David E. Worby, a partner in the White Plains, N.Y. law firm of Worby Groner Edelman, claims that more than 5,000 individual suits have been filed to date.

More than 100 defendants have been named - including New York City, the Port Authority of New York & New Jersey and scores of contractors - and are being sued under New York labor law on the grounds that they had an obligation to provide a safe place to work.

The defendants have moved to dismiss, arguing that they are immune from suit under New York's State Defense Emergency Act, which protects cities and private contractors from negligence lawsuits when they respond to foreign attacks. U.S. District Court Judge Alvin K. Hellerstein has not ruled on the motion.

Evidence has been mounting that workers at the World Trade Center clean-up site were exposed to asbestos, benzene, PCBs, and hundreds of chemicals - yet most were not provided with proper protective equipment.

More than 40,000 people worked at the site, and Worby claims that 90 percent of them had inadequate protection.

"According to OSHA regulations, nobody should have been allowed on the site without a mask - and not just a mask; a hazmat [hazardous materials] suit," Worby said.

He contends that there was an unnecessary rush to clean up the site.

"The emergency ended after the first 24 to 36 hours. We weren't saving lives anymore, so this site should have been closed. Nobody should have been allowed on it. They've shown nothing since then to demonstrate why that was so important. "

Worby said that 50 of his clients have died from "what appears to be 9/11-related causes, such as thyroid cancers, leukemias, heart failures and lung diseases. "

He believes that unless the defendants are granted immunity, Ground Zero litigation could continue for many years, because many of the nearly 400,000 people who lived and worked in the area could have claims.

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