"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. "
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
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