
September 9, 2004
In Nation's Courtrooms, Wounds From 9/11 Persist
By LESLIE EATON
espite
all that has happened in the last three years, despite all the rebuilding
and all the talk of recovery, there are still places where the terrorist
attack on the World Trade Center reverberates more strongly than ever. In
the hearts of many Americans, for example. In the minds of many New Yorkers.
And, of course, in the courts.
In Queens, a family is still fighting over where to bury the jawbone and
other modest remains of a man who died in the disaster. In Brooklyn, a
longtime lesbian partner is battling with a victim's brother over who should
get payments from the federal compensation fund. In Manhattan, dozens of
sanitation workers say they developed health problems after being exposed to
debris transferred from the trade center site to the Fresh Kills landfill on
Staten Island, and are suing in Federal District Court.
In courthouses across the country, in fact, businesses are jousting with
insurance companies over coverage for billions of dollars in lost property
and income. A Wall Street parking garage has even sued the New York Stock
Exchange (unsuccessfully so far) and others, contending that improper
security measures have hurt its business.
And as the third anniversary of Sept. 11 draws closer, the lawsuits just
keep coming. Last week, Cantor Fitzgerald, the brokerage firm that lost 658
employees working in the north tower, sued Saudi Arabia, contending that the
government there helped finance Al Qaeda; that suit joins similar lawsuits
with thousands of plaintiffs brought by victims' families and by insurance
companies.
Up in Albany, meanwhile, an appellate court has been wrestling with 9/11
cases involving workers' compensation - who gets it and who has to pay it.
Other courts have been deciding who gets to keep the deposits of home buyers
who backed out of real estate deals after the attack. Surrogates' Courts are
still deciding whether to declare people dead, and dealing with disputes
among families over the compensation money they received.
The aftershocks of 9/11 are being felt even in some unlikely corners of
the legal system: cases involving election law, for example. They are also
affecting the course of lawsuits filed well before Sept. 11, 2001, cases in
which litigants have sought to say that vital paperwork and evidence were
lost in the disaster.
And the events of that day are still a factor in some criminal cases,
including the appeal of a man sentenced to four years in prison for trying
to fake his death in the disaster.
This tidal wave of litigation reflects, in yet one more way, just how
profoundly Sept. 11 changed the lives of many people in and around New York,
who still find themselves bereft, angry, injured or even impoverished. And
who turn to the courts, as Americans do, for redress.
So however much the scars of that day have begun to heal, in the court
system, "it's far from over," said Debra Brown Steinberg, a lawyer at
Cadwalader, Wickersham & Taft who has been deeply involved in efforts to
provide legal help to immigrant families injured by the trade center
disaster.
Monique Ferrer, wrangling with her ex-husband's sister over where to bury
his remains, said her fight in State Supreme Court in Queens had been
costly, financially and emotionally. Faced with heading back to court for
the second time, she said: "It's not a happy ending yet. It's already the
third anniversary and my children have still not been able to bury their
father."
And the effects are not limited to New York. Gary S. Thompson, a partner
at Gilbert Heintz & Randolph in Washington, said 9/11 "is coming up in my
work in a lot of cases," including those involving insurance claims and
breach-of-contract allegations.
The flood of litigation is occurring despite the work of the federal
Victim Compensation Fund, which Congress established not only to help those
directly harmed by the Sept. 11 plane crashes, but also to protect the
airlines from lawsuits. Victims and their families who applied for payments
from the fund are barred from suing in most cases, except for suits against
those who were knowingly involved in the hijackings.
Most of the families of the dead - almost 2,900 - chose to apply to the
fund rather than to risk a lawsuit. But a number chose to sue the airlines,
airports, security firms and plane manufacturers.
"At one point, there were 350 lawsuits pending," said Desmond T. Barry
Jr., a partner at Condon & Forsyth, who is the coordinator for the defense
lawyers in those cases, which have been consolidated in Federal District
Court in Manhattan.
Now there are about 86 wrongful death and personal injury cases
outstanding, most of them brought by the families of passengers on the four
hijacked planes, he said, and about 14 suits over property damage.
The families that chose to proceed in the courts did so in many cases
because they were "so angry at the security failures and want answers, as
distinguished from wanting recovery," said Marc S. Moller, a partner at
Kreindler & Kreindler who is liaison for the plaintiffs' lawyers.
Many of the rescue and recovery workers also ended up being covered by
the Victim Compensation Fund, an outcome that slashed the number of lawsuits
against New York City, said Kenneth A. Becker, a lawyer in the office of the
city corporation counsel. About 1,700 plaintiffs originally sued the city,
he said, and all but about 100 of those cases have been withdrawn.
But there is still almost no end to the lawsuits out there, making their
slow, sometimes agonizing ways toward resolution. Perhaps.
In addition to the sanitation workers, a number of construction workers
who were injured during the cleanup and reconstruction at ground zero have
also sued. Those cases, in New York State Supreme Court, are "moving like
glue," said David W. Tolchin, who represents one of the injured workers.
Then there is the lawsuit filed by the families of firefighters against
the city and Motorola over the radios that were plagued with problems at the
site of the disaster. The federal judge handling many of the Sept. 11 cases,
Alvin K. Hellerstein, dismissed that case in March, ruling that the families
could not sue because they had applied to the Victim Compensation Fund; that
decision has been appealed to the Court of Appeals for the Second Circuit.
A different federal judge, Richard Conway Casey, is hearing the lawsuits
that have been filed against charities, banks and Saudi officials accused of
financing the terrorists. These cases involved thousands of plaintiffs,
about 75 defendants, dozens of law firms. And that was before Cantor
Fitzgerald filed its lawsuit last week. It is asking for billions of dollars
in damages. Next week, the judge will hold a hearing on whether to dismiss
the suits against some defendants who claim to have sovereign immunity.
Many other smaller disputes involve insurance, and are also working their
way through the system; for example, the Fresco Tortilla place on Fulton
Street went to court after its $12,000 claim was rejected by its insurance
company, which settled late last month, according to the restaurant's pro
bono lawyers from Debevoise & Plimpton.
One area that may soon grow involves disputes over legal fees. Some
victims say they were misled by lawyers they thought were free but who tried
to charge them as much as 25 percent of the money they received from the
compensation fund.
But many victims were indeed represented by lawyers who donated their
services. Trial Lawyers Care, a program sponsored by the Association of
Trial Lawyers of America, said its lawyers had represented 1,700 victims and
their families before the compensation fund.
Now that the program has ended, some lawyers worry that families with
continuing legal problems - disputes, say, over how to divide the money -
will be forced to turn to contingency-fee lawyers.
Such disputes among family members are not uncommon. In two cases
involving workers' compensation, fathers who were judged to have abandoned
their sons were nevertheless found by the courts to be entitled to a share
of their benefits.
In Brooklyn, a bitter battle continues between Margaret Cruz, who says
she was the domestic partner of Patricia McAneney, who worked for an
insurance company in the trade center, and Ms. McAneney's brother, James.
Both submitted claims to the Victim Compensation Fund; Mr. McAneney received
more than half a million dollars, at least $253,000 of which Ms. Cruz says
should go to her. The case is not expected to be decided anytime soon.
Sept. 11 has had other, less obvious legal effects. Some existing
lawsuits were prolonged because many lawyers were displaced from their
offices, their homes, or, in the case of Samuel Friedman, both. His
adversary in one case then sent letters directly to Mr. Friedman's clients,
a violation of lawyers' rules that helped lead to a substantial sanction,
now on appeal.
The day of the disaster was also primary day. After the election was
postponed, the New York City Campaign Finance Board imposed special rules
governing campaign spending that year. The board recently won a lawsuit
filed by a City Council candidate who had been penalized for violating those
rules.
And there are other cases, like the one filed by a woman who claims she
was improperly forced out of her job because of a disability, asthma,
exacerbated by the poor air quality downtown after the disaster.
Claims have also been made in old cases that crucial evidence was
destroyed in the disaster. The Port Authority of New York and New Jersey,
the owner of the trade center, tried to bring about the dismissal of a
lawsuit over injuries one woman suffered in an elevator accident in the
south tower back in 2000, in part because both the elevator and experts'
reports are gone. If the Port Authority does not prevail on appeal, the case
will go to trial in State Supreme Court in Queens, said Larry H. Weiss, a
lawyer for the plaintiff.
Many 9/11 lawsuits have been disposed of this year, decided by judges or
settled by plaintiffs and defendants. But history suggests that others may
be around for a decade or longer.
After all, earlier this year a State Supreme Court justice refused to
dismiss negligence claims against the Port Authority in what is known as the
World Trade Center bombing litigation. It deals with the first terrorist
attack on the trade center - the garage bombing in 1993.

September 11, 2004
As Deadline Crept Closer, a Rush to Sue Over Sept. 11
By JULIA
PRESTON
deadline yesterday for lawsuits related to the Sept. 11 attacks prompted
a rush to the New York federal courthouse where all such suits have been
filed.
Some lawyers did not rush quite fast enough.
Officials at the Port Authority of New York and New Jersey, the owner
of the World Trade Center, had said they would file a suit for damages
against Saudi Arabia, alleging that the Saudi royal family had supported
Al Qaeda in the years before 9/11.
But the suit did not arrive during business hours at United States
District Court for the Southern District of New York.
Port Authority officials said the suit would be left in a drop box
later in the evening, in order to meet the deadline set by the
three-year statute of limitations under New York law. The Port
Authority's suit would join the suit against Saudi Arabia filed Sept. 2
by Cantor Fitzgerald, the brokerage firm that lost 658 employees in the
attack.
"We also have a responsibility to the millions of people who live and
work in the region as well as to our bondholders to pursue every legal
avenue to recover the losses we sustained on Sept. 11," a Port Authority
statement said.
In the last two days, several insurance companies filed suits
claiming negligence against American Airlines, United Airlines and a
host of firms that were involved in security for the airlines and for
Logan International Airport in Boston, where two of the hijacked flights
originated. Those suits also joined omnibus insurance litigation that
has been concentrated under one federal judge, Alvin K. Hellerstein.
Lawyers for the insurance companies, which include Industrial Risk
Insurers of Hartford and Lloyd's of London, said they were not seeking
payments from the airlines, which have been suffering financially since
the attacks. A law passed by Congress shortly after the attacks limits
the airlines' liability to their insurance coverage.
"For our clients it's basically insurer versus insurer," said Paul
Butler, a lawyer in the Lloyd's suit.
Among those filing papers at the last minute, Lois Buxbaum, a New
York resident whose leg was injured by falling debris on Sept. 11,
finally decided that she should sue the World Trade Center, said her
lawyer, Kenneth F. McCallion.
Irving Morrison, also a New Yorker, filed another suit against Saudi
Arabia on behalf of all property owners in New York City. He is asking
for $900 trillion. |
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