September 9, 2004
In Nation's Courtrooms, Wounds From 9/11 Persist
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.