City of Dust

by Anthony DePalma

  Unlike the dust-covered tea set that became an unforgettable icon of the disaster, their lives cannot simply be rinsed and returned to normal. They may never be together in a single courtroom or congressional hearing or crowded hospital clinic, but they share a similar stake in the future. It will take a heightened sense of fairness and justice, not strict legal interpretations or bull’s-eye scientific proof, to do right by those who were claimed by the dust and whose lives were never the same afterward. The courts won’t resolve any of the legal puzzles about immunity, liability, or fault, even if a generous monetary settlement is ever reached. Lawsuits like this can go on indefinitely. Because the United States Supreme Court rejected attempts to cut off future claims in other cases, it is unlikely that any attempt to end the lawsuits against the city and the contractors would be successful here. New York is considered a second injury state, which means that even if a responder were to accept a settlement for respiratory injuries, the court would allow another lawsuit to be filed in the future if that same responder was diagnosed with another disease.

  At best, the long, tortuous road taken by the litigation, the millions of pages of documents, and the vast complex of lawyers and doctors and researchers that consumed so much time and money over the years can lay down a map of how to avoid some of the same obstacles next time. But it cannot provide answers. And without such answers being resolved, the obscuring cloud that settled over these issues can never be lifted.

  Trust collapsed with the towers, and dust buried the truth. To clear the air and set things right, certain absolutes need to be recognized. Those who are genuinely sick because of the dust should be given sufficient help, generously offered. Those whose lives have been shattered by the dust should receive fair compensation if the entitlements they are already receiving from insurance, pensions, and others sources are inadequate. Those who were exposed to the dust in any way should be monitored for as long as it takes to achieve a reasonable degree of certainty about the long-term effect of breathing in the pulverized remains of the trade center and everything—and everyone—it once held.

  For the others, those who are not sick or whose illnesses, unfortunate though they may be, cannot be scientifically linked to the dust, there will be no Superbowl victory to mark the time they stopped thinking of themselves as victims the way the people of New Orleans did in 2010. Only they ultimately have the power within themselves to clear away the distortions and rebuild perceptions of their own world. Taking nothing away from their hard work and sacrifices at ground zero, it may be necessary to accept that “What else could it be?” is not a valid medical diagnosis or a convincing legal argument. As the years since the attacks pile up, figuring out who is to blame becomes less important than trying to bring it all to an end and, in so doing, rid ourselves once and for all of the mistrust and confusion that were so tragically embodied in the dust.

  Endnotes

  1 Both the 2008 and 2009 annual reports are available at www.nyc.gov/html/doh/wtc/html/studies/medgroup.shtml.

  2 World Trade Center Medical Working Group of New York City, 2009 Annual Report on 9/11 Health, 24 September 2009.

  3 Personal interview, 30 July 2009.

  4 See http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h847ih.txt.pdf.

  Epilogue

  On the eve of the most bitterly contested trial in recent New York history, both sides in the massive ground zero lawsuit blinked. On a Thursday afternoon in early March 2010, lawyers announced that they had reached the comprehensive type of global settlement that Judge Alvin Hellerstein had been advocating so earnestly for so many years. The 70-page draft agreement that Hellerstein had alluded to in his courtroom a few months earlier, much to the surprise of lawyers, had morphed into 95 pages of excruciatingly detailed compromise, followed by an entire alphabet of exhibits detailing an elaborate scheme for putting a price on sickness without determining fault.

  With New York City straining for a way to bring this sorrowful chapter to a peaceful end, the proposal was instantly acclaimed. In a hastily organized round-robin of news conferences and interviews, lawyers for the plaintiffs, the defense, and the captive insurance company recognized the document as an imperfect solution, but one they believed addressed basic issues of fairness that would finally allow injured responders to receive the compensation they justly deserved. The draft deal triggered a citywide catharsis, finally bleeding off some of the bile that had soured New Yorkers since the earliest conflicts over safety and the meaning of the dust.

  The good feelings didn’t last long and largely evaporated when the dollar figures in the deal were examined more closely. In the years since David Worby had filed the first lawsuit on behalf of Det. John Walcott in 2004, the $1 billion that Congress had dedicated to insuring the city and its contractors had remained firmly fixed at the center of the litigation, and the draft settlement maintained that singular focus. The aggregate worth of the proposal, with all contingencies included, came to $657 million, leaving the captive insurance company with a reserve of around $350 million to cover future lawsuits. Despite having spent $200 million on the city’s defense since 2004, the captive fund still contained the original $1 billion, plus an additional $100 million, because some of the contractors’ private insurance companies had been forced to cover defense costs. The captive also had accrued interest on its holdings without making major payouts.

  Both sides were exhausted after so many years of legal skirmishes and finally gave in. The city’s immunity claim was still pending, but it made no sense to wait for Hellerstein to make tough decisions about the legal point he had skirted for years. And even though Worby and Paul Napoli had often told the court that the full $1 billion that Congress had put into the insurance fund was not enough, they had agreed to a far smaller amount just weeks after some of their benchmark cases began to fall apart under closer scrutiny. Had those cases gone to trial as scheduled on May 17, 2010, the first proceedings likely would have been Daubert hearings in which Hellerstein would have had to decide on the admissibility of the scientific evidence and expert witnesses that the plaintiffs planned to use to support their claims about the dust’s toxicity. James Tyrrell and the city’s legal team were prepared to aggressively challenge the plaintiff’s science, which Hellerstein had said all along he expected to be inconclusive, and that could have weakened the responders’ cases considerably.

  Not only had Worby and Napoli agreed to a smaller settlement amount, but they were sticking to the full fee schedule they had written into their contracts years before. They were to receive a third or more of every individual award, which meant that they stood to rake in more than $200 million of the total settlement. They had written in sweeteners to encourage responders to accept the offer, including an unusual cancer insurance policy with the Metropolitan Life Insurance Company. This insurance was intended to cover the responders’ fears of getting cancer in the future. Under the policy, they would receive up to $100,000 if they were diagnosed with leukemia, lymphoma, multiple myeloma, or certain other types of cancer before 2025. By writing the policy and agreeing to the terms of coverage over such a long period, Metropolitan seemed to be tipping its hand in the case. The potential liability of covering 10,000 plaintiffs exceeded $1 billion, whereas the company was being paid only $25 million. Apparently, Metropolitan had bet that this group of rescue and recovery workers did not face extraordinarily high risks of coming down with cancer, otherwise it wouldn’t have stuck its neck out to write the policy.

  The cancer policy also addressed the concerns of the city and its contractors about future liability. In order to be eligible for the insurance policy and to participate in the settlement itself, plaintiffs had to sign away their rights to sue for any injury—including cancer—that might arise in the future. Furthermore, the proposal would make it tough for new cases to be brought against the city because it required lawyers to first provide reasonable scientific evidence of a scientific link between illnesses and gro
und zero exposure, the kind of threshold criteria that Worby and Napoli never had to meet.

  Settlements can draw a line under a dispute but they don’t necessarily resolve anything. This agreement did not imply that the city had accepted blame for what happened, or that the responders had dropped their claims about the city’s negligence. Neither science’s questions about the relationship between dust and disease, nor the law’s questions about who was at fault, were answered. Nor did this settlement prevent new plaintiffs from coming forward. The big price tag, and the captive’s bountiful reserves, in fact may have attracted even more litigants. In just the first week after the draft settlement was announced, lawyers filed 600 new cases.

  Once again it seemed that the mistrust which had haunted New York since 9/11 was spreading through the city’s streets. While the lawyers praised the plan, rescue workers involved in the suit began to attack it. They complained of being pressured to opt in without knowing how much they would receive in compensation. They objected to the way the proposal excluded many diseases. They turned against their own lawyers when they realized that the Worby–Napoli team intended to take a third or more of the money. And many of the workers worried that accepting the terms of the settlement might preclude them from getting a better deal if the Zadroga bill were somehow approved in Washington. Just days after the draft settlement was announced, a House subcommittee approved the main provisions of the bill and moved it to the full committee. The New York congressional delegation worried that the settlement proposal would impede passage of the Zadroga bill, as representatives from other parts of the country questioned the need for it on top of the $657 million payout. But it turned out that the bill threatened the fate of settlement, as responders said they preferred to wait for the legislation to pass before signing. Under terms of the settlement, the 10,000 plaintiffs had 90 days to decide whether to accept the deal. The settlement wouldn’t take effect unless at least 95 percent of them signed on.

  Hellerstein said that because he had not been directly involved in the negotiations, he would temporarily stop the clock on the pending trials while he analyzed the settlement’s fairness and transparency. He also took the unusual step of opening his courtroom to anyone who wanted to tell him how they felt about the proposal. He wanted to provide the same kind of forum that he had offered the families of dead firefighters who had tried to sue the city over the faulty radios a few years before.

  On the day he threw open his courtroom to the public, Hellerstein listened to the tearful accounts of several plaintiffs—including John Walcott and Richard Volpe, Worby’s first clients. When former New York City detective Candiace Baker told Hellerstein that she’d had five surgeries already for breast cancer, Hellerstein asked her “What do you think my ruling should be?” Baker was flustered; she didn’t know how to answer. “Just be as sympathetic and compassionate as possible. That’s all I can possibly ask.” Another plaintiff, John Damato, said it would be good if the judge could get other defendants to join the settlement. Hellerstein responded, “A judge can’t get anyone to settle. That’s a matter of private conviction. All I can do is schedule trials and rule according to the merits.”

  Then Hellerstein did something that surprised even the most experienced attorneys who thought they’d seen everything. Reversing the normal decorum of a federal court, he rose slowly from his chair on the bench and addressed the lawyers and plaintiffs who remained seated before him.

  “I have no formal notes,” Hellerstein said in an even voice that reached to the back of the courtroom. Standing erect at the bench, he struck a pose of both humility and strength. “I speak, as it were, from the heart.”

  For much of the previous decade Hellerstein had presided over a multitude of ground zero cases, quietly listening to the families of the victims, to the wounded survivors, to the lawyers on all sides arguing fine points of law, as well as to emotional appeals to his humanity. Through it all he had tried to uphold what he understood were imperfect laws that often left innocent people feeling aggrieved, abused, and abandoned. He confessed that the years he had spent presiding over ground zero cases were the greatest burden, and the greatest challenge, of his life.

  “From the beginning I’ve felt that these [cases] are special, that the people who responded on 9/11 were our heroes,” he told those in the courtroom who sat in rapt attention to his words. “They cushioned the blow that was inflicted on our city, our state, our nation, and on each one of us as individuals.” He looked over at Walcott sitting in the second row of benches and said he understood that many people had been worn down by the fight and were tired of the delays, but what he was going to say next probably would delay things even further. In his black robe he looked like a short, bespectacled preacher addressing his uneasy congregation. He raised his right hand and admitted that his efforts at reaching a fair settlement of the cases had, in essence, failed. “In my judgment,” he said, “this settlement is not enough.”

  Some of the responders let out a short burst of nervous applause. No one was quite sure whether Hellerstein had invited such a reaction, or would use his power to eject whoever was responsible for the breach of etiquette. “No, I don’t want that,” he said. “I’m a judge. I’m not a negotiator. I’m giving my impressions.” After all the time he had spent shepherding the massive docket of cases forward, Hellerstein made it clear that he had no intention of just sitting idly by as a settlement was put into effect.

  While he had been sitting down, Hellerstein was a respected federal judge presiding over an enormously complex legal matter. But standing, he seemed to take on a far more public role, leaving behind the neutrality of the bench and taking up the cloak of advocacy. When he made the extraordinary offer to go to firehouses and meeting halls and personally explain the terms of the settlement, he stepped even further out of character. As Hellerstein became more animated, he turned more emotional. He had stinging criticism for nearly everyone involved in the litigation. He accused Tyrrell and the captive insurance company of defending the city with such rigor and aggressiveness that they left “no bridge unburned and no field unravaged.” He charged the captive with fueling the extravagant defense. He complained that Napoli had given far too little scrutiny to claims of illness when he signed up clients, adding many simply because people said they were sick without subjecting them to any tests. But he defended Napoli’s work and said it had been conducted at great expense. It would be unfair to expect the plaintiffs to pay such a large percentage of their awards to defray those costs, Hellerstein said. Instead, he also seemed to view the $1 billion plus captive fund as found money that ought to be spent. Just as the captive was going to pay the city’s expenses, he said, so too should it pay the plaintiffs’ fees. The unaccustomed sound of applause again arose inside courtroom’s wood paneled walls.

  “No, no. I don’t want this. This is not a political speech,” Hellerstein objected, gesturing subtly with his hands, so that he looked every bit a politician. It wasn’t clear exactly what the judge’s remarkable address was supposed to be, or what he would say next. He vowed to cap the plaintiffs’ lawyers’ fees at reasonable levels and submit the bills to the captive. He wanted the Talmudic draft to be simplified so that workers would know how much they would receive before they decided whether to participate. And Hellerstein wanted the captive to reconsider whether it legitimately needed to reserve so much of the $1 billion for future claims. He said that current needs might well be more important than future ones, and seemed to kick the can down the road, implying that if more money is needed, the city could go back to Congress.

  Hellerstein’s greatest concern as he promoted a settlement always had been to make sure that those who were most severely injured received the bulk of the compensation. He knew that with 10,000 plaintiffs in the pool, even large amounts of money would dwindle to modest individual payments unless he found a way to skim off cases that had little scientific backing. Hellerstein had so far said little about the science involved in linking t
he dust to disease. He told the courtroom that he was severely disappointed that the settlement had discarded the computerized database that he had compiled, with the great effort of the special masters, in favor of an entirely new severity chart. In the midst of all the hyperbole and misinformation surrounding the impact of the dust, the special masters’ work had sharply delineated what was known about cause and what, lacking hard proof, was considered scientifically implausible.

  Although it had not been made public, the special masters’ analysis had brought a new perspective to the cases. They had shown that the number of rescue and recovery workers who were seriously ill was far lower than the tallies that Worby and Napoli had claimed. The database contained reports of 61 deaths, 110 heart attacks, and 807 instances of cancer. The most common cancer on the list was skin cancer (188), followed by lung cancer (107) and lymphoma (95). In all, the list covered 57 different types of cancers, including many rare types such as endocrine, vaginal, and penile cancers that had been reported by one or two plaintiffs in the years since 9/11 but that had little or no suspected linkage to the dust.

  In addition, the special masters had reported that 2,918 plaintiffs had no illness or impairment that could be categorized on the severity chart. Some had not even submitted medical records to indicate that they had consulted a doctor or been tested about their condition. The special masters surmised that these plaintiffs might have declined to take the tests because they expected to rank quite low on them, which would have handicapped their chances of receiving compensation. Hellerstein finally came out that day in court and said what he had long suspected, and what he had hoped the special masters would have helped him establish—there were too many cases with too little evidence backing their claims. That raised the question of motivation, and that clearly upset Hellerstein.