W000764
November 26, 2001
Honorable John Ashcroft
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
We submit these comments to you on behalf of the New York State Trial Lawyers
Association (NYSTLA), in response to your request for commentary on issues related to the
promulgation of regulations under the Air Transportation Safety and System Stabilization Act
(now Public Law 107-42). The regulations would implement the "September 11th Victim
Compensation Fund," which was established by P.L. 107-42 as an alternative to bringing a civil action against any parties (other than the international terrorists who perpetrated this horrific crime) whose negligent conduct may have resulted in the failure to prevent this crime or may have worsened the terrible harms that occurred as a result of the crime.
The attacks on the World Trade Center and the Pentagon were attacks on all of us as
Americans. They were assaults on a massive scale that this country has never experienced
before. Three members of NYSTLA's staff were witnesses to the World Trade Center attack.
Two of our staff members were so close to the towers when the attack occurred that debris fell on them. When the towers collapsed, we opened our doors to the people who were fleeing through the streets from the black cloud of dust, shepherding them into our legal education classroom so that they could drink some water to help recover from the smoke and try to call their loved ones. We are deeply and personally aware of the huge scale of this attack and its devastating effects, and we are reminded daily of the horror of this event because of the smell from the still smoldering site.
Motivated by this experience, we are deeply concerned for the plight of the families
affected by this atrocity. Our comments therefore are submitted in the spirit of hope that this program will provide the full relief contemplated by Congress and include the full range of victims of the attack or whom Congress intended to provide this relief.
As you may already be aware, NYSTLA has been at the forefront of an unprecedented
pro bono effort to help September 11th victims and their families, having issued a statement
within days of enactment of the "September 11th Victim Compensation Fund" - a vow to
represent for free anyone intending to make a claim to the Fund for compensation. Ever since, we have been working closely with the Association of Trial Lawyers of America (ATLA) to make sure that every claimant has the benefit of skilled, experienced, free counsel. All attorneys volunteering for this work meet strict qualifications for experience and training and have pledged not to represent any September 11th victim for a fee either in a claim against the Fund or in any lawsuit.
Our comments will focus on two key questions: who is covered by the Fund, and how
compensation will be determined.
WHO IS COVERED BY THE FUND
We believe that Congress intended that the Fund would cover all of the people who were
physically injured or killed as a result of the terrorist attack. We therefore urge the Department of Justice to establish regulatory provisions to clarify that the statute covers the people who were injured or killed as a result of the destructive force of the plane crashes and the collapse of the towers, and also those who have been injured while carrying out the truly challenging job of rescue and recovery on the site.
(1) Coverage of the People Injured by the Attack
Because the towers themselves were so extraordinarily tall, and because the planes hit
with such extreme force, the impact of debris was much more widespread than one might
ordinarily assume. For example, the two NYSTLA staff members who encountered falling
debris (but fortunately were not injured) were walking at least a block and a half away from the towers; also a large chunk of metal from a jet engine fell on lower Murray Street, which is three to four blocks away. Clearly, the "site" of the attack was not limited only to the footprint of the buildings.
The statute states that the Fund will cover injured persons who were "present at" the
WTC, Pentagon or Pennsylvania crash site. We believe that Congress intended this to include all of the people who were injured by glass, metal or other harmful material from the explosive impact of the attack. We therefore recommend that the regulations define the term "present at" to include any person who was in such proximity to the site that the person suffered physical harm.
(2) Coverage of the Rescue and Recovery Workers
Immediately after the attack, heroic and seemingly tireless ironworkers, firefighters, and other rescue and recovery workers rushed to the site to try to recover any surviving victims or, for the peace of mind of the bereaved families, the bodies of loved ones. This work, tragically, has taken much longer than most of us probably expected, in part because the site itself remains so hazardous. The site is still hot and smoldering; this means that the work remains treacherous. The people who continue, with truly inspiring dedication, to perform that heart-breaking recovery work at the site must not be left without compensation for harm that they suffer while performing this hazardous yet necessary task.
We believe that Congress intended to include the courageous and dedicated rescue and
recovery workers within the scope of the Fund. The statute states that the Fund will cover people injured in the attack or in the "immediate aftermath". The regulations should provide a definition of "immediate aftermath" to include the period within which authorized persons make efforts to rescue victims or recover human remains from the site. In other words, it should cover injuries suffered by the rescue/recovery workers.
HOW THE SPECIAL MASTER WILL DETERMINE COMPENSATION AND THE
SCOPE OF HARMS TO BE ADDRESSED
Your request for commentary included several questions regarding how compensation
will be calculated. We hope that the following comments will be helpful in your determination on those questions.
(1) Charitable gifts
Congress listed very specifically, within the statute itself, what sources would be
considered collateral sources for the purposes of the Fund. At the time that they established this Fund, the members of Congress were well aware that people throughout the country were making substantial charitable contributions to help the families affected by the September 11th attack. If Congress had intended to include charities as a collateral source, it most certainly would have done so.
As a policy matter, reducing the Fund's compensation by the amount of charitable gifts
that a family received does not make sense. The people who were most directly harmed by the
September 11th attack experienced a double injury, both the physical injury or emotional loss from the physical impact of the attack itself and the terrorizing impact of being the direct victims of an act of intense hatred. Their injury is far greater than the amount of compensation that they could obtain either in court or from this Fund, so there is no issue of unfair "enrichment" in this case. These people have suffered a loss that no one else who has not been the innocent victim of such a colossal act of hatred can ever fully understand. Also, the public-spirited Americans across the country who gave to these families did so not only out of compassion for the people who were injured but out of anger at the perpetrators and out of a need to communicate solidarity with the victims, who were the brunt of an attack that actually was directed against all Americans. Congress clearly did not want to interfere with the intent of the donors making these gifts.
We therefore urge that the Department of Justice adopt regulations consistent with the
plain legislative intent of Congress not to subtract charitable gifts from the compensation
provided under this Fund.
(2) Treatment of Other Collateral Sources
The regulations should make it clear that any source of funds for which there is a right of subrogation - such as Workers Compensation - should not be subtracted from the damages award. Otherwise there is a danger that families could, in effect, lose that money twice - once when the Special Master subtracts it from the award and again when the compensation carrier exercises the right of subrogation to "recover" the amount from the victim or victim's family.
Only collateral sources that correspond to a particular item of damages recoverable under the Fund should be deducted, and only future collateral sources to which the victim or personal representative has an enforceable vested or contractual right should be considered for deduction. These are general principles of common law that have been the subject of a well-developed body of case law in New York. If the Fund treats collateral sources in a way that runs counter to this principle, it will fail to carry out the intent of Congress that the Fund be a viable and attractive alternative to bringing civil actions.
We further note, that life insurance, while included as a collateral source under the
statute, is a privately contracted benefit for which the person may have paid many years of
premiums. Those premium payments should be deducted from the total insurance award to
reflect the actual net benefit that the victim's family received in order to determine the true amount of the insurance benefit before it is deducted from the compensation award.
(3) Determination of Compensation
Congress clearly intended this Fund to be a positive choice for claimants as an alternative to bringing a civil action. We therefore note that the regulations should not establish any "one-size-fits-all" list of damages. Each claimant should be treated as an individual, just as he or she would be in court. If the families affected by this attack on our country are giving up their right to access America's judicial system to hold accountable those who failed to take reasonable (and indeed, in many instances, quite obvious) measures to help prevent those attacks, they should not be asked to give up the right to be treated as individuals in determining how they were harmed by this horrible event.
(4) Issue of Long-term Injuries
At this point, we have no idea what the long-term consequences will be for people who
were affected by the September 11th attack. Physical injuries that have already surfaced may develop unforseen complications. Also, people may have been exposed to harmful levels of toxic chemicals and may suffer health consequences from that exposure decades from now.
Unless special provision is made in the regulations for such delayed impacts, people will be limited by the very short two-year deadline for submitting claims to the Fund. This is a full year shorter than the statute of limitations for most injury claims in New York State, and does not take into account New York's date of discovery rule for toxic-substance-related injuries.
Since the goal of this statute clearly is to create a sufficient alternative to civil actions that people will choose to access the Fund rather than pursue a court action, it would be consistent with and in furtherance of Congress's intent to establish a "reopener" to address long-term harms that have not yet become manifest and therefore, through no fault of the person bringing the claim, could not have been raised during the two years after the attack.
(5) Structure of the Decision-making Process
As a final point, we urge that the Department of Justice establish regulations that provide the Special Master with the practical and necessary authority to supervise properly the implementation of the Fund. In particular: (1) decisions of the hearing officers should be subject to review by the Special Master on request by the victim or the victim's personal representative; (2) the hearing officers should be former judges with long-term experience adjudicating trials in the civil justice system; (3) the decisions themselves should be set forth in writing, providing a reasoned elaboration of the decision that also provides a detailed explanation of the specific items included with the award and any collateral source deductions. This is the only way to ensure accountability and consistency in the interpretation of the provisions of the statute.
We thank you for your consideration of these comments and look forward to participating
as volunteers in the implementation of this important Fund for the benefit of the September 11th victims and their families.
With sincere regards,
Comments by:
New York State Trial Lawyers Association