N001967
Friday, January 18, 2002 12:26 AM
September 11 Vicitm Compensation Fund Comments
Attachment 1
Dear Mr. President, Senators Corzine and Torricelli, New Jersey Congressmen, Mr. John Ashcroft and
Mr. Kenneth Feinberg
My name is and I lost my 37 year old husband in the attack on the
World Trade Center on September 11. We have three children age 8, age 5 and age
3. I am devastated by the loss of my husband the sole bread winner in our family and am frightened by
the future and my ability to support myself and these children. I have attached a letter outlining my serious
concerns with the September 11th Victim Compensation Fund as currently written and beg you on behalf
of all the victims to treat each of us fairly.
I am specifically concerned about the very low figure for non-economic loss and remind you that my
husband was not engaged in a military operation nor was he a police or fireman. He simply went to work
one morning in his office building in the middle of NYC and never returned. These are extraordinary
circumstance and the American people deserve to be protected from this kind of attack. Because they
were not, I believe the government has the responsibility to compensate the victims at substantially higher
levels. Secondly, I believe the implied cap at a salary of 231,000 for economic losses does not treat
everyone fairly. This cap will result in hundreds of families who have already lost a loved one having to
explain to their children why they must sell their home and significantly alter their lifestyle in addition to
losing their father or mother. Finally, I believe the number and extent of collateral source reductions
creates a situation where many victims families will receive little or nothing from the fund and thus result in
law suites that the fund tried to limit.
I urge you to read my letter and make the changes that are recommended.
Sincerely
Individual Comment
Attachment 2
January 17, 2002
Dear Mr. President, Senators Corzine and Torricelli, New Jersey Congressmen, Mr. John Ashcroft and Mr. Kenneth Feinberg
I have read the letter that Congressman Marty Meehan sent to you on behalf of the victims. (Included below) I couldn’t voice my concerns and objections any better than he did in that letter.
Specifically I believe it is important to establish a substantial meaningful minimum that all victims will receive. The figure of $250,000 per person for non-economic damages is completely unacceptable and sends a statement to the victims that their losses are not valued in either a legal or humane way. I also want to voice my concern and bewilderment regarding why the incomes used to calculate awards have been capped at $231,000. I have read and re-read the original bill and I can’t find anything in it that required this type of cap on economic losses. I can only assume that this limit was set to appease those who object to the “government supporting these people.” Those who have this view need to be reminded that this bill was put in place primarily to protect the airlines and secondarily to address the fact that the victims would have no recourse to sue for just compensation. Please do not give into this pressure of public opinion. All of these families are entitled to be compensated for the full extent of their economic losses since they really have no other recourse at this point.
I urge you to do the very best that you can on behalf of all the victims. I believe that only swift action on the part of the Congress will prevent further suffering for these families. I have seen first hand how painful their situations are and how much they want to move on with their lives. However, they have a lifetime in front of them in which they must support their families who will need tremendous support and attention for years to come. By fairly and fully compensating them for non-economic and economic losses, you will enable them to move on with the rest of their lives.
Sincerely,
MEEHAN'S 1/14/02 LETTER TO MR. FEINBERG:
Dear Mr. Feinberg:
I am writing to provide comment on the interim final rules for the September 11th Victim Compensation Fund ("the Fund"). I appreciate the hard work you, your staff, and the Justice Department put into assembling the interim final rules. I also appreciate the fact that, under the interim final rules, charitable contributions to persons injured in the September 11th terrorists attacks or the relatives of those who lost their lives in this tragedy will not offset Fund awards. I had weighed in on that particular issue during the prior notice-and-comment period, in correspondence dated November 26th, 2001.
At the same time, I strongly and respectfully request that the interim final rules be modified to provide truly full and fair compensation for economic and non-economic harm incurred by victims of the September 11th terrorist attacks and their loved ones. I had emphasized the moral and practical imperative of providing full and fair economic and non-economic damage awards through the Fund during our meeting of December 13th, 2001.
Unfortunately, I do not believe the interim final rules achieve this objective. More importantly, those directly affected by the September 11th terrorist attacks consider the interim final rules to be seriously deficient and are -- quite understandably -- angry, hurt, and frustrated. A combination of unjustifiably low presumed non-economic damages awards, a flawed presumed economic damages formula, the collateral source offset rule, and an inappropriately steep evidentiary hurdle to securing modifications to presumed Fund awards will operate in many instances to prevent victims and their loved ones from receiving full and fair compensation -- and, on occasion, any compensation -- through the Fund.
This would frustrate Congress's intent, deprive some families of resources critical to their economic security, encourage litigation, and send entirely the wrong signal to these families regarding our government's and society's estimation and appreciation of the magnitude of their loss.
In the airline relief and airline security bills, Congress limited the courtroom liability of airlines, the airline industry, the World Trade Center, and other parties. It recognized that these liability limits – operating alone -- might deprive victims of the September 11th terrorist attacks and their loved ones of full and fair compensation for the terrible harms they have suffered. Thus, Congress created a government-funded program to provide full and fair compensation for the economic and non-economic harm suffered by victims and their loved ones, minus a narrow range of collateral source payments. Notably, it did not subject the program to the annual appropriations process. Rather, it funded the program through mandatory spending. In other words, the manifest intent of Congress was to ensure that the program fully and fairly valued the economic and non-economic harm suffered by victims and their loved ones -- federal budgetary and cost considerations notwithstanding. Indeed, this would not only benefit victims and their loved ones but also reduce litigation arising from the September 11th attacks.
Along these lines, the fact that courtroom litigation may be less attractive to victims and their loved ones due to the liability limits imposed by recently enacted federal law certainly does not support valuing economic and non-economic damages incurred by victims or their loved ones for purposes of the Fund at levels significantly lower than what one would secure in a successful courtroom action. Those liability limits instead make it particularly imperative that damages estimates under the Fund be full and fair. Again, this is not only good policy but also the clear intent of Congress. To achieve this objective, I respectfully urge you to modify the interim final rules to increase presumed non-economic damage awards to amounts that fully reflect the damages that Congress listed as compensable, correct any and all methodological and statutory interpretation flaws in the setting of presumed economic damages, and allow increases to presumed awards based simply upon a showing that such awards do not accurately reflect the damages incurred by victims and their loved ones (as opposed to requiring a showing of "extraordinary circumstances" for increases to presumed awards).
First, the presumed non-economic damages awards provided under the
interim final rules are substantially lower than those paid in comparable cases. Non-economic damage awards in considerable excess of $1 million are typical for other airline crashes and terrorism cases, but in this instance, presumed non-economic damages awards are limited to $250,000 per victim and $50,000 for a spouse and each dependent.This dramatic undervaluation of presumed non-economic damages runs contrary to Congress's general intent to provide full and fair compensation and, significantly, to the specific language of the law establishing the Fund, which lists an extremely broad array of non-economic damages for which victims and their loved ones are to be compensated(regardless of what may be allowable under state law).
This problem bears considerable responsibility for the fact that many victims or their loved ones would reportedly be severely under compensated or even receive no compensation under the Fund - potentially driving them to pursue litigation which, due to statutorily imposed liability limits, may shortchange them as well. The interim final rules can and should be fixed to increase presumed non-economic damages awards to amounts which properly reflect Congress's intent and are a more realistic assessment of the considerable pain and suffering endured by the victims of the September 11th terrorist attacks and their loved ones.
Second, a number of economists or experts have pointed out flaws in the interim final rules' methodology for calculating presumed economic damages. The use of outdated and improperly aggregated federal government data and the underestimation of household services performed by victims and of real increases in earnings by administrative support and clerical workers, among other things, has resulted in the unjustified and unnecessary under valuation of presumed economic damages. The interim final rules' cap on the level of income a victim may be considered to have earned per year for the purpose of calculating presumed economic damages awards serves to exacerbate this problem.
I strongly urge you to provide interested parties with all information that is necessary and useful to further evaluate the propriety of the interim final rules' presumed economic damages methodology and then correct all flaws that would tend to undervalue such damages. The fact that these are merely presumed economic and non-economic damages amounts - purportedly subject to upward adjustment based on specific Evidence of loss presented at hearings or through supplemental evidentiary submissions by victims or their loved ones - does not excuse flaws in their calculation. Rather, presumed awards should be based on the best available data and methodologies regardless of the hearing or evidentiary submission option. Indeed, the goal of providing accurate compensation expeditiously through the Fund is furthered by having properly justified presumed Fund awards, as this may diminish the need for hearings or supplemental evidentiary submissions in each and every case. It also may be overly optimistic to assume that each Fund claimant will be able and willing to present evidence at a hearing to correct inaccuracies in the presumed Fund awards in light of their individual circumstances.
Indeed, one can reasonably expect that some victims or their loved ones may, upon viewing inadequate presumed Fund awards, have little faith in the ultimate fairness of the hearing or supplemental evidentiary submission process and decide to forsake the Fund altogether. More importantly, the misplaced requirement contained in the interim
Final rules (though not contained in the statute establishing the Fund) that a Fund claimant demonstrate "extraordinary circumstances" through supplemental evidentiary submissions or at a hearing to justify increases to presumed Fund awards could serve essentially to "lock in" the unfair presumed economic and non-economic damage awards in any given case. Whether or not the presumed awards are fair, upward adjustments should be possible simply upon a showing by a claimant that a presumed award does not accurately reflect the economic and non-economic damages he or she has endured.
But this degree of flexibility is particularly essential if the presumed economic and non-economic damage awards would in many cases provide less than fair and full compensation. The "extraordinary circumstances" threshold, however, may prevent the accurate and individualized Fund awards intended by Congress, because while all victims and their loved ones have endured extraordinary hardships, it may be difficult for a single Fund claimant to establish that his or her circumstances are "extraordinary" relative to all other victims and their loved ones.
The hearing or supplemental evidentiary submission opportunities for victims and their loved ones must certainly be structured so as to afford them ample time and a convenient way to make their case. But even a properly structured hearing or evidentiary submission process would not remedy the difficulties arising from the inappropriately stringent "extraordinary circumstances" standard. Congress did not erect or envision any such obstacle to the award of accurate and individualized compensation to victims and their loved ones. Indeed, as Congress has considered bankruptcy reform legislation over the past few years, it has moved away from using an "extraordinary circumstances" threshold for permitting deviations from a grid of allowable expenses for debtors in favor of a standard that more readily accounts for debtors' particular economic circumstances. Accordingly, the "extraordinary circumstances" threshold should be modified.
I do appreciate the fact that the interim final rules will not offset Fund awards by the amount of charitable contributions received by a victim or his or her loved ones. I believe the collateral source offset provision of the law is misguided. To the extent the final rules do offset Fund awards by virtue of certain collateral source payments, I strongly urge that you construe the collateral source offset provision of the law narrowly, consistent with the tenets of proper statutory interpretation. In particular, amounts paid by victims or their loved ones to secure certain types of collateral source compensation -- for example, life insurance premium payments-- should be deducted from any amount considered to offset a potential Fund award. Likewise, where collateral source payments trigger new income or estate tax liability, that new tax liability should be deducted from any amount considered to offset a potential Fund award.
Thank you as always for your consideration and attention to these matters.
Sincerely,
Marty Meehan
Member of Congress