Professional Documents
Culture Documents
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3 Philip Landrigan, MD (2002)
Lessons learned – Worker health & safety since 9/11/2001
The most massive acute environmental disaster that ever has befallen New York City.
The destruction of the twin towers released thousands of tons of toxic materials into the air
of lower Manhattan—asbestos, particulate matter, lead, soot, PCBs, and dioxins.
Workers and children were the groups at greatest risk of exposure.
4 Legislative response to 9/11
Air Transportation Safety and System Stabilization Act
49 U.S.C. § 40101
5 ATSSSA
All tort claims arising from the catastrophe
- venue in SDNY
- NY State law applies
Subject to liability limits
6 ATSSSA
Limited to available insurance the liability of
Airlines
owners and operators of the airports
manufacturers of the hijacked aircraft
7 ATSSSA
Title IV created the September 11 Victims Compensation Fund offered to replace tort liability
claims for immediate victims of the catastrophe.
8 ATSSSA
It is the purpose of this title to provide compensation to any individual (or relatives of a
deceased individual) who was physically injured or killed as a result of the terrorist-related
aircraft crashes of September 11, 2001.
9 ATSSSA - 9/11 Victims Compensation Fund
An alternative to tort claims
NY state law applied to opt-outs
SDNY venue
Duty owed to ground victims?
Proof of negligence
Immunities of governmental actors
10 ATSSSA PL 107-42 - waiver
(i)--Upon the submission of a claim under this title, the claimant waives the right to file a
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civil action… in any Federal or State court for damages sustained as a result of the terrorist-
related aircraft crashes of September 11, 2001
11 ATSSSA PL 107-42 Eligibility
(A) an individual who-- (i) was present at the World Trade Center, (New York, New York),
the Pentagon (Arlington, Virginia), or the site of the aircraft crash at Shanksville,
Pennsylvania at the time, or in the immediate aftermath
12 ATSSSA PL 107-42 Eligibility
(ii) suffered physical harm or death as a result of such an air crash; (B) an individual who
was a member of the flight crew or a passenger on American Airlines flight 11 or 77 or
United Airlines flight 93 or 175
13 ATSSA PL 107-42 (2001)
The Special Master shall review a claim submitted under subsection (a) and determine-- (A)
whether the claimant is an eligible individual under subsection [c]
14 ATSSA PL 107-42 (2001)
(2) Negligence.
--With respect to a claimant, the Special Master shall not consider negligence or any other
theory of liability.
15 (B) the special master shall consider
(i) the extent of the harm to the claimant, including any economic and noneconomic losses;
and
(ii) the amount of compensation to which the claimant is entitled based on the harm to the
claimant, the facts of the claim, and the individual circumstances of the claimant.
16 (5) ECONOMIC LOSS.
…any pecuniary loss resulting from harm (including the loss of earnings or other benefits
related to employment, medical expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment opportunities) to the extent recovery for
such loss is allowed under applicable State law.
17 (7) NONECONOMIC LOSSES
losses for physical and emotional pain, suffering, inconvenience, physical impairment,
mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship,
loss of consortium (other than loss of domestic service), hedonic damages, injury to
reputation, and all other nonpecuniary losses of any kind or nature.
18 ATSSA PL 107-42 (2001)
(6) Collateral compensation.
--The Special Master shall reduce the amount of compensation… by the amount of the
collateral source compensation the claimant has received or is entitled to receive as a result
of the terrorist-related aircraft crashes of September 11, 2001.
19 (4) COLLATERAL SOURCE.
means all collateral sources, including life insurance, pension funds, death benefit programs,
and payments by Federal, State, or local governments related to the terrorist- related
aircraft crashes of September 11, 2001.
20 ATSSA PL 107-42 (2001)
5) No punitive damages.--The Special Master may not include amounts for punitive damages
in any compensation paid under a claim under this title.
21 Limitations of air carrier liability
(a) In General.--Notwithstanding any other provision of law, liability for all claims, whether
for compensatory or punitive damages, arising from the terrorist-related aircraft crashes of
September 11, 2001, against any air carrier shall not be in an amount greater than the limits
of the liability coverage maintained by the air carrier.
22 The aftermath
The WTC disaster responders’ claims
An epidemic of industrial lung disease
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33 Vioxx®
Global settlement after bellwether trials in multi-state judicially managed product liability
litigation against Merck
34 Judicial management
MDL – Eldon Fallon, E.D. Louisiana
Mass tort judge – Carol Higbee, Atlantic County, NJ
Complex Civil Litigation Judge -Carolyn Kuhl, Superior Court – Los Angeles
“We never thought we would try all the cases, but there was a chance we would try another
500 cases." - Judge Higbee
35 Merck settled in 2007 after 18 bellwether jury trials
2/3 trials won by Merck (12/18)
Most defense wins based on individual causation
4 punitive damages awards
5 major awards of compensatory damages
3 awards of consumer fraud damages and attorneys fees
36 Agreement between Merck and plaintiffs lawyers
Lawyers agree to recommend settlement to 100%of their clients
If client refuses to join lawyer will terminate representation of client
85% of claimants must agree
MDL Steering Committee to oversee fund
Claim administrator retained
37 Official Vioxx Settlement Program (MDL Plaintiffs Steering Committee)
$4.85 billion settlement fund
Eligible claimants allege heart attack, stroke, or death and Vioxx use
93% of 47,000 eligible claimants enrolled
38 Set-offs, reductions, counsel fees
Capped at 32%
8 % to common benefit lawyers
Costs of litigation
Medicare and Medicaid liens
39 The Amended Agreement
WTC Debris Removal Litigation
40 WTC Litigation Process Agreement as Amended
The WTC Captive Insurance Company, Inc. and all of its insureds
AND
All Primary Plaintiffs and
Derivative Plaintiffs
with Debris Removal Claims against the Insureds or any of them
41 WTC Litigation Process Agreement as Amended
Hereby agree to the process set forth in this binding and enforceable [Agreement] for
settling Debris Removal Claims against the Insureds or any of them.
This Agreement shall take effect on the day upon which the last counsel to a Party executes
this Agreement
42 WTC Litigation Process Agreement as Amended
On the Effective Date, this Agreement will supersede the World Trade Center Litigation
Settlement Process Agreement executed by the Parties on March 11, 2010
43 WTC Litigation Settlement Process Agreement
I. DEFINITIONS
II. SETTLEMENT AMOUNT
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Pre-existing injuries
Age (inverse to age)
Last day of exposure
Duration of exposure
Smoking history
Location of exposure
54 Dispute resolution
Reconsideration requests to allocation neutral
Claims appeal neutral
55 XVI -Permanent Disability Fund
Award of permanent disability by
- an adjudicatory body
- comp carrier or company MD
- Medical Bd of NYFD
- Medical Board of NYPD
56 How Judge Hellerstein tamed the beast
2002 -2004 complaints filed: WTC site; WTC area; straddlers
2003 -remands all but pre 9/29 cases to state court
2005 2d Cir reverses (McNally)
2006 Extensive discovery proceeds
2007 SJ motions on immunity denied
2008 appoints special masters
2009 damages only bellwether trials planned
57 How Judge Hellerstein tamed the beast
2/2010 – selects bellwether cases
3/2010 rejects settlement as inadequate – demands counsel fees be cut; asserts control
over allocation neutral, etc.
4/2010 sets fairness hearing
Defense raises offer, counsel fees “voluntarily” reduced
6/10 Approves settlement(s)
Appoints Garretson, Feinberg and Simon
Disallows interest as costs
58 A quasi class action?
Inspired by Judge Weinstein – In re Zyprexa Products Liability Lit. 467 F. Supp. 2d 256
(2006)
Fairness hearings
Controlling counsel fees and costs
Public hearings post-settlement
59 FRCP 23 Class Actions
(a) Prerequisites….
(1) the class is so numerous that, joinder of all members is impracticable
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses
of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
60 Counsel fees and disbursements
Financing the litigation, cutting counsel fees
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