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Home / WTC Updates / The Bird in the Hand

The Bird in the Hand: Litigation Will Be Long, Uncertain Road for Sick WTC Responders — NY Daily News 10/25/10

Editorial - The Forgotten Victims of 9/11 are approaching the deadline for deciding if to accept a settlement offer in lawsuits against the city, Port Authority and some 100 Ground Zero contractors.

According to their lawyers, at least 75% of the roughly 10,000 claimants have agreed to accept a share of a recovery fund that could be as high as $760 million. Fully 95% must get on board for the deal to go through.

This page has been steadfast in trying to advocate for rescue and recovery workers who served their country after the terrorist attack and were sickened as a result by exposure to toxic dust.

Presently, we believe it is not our place to advise any individual regarding whether to accept the proffered settlement or continue in litigation.

What we can do is act as an honest broker of information, presenting the facts as we see them, difficult as those may be. Were New Yorkers to be polled, they would surely say the injured have been sorely treated by their country and deserve generous recompense.

If only the legal system and politics were so simple. They are not, and hard facts are inescapable.

The chances of increasing the settlement pool by any significant amount are slim to none.

The primary source of money is an insurance fund established by Congress a few years after 9/11. With a bit of a boost from the Port Authority, this is all there's going to be. Nor is there any likelihood that the plaintiffs' lawyers will reduce their 25% cut of the money.

Going to court in hope of reaping greater awards would be time-consuming and expensive in the extreme.

A suit over whether the Port Authority had immunity from the 1993 WTC bombing was not resolved until 2008. A suit against airlines stemming from 9/11 has yet to go to trial. Those matters were less complicated than this litigation, and neither entailed trying to run 10,000 cases through Manhattan Federal Court.

Each suit would have to overcome enormous legal obstacles.

The parties to these suits have presented Judge Alvin Hellerstein with more than 100 motions that demand answers. Any of them could sink a case - and one question could sink them all.

Still unresolved is whether the city and contractors hired to clean up the site have immunity because they were responding to an emergency. Maybe some do; maybe some don't.

The answers may depend on how soon after 9/11 claimants arrived at the site and where on the site they worked. The courts will not render an opinion until after a trial. That's a long way off, and a lot of risk at great cost.

There is hope that Congress will come through with greater compensation - but not before the Nov. 8 settlement deadline.

The House has passed the James Zadroga 9/11 Health and Compensation Act, which would provide health care and reopen a victims compensation fund. The Senate is to take up the bill sometime after the November election.

Claimants who settle may seek Zadroga funds.

The fund would calculate compensation. If the amount proved larger than a settlement recovery, the fund would pay the larger amount minus the settlement payment.

People who don't settle and march toward trial could apply for Zadroga, but they would have to stop suing within a limited time frame.

The choice would be simple: Stay in court or apply to the WTC victims' compensation fund.

The hard facts explain why neutral parties recommend that plaintiffs take the deal. Those include Hellerstein and Ken Feinberg, who administered the first victim's compensation fund and would hear appeals of the settlement awards.

Those same facts explain why former Firefighter Kenny Specht decided to take the deal. Few worked harder than Specht, who suffers from thyroid cancer, among other ailments, to block the deal as insufficient and unfair. But, as he explained in an Op-Ed piece in yesterday's Daily News:

"I can almost guarantee that this offer is the best it is ever going to get. To be very honest with you, I am not sure that holding out makes good sense. I'm not sure that a better offer will ever be something that is attainable. Is trial a better alternative? Possibly, but not probably. The possibility of years of litigation must be considered."

Those are the facts as faced by a no-nonsense man, and hard they are indeed.
http://www.nydailynews.com/opinions/2010/10/25/2010-10-25_the_bird_in_the_hand.html

Contact Barasch McGarry Salzman & Penson, PC online or at 888.351.9421 to discuss your case for free with a lawyer at our firm.

Barasch McGarry Salzman & Penson PC
11 Park Place, Suite 1801
New York, New York,, 10007-2811 USA
888.746.8212