N002532
January 19, 20002
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 the Interim Regulations for Implementation of
the "September 11th Victim Compensation Fund" (Air Transportation Safety and System
Stabilization Act, Public Law 107-42) on behalf of the New York State Trial Lawyers
Association (NYSTLA). The Fund was established as an alternative to bringing a civil action
against any parties (other than the terrorists who perpetrated this crime) whose negligent
conduct may have resulted in the failure to prevent this crime or may have worsened the
harms that occurred.
At NYSTLA, we are deeply and personally aware of the huge scale of the September
11th attack and its devastating effects. As we noted in our first set of comments, some
members of NYSTLA"s staff witnessed the World Trade Center attack and were near the
towers when the attacks occurred. When the towers collapsed, we opened our doors to
people who were fleeing from the dark 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. Day after day thereafter, we watched the rescue and
recovery workers returning to the site to carry out their difficult and often hazardous labors.
We are deeply concerned for the plight of the families and rescue workers affected
by this atrocity. We believe it is critical to ensure that this program provides the full relief
contemplated by Congress and includes the full range of victims of the attack for whom
Congress intended to provide this relief.
As you know, NYSTLA has been at the forefront of an unprecedented pro bono
effort to help September 11th victims and their families. We have been working closely with
the Association of Trial Lawyers of America (ATLA) to make sure that any eligible person
who is considering making a claim under the Fund has access to skilled, experienced, free
counsel to provide advice regarding whether or not the Fund is that person's best option
and free legal representation in bringing a claim under the Fund if that is the person's
choice. 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.
These new comments again focus on two key questions: who is covered by the
Fund, and how compensation will be determined.
WHO IS COVERED BY THE FUND
At the outset, we would like to express concern that the interim Regulations and
Eligibility Form require any individual who submits an eligibility form requesting advance
payment to waive his or her right to bring a civil action-before the Special Master has even
determined that the person is eligible for the Fund. The statute requires such a waiver only
for those claimants who apply to the fund. An eligibility form is not an application, and it
is entirely unfair to require people to waive their civil justice rights even if they are
found to be ineligible. This leaves the injured person with no remedy at all. We urge the
Department to revise its Interim Regulations to establish that a person's civil justice rights
are not waived until the person is found eligible.
We also urge the Department of Justice to revise its Interim Regulations to ensure
that the FUND covers: (1) all of the people who were physically injured as a result of the
destructive force of the plane crashes and the collapse of the towers, and (2) the rescue
and recovery workers who were injured while carrying out their heroic and difficult work. We
believe that Congress intended that the Fund would cover all people who were physically
injured or killed as a result of the terrorist attack.
(1) Coverage of the People Who Were Outside the Towers
We are pleased that the definition of "present at" includes "any area contiguous to
the crash sites that the Special Master determines was sufficiently close to the site that
there was a demonstrable risk of physical harm" (Section 104.2[e]), As we noted in our
prior comments, because the towers 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. This definition is reasonable and appropriate.
(2) Coverage of People Who Were Physically Injured
Unfortunately, the Interim Regulations define "physical harm" so unreasonably that
people who suffered injury may be denied relief, contrary to the pain intent of Congress,
Under Section 104.2(c) of the Interim Regulations, no injured person is eligible for
compensation unless the person was treated by a medical professional within 24 hours of
injury or rescue. This arbitrary definition could exclude people for several reasons:
- People who suffered injury may have been too concerned about the safety of
their children to seek medical care for themselves, and may have gone home or
to their child's school to ensure that their children were safe, putting off their own
necessary medical care until the next day.
- Others might simply have been in too much shock to recognize or cope with their
own injury immediately.
- - Still others might not immediately have known that they were injured. Some
medical conditions-such as brain injuries, herniated discs and compression
fractures-may not become apparent for weeks after the injury itself occurred.
Section 104.2(c) of the Interim Regulations further require that the injured person
must have been hospitalized as an in-patient for at lest 24-hours, or else have suffered
temporary or permanent partial or total physical disability, incapacity or disfigurement. Both
requirements are in appropriate.
The requirement of 24-hour hospitalization is unrealistic and out-dated, because:
- - many conditions today are no longer treated in hospitals but in doctors' offices,
clinics or other facilities;
- - hospitals today send people home within a few hours even after performing
surgery; and
- - on September 11th, many hospitals were trying to clear beds in the tragically
mistaken belief that they would be flooded with injured people (instead, most of
the people who did not escape injury died).
Unfortunately, the alternative requirement of disability, incapacity or disfigurement fails to
make this Interim Regulatory provision reasonable because it is too narrow. People can
suffer physical injuries that are extremely painful without being disabled, incapacitated or
disfigured. It would be harsh, unfair and contrary to the intent of Congress to deny such
people compensation under the Fund.
The requirement that the Physical injury "must be verified by contemporaneous
medical records created by or at the direction of the medical professional who provided the
medical care" (Sections 104.2[c][2] and 104.21[3][iv]) is unfair and unrealistic, especially
under the conditions of crisis that existed on September 11th and 12th
(3) Coverage of the Rescue and Recovery Workers
The statute covers those injured during the attack and in the "immediate aftermath."
We all know that 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, took much longer than most of us probably expected, in part
because the site remained so hazardous for such a long period. It was reportedly, the
longest burning building in American history. Until only just a few weeks ago, t he site was
still hot and smoldering.
The people who continued, with truly inspired dedication, to perform that heart-
breaking recovery work must not be left without compensation for harm that they suffer
while performing this hazardous yet necessary task. Unfortunately, Section 104.2(B) of the
regulations defines "immediate aftermath" to terminate just 96 hours after the crashes.
We believe that Congress Intended to include the courageous and dedicated rescue
and recovery workers within the scope of the Fund. Given that Congress limited the liability
of the City for Injuries related to the September 11th attack, it is especially critical that the
rescue works be covered by the Fund for their injuries. Our country should not abandon
these heroes.
HOW THE SPECIAL MASTER WILL DETERMINE COMPENSATION AND THE SCOPE
OF HARMS TO BE ADDRESSED
Congress clearly intended that this Fund for the victims of the September 11th attack
and their families be a positive alternative to a civil action. The regulations therefore should
not establish any "one-size-fits-all" list of damages. Each claimant should be treated as an
individual. Those who bring claims under the Fund give up their right to access America's
judicial system to hold accountable those who failed to take reasonable (and indeed, in
some instances, quite oblivious) 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 terrible event.
The following comments address the provisions that establish how compensation will
be calculated.
(1) The Presumed Compensation for Noneconomic Damages Is Very Inadequate
"Non-economic" damages compensate for real-life harm such as having to live with
the loss of a limb, permanent disability, or disfigurement, pain and suffering, loss of
consortium and grief. The plan to limit such compensation in most cases to a mere
$250,000, for injured victims, would be unfair to those who are suffering the most. It is
especially inadequate to compensation a person who has suffered a permanent physical
disability, or an injury that will cause pain and discomfort for many years to come. Such
devastating harm should not be minimized.
This planned limit also is terribly unfair to the bereaved families. According to the
National Center for Victims of Crime, family members who are bereaved as a result of a
crime rather than, for example, a death caused by a medical condition, generally suffer a
broader range of emotional reactions and also remain in grief for a longer period. The
fairies who are bereaved because of the September 11th terrorist attack have suffered a
great emotional loss, compounded by the shock of having been victimized by the most
terrible crime in our country's history. These bereaved fairies also will be faced with
repeated and often graphic visual reminders of the horrifying events of September 11th for
many years to come, as this day lives on in our country's memory and in the news media.
The amount suggested as compensation to these people is completely unjust and
disrespectful.
As a matter of basic fairness, it is simply unreasonable to pay large economic
compensation to high-earner's families and low economic compensation to families of
seniors or low income victims, while failing to recognize that all of them have suffered a
great emotional loss. In the case of a deceased parent, moreover, limiting non-economic
damages to $250,000 and $50,000 for each dependent fails to acknowledge the vital role of
the parent in providing years of guidance, love and care to the child.
(2) Subrogation
We agree that the regulations should make it clear that any source of funds for
which there is a right of subrogation not be subtracted from the damages award (Section
104.63). 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 a party exercises
the right of subrogation to "recover" the amount from the victim or victim's family.
(3) Life Insurance Premiums Should Be Deducted from Life Insurance Award
Life insurance, while included as a collateral source under the statute, is a privately
contracted benefit for which the deceased person or the person's spouse may have paid
many years of premiums. We do not believe that it was Congress's intent to penalize
people for being responsible in providing for their families by, in effect, causing them to lose
their premiums twice.
Unfortunately, § 104.47(a) of the Interim Regulations does not yet take this concern
into account. The 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.
(4) Need to Clarify How Collateral Sources Will Be Deducted
Only collateral sources that correspond to a particular item of damages recoverable
under the Fund should be deducted, and each collateral source should be deducted only
from the amount of that corresponding item of damages. Also, only future collateral source
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.
The Interim Regulations, unfortunately, fail to state how collateral sources will be
deducted. If the Fund treats collateral sources in a way that runs counter to the common
law principles stated above, it will fail to carry out the intent of Congress that the Fund be a
viable and attractive alternative to brining civil actions. We therefore urge amendment of
the Regulations to incorporate those principles.
(5) Charitable gifts
We agree that charitable gifts should not be designated as collateral sources and
subtracted from the amounts granted by the Fund (Section 104.47[b][2]). 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.
(6) Need to Compensate for Long-term Injuries Not Yet Discovered
No one yet knows 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 many years from
now.
The two-year deadline for submitting claims to the Fund not only is a full year shorter
than the statute of limitations for most injury claims in New York State, but also is completely
unreasonable if the regulations fail to allow a date-of-discovery rule, especially for toxic-
substance-related injuries (such as exists under New York State law). Since the statute is
intended to create a sufficient alternative to civil actions so that people will chose to access
the Fund rather than bring their claim in court, the regulations will not carry out Congress's
intent unless they include a "reopener" to address long-term harms that have not have been
raised during the past two years immediately following the attack.
(7) Need for Oversight of Hearing Officers' Decisions
As a final point, we are very concerned that the Interim Regulations do not provide the
Special Master with the practical and necessary authority to supervise properly the
implementation of the Fund. In particular, Section 104.31should provide that:
(1) Decisions of the hearing officers be subject to review by the Special Master on
request by the victim or the victims's personal representative; this is particularly
critical because the hearing officers' decisions cannot be appealed to a court
even if they are inconsistent with the regulations or the statute; and,
(2) The regulations should also clarify that the decisions of the hearing officers must
be set forth in writing and must provide a reasoned elaboration of the decision,
and a detailed explanation of the specific items included in the award and any
collateral source deductions.
Provisions establishing the right of review of hearing officer decisions and requiring a reasoned
elaboration of the decision are essential to ensure accountability and consistency in the
interpretation of the provisions of the statute and also to foster public confidence in the
process.
As a final note, the Interim Regulations should be revised to ensure that the information
provided by undocumented aliens who were injured or bereaved by the terrorist attacks is not
used against them by the Immigration and Naturalization Services (INS) or other government
agencies. It is critical to establish strict protocol to ensure that information about such victims
applying to the Fund as a result of the terrorist attack is not shared by the Department of
Justice or obtained and used by the INS.
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,
HC/DG:sm
Comment BY:
NEW YORK STATE TRIAL LAWYERS ASSOCIATION