N001259
Thursday, January 03, 2002 10:52 AM
Sept 11 Victims Compensation Fund Interim Final Rules
The public needs to understand first and foremost that the main purpose
of the legislation was to protect the most obvious culpable parties from
the effects of legitimate lawsuits. Protecting culpable parties
legislatively, after they committed a negligent act, is nearly
unprecedented. However, challenges to this legislation on constitutional
grounds could take years, which is advantageous to the government and to
the entities it is protecting. The element of time is just one more
weapon in the government's arsenal for coercing families into accepting
an award that is not equitable. The public also needs to be aware that
the 'compensation fund' part of the legislation was created as an
afterthought, in recognition that the legislation had an adverse effect
on victims' families' rights as potential litigants. The legislation is
also an attempt to reduce the Federal government's exposure to litigation
costs, at the expense of its citizens.
Special Master Kenneth Feinberg now mentions a sum of $250K as a
'minimum' award, in reaction to the 'news' that many families would
receive nothing under his formula. He has used this benchmark before. It
is an amount that bears no relationship to the true value of these claims
in the tort system. There are statistics available showing that just a
single component of non-economic damages (loss of consortium to a wife in
a wrongful death claim) has a median value of $800K. Adding in the values
for the other components, such as conscious pain and suffering, loss of
enjoyment of life, etc,. elevates the value of each claim into the
millions. Mr. Feinberg has attempted to equate the value of these
wrongful death claims to those killed in the line of duty ($250K). Most
of the victims of September 11 were office workers who were in no stretch
of the imagination 'killed in the line of duty', a status which requires
voluntary exposure to risk of injury or death. Citing that as a benchmark
is a bald attempt to confuse the public. In order to be a fair
alternative to litigation, the compensation must have a relation to the
tort system which it is supposed to replace.
The families want the truth about culpable behavior to emerge so that
changes in evacuation procedures, building design, airport security
measures, etc., can be implemented in order to prevent future losses of a
similar kind. Not only errors but safer alternatives are often revealed
through the discovery phase of litigation, but the incentive families had
to pursue this goal has been drastically curtailed by the legislation.
The American public, not just the families, suffers from the consequences
of curtailed litigation. The legislation, in the words of Kenneth
Feinberg himself, "stacks the deck" against those who might chose to
litigate. What has been taken away from us and the America public is
momentous in its scope and extremely troubling in the precedent it sets.
That negligence acts occurred by a number of entities is fairly obvious.
The fact that the legislation imposed a cap on liability can be viewed as
an admission that families' lawsuits would have been highly successful.
There are ways to balance the injustice created by the legislation. There
should be independent, fact-finding committees appointed, whose goal is
prevention and/or mitigation of future similar catastrophes. Although the
government has tort immunity, committee fact-finding should extend beyond
the obvious targets such as the Port Authority and airlines to include an
expose` of government failures in intelligence-gathering. Along with
this, families should be awarded an equitable sum for their wrongful
death claims. The question then arises: How should that amount be
determined? Wrongful death claims are evaluated by juries, plaintiff and
defense attorneys and insurance companies every day. Statistics such as
the one mentioned above are readily available and are highly pertinent to
the situation, unlike Kenneth Feinberg's 'killed in the line of duty'
analogy.
Another, simpler way to correct the injustice is to simply amend the
legislation to eliminate the offsets. These specific types of offsets
(life insurance, 401Ks, pensions) not only penalized many families, they
have no counterpart in the tort system for which the Fund is supposed to
be an equitable alternative. The reason such offsets do not exist in the
tort system as such is because they would inure to the benefit of the
culpable party at the expense of the injured party, an illogical and
inequitable result.
The legislation and Kenneth Feinberg's rules and formulas as they
currently exist are unacceptable not only intellectually but also on an
emotional level. After "stacking the deck" against us, the message that
the members of the House and Senate, the DOJ and Mr. Feinberg continue to
deliver is that the lives of our loved ones are worth little or nothing,
thus exacerbating the immeasurable pain that began on September 11. The
families want to begin to heal, but instead we have been forced to become
embroiled in this and other controversies. We desperately hope the day is
near when justice will prevail and we can return to the privacy of our
individual loss and grief.
Individual Comment
Stamford, CT