N002433
January 21, 2002
VIA FEDERAL EXPRESS
Mr. Kenneth L. Zwick
Director, Office of Management Programs
Civil Division United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Re: Victim's Compensation Fund
Dear Mr. Zwick:
Below please find our comments to the proposed interim rules.
Non Economic Loss:
The statute provides for non-economic loss. This includes 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. Each family is entitled to full and fair compensation for each element per the
enacted statute. The statute does not limit or cap the recovery of non-economic losses to a pre-
determined amount. Nothing in the statute allows the special master to make a pre-determined
amount of any of these damages. Additionally, the sum of $50,000 that he has determined is the
amount to be awarded, regardless of the circumstances is arbitrary, capricious, unfair and unjust.
The statute provides for hedonic damages, and for compensation for the pain and
suffering
of the decedent. It is not a matter of discretion. The pain and suffering of the victims of 9/11 is
unspeakable. Many of these people had to make the choice of dying in the flames or jumping to
their doom. The North tower took fifty-three minutes to collapse and the South tower took one
hour and forty minutes to collapse. Courts have awarded and sustained over one million dollars
for the pain and suffering of a decedent in an airline crash in a case where it was estimated that
the
suffering lasted only 12 minutes. Here, the awards should be multiples of that, not a flat amount
of $250,000.00, which is then subject to collateral offsets.
Economic Loss:
The proposed awards for economic damages are grossly inadequate. Contrary to the
Special Master's language, the statute does not make economic loss a needs based loss. Rather,
the statute simply states that economic loss is defined as: any pecuniary loss resulting from the
harm, including loss or earnings or other benefits relating to employment, medical expenses, loss
due to death, burial costs and loss of business or employment opportunities. The statute does not
give the Special Master the power to determine how much money a family "needs", it only
allows
him to calculate the actual loss sustained. There is nothing in the statute that allows the economic
loss to be limited to a pre-determined or presumptive amount. Nor does the statute have a "cap"
on earnings. The Special Master's arbitrary top amount of $231,000.00 is discriminatory to
those who have earned, through hard work, more than that amount.
The presumptive awards stated in the interim regulation for economic loss fail to set forth
the manner in which they were calculated. The economic calculations are supposedly based on a
variety of economic data, including, gross earnings, retirement age, tax rate, reduction of the
award to present value (using an unknown discount rate),as well as a reduction for personal
consumption (however, the regulations do not state what that consumption rate is.)
The determination of economic loss should be based on the actual earnings, as well as the
earning potential of each decedent. The Department of Justice relied on outdated work-life and
life-cycle data, and fails to address promotions and other increases in earnings for victims. Each
person's economic loss needs to be determined individually and not in mass.
Additionally, services to loved ones should be addressed, and other elements of employee
compensation, such as stock options must be recognized.
Burden of Proof
The burden of proof must be changed. The requirement that families must prove
"extraordinary circumstances" in order to receive more that the presumptive award is an
impossible standard to meet, and it is contrary to the statute. Again, this burden is discriminatory
to those individuals who had been financially successful.
The fund was designed to replace the tort system. The Special Master should look to the
law to guide him in determining a reasonable method of implementing the congressional intent
for
fair and reasonable compensation.
We would welcome the opportunity to speak with you in person with regard to our
submission.
Very truly yours,
Individual Comment
New York, NY