P000066
Sent: Thursday, January 24, 2002 10:44 AM
Subject: myfriendcathy
To Kenneth R. Feinberg,
I am writing on behalf of my friend, , whose husband
was killed in the World Trade Center on September 11th.
Like many others worked as a bond trader at on the
floor. now has three small children ages 3, 5, and 7 to care
for and support alone. I am writing to express my serious concerns and
objections to the Department of Justice's (DOJ) "Interim Final Regulations
Governing Payments Under the September 11th Victim Compensation Fund."
I have read the letter that Congressman Marty Meehan sent to you on behalf
of the victims. I could not voice my concerns and objections any better than
he did in his letter. I urge you to consider his objections and
recommendations.
Specifically I believe it is important to establish a substantial, meaningful
minimum that all victims will receive. The figure of $250,000 per person
for non-economic damages is unacceptable and sends a statement to
the victims that their losses are not valued in either a legal or humane
way. I am as to bewildered why you have capped the incomes to be
used in the calculations at $231,000. I cannot find anything in the original
bill that
requires this type of cap on economic losses. I can only assume that this
limit was set to appease those who object to the "government supporting
these people." Those who have this view need to be reminded that this bill
was put in place primarily to protect the airlines and secondarily to
address the fact that the victims would have no recourse to sue for just
compensation. Please do not give into this pressure of public opinion. All
these families are entitled to be compensated for the full extent of
their economic and non-economic losses. They really have no other
recourse at this point.
I realize that you have a tremendously difficult job to do in balancing
everyone's needs and concerns. I urge you to do the very best that
you can on behalf of all the victims. I have seen first hand how painful
their situations are and how much they want to move on with their lives.
However, they have lifetimes in front of them in which they must support
families that will need tremendous care and attention for years to
come. By fairly and fully compensating them for non-economic and economic
losses, they can move on with the rest of their lives.
Sincerely,
Individual Comment
South Orange, NJ
MEEHAN'S 1/14/02 LETTER TO MR. FEINBERG:
Dear Mr. Feinberg:
I am writing to provide comment on the interim final rules for the September
11th Victim Compensation Fund ("the Fund"). I appreciate the hard work you,
your staff, and the Justice Department put into assembling the interim final
rules. I also appreciate the fact that, under the interim final rules,
charitable contributions to persons injured in the September 11th terrorists
attacks or the relatives of those who lost their lives in this tragedy will
not offset Fund awards. I had weighed in on that particular issue during the
prior notice-and-comment period, in correspondence dated November 26th, 2001.
At the same time, I strongly and respectfully request that the interim final
rules be modified to provide truly full and fair compensation for economic
and non-economic harm incurred by victims of the September 11th terrorist
attacks and their loved ones. I had emphasized the moral and practical
imperative of providing full and fair economic and non-economic damage awards
through the Fund during our meeting of December 13th, 2001.
Unfortunately, I do not believe the interim final rules achieve this
objective. More importantly, those directly affected by the September 11th
terrorist attacks consider the interim final rules to be seriously deficient
and are -- quite understandably -- angry, hurt, and frustrated. A combination
of unjustifiably low presumed non-economic damages awards, a flawed presumed
economic damages formula, the collateral source offset rule, and an
inappropriately steep evidentiary hurdle to securing modifications to
presumed Fund awards will operate in many instances to prevent victims and
their loved ones from receiving full and fair compensation -- and, on
occasion, any compensation -- through the Fund.
This would frustrate Congress's intent, deprive some families of resources
critical to their economic security, encourage litigation, and send entirely
the wrong signal to these families regarding our government's and society's
estimation and appreciation of the magnitude of their loss.
In the airline relief and airline security bills, Congress limited the
courtroom liability of airlines, the airline industry, the World Trade
Center, and other parties. It recognized that these liability limits -
operating alone -- might deprive victims of the September 11th terrorist
attacks and their loved ones of full and fair compensation for the terrible
harms they have suffered. Thus, Congress created a government-funded program
to provide full and fair compensation for the economic and non-economic harm
suffered by victims and their loved ones, minus a narrow range of collateral
source payments. Notably, it did not subject the program to the annual
appropriations process. Rather, it funded the program through mandatory
spending. In other words, the manifest intent of Congress was to ensure that
the program fully and fairly valued the economic and non-economic harm
suffered by victims and their loved ones -- federal budgetary and cost
considerations notwithstanding. Indeed, this would not only benefit victims
and their loved ones but also reduce litigation arising from the September
11th attacks.
Along these lines, the fact that courtroom litigation may be less attractive
to victims and their loved ones due to the liability limits imposed by
recently enacted federal law certainly does not support valuing economic and
non-economic damages incurred by victims or their loved ones for purposes of
the Fund at levels significantly lower than what one would secure in a
successful courtroom action. Those liability limits instead make it
particularly imperative that damages estimates under the Fund be full and
fair. Again, this is not only good policy but also the clear intent of
Congress. To achieve this objective, I respectfully urge you to modify the
interim final rules to increase presumed non-economic damage awards to
amounts that fully reflect the damages that Congress listed as compensable,
correct any and all methodological and statutory interpretation flaws in the
setting of presumed economic damages, and allow increases to presumed awards
based simply upon a showing that such awards do not accurately reflect the
damages incurred by victims and their loved ones (as opposed to requiring a
showing of "extraordinary circumstances" for increases to presumed awards).
First, the presumed non-economic damages awards provided under the interim
final rules are substantially lower than those paid in comparable cases.
Non-economic damage awards in considerable excess of $1 million are typical
for other airline crashes and terrorism cases, but in this instance, presumed
non-economic damages awards are limited to $250,000 per victim and $50,000
for a spouse and each dependent. This dramatic undervaluation of presumed
non-economic damages runs contrary to Congress's general intent to provide
full and fair compensation and, significantly, to the specific language of
the law establishing the Fund, which lists an extremely broad array of
non-economic damages for which victims and their loved ones are to be
compensated (regardless of what may be allowable under state law).
This problem bears considerable responsibility for the fact that many victims
or their loved ones would reportedly be severely under compensated or even
receive no compensation under the Fund - potentially driving them to pursue
litigation which, due to statutorily imposed liability limits, may
shortchange them as well. The interim final rules can and should be fixed to
increase presumed non-economic damages awards to amounts which properly
reflect Congress's intent and are a more realistic assessment of the
considerable pain and suffering endured by the victims of the September 11th
terrorist attacks and their loved ones.
Second, a number of economists or experts have pointed out flaws in the
interim final rules' methodology for calculating presumed economic damages.
The use of outdated and improperly aggregated federal government data and the
underestimation of household services performed by victims and of real
increases in earnings by administrative support and clerical workers, among
other things, has resulted in the unjustified and unnecessary under valuation
of presumed economic damages. The interim final rules' cap on the level of
income a victim may be considered to have earned per year for the purpose of
calculating presumed economic damages awards serves to exacerbate this
problem.
I strongly urge you to provide interested parties with all information that
is necessary and useful to further evaluate the propriety of the interim
final rules' presumed economic damages methodology and then correct all flaws
that would tend to undervalue such damages. The fact that these are merely
presumed economic and non-economic damages amounts - purportedly subject to
upward adjustment based on specific Evidence of loss presented at hearings or
through supplemental evidentiary submissions by victims or their loved ones -
does not excuse flaws in their calculation. Rather, presumed awards should be
based on the best available data and methodologies regardless of the hearing
or evidentiary submission option. Indeed, the goal of providing accurate
compensation expeditiously through the Fund is furthered by having properly
justified presumed Fund awards, as this may diminish the need for hearings or
supplemental evidentiary submissions in each and every case. It also may be
overly optimistic to assume that each Fund claimant will be able and willing
to present evidence at a hearing to correct inaccuracies in the presumed Fund
awards in light of their individual circumstances.
Indeed, one can reasonably expect that some victims or their loved ones may,
upon viewing inadequate presumed Fund awards, have little faith in the
ultimate fairness of the hearing or supplemental evidentiary submission
process and decide to forsake the Fund altogether. More importantly, the
misplaced requirement contained in the interim
Final rules (though not contained in the statute establishing the Fund) that
a Fund claimant demonstrate "extraordinary circumstances" through
supplemental evidentiary submissions or at a hearing to justify increases to
presumed Fund awards could serve essentially to "lock in" the unfair presumed
economic and non-economic damage awards in any given case. Whether or not
the presumed awards are fair, upward adjustments should be possible simply
upon a showing by a claimant that a presumed award does not accurately
reflect the economic and non-economic damages he or she has endured.
But this degree of flexibility is particularly essential if the presumed
economic and non-economic damage awards would in many cases provide less than
fair and full compensation. The "extraordinary circumstances" threshold,
however, may prevent the accurate and individualized Fund awards intended by
Congress, because while all victims and their loved ones have endured
extraordinary hardships, it may be difficult for a single Fund claimant to
establish that his or her circumstances are "extraordinary" relative to all
other victims and their loved ones.
The hearing or supplemental evidentiary submission opportunities for victims
and their loved ones must certainly be structured so as to afford them ample
time and a convenient way to make their case. But even a properly structured
hearing or evidentiary submission process would not remedy the difficulties
arising from the inappropriately stringent "extraordinary circumstances"
standard. Congress did not erect or envision any such obstacle to the award
of accurate and individualized compensation to victims and their loved ones.
Indeed, as Congress has considered bankruptcy reform legislation over the
past few years, it has moved away from using an "extraordinary circumstances"
threshold for permitting deviations from a grid of allowable expenses for
debtors in favor of a standard that more readily accounts for debtors'
particular economic circumstances. Accordingly, the "extraordinary
circumstances" threshold should be modified.
I do appreciate the fact that the interim final rules will not offset Fund
awards by the amount of charitable contributions received by a victim or his
or her loved ones. I believe the collateral source offset provision of the
law is misguided. To the extent the final rules do offset Fund awards by
virtue of certain collateral source payments, I strongly urge that you
construe the collateral source offset provision of the law narrowly,
consistent with the tenets of proper statutory interpretation. In
particular, amounts paid by victims or their loved ones to secure certain
types of collateral source compensation -- for example, life insurance
premium payments-- should be deducted from any amount considered to offset a
potential Fund award. Likewise, where collateral source payments trigger new
income or estate tax liability, that new tax liability should be deducted
from any amount considered to offset a potential Fund award.
Thank you as always for your consideration and attention to these matters.
Sincerely,
Marty Meehan
Member of Congress