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Court Determines Jurisdiction of Respirator Injury Suits
Stemming from Rescue After 9/11 June 23, 2003 BY TOM PERROTTA The date New
York City called off the search for World Trade Center survivors should
determine whether rescue workers suing the city for respiratory injuries
bring their claims in state or federal court, a federal judge has ruled. Southern
District Judge Alvin K. Hellerstein ruled that alleged respiratory injuries
suffered from Sept. 11 to Sept. 29, 2001, the day the rescue operation
officially ended, were closely tied to the attacks and exclusively governed
by federal legislation enacted to limit the liability of the city and the
Port Authority. However,
the judge said, injuries alleged after Sept. 29 or at a site other than the
World Trade Center, such as the Fresh Kills landfill on Staten Island, were
sustained in an environment akin to a clean-up operation and should be
governed by the standards of New York Labor Law under the jurisdiction of
State Supreme Court. The
distinction between state and federal court could figure into the outcome of
a lawsuit, because the city's liability for federal claims is limited to $350
million by The Air Transportation Safety and Stabilization Act of 2001 and
subsequent amendments. Claims under state jurisdiction are not subject to a
cap. Judge Hellerstein's ruling arises out of 35 suits brought by more than
1,200 rescue workers, mostly firefighters, who say that they suffered severe
respiratory injuries from breathing toxins at the site, and that the city
failed to provide them with proper respiratory masks and protective gear. The suits
were originally filed in State Supreme Court, but the city, relying on the
Stabilization Act, removed the suits to the Southern District. Title IV of
the act is the Victim Compensation Fund, which authorizes monetary awards for
victims' families and injured workers who were at the site within 96 hours of
the attack, provided that they forgo their right to file World Trade Center
lawsuits. Plaintiffs
in nine of the 35 suits moved to remand their claims to Supreme Court. They
argued that the unique conditions of the attack were relevant not to
jurisdiction, but to the reasonableness of the city's conduct. The city
responded that all claims resulting from the unprecedented attacks should be
preempted by the federal legislation. Judge Hellerstein essentially ruled
that neither party was interpreting the legislation quite right. "The
heroic efforts by firefighters, police officers and co-workers to rescue
people in the buildings, and the frantic search by firefighters, police
officers, clean-up workers and volunteers for survivors were expected, natural
and foreseeable consequences of the crashes," Judge Hellerstein wrote in
In Re World Trade Center Disaster Site Litigation, 02 Civ. 8434.
"If, however, death or injury occurred as demolition and clean-up
efforts proceeded after September 29, 2001, the causal relationship with the
terrorist-related aircraft crashes becomes attenuated, and duties and
responsibilities associated with the workplace become predominant.ˆ§ When told
of the judge's ruling, Michael A. Barasch of Barasch McGarry Salzman &
Penson, who was appointed liaison counsel for the plaintiffs' suits
by Judge Hellerstein, said the judge had "split the baby." "As
a practical matter, I can tell you that these lungs didn't know the
difference in the air they were breathing from Sept. 11 or Dec. 11," Mr.
Barasch said. "But having said that, it makes no difference to me at
all. I think the Victim Compensation Fund is the most wonderful thing that's
happened to the rescue workers down there." Rule Change Though
the fund originally excluded rescue workers, Mr. Barasch said that the fund's
special master, Kenneth R. Feinberg, had recently changed the rules to
compensate those present within 96 hours. So far, Mr. Barasch said, he has
received more than a dozen six-figure awards for clients and will be advising
clients to accept the fund. He said the awards were significantly higher for
claimants who could show economic loss rather than just pain and suffering. A
spokeswoman for the Corporation Counsel's Office, which represented the city,
said the city was still reviewing the ruling and could not comment. Matthew
Maiorana, assistant chief of the World Trade Center litigation unit, argued
the motion for Corporation Counsel. (Copyright
New York Law Journal, 2003) Reproduced with permission of the copyright
owner. Further reproduction or distribution is prohibited without permission. |