“I called Joe and said dust may be the reason Felicia died,” Bennett recalled. As he did more research, Bennett found additional information linking sarcoidosis to dust, which strengthened his conviction that her death was connected to ground zero. He read articles in the New York Daily News about firefighters and other ground zero workers coming down with sarcoidosis, further confirming his belief. At that point, they decided to file an application with the September 11th Victim Compensation Fund.
Bennett felt he had enough evidence to make the case that Dunn-Jones’s death by sarcoidosis could be traced back to her exposure on 9/11. His first application to the compensation board was rejected in August 2003 without explanation. But he appealed the decision, gathered more documents, and brought in medical witnesses to testify on her behalf.
One of the experts was Dr. Alan Fein, chief of the Center for Pulmonary and Critical Care Medicine at North Shore University Hospital. Fein testified that Dunn-Jones had had regular checkups, including x-rays and echocardiograms, that were within normal limits as recently as 2000. She had no history of illness and had not complained of any shortness of breath, fever, arthritis, or skin rash—all signs of sarcoidosis. Fein cited Prezant’s sarcoidosis study on New York firefighters and their higher incidence due to constant exposure to smoke and dust. His conclusion was clear-cut: “Because of the rapid progression of Mrs. Dunn-Jones’s sarcoidosis leading to her death approximately four months after the World Trade Center episode, it is my considered opinion that her death was due to the development of this sarcoidal ‘granulomatous reaction’ involving vital organs and was the result of an acute exposure to components in the dust cloud released at the World Trade Center.”
At the hearing, Fein told Kenneth Feinberg, the fund’s special master, “This was a healthy woman who should not have died at age 42.”
The other expert was Prezant, who, because of his continuing work on sarcoidosis within the department, was interested in finding out more about Dunn-Jones’s case. He had agreed to testify as a physician, not as a fire official. His findings supported Fein’s conclusion. Clear evidence from Dunn-Jones’s medical records indicated that she had not had the disease when she was examined in 2000. There was no question that, as she had fled from her office in Lower Manhattan on September 11, she had been exposed to contaminants in the dust plume. And she belonged to a group, African-American women, known to have higher than normal susceptibility to sarcoidosis.
Prezant told Feinberg, “[T]here is no dust exposure I am aware of that had the acuteness and the chronicity of the World Trade Center.”
But the fund had some very specific eligibility requirements that posed a legal obstacle to making the link between the dust and Felicia Dunn-Jones’s death, regardless of science. According to the fund’s criteria, claimants needed to have been present at the world trade center and its immediate environs in the first four days after the attacks. Bennett argued that Dunn-Jones met that requirement because her office building, just north of the North Tower, had been hit by debris from the impact of the jet and, therefore, was in the “zone of danger” on the morning of September 11. That rationale satisfied Feinberg. But it was much more difficult for Bennett to show that Dunn-Jones met the fund’s requirement that claimants must have seen a doctor or checked into a hospital within 72 hours of being injured. When this issue was raised, the hearing turned tense. “Feinberg was very thorough,” Jones recalled. “As we were getting to the end of the proceedings, you could see that he would walk back and forth; he was really giving it consideration.” Bennett argued that sarcoidosis generally has no outward signs that would have prompted Dunn-Jones to see a doctor until it was too late. In fact, he argued, from a medical point of view, she didn’t really know she was sick until the day she died.
At that, Bennett saw Feinberg’s eyes light up. He leaned back in his chair, looked at the doctors who were there to support his argument, and then looked at Bennett and Jones. “That’s it,” he said. It happened so quickly that Jones wasn’t sure whether they had won or lost. Feinberg asked them to come back with more information about Joe junior’s medical and educational needs so he could calculate the economic loss of Dunn-Jones’s death.
Feinberg decided that her death was linked to the dust and awarded her family $2.6 million, a settlement that reflected the extra care Joe junior would require during his lifetime. But it would be the only instance in which Feinberg determined that a death had been linked to an illness caused by 9/11 contamination. Feinberg’s ruling provided Jones with a way to put his life back together, and for that he was grateful. But that didn’t satisfy his need to make sense of his wife’s death. She had simply gone to work one bright Tuesday morning and come home, hours later, with a death sentence hanging over her. Jones felt she was a casualty of a war, the war against terrorists, and that, as any casualty of war, her memory ought to be honored in some public way. “We respectfully acknowledge the people who died on 9/11,” he said, “but what about those who died after a couple of days, week, months, or even years later. Aren’t they victims?” He wanted Dunn-Jones’s name added to the official list of victims that is solemnly read each year on September 11.
“She was a victim as surely as if she had been in the building with the others,” he stated several times as he made his case public. Bennett once again compiled his documents. He sent the testimony of the medical experts who appeared before the fund, along with a letter that Feinberg wrote, to Hirsch. In the letter, Feinberg explained that the extensive medical documentation that had been presented, along with the expert opinion, led him to determine that “Ms. Dunn-Jones’s death, although five months after the September 11 attacks, was nevertheless the direct result of her exposure to the World Trade Center dust.”
Hirsch was the dean of medical examiners around the country, a staid and respected figure who had spent nearly two decades as New York City’s chief medical examiner. He looked over Bennett’s papers but rejected the claim and refused to put Dunn-Jones’s name on the official list of victims. He said that although he respected Feinberg’s work, the burden of proof for the fund was fundamentally different than was his. Feinberg had operated as though the cases before him were civil court proceedings, which meant that he required “a preponderance of proof.” At the medical examiner’s office, where decisions can determine whether someone is charged with murder, the burden is far greater. What Jones and Bennett were asking for, by petitioning that Dunn-Jones’s name be added to the official list of victims, was a judgment by Hirsch that her death was indeed a homicide. And the burden of proof there was similar to what was required in a criminal trial. Hirsch wanted “certainty beyond a reasonable doubt.”
In October 2006, Hirsch wrote to Rep. Carolyn Maloney and Rep. Vito Fossella, who had intervened on Jones’s behalf. “After careful deliberation and discussions with the medical examiner who performed Mrs. Dunn-Jones’s autopsy and other senior medical examiners at our agency,” Hirsch said, “we concluded unanimously that we could not link her death to inhalation of World Trade Center dust with certainty beyond a reasonable doubt.”
Jones was disappointed and afraid he would eventually have to be satisfied with the local memorial that had been established to honor the memory of the nearly 270 Staten Island residents who had perished at the trade center. The process for compiling the victims list there was less discretionary than for the principal memorial in Lower Manhattan. The Staten Island commission’s members were inclined to be more flexible about whose name could be included, and they had the benefit of a design that could easily accommodate additional names. In 2005, Dunn-Jones’s name had been carved into a tablet placed on the memorial of stark white South American marble that now stands on the north shore of Staten Island, not far from the ferry slip where she left for Manhattan that day. Jones visited the memorial often and brought flowers to put next to his wife’s name—roses or carnations, red ones, her favorite color. Joe junior refused to go to the cemetery with him, but he somet
imes visited the water’s edge, where they can see the empty space where the towers once stood.
The discrepancy between Feinberg’s finding that dust caused Dunn-Jones’s death and Hirsch’s conclusion that her death could not be linked to the dust ate at Jones and kept him pressing for some kind of answer. After reading an article about his quest in The New York Times,3 Rep. Maloney rounded up the delegation and had letters sent to Hirsch, urging him to reconsider. Bennett also redoubled his own efforts, compiling hundreds of pages of studies and reports, and appealing to Hirsch to take another look, arguing that Feinberg’s decision in a quasi-judicial proceeding had already proved that the dust was deadly.
In May 2007, Hirsch reversed his earlier decision, concluding this time that Dunn-Jones’s death was indeed connected to the dust. In his typically careful manner, he held on to some reservations. In a letter to Bennett, Hirsch said he found some aspects of the written opinions of her personal doctor “troublesome,” without mentioning what they were. And he held on to what he said were reasonable doubts that the dust had caused her sarcoidosis. The autopsy had disclosed scars in the heart muscle that appeared to have been older than just the four months that had transpired between September 11 and her death, suggesting that she had a pre-existing condition.
Nonetheless, Hirsch cited “accumulating evidence” that trade center dust had caused sarcoidosis or an inflammatory reaction much like sarcoidosis. He was referring to Prezant’s work on New York firefighters. Prezant had followed up on his 1999 sarcoidosis study with a revealing look at what had happened after 9/11.4 Using firefighters’ detailed pre-9/11 medical records and thorough examinations that had been conducted after the clean-up ended—including biopsies that confirmed the presence of sarcoidosis—Prezant found a startling increase. There had been 26 new sarcoidosis cases in the first five years after the attacks, more than for the previous 15 years combined. The steepest spike came in the first year, when 13 new cases were diagnosed. That produced an incidence rate of 86 per 100,000, five times higher than the rate of 15 per 100,000 for the department in the 15 years before 9/11. What bothered Prezant was not just the increase, but the clinical presentations of the new cases. Sarcoidosis often can be hard to diagnose because a person with the disease can live symptom free for years. The affected firefighters in the earlier study had not had many obvious symptoms, but the new group came in with a whole host of them, including liver problems, muscle or bone issues, and such severe sarcoidosis around the heart that one firefighter needed a pacemaker. This led Prezant to conclude that although firefighters were normally exposed to hazards that led to a greater occurrence of sarcoidosis than in the general public, something in the ground zero dust had a more potent effect, leading not just to more cases, but to cases that were far more severe.
Hirsch found the fire department data convincing, and even though it conflicted with his previous position, he changed his mind about Dunn-Jones. He concluded, “If WTC dust can produce such a reaction de novo, it is highly likely that the dust would have aggravated pre-existing sarcoidosis. Therefore, whether or not she had sarcoidosis prior to 9/11/01, it is likely, with certainty beyond a reasonable doubt, that exposure to WTC dust was harmful to her.”
Dunn-Jones’s death certificate was modified. The underlying cause of death remained sarcoidosis. Exposure to trade center dust was listed as a contributing factor. Importantly, Hirsch amended the manner of death from natural causes to homicide. He then recommended that Mayor Bloomberg add her name to the official list of World Trade Center victims that is read on the anniversary. And when a permanent memorial is built on the site, he believed that her name ought to be engraved there.
Jones’s fight for his wife’s memory represented a critical turning point for 9/11 health conflicts. It was just one case, but it was clear in the medical, scientific, and political communities that others would follow. As soon as Hirsch’s reversal was reported, other families asked for the same kind of review. Hirsch agreed to take a second look for any family willing to provide documentation. Several came forward.
Among them were the families of Detective Zadroga and police officer James Godbee, Jr. Hirsch reached his conclusion about Godbee quickly. To some, the decision revealed a lot about his character and his adherence to a rigid rule of science and logic. Others saw it as proof he could be arbitrary and capricious. Godbee, a 19-year veteran of the police force, had been assigned to duty in the vicinity of the trade center on September 13 and had worked there 14 hours a day through the end of the month. He had continued there almost daily until the end of the year, and then sporadically through June 2002, when the cleanup was complete. In all, Godbee had put in about 850 hours but had never worn a respirator because he said none had been made available to him. He had never worked on the pile itself.
Godbee, a former Marine and 19-year veteran of the force, had been in good health before 9/11, but after working near the pile, he had developed breathing problems that grew progressively worse. By the end of 2003, he could barely get out of his chair. A chest x-ray the following February indicated that he had pulmonary sarcoidosis. His lung collapsed in March, and a biopsy confirmed sarcoidosis. By August, his persistent cough had grown far worse, and he had complained of tightness in his chest. Another x-ray showed that the sarcoidosis had progressed. By the end of 2004, Godbee, only a shell of his former husky self, suffered a heart attack at home and died at age 44. An autopsy conducted by Hirsch’s office found nodules on his heart and lungs, and concluded that the cause of death was sarcoidosis.
Deciding whether to add Godbee’s name to the list might have seemed relatively simple for Hirsch, since he knew that sarcoidosis had also killed Dunn-Jones and she had been declared a 9/11 victim. And Prezant’s study made a strong case for linking the disease to ground zero dust. Yet there were no easy answers for Godbee’s wife, Michelle Haskett Godbee, and her two children. The Police Pension Fund had denied her appeal for line-of-duty death benefits in 2005, based on its finding that sarcoidosis was not related to Godbee’s police work at ground zero.
That left extreme contradictions between the positions of the fire department, which clearly linked sarcoidosis to ground zero exposure, and the police department, which did not. It also raised the issue of whether Hirsch would follow the precedent set by his decision on Dunn-Jones or uphold his conclusion that Godbee’s death was from natural causes.
Hirsch notified Michelle of his decision in June 2007, a few weeks after his decision on Dunn-Jones. His ruling took Michelle and many others by surprise. Hirsch reasoned that every one of the 2,750 people on the official list (including Dunn-Jones) had been killed on 9/11 or were exposed to the dust caused by the collapse of the twin towers that day. Godbee had not arrived at ground zero until September 13, two days after the collapses. Even though the dust he breathed, and that may have caused or exacerbated his sarcoidosis, had surely come from the twin towers, Hirsch determined that his death could not be classified as a homicide because he had not been at the crime scene on September 11. Hirsch said his office had to adhere to the principle that “fatalities caused by work-related inhalation of dust are classified as natural deaths” and would not be considered homicide. He left unanswered the question of whether exposure to the dust had caused Godbee’s sarcoidosis.
That decision infuriated many New Yorkers. Maloney, Fossella, and Rep. Jerrold Nadler fired off a statement criticizing the idea of an “arbitrary cutoff” and calling for the establishment of a panel that would take such emotional decisions away from the medical examiner’s office. Bloomberg wasted no time rejecting the idea because he believed that any panel would insert politics into a realm that, by right, should be governed by science. He also defended Hirsch and his actions. “The medical examiner was asked to rule on whether or not the legal definition of death is homicide,” Bloomberg told reporters. “This is strictly the legal definition based on what the law is, and the medical examiner made a finding. They did not look at what the actual cause of death
was.”5
But Hirsch did just that when he re-examined the circumstances around what had been called the sentinel case, the unfortunate death of Detective James Zadroga.
Endnotes
1 Personal interview with Joseph Graziano, associate dean for research at the Mailman School of Public Health at Columbia University, October 2006.
2 Prezant, David, Atheya Dhala, Andrew Goldstein, et al., “The Incidence, Prevalence, and Severity of Sarcoidosis in New York City Firefighters,” Chest 116, no. 5 (Date): 1183–1193. Available at http://chestjournal.chestpubs.org/content/116/5/1183.abstract.
3 DePalma, Anthony, “Medical Views of 9/11’s Dust Show Big Gaps,” The New York Times, 24 October 2006.
4 Izbicki, Gabriel, Robert Chavko, G.I Banauch, et al., “World Trade Center ‘Sarcoid-Like’ Granulomatous Pulmonary Disease in New York City Fire Department Rescue Workers,” Chest 131, no. 5 (May 2007): 1414–1423.
5 “Bloomy Snubs WTC Hero’s KIN, Backs Top City Doc on ‘Natural’ Death” New York Daily News, 27 November 2007: p. 2.
11. Beyond doubt
It would have taken a heart of steel to not be moved by the story of Ceasar Borja’s valiant but ultimately fruitless quest to find help for his father. That tragic tale, and the heart-breaking coincidence of his big appearance in Washington on the very day his father died, drew national sympathy, one of the few times outside the anniversaries of the September 11 attacks that media from all over the country paid attention to the continuing saga in New York.
A week after he returned from D.C., Borja, along with his mother and his younger brother and sister, had a chance to speak directly with President Bush. Bush came to New York to give a major economic speech at historic Federal Hall, not far from ground zero, and made time to meet with the Borja family. What was scheduled to be a 15-minute private meeting following the speech turned into a counseling session punctuated by surprisingly direct lobbying. Bush was moved by what he had read about the Borja family and promised to do his best to help. Since delivering his State of the Union address, he had cleared $25 million for medical treatment for responders—the first treatment money ever written into a federal budget (earlier amounts had been emergency appropriations)—and ordered a review of possible ways to fill gaps left by workers’ own insurance. Bush expressed sympathy for the Borjas’ loss, and pledged even more support for sick responders. “If they were on that pile and if they were first responders, they need to get help,” he said. Congress already had before it Sen. Clinton’s bill to provide $1.9 billion in medical assistance to injured workers. While the President was at Federal Hall, a group of responders held a demonstration at the edge of ground zero to demand that he keep his word.
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