City of Dust

by Anthony DePalma

  After he became too weak to work, Walcott applied to the Police Pension Fund for a line-of-duty disability, which would have given him a pension equivalent to three-quarters of his annual salary. Such a designation was a critical part of his plan to put his life back together. It would acknowledge that his illness was indeed linked to the work he’d done as a detective—in this case, long duty at ground zero and Fresh Kills. When the board turned him down, Walcott contacted a number of lawyers. But none would help. Then he heard from Worby.

  Worby wasn’t looking for additional clients. In fact, he was no longer even practicing law full-time. He had a wildly successful personal injury practice in suburban White Plains and made lots of money. At one time, his previous firm, Worby Delbello Donnellan and Weingarten, had been among the largest in suburban Westchester County, with a lucrative zoning, corporate, and commercial practice. He also handled big personal injury lawsuits, winning record settlements for his clients. With his confident, easy manner, he was a natural for television, and he experimented with a local program of his own that he called It’s Time to Sue.

  Things changed after he and his wife, Cynthia, divorced in 1994. He scaled back many parts of his life, spending less time at the office and carving out more time to be with his children. He kept his hand in personal injury litigation, thinking he could do an occasional trial while still helping to raise his kids. On 9/11, he asked his former wife to bring the children over because he wanted them all to be together in those most difficult hours of that most uncertain day. Worby remembered the day President Kennedy had been assassinated in 1963 and the fear that had pulsed through him then, although he had only been a boy. He vowed on the morning of September 11 that he would do everything in his power to ensure that his own children did not have to bear the same kind of burden. He spent the rest of that day and several more with his children at the family home in White Plains.

  By the middle of 2003 when Walcott approached him, Worby was spending ever more time on his first love, composing music. He’d written a catalogue of pop and country songs, tunes such as “Wishful Thinking” and “Did You Ever Believe?,” and was then working on an array of creative projects that tapped his abundant musical ambition. On the day Walcott called him, he was flying back from a business trip to pitch an improbable movie idea about a dyslexic black youth who raps backward. On the way home, he had also stopped in Nashville to record two new songs.

  Music was a Worby family tradition. Both Worby’s brother and sister became symphony conductors and directors. Worby himself plays the piano and can perform his own compositions, although he usually prefers to have someone else sing them. He has been an over-achiever since he was a kid. He brags that the first few books he read on his own were about Clarence Darrow, and he was the kind of dreamer who could watch Inherit the Wind and then prepare a sample summation of the case. He picked up Ivy League credentials at Cornell and then Villanova law, where he made the Review and collected offers from big firms in New York and Philadelphia. But Worby longed to be in the courtroom, making the kind of dramatic gestures and sweeping statements he had read about. “I was told, if you wanted to be a trial lawyer and get into court, to go to a small firm,” he recalled. And that was how he started, though he didn’t stay small for long, and he never abandoned his passion for music.

  He had finally managed to strike a comfortable balance between his two loves when the Walcott case fell into his lap. At the outset, he was wary. His years as a trial lawyer had taught him to distrust the information clients convey when he meets them. Worby had learned to cross-examine them from day one, to avoid surprises in the courtroom later. He also had adopted an inviolable set of rules: “Know what you don’t know” and “Don’t take a case unless you can recover your costs” were two of the principal precepts he lived by. But because of his personal connection to Walcott, and a gut feeling from the first time he met the detective that his leukemia had something to do with ground zero, he broke both rules and took the case. At first, he planned to keep it simple by just writing a letter to the pension board. When that didn’t work, he began the process of suing the city, filing the required notice of claim. “I’ll worry about if it’s going to get expensive some other time,” he remarked then.

  Shortly after the notice of claim was filed, Walcott called to say he had a friend, former partner Richard Volpe, whose kidneys had gone on the blink. Volpe had no family history of kidney problems; he had graduated from Fox Lane High School and, at 5 feet, 9 inches and 230 pounds, had been a model of strength. Now he was looking at a kidney transplant. Then another case came to Worby, this one also a 9/11 cop whose lungs were shot. And then more. Worby got permission to talk to their doctors. He asked whether they believed the illnesses could be linked to their work at ground zero. They didn’t rule it out. They said they just didn’t know for sure. Exposure seemed the probable cause, but they kept tripping over a basic discrepancy. Although there was a well-established connection between environmental exposures and certain diseases, it usually took a long time for those diseases to develop. For Walcott’s leukemia, for instance, the normal latency period was between five and ten years, although there were exceptions. In Walcott’s case, however, just 18 months had elapsed from the last day of work at ground zero and his diagnosis. Was it the dust or coincidence? After all, leukemia strikes otherwise healthy people all the time. Ground zero responders had cough and maybe asthma. But cancer was a different story, and researchers were not yet talking about cancer except in the vaguest way as a potential future threat. Similar latency discrepancies in other responders kept their doctors from making a link that otherwise, based on the conditions they observed, seemed to be a natural conclusion.

  Worby needed to know more about chemicals and exposure. He started with basic Internet searches about toxins, particularly benzene. He then reached out to other people who were worried about the effect that exposure at ground zero might be having. He talked to Suzanne Mattei, who then headed the Sierra Club’s New York office and who had worn a face mask when she went back to the organization’s Lower Manhattan office a few weeks after the towers were destroyed. Worby also spoke to Juan Gonzalez of the New York Daily News and to Kate Jenkins, a whistleblower at the EPA who had uncovered documents she said proved that the agency and the city of New York had withheld air-monitoring results that showed contamination far worse than the agency reported. The EPA distanced itself from her, arguing that Jenkins had never been assigned to work on any part of the ground zero response and, therefore, was not privy to the critical information. Still, she had used the files that Joel Kupferman had obtained through the Freedom of Information Law to show how the EPA had concealed damning information, charges that the agency and the city repeatedly denied.

  Worby didn’t give up there. He kept searching for an answer, ignoring the limitations of generally accepted science in favor of an unorthodox solution. Going back to one of his golden rules, he now knew what he didn’t know, and he felt that actually gave him an advantage. He conceded that he didn’t have the same level of scientific knowledge as the doctors and researchers who publish in scientific journals, but he felt this actually freed him from certain constraints: “I was incapable of thinking inside the box. I ruled out nothing.”1 A trained doctor of medicine would not link Walcott’s leukemia to the dust because research and scientific literature said the latency was too brief. But Worby didn’t know enough not to do that. He continued to research cause and effect, exposure and disease. He had failed chemistry in high school, but he wasn’t looking for an answer that had been arrived at long ago. What happened at the trade center was unprecedented. So, he reasoned, how could an answer lay in a book somewhere? He searched for a theory that could explain what the doctors were telling him was inexplicable. He found that chemicals interacting with each other changed the way they affected the body. It was a well-known aspect of Dr. Irving Selikoff’s work on asbestos. Asbestos workers who smoked were more likely to get asbestosis than those
who didn’t smoke. If the contaminants in cigarette smoke could have a multiplying effect on the toxicity of asbestos fibers, why couldn’t the witches’ brew of materials in the dust, ash, and gasses have had an accelerating effect on the benzene and other toxins and, consequently, the unprotected workers who breathed it all in? And if exposure to hazardous materials in a factory typically had taken place eight hours a day over many years, what would be the impact of more intense ground zero exposure, where responders worked 12-, 18-, or 24-hour shifts for days or weeks at a time without adequate protection?

  Worby eventually moved away from his theory about accelerated latency in favor of a broader interpretation, basing this hypothesis on studies of firefighters suggesting that continual exposure to harmful elements in smoke and soot increased the incidence of disease. Worby argued two separate points. First, he held that all the responders had, in effect, become firefighters. Working on the pile simulated the cumulative impact of years of a firefighter’s normal exposure to fires, which led to a higher rate of disease. Second, he argued that uniformed emergency responders, including police officers who spend significant time during their careers securing the perimeters of fire scenes, arrived at ground zero with accumulated loads of contaminants already in their bodies. What this signified, he posited, was that latency periods had actually begun long before September 11.

  His theories were not widely supported by the scientific community. Even though science is based on probability, not certainty, researchers were not comfortable with his leaps of logic, no matter how temptingly they answered the rescue worker’s personal conundrums. Worby insisted that scientists who agreed with him would appear as expert witnesses at trial, although he did not identify them. Under the so-called Daubert Principles that will guide any trials, the presiding judge will be the scientific gatekeeper, determining which evidence can be presented. The defense will challenge Worby’s theories about “synergistic effects” and “accelerated latency,” and Worby will have to prove to the judge that his theories are based on sound data that respects the scientific method. The judge will rule on the reliability of scientific evidence and on its relevance, and determine whether it is allowed to be entered as evidence; then a jury will have to decide whether such proof credibly explains what happened.

  As Worby continued his amateur detective work, sick responders kept showing up at his office. The number of cases quickly outstripped his ability to handle them. As he became more involved in defending the workers, Worby realized that the fight had not gone completely out of him. He was ready to defend these men and women against what he felt was a terrible injustice. He firmly believed that the dust’s hazards should have been recognized almost immediately. He also thought there should have been much firmer enforcement of rules on wearing protective gear. The city and its contractors had let down those who had come to the rescue. The single mechanism that had been available for the responders to seek some kind of justice had been the September 11th Victim Compensation Fund. But the Fund had gone out of business at the end of 2003, before Worby’s clients knew they were sick. The courts were the recovery workers’ last hope.

  Worby realized that his resources were limited and that if he intended to represent the growing number of responders, he needed help. He would have to form a business association with another law firm, one with more experience in handling big personal injury cases and the logistical capability to take on a potentially huge—and costly—class action. It would take phone banking; document warehousing; and the ability to collect, photocopy, file, and distribute hundreds of thousands, if not millions, of pages of records. The reward was substantial, but so was the risk, because the lawyers would have to pay for all the groundwork before they could collect a cent.

  In summer 2004, Worby visited the offices of Paul Napoli at 115 Broadway in Lower Manhattan, a turn-of-the-century Gothic office tower adjacent to venerable Trinity Church. From Napoli’s corner office on the 12th floor, there is a classic view up Broadway, past the apartment of Catherine McVay Hughes, toward City Hall, the EPA headquarters, and Kupferman’s office. This is the historic parade route for presidents, popes, and sports heroes as they glide beneath a blizzard of tickertape. And off to the west, just one long block away, was the immense hole in the heart of the city that was ground zero. After the towers fell, the office building had to be closed for several weeks because power was interrupted, forcing Napoli to temporarily move his legal operation to another space.

  Napoli had a track record of winning cases that ground zero responders would find encouraging. But he also had a history of judicial scrutiny that could raise questions for those who knew about it. Napoli is several years younger than Worby, but he has a big reputation in New York City’s heavyweight legal circles. “Love me or hate me, I’m going to do my job” could be printed on his calling card. He was a street kid compared to Worby—no Ivy League degree or fancy contrast-collar shirts. But they did have in common the same timbre of self-confidence that made them want to shun corporate law and favor instead the precarious life of a trial lawyer. Napoli initially went to work for a small Long Island law firm, where he asked for the toughest cases. He became known as the lawyer who would take on unlucky clients nobody else wanted, and somehow win. His first personal liability case was a medical malpractice suit against the Mount Sinai Medical Center on behalf of the family of an admitted drug addict who had died after he was given the wrong medication. The addict’s family was almost destitute and hadn’t been able to find a lawyer willing to help. Napoli agreed to help the family, and he won a quarter-million-dollar settlement for them.

  That victory gave him a taste for being a trial lawyer. He got involved in breast implant cases that other law firms wouldn’t take. He had a knack for getting to the heart of an issue and proving his case to win big settlements. He was so successful in the field that, by 2004, he and his wife, Marie, also a lawyer and, like Paul, an alumnus of St. John’s University Law School, were able to donate $500,000 to renovate a lecture hall, which subsequently was named for them.

  That was a fairly substantial drop in the collection basket for a man who had not yet turned 38. One case in particular had helped catapult him from scrappy kid to wealthy legal powerhouse. Trolling for new business one day in 1997, Napoli had read about several women who had been treated at the Mayo Clinic for heart trouble after taking a combination of prescription drugs (fenfluramine and phentermine, which was later changed to dexfenfluramine) that went by the common name fen-phen. For a time, the drugs appeared to be a magic solution to the country’s diet craze, a surefire way of suppressing appetite that could shed pounds quickly. Doctors prescribed the fen-phen duo for roughly six million people, the bulk of them women. Among its side effects were pulmonary hypertension and an increased risk of injury to heart valves.

  After reading about the Mayo Clinic study, Napoli and Marc Bern, an aggressive trial lawyer who had joined Napoli’s firm, decided to run a newspaper ad soliciting clients who had been taking the drug and who had subsequently developed heart problems. Luckily for them, the advertisement coincided with a decision by the Food and Drug Administration to take fen-phen off the market. That action had the same effect on personal injury lawyers that waving a red flag has on a bull. Until then, a few lawsuits challenging the diet drugs had been filed around the country. Now thousands poured in.

  Some fen-phen users needed open-heart surgery to repair or replace sensitive heart valves. Most, however, claimed to have developed a leaking heart valve that caused a condition known as mitral regurgitation that ranged in severity from mild to life-threatening. In August 1999, a jury decided against the drug maker, American Home Products (later Wyeth Pharmaceuticals Company), and awarded the plaintiff—whose heart valve damage was mild and who suffered from shortness of breath and fatigue—more than $20 million. Thousands of similar suits were underway, along with several class-action lawsuits seeking prolonged medical monitoring for millions of people who had taken the drug. In October
1999, Wyeth agreed to a settlement with an anticipated payout of $3.75 billion to put an end to the litigation.

  That did not end Wyeth’s problems. The company’s willingness to pay so much money with so little testing (Wyeth had waived the statute of limitations and did not ask for conclusive proof that fen-phen had caused heart valve problems) set off a legal feeding frenzy. The burden of proof was reduced to a simple echocardiogram to show blood flow, a documented history that the plaintiff had indeed taken the drugs, and a doctor’s affirmation that some damage had been done. Still, many lawyers opted out of the settlement, preferring to take their chances in court.

  Napoli formed a professional partnership in July 2001 with another New York firm, Hariton D’Angelo, to round up more fen-phen claims. The partnership bought its own echocardiogram machines, hired its own professionals to administer the heart flow tests, and paid around 80 cardiologists across the country to analyze the echocardiograms for the tell-tale signs of mitral regurgitation that could be blamed on the diet drugs.

  Napoli eventually amassed 5,600 clients, including many that had been signed by other firms called runners. He was convinced that by threatening to go to trial, he could win greater compensation for his clients than by accepting the original settlement. His gamble was successful, and before he went to trial, he won a separate settlement for his clients estimated at nearly $1 billion, with a reported payout for the lawyers of around $350 million, making Napoli a very rich man.

  But the way the fen-phen case had been handled, and the possibility that forcing Wyeth into a huge settlement just to be rid of the legal hassles would make it possible for undeserving clients to receive compensation awards, raised fundamental questions about the fairness of the mass tort system in America and the way federal courts could be bowed when huge numbers of clients are brought before them. One federal judge in the fen-phen litigation had accused the Napoli partnership of running a medical mill that lured in clients and turned out diagnostic tests whose reliability was questionable. The judge eventually threw out more than 75 cases that he found to be “medically unreasonable”2 and gave Wyeth the right to audit every echocardiogram that the plaintiffs produced. Napoli insisted that the tests had been done properly, and he did not back down. He challenged the judge’s findings about the alleged inaccuracy of the tests and eventually got all the dismissed claims paid. “We brought a little New York to Philadelphia,” he boasted.