City of Dust

by Anthony DePalma

  Napoli also got into a protracted dispute with another law firm that had referred several hundred fen-phen clients to him in 2001. Those lawyers claimed Napoli had manipulated the settlement in a way that cheated them out of a substantial portion of their fees. Napoli argued that legal experts had reviewed the settlement before it was put into place. He insisted that he had done nothing wrong and that the other lawyers were being greedy. A New York State Supreme Court judge then raised questions about Napoli’s handling of the settlement itself and ordered a trial, which incorporated the dispute between lawyers. At the beginning of 2010, the complicated case was still moving forward.

  Napoli was no stranger to controversy or to fighting against tall odds. He seemed to thrive on the challenge. He belonged to a legal family used to dealing with bad press. His father, Joseph Napoli, had been part of a personal injury law firm in Queens that gained a reputation for suing the city for damages from accidents, potholes, and the like. The law firm grossed as much as $20 million a year from such personal injury lawsuits. But in the mid-1980s, federal prosecutors began a racketeering investigation that turned up evidence of an audacious disregard for the truth. The lawyers at the firm were found to have used their relatives as eyewitnesses to phony accidents. They were accused of keeping a supply of doctors’ stationery to write up reports of injuries that never occurred. And they were not beyond creating evidence. In one instance, an accident investigator working for the firm was accused of using a pickax to make a small pothole into a larger, deeper one before submitting a photograph of it as evidence. A federal jury found Joseph Napoli and several associates guilty of racketeering. He was sentenced to four years in prison and was disbarred in New York.3

  Paul Napoli doesn’t like to talk about his father’s past, and clearly his father’s transgressions have nothing to do with his own work. But when the subject comes up, he concedes that although the troubles made it more difficult for him to get his start, they helped shape his attitudes about the law. His father was disbarred in 1992, the same year Napoli graduated from St. John’s. The experience sobered him and has led him to scrupulously avoid ethical conflicts whenever possible. “I look at it as an experience to help me do better,” he said.4

  When Worby first visited in 2004, Napoli’s firm was tying up the loose ends of the fen-phen class-action suit and beginning other potentially lucrative legal proceedings. As Worby laid out his theory about ground zero dust and the accelerated latency caused by the synergistic effect of all the compounds and elements it contained, Napoli had his doubts. “I, for one, wasn’t sure about the nature of the injuries,” he said. He also knew that the law firms in New York that usually handle the affairs of cops and firefighters had declined to take on most of the cases stemming from ground zero. Then Worby told Napoli that the doctors treating John Walcott and Richard Volpe had changed their views and now believed that their ground zero exposure probably had caused their illnesses. Napoli started his own investigation, beginning with the book Juan Gonzalez had written about the dust in 2002. As he looked over the medical records of Worby’s clients, he was convinced enough to bring on additional lawyers to review documents and begin laying the groundwork for suing the city of New York over the dust.

  While the fen-phen experience certainly helped Napoli captain the massive ground zero litigation, substantial obstacles besides the accelerated latency periods needed to be overcome. Although most of their clients complained of respiratory problems such as those that Mount Sinai and the fire department had already reported—asthma, sinusitis, chronic obstructive pulmonary disease—or digestive issues caused by the high alkalinity of the dust, the workers also claimed to have other illnesses, including several different cancers that had not yet been linked to ground zero. The lawsuit would have been stronger if every claimant had had the same disease that could be traced to the same environmental hazard. In the fen-phen case, the effects of taking the drug were mostly limited to damage to heart valves. All of the clients had taken fen-phen. What differed from person to person was the severity of the injury. For the ground zero dust exposure cases, Napoli and Worby were facing a medical encyclopedia of symptoms and illnesses. Each new one sent them back to the list of hazardous materials in the dust, looking for known and suspected links.

  Worby and Napoli eventually represented most, though not all, of the 10,000 responders (more than half of them firefighters or police officers) who sued the city claiming hundreds of different sicknesses. They agreed on a way to divide the work. On this personal injury dream team, Napoli provided the logistical guts but would mostly remain hidden from public view. Napoli’s voice is tattooed with a slight Brooklyn accent, and he has a boyish, wise-guy grin that makes him seem like he’s trying to pull off something that he shouldn’t—a trait that opposing lawyers, and sitting judges, can find exasperating. Worby, on the other hand, is so used to performing that he can appear both tough and sensitive at the same time. He tends to favor bright cufflinks and white-collar blue shirts, his sandy hair slightly long over the ears and in the back, so that he can flow easily between the court room and the stage where he performs his music.

  On September 13, 2004, at the Marriott Hotel near ground zero, it was Worby who had announced the filing of a class-action lawsuit on behalf of public and private employees involved in the long cleanup at ground zero. The suit initially named the four big private construction companies that had handled the work for the city, as well as the Port Authority of New York and New Jersey and Larry Silverstein, the owner of Number 7 and leaseholder of the twin towers. Worby explained to reporters that the city would be added to the list of defendants once procedural requirements were met. He was flanked by Walcott and a dozen recovery workers, many of them Latinos who had cleaned offices without personal protective equipment, not even gloves or a dust mask. The lawsuit cited safe workplace laws in New York State and claimed that the companies had ignored their responsibility to provide suitable working conditions.

  Clearly comfortable in front of the television cameras, Worby concisely laid out the heart of his arguments: The city had been in a foolhardy rush to move ahead. He insisted that after the first few days had passed and the chances of recovering any survivors was nil, the job should have been shut down until proper safety precautions were put in place. “There was no rush on September 15, or on October 15,” and so on, Worby told reporters. And for the first time in public, he made a dire prediction: More people would die as a result of being exposed to the trade center contaminants than had died in the attacks on 9/11, an assertion he would make repeatedly as the litigation inched forward. Not afraid of being considered alarmist, Worby called ground zero the greatest toxic contamination in the history of the nation, rushing through the list of hazards in a verbal sprint that added to the sense of urgency and gave the impression of unassailability.

  The dust, he asserted, contained these elements:

  • Two hundred thousand pounds of lead from the estimated 50,000 personal computers in thousands of offices

  • Mercury in the towers’ more than half a million fluorescent lights

  • Dioxin from oil and fuel

  • Two thousand tons of asbestos

  • Benzene from more than 91,000 liters of burned jet fuel

  • Cadmium, PCBs, and up to 2 million pounds of toxins known as polycyclic aromatic hydrocarbons

  Worby was accompanied by an expert witness, forensic toxicologist William Sawyer, who called the debris pile a “giant toxic waste site” and pointed out that the incomplete combustion created by the long-smoldering fires had churned out harmful emissions until the fires were extinguished in December. Workers such as Walcott breathed in this toxic soot while working around the pile, and in many instances, the level of contaminants to which they were exposed exceeded federal standards. Worby said he would not be seeking punitive damages against the employers. His goal was to win enough money to establish a system of screening and tracking exposed workers for decades, to detect early
warning signs of disease. When asked about his own remuneration, he conceded that, in such cases, lawyers’ fees could amount to a third of any settlement, but he was quick to point out that bringing the class action to court required a substantial outlay without any guarantee of return (a violation of his second golden rule, or an acknowledgement of his confidence that the case was winnable).

  The news conference announcing the lawsuit was a carefully choreographed production designed to lay the groundwork for a sympathetic public response to the plight of the responders. Creating that positive perception of the workers would turn out to be a critical part of the Worby–Napoli team’s legal strategy. “They were all our WTC heroes then,” Worby told reporters. “And now they’re our WTC victims.” The dozen workers who flanked him silently during his presentation were made available to reporters afterward and were instructed to be cooperative. At least one accompanied a television news crew to ground zero to be filmed. Worby made a DVD of the news conference available to reporters afterward, and it contained, apparently inadvertently, a kind of director’s cut video exchange that showed just how much of a staged production it was. After the news conference concluded, the producers tagged on a short hallway interview with Dan O’Connell, who was then president of Kodora Communications, which had put the production together. On the video, O’Connell, who jokingly identified himself as the minister of propaganda for the event, was asked by an off-camera interviewer how the news conference went. “Given the amount of time we were given to pitch the story, we did well,” he replied, likening Worby’s performance to hitting a three-run home run in the seventh game of the American League Championship series. Image and perception remained the ultimate goals.

  Few of the ground zero workers in the lawsuit knew much about Napoli’s history with fen-phen. Most, in fact, didn’t know anything about him at all, even after they had joined the lawsuit and were being represented by him in court. Worby had been the very public face of the litigation from the beginning, and he was the central figure of the news conference in 2004. But when the workers called the toll-free number that Worby gave out then (1-877-WTC-HERO), they were connected with Napoli’s office.

  The litigation landed in the tightly disciplined courtroom of Judge Alvin K. Hellerstein, an experienced and impatient jurist who handled other 9/11 litigation, including the cases of the families that declined to accept a settlement from the September 11th Victim Compensation Fund and insisted on suing the airlines over the deaths of their relatives. He also heard the cases of the families of dead firefighters who had tried to sue the city over the decision to issue an internal communications system that had failed disastrously on 9/11. Long after the debris had been cleared from ground zero, the 9/11 tragedy elicited raw emotions in his courtroom on the 14th floor of the Daniel Patrick Moynihan Federal Building at 500 Pearl Street near Chinatown, less than a mile from ground zero. (That is the same building where the Obama administration proposed putting the mastermind of the 9/11 attacks on trial. Bloomberg initially saw merit in the idea of forcing the suspected terrorist to face a jury just blocks from ground zero. But when the cost of security was estimated to exceed $200 million a year, he pressured Washington to move the trial outside the city.)

  Hellerstein initially tried to pare down the number of cases by redirecting most of them to the state courts, arguing that only events directly related to the crashes were covered by the federal legislation (the Air Transportation Safety and System Stabilization Act) Congress had passed in the immediate aftermath of the attacks. He argued that the federal court was not the proper venue for the cases involving respiratory injuries that took place after the rescue phase ended and the recovery and cleanup officially began. He also wanted all injuries that were linked to any location but ground zero—the Staten Island landfill, the riverside transfer station, or the medical examiner’s office—remanded to the state court. But in 2005, the Second Circuit Court of Appeals reversed his decision, saying that the federal court was the appropriate place to hear all litigation related to the attacks. That suited the city, because responders and volunteers had come from all over the country. Keeping the cases in federal court ensured that the city would not have to defend itself in many different state courts.

  With the venue question settled, Napoli and Worby continued to enlist clients, swamping the court with hundreds of new cases each month. The maneuverings for such a massive legal confrontation are dense and archaic. When Worby and Napoli were forced to move the claims from state court to federal court, they had to pay to have each of the 10,000 plaintiffs listed separately, although they all were eventually consolidated under a master complaint with a single docket number: 21 MC 100. In another move designed to keep him in sure control of the litigation, Hellerstein refused to certify this as a class action. Unlike fen-phen, in which the triggering agent was a single combined drug and the most prominent resulting injury was heart valve damage, each ground zero plaintiff was exposed at a different time and in a different way, depending on arrival, deployment, and time spent at the site. The ways that the dust affected individuals differed so greatly from one to another that hundreds of diseases were potentially involved. Lawyers in huge class actions can bring so many cases that they can tip the balance of power in court to their side and away from the bench. Hellerstein wouldn’t have it. By consolidating the individual claims into a joint action, Hellerstein hoped to maintain control, maximize efficiency and speed up resolution of the cases. It did not turn out exactly that way.

  Worby and Napoli’s strategy covered a combination of claims, including reckless disregard and dizzying incompetence that they would say bordered on criminal action by the city and its contractors. They wanted to show that, in the 48 hours after the first plane struck, firefighters had not had access to adequate personal protective equipment. Their air tanks had been practically useless because they lasted no more than half an hour, while the fires at ground zero would burn for 100 days. From that particular aspect, ground zero more closely resembled a forest fire than an urban blaze, and New York never adequately reacted to that reality. Instead of adjusting its procedures to take that long duration into account and slowing things down to impose long-range controls, the city continuously sacrificed safety for speed.

  Worby and Napoli conceded that it may not have been possible to provide adequate personal protection to firefighters or the construction workers who poured in to help them during the frantic search for survivors. But they insisted that once the chance of finding survivors ended, the rescue turned into a recovery and removal operation. At that point, they contended, the city should have regrouped, issued strict safety guidelines, enforced them aggressively, and otherwise acted as though worker safety was at least as important as clearing away the debris.

  For five years after the news conference at the Marriott, the lawsuit moved ponderously through the legal system. Despite a full calendar with the other trade center litigation, Hellerstein worked to maintain control over the case, ensuring that the massive litigation was not stalled while logistical issues were being resolved. The city asked to review basic medical documents, and as they started to come in, Hellerstein had to referee a gigantic battle of strategy and tactics between the city and the workers. Every aspect of the case was oversized. Just calling up the legal documents on the federal court’s computerized system could freeze a computer terminal, so massive was the record. Any day Hellerstein called a case management session, his courtroom was packed with dozens of lawyers representing the city, the four prime contractors, and dozens of subcontractors, along with attorneys who represented a few rescue workers who had not signed with the Worby–Napoli team. They filled every place on the public benches and were allowed to spill over into jury seats.

  Napoli personally handled most of the courtroom pleadings at this stage of the case, constantly pushing back against the city. Hellerstein grew impatient with the legal wrangling and occasionally seemed peeved with Napoli, whose brashness sometimes peeked thr
ough the courtly veneer the federal bench expected. Hellerstein more than once threatened Napoli with sanctions unless he provided all the medical records the city requested. Napoli had argued with the judge that the city’s request was overly broad. Hellerstein was reluctant to leave out anything and ordered that all medical records, whether or not directly related to the claimed trade center injury, should be produced for each plaintiff dating back to 1995—and longer, if warranted. That would include information from doctors that the clients had not seen for years, doctors who had died or moved, and records from dentists and podiatrists and other specialists that on the surface seemed to have nothing to do with 9/11. Many of the clients did not have the records, which forced the lawyers to negotiate with busy medical practices that already were buried in insurance company paperwork. When the documents were produced, they had to be reviewed by medical professionals, collated, and filed accordingly. Napoli and Worby used a Long Island warehouse to store the quickly expanding mass of documents.

  Hellerstein made it abundantly clear that he intended to push for settlement of the cases. Well before the first trial was ready to be heard, he appointed two independent legal experts to act as special masters, or adjuncts to the court, to ensure that his orders from the bench were followed and to take on other tasks designed to help move the litigation along. The two experienced jurists Hellerstein selected, James A. Henderson of Cornell Law School and Aaron D. Twerski, dean of the Hofstra Law School (who had earlier been involved in the Agent Orange case on the side of the veterans), were given a broad mandate to analyze the range of illnesses and symptoms that Napoli and Worby had reported. They helped categorize the illnesses into six broad groups and the symptoms of each into four classes of severity. This way, if the chance for a settlement arose, they could refer to an already agreed-upon grid to distribute the biggest awards to those who were most ill. Hellerstein felt time breathing down his neck. “Unless we do something now,” he warned both sides seated before him in the courtroom, “this case will drag on and it will be left to our children, and our children’s children, to settle.”