City of Dust

by Anthony DePalma

  For Worby and Napoli, the lawsuit’s unwieldy nature became a strategic advantage. As the number of clients grew and amount of medical records and other documents that had to be collected exploded, the prospect of ever going to trial became less likely. They did not have to restrict themselves to the most serious cases. To build their numbers, they took in many cases, even those of responders with minor illnesses and those whose only complaint was that they were worried about what might happen to them in the future. The lawyers’ strategy was hitched to the idea that a settlement would mean that the difficult questions—proving that there was a causal link between the dust and disease, challenging the good faith aspect of the city’s response, deflecting the responsibility of the workers to have protected themselves—and all those medical, legal, scientific, and social policy dilemmas that had confounded the city and clouded its vision, would never have to be answered conclusively. The problems would be resolved by money, and the issues would simply go away, if only the city agreed to a settlement.

  But the city dug in its heels and would not agree—at least not until it got the terms it wanted, including a cap on future liability, terms that no one had expressed any intention of offering.

  Endnotes

  1 Personal interview, 13 February 2007.

  2 Bartle, Judge Harvey III, Memorandum and Pretrial Order No. 2640, United States District Court for the Eastern District of Pennsylvania, 14 November 2002.

  3 “Lawyer Napoli Disbarred,” Newsday, 28 February 1992, p. 33; and Bernstein, Nina, “No Holds Barred for Guilty Lawyer; Disbarment Proceeds Slowly,” Newsday, 11 February 1992, p. 7.

  4 Personal interview, 7 February 2008.

  13. Science on trial

  When James E. Tyrrell Jr. is not around, other lawyers in the wide circles of power and privilege he travels in sometimes refer to him as “the master of disaster,” with a precarious balance of both antipathy and respect. Super Lawyers magazine was one of the first to use that sobriquet to describe Tyrrell, an admiring nod to his work representing corporate clients enmeshed in some of the nastiest legal calamities of the last century. Tyrrell is widely known as a fierce and precise opponent, a champion debater who knows the law and how to use it to the advantage of his clients, who, not surprisingly, love him and pay mightily for his services. The same is not true of his opponents and critics, who accuse him of being rapacious and underhanded. In many ways, he resembles his namesake, Sir James Tyrrell, a fifteenth-century English knight who was a hero to some but a villain to others. Tyrell’s story is a vivid one, immortalized by Shakespeare in Richard III. An honorable nobleman in the House of York, Tyrrell became master of the king’s henchmen after the Duke of Gloucester assumed the throne as Richard III, following the mysterious death of two princes who were in line to become king. After Richard was killed in the Battle of Bosworth in 1485, Tyrrell successfully switched loyalties for a time to Henry VII and again gained positions of power. But he later was accused of treason and imprisoned in the Tower of London. Under torture, Tyrrell was said to have confessed to having had a hand in the murders of the two young princes, but he would not say where their bodies were hidden. Tyrrell’s head was chopped off on May 6, 1502.

  James Tyrrell the lawyer doesn’t believe he is related in any way to Sir James. “We’re hardly noble,” he says of his family.1 He didn’t even know about Sir James until a family trip to the bloody tower in 2000, when he was traveling with his son’s college lacrosse team. Tyrrell’s own ancestors came from Ireland by way of Jersey City, and he figures they probably were chased out by the British. But he, too, is honored by some and considered a scoundrel by others (who no doubt would call for his head, had they the chance). Tyrrell is a fierce litigator, defending big corporations in product liability suits. He started out representing Monsanto in the Agent Orange case brought by Vietnam War veterans exposed to the herbicide, and he represented General Electric against women who had been injured when breast implants filled with the company’s silicone ruptured. He is careful, cautious, and unrelentingly polite, rarely making a mistake and almost never doing anything that antagonizes the judges before whom he appears. Yet when it comes time for the kill, he does not hesitate to finish off his courtroom opponents.

  Nothing about his rapacious nature can be divined from his outward appearance: neatly parted hair, courtly manners, impeccable tailoring, and controlled demeanor, even in the middle of a courtroom cat fight. A top competitor in national debate tournaments in high school, and a moot court champion at Harvard Law School who served briefly in the Navy Judge Advocate General’s Corps during Vietnam, Tyrrell presents a striking contrast to Paul Napoli’s street-wise persona. But Tyrrell is in the unenviable position of defending the city of New York and its contractors and subcontractors in the high-stakes fight against the thousands of workers who are repeatedly referred to in the courtroom and in the media as “heroes.” Napoli and David Worby, with the help of sympathetic tabloid media and a legion of responders—including a few who had devoted their lives to persecuting the government for its perceived 9/11 sins—managed to create a public image of the city as callously sending workers onto the pile without regard for their safety. In the court of public opinion, Tyrrell was a bad guy from the day he was selected to represent the city in federal court. The New York Post dubbed him “the devil’s advocate,” which, for Tyrrell, was something of a relief because they at least had not called him the devil himself. On the other side of town, the New York Daily News relentlessly criticized Tyrrell and the captive insurance company, which, by the end of the decade, had burned through $200 million in administrative costs and legal fees defending New York City. At the same time, the city, through the captive, had paid less than $300,000 in claims to workers with orthopedic injuries, and not one cent to anyone who had developed a respiratory illness or cancer.

  Bringing in hired legal guns was a departure for New York. For the physical work of stabilizing Lower Manhattan and removing the debris at ground zero, the city had assumed quick and sure control, believing its own expertise was more perfectly suited to the job than the accumulated experience of the federal agencies. At the very outset, New York had also defended itself, putting together a trade center task force within the office of the city’s corporation counsel. The possibility of facing lawsuits from the extremely dangerous work of the cleanup had been apparent within the first month after the attack. The city was being advised by its lawyers—and the legal staffs of the four prime contractors—that workers, volunteers, and residents could eventually file lawsuits for a wide range of injuries. Within a few weeks of the attack, a deputy mayor in Giuliani’s office was being warned that the city faced as many as 10,000 liability claims connected to 9/11, “including toxic tort cases that might arise in the next few decades.”

  The special captive insurance company created to defend the city against 9/11 lawsuits operated like any other insurance company, with a board of directors, salaried officers, and requirements for maintaining enough reserves to meet its obligations for the next quarter-century. Once it was established, the captive looked around for a firm to handle the city’s defense. It held a legal beauty contest to pick someone to take on the whole mess—handling the city’s defense and also defending all the private companies that had done work for it during the cleanup. The captive decided that it would be more efficient to deal with one legal team than a squadron of lawyers individually representing each one of the defendants. Speaking with a single voice, especially one that commanded the kind of attention that could counter the plaintiffs’ public relations advantage, was expected to strengthen the defense’s position. The request for proposals went to the top 30 toxic tort law firms in the country. At the time, Tyrrell worked for one of largest of them, Latham & Watkins, with more than 300 lawyers in its New York office and a newly formed office in New Jersey that Tyrrell led with Michael Chertoff, the future head of Homeland Security in the Bush administration. In October 2004, just weeks after Worby filed the class
-action lawsuit, Tyrrell was picked to lead the trade center case. Two years later, he was recruited by Patton Boggs, a powerful law firm in Washington, to open offices in New York and New Jersey. He did, taking many of the lawyers, and the trade center case, with him.

  The $1 billion in reserves deposited by the federal government quickly became intoxicating fiscal catnip that neither plaintiffs nor defense seemed able to resist. Before New York State had passed the legislation it needed to charter the captive, only about 130 trade center lawsuits had been pending. All the others that had been filed till then had been resolved by the September 11th Victim Compensation Fund. Once the captive opened shop at the end of 2004, lawsuits poured in hundreds at a time, with everyone hoping to reach into that $1 billion pot. But as in so many of the conflicts that had arisen since the towers crumbled, the issue was clouded by misunderstanding or deliberate misinterpretation. Even members of Congress who voted for the $1 billion fund insisted that it had been designed to compensate injured and ailing workers, just like the original fund. In truth, Congress could have decided to reopen or extend that fund, but it hadn’t. Instead, it had deliberately channeled the issue to the courts, setting up a system for covering the city’s liability and defending the private construction companies that had pitched in to help—a logical move for an administration that had insisted there was no danger in the air. The state-chartered insurance company would cover the costs of indemnifying the city, just as any home insurance policy would cover the cost of defending a homeowner facing a liability lawsuit.

  Some of the confusion about the fund’s purpose stemmed from willful disregard of the facts, an overt attempt to sway public opinion against the captive and, in turn, the city’s defense. But the law itself is straightforward. It calls for providing $1 billion “to establish a captive insurance company or other appropriate insurance mechanism for claims arising from debris removal, which may include claims made by city employees.” Nonetheless, Sen. Charles Schumer and others who had pushed for it repeatedly insisted that the money was intended to compensate the “heroes” who had been injured in the recovery operation, and it should be used that way. (In 2007, Napoli and Worby sued the city and the captive in state court for misusing and wasting the money Congress gave them. When Mayor Bloomberg told reporters that the lawyers “just don’t know the facts,” the lawyers responded testily, “[I]t’s the mayor who doesn’t know the facts.”)

  Although the New York City Law Department no longer controlled the case, the lawyers there had strong ideas about how it ought to be handled, and they didn’t always agree with the outsiders. Used to dealing with the barrage of legal attacks against the city’s day-to-day operations, these lawyers believed that, for the city to be held liable for injuries to the workers, Napoli and Worby would have to prove that the city had acted recklessly and without regard to the health and safety of the people working there. And that meant proving not that masks hadn’t been given to everyone on the pile, but that the city hadn’t bothered to hand out any masks at all. The lawyers knew that no matter how imperfect the handling of ground zero might be portrayed, there was plenty of evidence to show that the city had attempted to do the right thing. They also knew that more than 130,000 respirator masks had been distributed to workers during the cleanup, and that the city, the uniformed services, and the contractors all had repeatedly urged workers to wear them. The message had been conveyed at daily safety meetings, through signs and posters at the site, and even through the Department of Design and Construction’s early surveillance plan of using digital cameras to identify violators. The city’s lawyers had a sense from early on in the fight that some of the workers’ claims of injuries and ailments related to 9/11 might not hold up in court. Experience with pothole claims and broken sidewalks had taught them to be suspicious.

  The lawyers also relied on an aspect of city law that requires anyone intending to sue the city to first file an initial notice of claim within a short time of the incident that caused the injury. That notice usually triggers a pretrial questioning session to determine whether there is sufficient basis for the suit to move forward. The first batch of these proceedings, designated 50-H hearings, left city lawyers with the impression that the symptoms listed in the lawsuits had been exaggerated. In some instances, the workers were unable to provide any corroborating information about the symptoms that they themselves had earlier reported. Other times they contradicted the information about the amount of time they had spent at ground zero. And under questioning by the city, some conceded that their troubles had been temporary and that, at the time of the hearings, they felt fine.

  Some lawyers thought the city’s best bet for putting a quick end to the litigation was to file a motion for summary judgment and to ask the court to reach a quick decision based on the undisputed material facts of the case, which they believed were firmly on their side. This kind of a “so what?” motion can be successful as long as both sides do not disagree on important material aspects of what happened. Then if the plaintiffs tried to second-guess the city by arguing that the recovery should have been handled differently, the city felt confident it would win. In the early phase of the litigation, Napoli and Worby did not dispute the fact that air monitoring had taken place at ground zero at some point, that thousands of respirators had been handed out (although responders weren’t always properly trained in how to use them), and that the fire department’s daily Incident Action Plans included advisories about wearing respirators but didn’t do much to make sure the advisories were followed.

  The city’s attorneys believed that even if Napoli and Worby could prove that there were not enough respirators for everyone at ground zero or that enforcement was lax, it wouldn’t matter, because the city had tried to make working at the site safe, and the court would be reluctant to overrule the city’s actions during an emergency. With the monumental chaos of the cleanup and worries about the slurry wall collapsing, of biological contamination, or even of another attack in Manhattan, the city was willing to concede that its efforts had not been perfect. And that, it argued, was a far cry from reckless disregard for the safety of the workers.

  But Tyrrell and the Patton Boggs team saw summary judgment as too risky a strategy because it let everything rest on the judge’s interpretation of undisputed material facts. “A summary judgment motion can be lost because there is a genuinely disputed material fact. That is the Achilles heel of a summary judgment motion,” Tyrrell noted. In a complicated case such as this, with many possible points of dispute, the plaintiffs could ask the court to look at disputed facts, such as when the respirators were available or how consistently the city supervisors enforced safety rules, and deny the defendants’ motion for summary judgment, at least for the moment. Plaintiffs could also claim they did not have enough time to obtain all the necessary documents and testimony related to the case to show that a material fact is disputed, again forcing the court to deny the motion.

  Judge Alvin Hellerstein allowed limited discovery to take place so that facts about the rescue and recovery at ground zero would be laid out clearly. The lawyers deposed dozens of responders, city officials, and expert witnesses. They often strayed from the court’s order to strictly limit questioning to the immunity issue, providing detailed insights into what had happened after the towers were destroyed. The plaintiffs’ team grilled Michael Burton, executive deputy commissioner of the Department of Design and Construction. When Burton was asked whether he had considered shutting down the project when compliance with personal protective equipment dipped below 30 percent, he responded, “I can’t recall anybody telling me, even with the vast array of experts out there, I don’t think there was one individual that ever made that recommendation to me. So, no I don’t think I considered it.” Beyond that, Burton said, if he had told fire department brass that the job ought to be stopped because people were working on the pile without the proper respirators, “I think they would have looked at me like I had three heads.”

  Under q
uestioning, executives from the four principal construction companies testified that they had initiated their own safety plans or had drawn up plans with others, and that they had tried to get workers to wear proper respiratory protection from the start. They acknowledged the difficulty of getting workers to keep the hot, uncomfortable masks on all day long for weeks on end, when they had hardly ever worked with the respirators before. They discussed the complicated issues affecting safety at the site and generally agreed that strict enforcement by the Occupational Safety and Health Administration (OSHA) or the city’s health department might have been effective, but it could have wasted a lot of time and, in the end, might not have made any real difference in worker safety. They also said that, in the latter stages of the project, they did begin to fine or suspend workers who consistently flouted the rules, but that didn’t do much to improve compliance rates.

  James Abadie, the senior vice president in charge of the New York office for Bovis, one of the four big contractors, testified that one of his supervisors had been let go in November 2001 after being reprimanded repeatedly for ignoring safety rules. “He didn’t want to wear his mask,” Abadie said during his deposition. The supervisor wasn’t being contrary or unruly; instead, Abadie said, “He was very gung-ho on the fact that he was saving America.”