City of Dust

by Anthony DePalma

  Safety monitors patrolled the site, taking note of people working without their respirators on, Abadie said. But after a while, construction workers realized that they were not going to get fired if they flouted the rules. They also watched firefighters come back to the pile day after day without wearing their masks, so they left theirs off, too, despite Bovis’s best efforts at compliance. When Abadie said that, he got under Napoli’s skin. “You’re blaming the workers that work for you for not wearing respirators, is that what you’re telling us?” Napoli snapped. Abadie said, no, that wasn’t it. “Well, who are you blaming?” Napoli countered. Abadie said that a more effective enforcement plan would have helped a lot, but he didn’t think they could ever have gotten to 100 percent compliance on such a large and busy site.

  Napoli did not challenge the veracity of the accounts given by city officials or the construction company supervisors. What emerged was a portrait of a flawed response in which sometimes all the choices were bad choices. City lawyers thought that the stage had been perfectly set for the “so what?” summary judgment motion.

  But Tyrrell was convinced that the stronger strategy was to press for a motion to dismiss, based on the claim that provisions of state law provided the city with broad immunity when responding to an attack or a civil defense emergency. It was a tactic that Tyrrell would have gleaned from the monumental Agent Orange case, in which the federal government was shielded by its assumed sovereign immunity.

  “It is not a difficult question as a matter of law,” is how Tyrrell framed the immunity question in court documents.2 He conceded, however, that it is a complex public policy question that balances the harm done by eliminating the public’s right to sue with the benefits of unleashing the powers of government and its contractors to respond to crises without the fear of being sued. Tyrrell cited the New York State Defense Emergency Act, enacted during the dark days of the Cold War in 1951, when the possibility of a nuclear attack on the United States seemed very real. Responding to such an unthinkable act would be an unprecedented challenge, and the legislature did not want government hobbled by worries over liability, as long as it acted in good faith to protect the public interest. Tyrrell also pointed to the precedent set by another state law, one that extends immunity to government and its private contractors when responding to natural or man-made disasters.

  The two sides wrangled over the issue, weighing both options while considering the consequences of making the wrong decision. If Tyrrell’s strategy worked, they would be able to get the court to put an end to the litigation before the city was dragged into a bruising legal battle. However, if they were wrong, they were certain to be caught in legal quicksand, a costly and distracting conflict that would go on for years, just as the Agent Orange litigation has continued for decades. Tyrrell was convinced from the beginning that the immunity argument was the right way to go; eventually, after broad discussions about tactics, the city reluctantly agreed to proceed that way.

  Besides the technical legal maneuvering involving pleadings and motions, Tyrrell had a sensitive argument to make that required great finesse because it could be seen as supporting the plaintiffs’ position. In court, he acknowledged that those who had rushed down to help and who worked at the pile under exhausting and dangerous conditions were, in fact, true heroes. He also acknowledged that the city of New York had managed, under unspeakably difficult conditions, to raise itself back up. When another calamity strikes the city, or any city, and government reaches out to the private sector for help, those who will be expected to respond need to be able to do so without fear of financial ruin if they are sued for the work they do. Tyrrell argued that allowing the suits to go forward would poison this atmosphere of civic involvement, hampering future rescue efforts and endangering countless lives.

  Napoli and Worby wasted no time launching their counterattack. In court, they criticized the city’s efforts during the rescue and recovery operations as being woefully inadequate and, in some instances, fraudulent, and not constituting a “good faith effort,” as outlined in the statutes, especially after compliance rates for respirator use plummeted and there was little attempt to improve them. They cited state labor laws requiring employers to provide safe workplaces, regardless of the exigencies of the moment. They argued that the contractors were “doing nothing more ... than engaging in [the] regular course” of their day-to-day business activities, and that this should not be construed as responding to a civil defense emergency.

  They also tried to convince Hellerstein that the city’s claim of immunity did not hold up to congressional scrutiny, arguing that if the members of Congress had believed that the city and its contractors could not be sued, they would never have felt the need to create a $1 billion insurance fund to help the city defend itself against such lawsuits.

  Hellerstein was mindful of the great public interest in the suit and the huge number of people involved. He did not believe that a dry courtroom deliberation on the issue of whether the city—and, by extension, the private construction companies—could be sued would satisfy the public need for airing perceived injustices. He had learned from the volatile emotions unleashed by the other trade center cases he was hearing (particularly the ones involving the radios) that the pain caused by the events of 9/11 ran very deep and that the years that had passed had done little to dull them.

  In late 2006, Hellerstein ruled that the city did not have unlimited immunity, although he did find that at particular times and places during the rescue, recovery, and cleanup operations, the city and the contractors could have had immunity. It seemed logical that the initial response by the fire and police departments constituted civil defense and would be covered by the city’s immunity, but what about the routine removal of steel and concrete in February and March? The ironworkers who cut their way through the tangled beams so a victim’s body could be recovered were doing essential government work, but what about the laborers who had been hired to sweep the perimeter? Even after dozens of depositions had been taken and thousands of pages of documents had been provided, Hellerstein ruled that he still didn’t have enough information to determine the limit of the city’s immunity. He declared it to be a question of fact that could be settled only at trial. Whether the city and its contractors were covered by the immunity statutes would have to be decided on a case-by-case basis, and that would entail gathering even more information before a single trial could begin. The city had to continue producing an endless stream of documents for a case that might not have any legal basis, depending on the way immunity was finally determined. And the plaintiffs continued putting together countless records for trials they firmly believed would be supplanted by a settlement.

  The city appealed Hellerstein’s ruling, and the Second Circuit issued a stay on all proceedings until it reached a decision. The court held on to the appeal for more than a year. Finally, early in 2008, the Second Circuit upheld the spirit of Hellerstein’s decision, finding that the city did not have blanket immunity but that under some circumstances the city and its contractors were protected from lawsuits.3

  For all the conflicting details and abstract legal theories argued in court, one confounding truth emerged from the confrontation: The deeper the litigation proceeded, the farther it got from providing the kind of justice that the responders, and Hellerstein, were demanding. The period of gravest danger—the first weeks after the collapse, when the environmental hazards were greatest and the rescue operation was in full swing—corresponded most closely to the definition of civil defense and response to disaster outlined in the immunity statutes.

  Thus, it was achingly apparent for much of the time that the litigation crawled along that the most seriously injured responders might not be compensated if their cases went to trial. The need for protection was greatest when the ability to provide it was most limited. The agonizing conundrum for the court, and for society, was that when science would be most able to prove the connection between exposure and higher risk of disease, the
law would be least willing to assign blame. And the stronger the legal argument became, the weaker was the science.

  With the immunity issue still rather vague, many questions remained. If the city was immune from lawsuits while responding to an emergency, at what point did the emergency response turn into more conventional municipal cleanup? Precisely when should the city have slowed things down to ensure that everyone on the pile had proper protective equipment—and was wearing it—instead of moving with full haste to recover the remains of dead firefighters and office workers? The sheer number of plaintiffs, and the variability of their arrival at ground zero and the time they spent there, made comprehensive answers impossible. Each case would have to be judged on its own merits.

  That prospect distressed Hellerstein, who clearly was losing patience with the litigation. He understood the city’s argument that a negative ruling could have a chilling effect on future rescue efforts. But Hellerstein, who had been appointed to the federal bench by Bill Clinton in 1998 after a long and successful career with one of New York’s old-line law firms, Stroock & Stroock & Lavan, had a keen sense of wanting to do the right thing. He was determined to uphold the oath he took as a federal judge to “administer justice without respect to persons, and do equal right to the poor and to the rich.” It was apparent that he felt the overwhelming public interest in ground zero demanded that something be done to help the responders who had been injured. In his rulings on procedural matters and in the comments he made from the bench, it was clear that he knew he was expected to provide more than a technical legal decision. The people deserved justice, not legal niceties. And many of the injured had already waited too long.

  Because of the range of cases he handled, Hellerstein probably knew more about the anguish of 9/11 than any other judge in the Southern District. The families that did not go before the victim compensation fund because they insisted on trials came before him. (Eventually, all but one family settled instead of going to trial.) The relatives of firemen who died in the collapse had come before him with claims that the two-way radios they had carried had not worked properly, preventing them from responding to an order to evacuate. He listened to the tearful arguments of the families who longed for the microscopic remains of the deceased to be removed from the Fresh Kills landfill and transferred to a fitting memorial.

  Hellerstein had been 67 when New York City was attacked, the son of working-class Jewish immigrants. He had grown up in the Bronx speaking Yiddish at home and had made his father, a shopkeeper, intensely proud when he had graduated from Columbia University in 1954 and then Columbia law school two years later. Similar to Tyrrell, he had served in the Judge Advocate General Corps—in his case, for the U.S. Army. A lifelong New York Yankees fan, he celebrated his 60th birthday by attending the Yankees fantasy baseball camp.

  Hellerstein’s up-from-the-ground life story imbued him with a profound sense that fairness and justice were as essential to life as are water and air. In those other 9/11 cases, his rulings had shown that he understood how the law itself, no matter how noble, could not always provide a remedy for those who had suffered injustice. This was particularly clear in the cases involving the firefighters’ radios. The families had already accepted compensation from the Feinberg fund, which prohibited them from pursuing any other legal recourse. Burdened by their decisions, and furious with the city over its handling of the radios, they came to Hellerstein hoping to find a way to press their case. The law was clear, and the families didn’t have a strong argument. But Hellerstein believed that justice would not have been served by summarily dismissing them; fairness required more. Although he eventually ruled against the families, he offered them ample opportunity to tell their stories in court, in front of city officials, the radio manufacturer’s lawyers, and reporters who would publish accounts of the families’ tragedies.

  A federal courtroom was far from an efficient setting for resolving the responders’ demands for justice. The burden of proof, the rules of the court, and the unassailable exigencies of science and epidemiology were often at odds there. Delay, protracted negotiation, and legal minutiae would always conspire to keep the court from delivering satisfactory answers in time to compensate those who had legitimately been injured at ground zero. But there they were, in Hellerstein’s courtroom, month after month, anxiously awaiting some resolution. At one point, Hellerstein had suggested that the $1 billion that Congress had appropriated for the city’s legal protection go into a fund that would compensate people for injuries they had suffered while in service to the city without dealing with issues of fault. But Tyrrell said the city could agree to such a plan only if it had protection from future lawsuits. His experience with Agent Orange had taught him how difficult it could be to draw a line under this kind of toxic tort; decades after the Vietnam War ended, new diseases were still being added to the list of those linked to Agent Orange exposure.

  Hellerstein, too, was mindful of the precedent set by the Agent Orange litigation and the decisions made in that case by District Court Judge Jack B. Weinstein, who had been one of his professors at Columbia. Facing many problematic issues in the Agent Orange litigation, Weinstein had used the power of the court to create conditions that convinced the parties to settle, which they eventually did, although for a far lower amount than the plaintiff lawyers had sought.

  When the idea of settlement was raised in Hellerstein’s court, Napoli and Worby argued that $1 billion would not be enough to adequately compensate all 10,000 clients and those who might become sick in the future. They wanted the court to also take into account the separate liability insurance that the private contractors had, in addition to the captive policy. When Tyrrell and Napoli argued over the terms of the settlement, Hellerstein got testy. “Forget about the law. Forget about the analyses. Ask yourself the most basic practical question that you have to ask as a plaintiff’s lawyer: What can I do for the people who have entrusted their most precious asset to me as a lawyer? How can I bring about a return so they can enjoy it and their children can enjoy it in their remaining lives?”4 The judge then warned them what would lay ahead if they could not find a way to deal with each other. “This case will not be a boon to you. It will be an affliction that will consume your practice and the practice of your colleagues, and you will never see the light of day. That is the understanding you have to get. It is not easy.”

  As Hellerstein ushered the massive cases forward, he kept pushing both sides toward a settlement, and Napoli and Worby took steps to be prepared in case a settlement was reached. Plaintiffs are not obligated to participate; they can pass up their percentage of the offered settlement and choose instead to go to trial, where they, of course, stand the chance of losing everything or having to wait years for a verdict. In 2007, Napoli and Worby asked all their clients to sign contacts authorizing them to negotiate a settlement for which they would receive compensation of a third or more of whatever the award might be. They were criticized for using strong-arm tactics, which they denied.

  With the city continuing to pursue its immunity defense, the court, with the help of the special masters, assembled a severity chart based in large measure on the medical records that Napoli and Worby had gathered for thousands of responders, including Ernie Vallebuona, Mike Valentin, John Walcott, Marty Fullam, and Sarah Atlas, who were part of the lawsuit. Both plaintiffs and the defense agreed on a range of respiratory illnesses and gradations of severity from the least serious, such as runny noses, to the most serious, which included some cancers and, ultimately, death. Hellerstein ordered Napoli and Worby to provide medical records for each client, a massive undertaking. At regular intervals, documents were sent to the city for review.

  After spending a year collecting and reviewing the records, the city released an analysis in 2008 of the health claims of the plaintiffs, as portrayed in the documents. It was the first time that anyone besides the Napoli–Worby team had evaluated the responders’ medical records (although, at that point, the city had not been pe
rmitted to conduct its own examinations or tests). Until then, Worby had the stage all to himself. In countless interviews, he used the rapid-fire delivery he had perfected to rattle off chemical contaminants and the diseases they caused in his clients, with an emphasis on cancer. The links were always inferred, and scientific proof was never given. Worby simply said these workers had been exposed to these chemicals, and now they had these diseases—and a growing number of them had died. When asked about incidence rates compared to the population-at-large, Worby promised to reveal everything in court.

  With access to those preliminary medical records, Tyrrell finally had a chance to flesh out what the city’s own lawyers thought they had detected in those early 50-H hearings. Tyrrell prepared a detailed analysis and summarized the findings before Hellerstein. Several surprises cropped up, but nothing created more of a stir than the revelation that more than 300 responders had admitted in papers submitted to the court that they were not sick at all and had suffered no persistent symptoms following their work at ground zero. They said they had joined the suit because they were worried about the future. Around 3,000 of the plaintiffs claimed to be suffering from symptoms no more serious than a runny nose or a cough. In all, the responders had listed a remarkable total of 387 different diseases. The list included high blood sugar, deviated septum, and Bell’s palsy, which have no known connection to dust exposure, as well as cancers and blood diseases, which have latency periods from exposure to onset of 15 years and longer.

  When the results of the city’s preliminary analysis were made public, the notion of several hundred uninjured people suing the city for negligence fed into the ever expanding climate of doubt above ground zero. Just as the unfolding developments in the cases of Detective James Zadroga and Officer Cesar Borja had strengthened those doubts, so did these revelations, which temporarily overshadowed the plight of the responders who truly were sick, sometimes too sick to be heard.