City of Dust

by Anthony DePalma

  In response, Worby and his team promised that no one who did not deserve compensation would receive a dime. They insisted that it was legitimate for healthy workers who worried about getting sick in the future to join the lawsuit because so much about the effects of the dust was still unknown. Science could someday define precisely the connection between dust and disease, and, as Agent Orange and other previous environmental exposures have shown, the list of diseases could be very long.

  In the years since the attacks, there seemed to be no end to the ways in which people tried to use ground zero to further their own schemes. People who claimed they were New York City firefighters turned out not to be; people who said they spent time volunteering in Lower Manhattan turned out to have never actually touched the pile. As the scientific studies increasingly linked a long list of respiratory problems to the dust, more people claimed that their exposure, no matter how brief, had caused their illness because, well, what else could it be? And without conclusive evidence, there was little downside to claiming that any illness that had developed in anyone even remotely connected to the cleanup was the result of exposure to the dust. Filmmaker Michael Moore got a lot of attention when he brought several responders to Cuba for medical treatment of illnesses they claimed were connected to ground zero. One had unspecified respiratory problems, and another needed a new set of teeth. Standing up for those who were sick became an industry in itself. In one case, Michael Bellone, a former nightclub bouncer who showed up to volunteer at ground zero, was arrested years later for impersonating a New York City firefighter and illegally possessing fire department gear that he used to promote a book he wrote about his experiences after 9/11. In another, Scott Shields enchanted many people with stories of how he and his golden retriever, Bear, had found numerous victims in the pile. But those tales were eventually debunked. Bear was not a trained rescue dog, and Shields was later arrested for taking thousands of dollars in rental assistance money from FEMA after fraudulently claiming he had lived in Lower Manhattan on 9/11.

  Exaggerated claims also showed up in workers’ compensation courts. In one instance, a Merrill Lynch assistant vice president filed for benefits under a special provision of the New York state law that extended coverage to ground zero volunteers. The executive claimed she had suffered post-traumatic stress after she volunteered to help direct bank workers to the ferry that took them to safety in New Jersey on the morning of September 11. The executive claimed to have been a recovery worker because she had recovered her office laptop, and insisted that she had been involved in cleanup operations because she had cleaned up her apartment to use as a temporary office. Her claim was denied.

  In interviews after the city challenged the veracity of the rescue workers’ claims in court, Napoli and Worby accused Tyrrell of unfairly presenting the plaintiff-heroes as “liars, cheats, and malingerers.” But the lawyers themselves had not completely resisted the temptation to overstate things. In a document presented to the court, they asserted that a New York State Department of Health study had determined that 128 responders had already died because of their exposure to trade center dust, a sobering statistic that would have lent great weight to Worby’s predictions about the dust’s deadly traits. Napoli and Worby referred to the health department’s mortality registry, which tracked deaths among ground zero responders. The department hoped to compare the rate at which responders died to national mortality rates and, in so doing, determine whether the responders were at greater-than-normal risk for certain illnesses. But reaching such conclusions would take years, and far more investigation, especially without the kind of autopsy guidelines Dr. John Howard had proposed or that Dr. Charles Hirsch had recommended in order to save tissue samples for future reference. The department simply noted deaths among responders, regardless of cause.

  At the time Napoli and Worby put together their brief for the court, 128 responders indeed had died. But the health department had not connected any of the deaths to the dust, nor had it ruled out the possibility that the dust had caused some of the deaths. The number simply reflected how many of the 60,000 workers at ground zero had passed away from any cause at all, including traffic accidents, assaults, and suicides. When confronted about their misrepresentation of the data, the lawyers admitted that they had gone beyond what they knew at the time and had inadvertently misstated the nature of the health department’s figures.

  Advocates for the rescue workers regularly repeated the same kind of mistake. As the number of deaths invariably grew, so did the advocates’ outrage, but the mistake was rarely corrected. In the following years, tabloid accounts of the health department’s growing death list continued to present the results as a tally of the dust’s deadly toll. And the fact that the numbers came from the state health department was seen as endowing the figure with a degree of independent confirmation and welcomed certainty.

  Judges have been criticized for being overly eager to recommend settlements in mass torts, pushing for a comparatively speedy resolution to avoid complex and lengthy trials focused on gnarly points of law. In many instances, the private companies being sued accept the settlements to put an end to the conflict and move on, even when there is inconclusive scientific evidence that their products caused any damage. Judges have been known to take the position that smoothing out technical details is less important than achieving justice, which can sometimes require finding the sweet spot between noble law and the messy facts of life. And in the 9/11 cases, it was increasingly clear that some people had indeed been severely injured. Even if no scientific proof could show how many had been harmed, justice would not be served by turning away the injured, no matter what the law said about immunity.

  Ironically, the very existence of the $1 billion insurance fund may have ensured that none of the responders, no matter how sick, received timely compensation. As Hellerstein observed in his 2006 decision on the limits of the city’s immunity, “The availability of a one-billion-dollar fund authorized by Congress should not serve as encouragement to lengthen and complicate these proceedings. The scar to the public interest needs to be cleansed, speedily, in good time.” The captive insurance company spent money at a ferocious pace to pay for the city’s French-cuff legal defense. Napoli and Worby wanted to get their hands on it for their clients, and inevitably for themselves, after spending millions on the litigation. And Tyrrell understood that there was no advantage to mounting anything less than an all-out defense of the city, during which time he and his associates kept the billing meter running. Tyrrell saw the city as having a responsibility to the workers, but also to other Americans, who had provided the $1 billion and expected it to be handled judiciously, not simply meted out to those who had put their hands out to ask for some. In 2009, he filed a motion to dismiss lawsuits by police and firefighters on the grounds that uniformed city employees have other recourses and are not covered by the state’s labor laws. The move enraged responders but would have significantly winnowed the number of those eligible for some kind of court-ordered compensation, if a settlement were to be reached.

  Hellerstein tried several ways to short-circuit the process so that a settlement was possible, but it was a stretch to say that his efforts were successful. The notion of allowing limited discovery leading up to the motion to dismiss based on the city’s immunity defense allowed Napoli and his team to open new avenues of attack based on the millions of pages of documents they had requested. Hellerstein’s limited immunity decision did not scare the defendants into settling. Even the appointment of James Henderson and Aaron Twerski as special masters and their compilation of a severity chart did not lead to the settlement Hellerstein had envisioned. By 2009, after he had turned 75, Hellerstein still vowed to see the cases through. He then decided to up the ante.

  With the help of the special masters, Hellerstein devised a system for culling the thousands of cases into a manageable sample of benchmark lawsuits that could be brought to trial comparatively quickly. He hoped that if the cases were selected
properly, the laborious preparation for the trials and the reality that arose from the intensive discovery process would convince both sides that a broad settlement was a much better option than going to trial with expert witnesses, scientific debate, and detailed investigation of each of the 10,000 responders.

  To begin with, Hellerstein ordered Napoli and the plaintiff team to eliminate duplicate cases and any clients who rightly belonged to a parallel litigation involving the owners and tenants of buildings surrounding the trade center. That reduced the number to 9,090—still huge, but it was a start. The 9,090 cases were divided into five groups. Napoli was given 40 days to provide the records pertaining to the first 2,000 cases. The cases then were to be classified by severity, using the chart already developed by the special masters, and culled to just 225. Finally, Napoli and Worby were to choose 2 cases out of the 225 that they wanted to bring to trial. Likewise, Tyrrell and the city picked two to be tested at trial. And the court itself, with the help of the special masters, selected two cases.

  Every 40 days, another 2,000 or so cases were similarly documented, culled, and then picked over. In the end, when all five groups of cases had been reviewed, a select core of 30 cases would be subject to extensive discovery leading up to a limited round of trials. In these benchmark proceedings, basic questions would be raised about who did what on the pile, who wore what, what was tested, what was said, and what was required. After those were dealt with, the science of causality itself could end up being on trial, with scientific evidence and expert witnesses expounding in court. The medical conditions of the individuals would be picked over carefully, each symptom challenged, each diagnosis held up to scrutiny. Responders would have to undergo extensive medical examinations to document their illnesses, and the testing, which would be videotaped, could end up being shown to jurors. At times, it might seem that grand rounds from a teaching hospital had passed through the federal courthouse.

  Tyrrell picked cases that involved implausible medical claims or that helped frame the immunity issue by focusing on individuals who were present only during the earliest days, when the city was responding to a civil defense emergency. Napoli and Worby honed in on their strongest cases, in which the link between the dust and disease was most tangible and had had the greatest impact. One of those involved Lieut. Marty Fullam, who continued to recover from his lung transplant. The court itself looked for a range of cases that were likely to raise issues that neither Napoli nor Tyrrell had brought up.

  One of the first cases the court selected was that of a veteran firefighter, Raymond Hauber, who had died of esophageal cancer in 2007 when he was just 47. Tyrrell did what he had vowed to do, scrutinizing each plaintiff’s medical history looking for indications that the health problems predated 9/11 or were unrelated to ground zero. In doing so, he and his team questioned Hauber’s doctors, asking about the firefighter’s weight, his eating habits, and even a sexually transmitted disease he had contracted. The information was leaked to the New York tabloids, which ran outraged articles about the city’s attempts to besmirch a hero, an early indication of how nasty the trial process could turn out to be.

  Months later, as Hellerstein decided to narrow the 30 cases to a more manageable 12, more disparities arose, further impairing the credibility of some cases. An investigation by the Associated Press showed that one worker who claimed to have developed respiratory problems, skin rashes, and acid reflux after working on the pile had been ill for several years before 2001. In another case, a police officer whom the lawyers listed as having lung cancer turned out not to have cancer, but rather chronic asthma. She claimed that the lawyers had submitted incorrect information.

  In addition to these embarrassments, Napoli’s team suffered other setbacks as a few of their responder clients, including some who were involved in what had been positioned as strong cases, backed out, and decided not to continue to participate in the litigation.

  The prospect of these benchmark trials coming undone threatened Napoli’s original strategy of accumulating as many cases as possible. The weakness of some of the cases severely undercut the plaintiffs’ credibility and further strengthened the position of critics who claimed that although some legitimate responders had been seriously injured, the overall number of those affected was significantly smaller than Napoli and Worby had claimed.

  Even as Hellerstein worked hard to bring the cases before him to a satisfactory conclusion, there were indications that ground zero litigation could go on for much longer. In September 2009, in time for the eighth anniversary of the attacks, New York Gov. David A. Paterson signed Jimmy Nolan’s law, named after a carpenter from Yonkers who became ill after working at ground zero. The bill gave thousands of rescue and recovery workers additional time to file lawsuits for injuries sustained in the aftermath of the towers’ collapse. The city’s chief lobbyist in Albany claimed the new law would revive some 3,000 old cases, intensifying the legal battle in federal court, laying an additional financial burden on the city, and frustrating Bloomberg’s efforts to reopen the victims’ compensation fund.

  Hellerstein kept putting pressure on both sides. As 2010 began, serious settlement negotiations were underway. At the first court hearing in the new year, Hellerstein forced Napoli and Tyrrell to acknowledge the existence of a draft settlement document more than 70 pages long, which some of the lawyers in court representing small groups of responders said they didn’t even know existed. Hellerstein put Napoli on the spot, asking him to report on the negotiations. “You put me in an awkward position,” Napoli said as he rose from the plaintiffs’ table.

  “When haven’t you been in an awkward position?” Hellerstein retorted.

  Neither Napoli nor Tyrrell was willing to divulge any specifics of the proposal in open court. They couldn’t because they had signed a confidentiality agreement. But after the court session ended, Hellerstein called them into his chambers for an off-the-record discussion, undoubtedly to drive home his strong desire for a settlement agreement, and soon. In court, Hellerstein reminded both sides of the looming trials, which were scheduled to begin in little more than three months. After he did so, Robert H. Riley, a lawyer for the Port Authority, which was a defendant in the case but was not represented by Tyrrell, went right to the heart of the litigation, attacking the biological plausibility of the plaintiffs’ case and asking the judge to do what he had so far refused to do: order the plaintiffs to produce scientific evidence that the dust plausibly could have caused cancers in just a few years, even though the scientific literature held that latency periods were decades long. It was a put-up-or-shut-up motion, aimed directly at what Hellerstein knew was the weakest point of Napoli and Worby’s claims.

  If Hellerstein had ordered Napoli and Worby to produce their evidence on cancer before the trial began, and then had found the proof unconvincing, he could have summarily dismissed those cases. But Hellerstein wasn’t interested in doing that. It would have been seen as a legal technicality that denied many their day in court. He rejected the Port Authority’s motion for an advance ruling and said that questions of proof would be handled as each case came to trial, unless a settlement came first.

  Endnotes

  1 Personal interview, 16 October 2009.

  2 Memorandum in Support of Motion for Judgment on the Pleadings Based on State Statutory and Common Law Immunity, 17 February 2006.

  3 Docket no. 06-5324-cv, argued 1 October 2007; decided 26 March 2008.

  4 Court transcript, 28 November 2006, 26–27.

  Part IV: Reality

  14. Missed opportunities

  On a blustery late summer morning in 2007, with heavy rain and flashes of lightning across the city, Joseph Jones finally had the chance to hear his wife publicly acknowledged as the 2,750th victim of the terrorist attacks of September 11. Felicia Dunn-Jones was just one of so many, yet six years after the fires at ground zero were extinguished, she was the only person till then whose death had been officially attributed to exposure to the dust. With
his daughter, Rebecca, at his side (son Joe junior was too emotionally distraught to be there), Jones, along with Kiki and Rick Bennett, the lawyer who had helped him get Dunn-Jones’s death classified as murder, listened intently as a New York City firefighter intoned “Felicia Gail Dunn-Jones,” in a stout voice that tore through the hearts of her family.

  The events of September 11 then flashed through Jones’s mind—the nightmare of locating his wife, rounding up their kids, and then bringing them all back home safely to Staten Island. Try as he might, he couldn’t help but dwell on the unfathomable mystery of what might have been. Had she just decided to head to the Hudson River and the ferry to New Jersey, instead of hiking to the East River and the closed Williamsburg Bridge, would she have avoided breathing in the cloud and its entrails for hours that day? If she had been allowed to leave the Education Department’s building after the first plane struck and had made it to Brooklyn before the towers had disintegrated instead of being forced back upstairs by a security guard, could she have avoided the dust that killed her?

  Those missed opportunities have haunted him ever since. “There’s always that doubt in your mind, that ‘what if,’ and if—it’s such a big word,” he recalled.1 On a gold chain around his neck hangs the engagement ring he gave to Dunn-Jones after she proposed to him, along with the simple gold wedding band she wore for 18 years. He doesn’t say more, but his eyes carry on the story. The events that reshaped his life were so monumental that it was hard to comprehend how he, a drug store assistant manager, had been caught up in them. The only way to reduce it to comprehensible size was to think of the minute dust and to imagine it spreading in every direction, covering everything—and everyone—in its path. Some just brushed it off and moved on. Not him. And surely not his family, most especially not his son. Although Joe junior had not been able to link his mother’s death to environmental contamination, he did connect her disappearance with the attacks that had brought the towers down. He didn’t have a clue what sarcoidosis is, or what it did to her. In his mind, there had to be a person to blame, not a disease, an act of war, or a government agency that screwed up. In his moments of greatest grief and frustration, he sometimes yelled out, “Bin Laden killed my mother!”