Monday, January 9, 2017

The Upcoming 9/11 Trial Isn’t About Money But Elusive Justice


The Upcoming 9/11 Trial Isn’t About Money But Elusive Justice
© Perry Binder 2011-2017

“Money is the universal lubricant. It makes it easier to go on with one’s life.”
Judge Alvin Hellerstein

Ten days after Sept. 11, 2001, Congress passed the September 11th Victim Compensation Fund. The law was designed to provide government relief to family members of victims and to those who were injured on the ground. In order to participate in the program, which paid out over $7 billion, claimants waived the right to litigate.

Of the 96 families that chose to litigate, all eventually settled except for one. The wrongful death trial against United Airlines and airport security firm Huntleigh USA begins Nov. 7, 2011, more than 10 years after victim Mark Bavis left Logan Airport in Boston on UAL Flight 175, the second plane to hit the World Trade Center.

The Bavis family wants answers that they likely will never get, such as what the United States government knew and told the airlines about terrorist threats in the days leading up to Sept. 11. On Oct. 17, 2011, Judge Hellerstein will hold a closed-door conference with the parties to rule on the government’s designated “sensitive security information.” (U.S. District Court, http://www.nysd.uscourts.gov/index.php)   In 2009, he said that he favored keeping more than 1 million pages of 9/11 documents secret.  (Leonard Greene, Legal War Over 9/11 Air Secrets, NY Post (Mar. 26, 2009).

According to The New York Times, “[Judge Hellerstein] said the trial would focus on whether there had been negligence in screening, which he said was the responsibility of United and Huntleigh.” (Benjamin Weiser, Judge May Let 9/11 Lawsuit Pursue Damages for Suffering on Doomed Flight, NY Times (July 27, 2011)). In a lawsuit involving negligence, a plaintiff must prove elements of liability:
1.       The existence of a duty of safety owed by the airline and security firm to passengers
2.      A breach of that duty (the plaintiff will have to show that the defendants did not take reasonable and necessary precautions to prevent injury)
3.      The defendants’ conduct was a substantial factor in proximately causing the passengers’ deaths

In 2002 I predicted that if one of these cases actually made it to trial and key documents were not withheld by the court, then a reasonable jury would hold for the plaintiff. In addition, if the plaintiffs could prove that the defendants were “grossly” negligent, the court could permit an award of punitive or punishing damages against the defendants.
According to the Boston Globe, “[Judge Hellerstein] said he is inclined to allow jurors to consider awarding damages for the final ‘21 minutes of terror’ on United Flight 175 before its crash into the World Trade Center.” (Such damages were not available under the Victim Compensation Fund.) In this regard, the plaintiff’s attorney “intends to use an animated re-creation of Flight 175, showing the flight pattern, with all its erratic twists and turns, from the time it was seized and diverted until its ultimate crash into the World Trade Center.”  (Stephanie Ebbert, Jury set to view hijacking terror, Boston Globe (July 29, 2011).

A settlement can only provide money, with no admission of liability or explanations. Even though the small group of litigants settled their cases for a substantial sum of about $500 million dollars, the Bavises, according to The New York Times, “say the case is not about money. They say they want to prove in a public courtroom what they and their lawyers believe was a case of gross negligence.” (Benjamin Weiser, Among 9/11 Families, a Last Holdout Remains, NY Times (Sept. 10, 2010)).

Trial lawyers often say that “the devil is in the details.” But we may or may not get those details, depending on what documents the judge designates as sensitive security information on Oct. 17. I frequently tell my college students that “it’s good to be the judge” because of the power that comes with the position. While Judge Hellerstein has looked after the financial interest of the victims’ families, it’s not always about the money. I believe he dreads sifting through these documents and being held accountable for his ruling on their admissibility at trial, and privately hopes for a last-minute settlement. (Benjamin Weiser, Judge Overturns Accords in 4 Suits by 9/11 Families, NY Times (July 25, 2008))

I wrote to Judge Hellerstein early on with my thoughts on this case, and I now offer him my two cents for the trial in November:

Your Honor, I wouldn’t greet the Bavis family with the insights you imparted to counsel at a June 25, 2007 court conference:
I learned long ago as a lawyer that many cases of principle stop being cases of principle when there are elements of expense or recovery that are presented. ... [P]eople say, ‘I don’t care what the recovery is, I want my day in court,’ until someone gives them a check. It is very crass and it probably will come back to be critical of me, but there is an expression that is sometimes very useful: ‘Money is the universal lubricant.’ It makes it easier to go on with one’s life.

Your Honor, unless you order another trial delay, prepare to reacquaint yourself with the Bavises. Again and again.

Published in The Huffington Post with permission of author
Excerpted here


Judge Hellerstein Transcript Excerpt
June 25, 2007 Court Conference- Pages 41-42 below:
       SOUTHERN DISTRICT REPORTERS, P.C.
                                                                            41
       25  THE COURT [JUDGE HELLERSTEIN]:
              
I learned long ago as a lawyer that many
                                                                            42
             76PJ911C                 Conference
        1    cases of principle stop being cases of principle when there are
        2    elements of expense or recovery that are presented.  I have had
        3    clients come to me and say look, I want you to defend me, it is
        4    a case of principle.  Then when I presented my first bill, it
        5    stopped being a case of principle.  I think it is common
        6    experience.
        7             Similarly on the other side, people say I don't care
        8    what the recovery is, I want my day in court until someone
        9    gives them a check.  It is very crass and it probably will come
       10    back to be critical of me, but there is an expression that is
       11    sometimes very useful, "Money is the universal lubricant."  It
       
12    makes it easier to go on with one's life.

Professor Binder's Letter to NY Attorney General

February 3, 2003 
Office of New York State
Attorney General Eliot Spitzer
Department of Law
120 Broadway
New York, NY 10271

Re:  Wrongful Death statute of limitations issues for WTC survivors
Dear Attorney General Spitzer:

I am a legal studies professor at Georgia State University's Robinson College of Business.  As a former New Yorker, I have kept a close watch on the legal issues revolving around 9-11.  In this regard, I set up an interactive 9-11 web site as an educational tool.  More specifically, I have followed the workings of the Government's Compensation Fund, and note that we are now witnessing many flaws in the procedures with which money is being disbursed.

I have no financial interest in this matter.  As an educator, I foresee additional complications on the horizon for WTC victims/survivors.  One such issue is the statute of limitations for New Yorkers wishing to file a wrongful death action, while foregoing relief under the Fund.

As you are aware, a New Yorker has two years to file this type of claim (thus, the statute of limitations will expire on Sept. 10, 2003 for the events of 9-11).  This date is in conflict with the deadline to file under the Fund (Dec. 21, 2003)..

Since the validity of the Fund has been challenged in court by victims from Cantor Fitzgerald (see David W. Chen, The New York Times, Jan.. 27, 2003, "Relatives of 7 Victims File Suit"), it is advisable for the legislature to extend the statute of limitations for WTC survivors to a date which at least mirrors the Fund deadline (I recommend an extension until Sept. 10, 2004).

I am writing to you specifically to utilize your resources and contacts in the New York legislature to lobby for this simple, but important deadline change.

Yours truly,
Perry Binder, JD
Assistant Professor of Legal Studies
Robinson College of Business
Georgia State University

Professor Binder quoted in these print sources:
Associated Press, 9/11 relief fund nears $6B mark (June 11, 2004)
"The process has been exhaustive, and seemingly exhausting," said Perry Binder, a professor at Georgia State University's Robinson College of Business who has tracked the fund's progress.
Associated Press, 9/11 Victims' Fund May Cost Less (Dec. 12, 2003)
CBS Radio News, Final Day To Apply For 9/11 Fund (Dec. 22, 2003)
The New York Times, Judge's Ruling Opens Door for More Families to Sue Airlines and Port Authority (Sept. 10, 2003)
The New York Times, 7 Families Sue Administrator of 9/11 Fund (Jan. 27, 2003)

Professor Binder's radio appearances:  
CBS Radio, AP Radio Network   Dec. 22, 2003
(WRVA) Richmond, (WSYR) Syracuse, (CFRB) Toronto  
Sept.10-11, 2003

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