NYT : 9/11 Lawsuits Will Get Their Day in Court

9/11 Lawsuits Will Get Their Day in Court

By ANEMONA HARTOCOLLIS | September 4, 2007

In the days after the Sept. 11 terrorist attacks, while much of the country was still stunned and grieving, Michelle Cottom was being forced to deal with an ugly bottom line. How much was her child’s life worth?

The Cottoms — and the families of 41 other victims — may soon get an answer as the little-noticed lawsuits they have brought against the airlines, security companies and other parties move toward a trial in a Manhattan courtroom.

Mrs. Cottom’s 11-year-old daughter, Asia, a passenger on American Airlines Flight 77, died when hijackers crashed the plane into the Pentagon. She and her husband, Clifton, soon had to choose between taking what they perceived as a minimal award from a federal fund set up to compensate victims or calling one of the many lawyers who had sent what Mrs. Cottom calls “advertising packages” and filing a lawsuit.

One of those lawyers, Mary Schiavo, a former inspector general for the federal Department of Transportation, visited her at home and convinced Mrs. Cottom that her instincts were right, that Asia deserved much more than what the government would offer.

“She came to me and convinced me that she could bring justice to the situation, and I trusted what she said,” Mrs. Cottom recalled. When government compensation for deaths was eventually made, the average was $2 million, and the range was $250,000 to $7.1 million.

Now, in the first concrete sign of movement in their case, the judge, Alvin K. Hellerstein of Federal District Court in Manhattan, has set a trial date of Sept. 24 — 2,205 days since 19 hijackers brought four planes out of the sky into the twin towers, the Pentagon and a field in Pennsylvania.

By the plaintiffs’ own accounts, they have sued with mixed motives, which sometimes even they cannot untangle. They present themselves as heroes fighting for the truth and as families honoring the memory of their loved ones, but they are not apologetic about seeking money. They seem to be an angry, stubborn, sorrowful and stalwart group, who have been little known by most Americans, or perhaps forgotten with the passage of time.

Of the original 95 lawsuits on behalf of 96 victims, 53 cases have been settled, one has been dismissed and 41 cases remain to be resolved, according to court papers. Those 41 cases represent 42 victims, including 10 who were injured. But settlement talks continue, and more cases could be settled before the trials begin.

The plaintiffs are people like Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to crash into the World Trade Center. For Mr. Low, it is strange for the airlines to deny that they could have anticipated the attacks, because, he says, his daughter was offered antiterrorist insurance as one of her fringe benefits, and took it.

Or John E. Keating, who has only a plastic bank card, retrieved from the Fresh Kills landfill, where debris from the twin towers site was being sifted, to show for the mortal remains of his 72-year-old mother, Barbara, who was also on board Flight 11.

“You become obsessed by it,” said Mr. Keating, a software developer who lives in Toronto. “The last 40 minutes of her life, I guess that story needs to be told, or acknowledged. In my mind I see her in a seat at the back of the plane, praying for strength because her faith was a big part of her life, and if she was comforting someone who needed comforting, I can certainly see that.”

In a reversal of the usual legal procedure, Judge Hellerstein has ordered six trials for damages to take place before any trial for liability, in the hope, he said, that both sides may use those figures as a road map toward settlement. He set dates for two of those damages trials, Sept. 24 and Oct. 15.

His decision is a mixed victory for the plaintiffs, since it means that the trials, though likely to be extremely emotional, will lack many of the findings of accountability that the families say they so dearly want. The trials will focus instead on the victims’ pain and suffering and on the grief of their surviving families.

“It will be a somewhat sterile type of environment to try these cases in,” said Keith S. Franz, of Azrael, Gann & Franz, which is handling five of the remaining cases.

Still, the grief of the survivors is powerful. Mr. Low, the self-made owner of a small limestone mining company in Batesville, Ark., sometimes wears a silver and lapis lazuli ring he gave to his daughter that was found in the wreckage.

While waiting for his case to get to court, he has learned from F.B.I. records that his daughter gave her childhood home phone number to another flight attendant to make a hasty call to a friend to report the hijacking.

Sara Low had just moved to a new apartment, and her father imagines that in the stress of the hijacking, she gave the flight attendant, Amy Sweeney, the only number she could remember, one that reached back to her childhood in Arkansas.

The plaintiffs point to box-cutters carried by the hijackers as evidence of lapses in airport security. To further support their contention that the airlines could have been more vigilant, they cite, in their master liability complaint, a 1999 Federal Aviation Administration report saying Osama bin Laden had “implied” that he could use a shoulder-fired missile to shoot down a military passenger aircraft.

Lawyers for the defendants in the coming damages trials — United and American Airlines; airport security companies; Boeing, the aircraft manufacturer; and others — say the lawsuits are misguided, that the aviation industry played by the government rules at the time, and that the terrorists knew what they could get away with.

“We strongly believe the aviation defendants are not to be blamed for terrorist attacks on the country,” Joseph F. Wayland, a lawyer at Simpson Thacher & Bartlett, said for the defense group as whole.

Still, they recognize this is not an ordinary product liability case, filled with obscure technical details, but one of the most studied episodes in history, recorded in the voluminous and exhaustive 9/11 Commission report, news media accounts and even the Central Intelligence Agency’s report released last month, detailing the agency’s missteps before the attacks.

Those reports, very much in the public domain, will be the elephant in the room, as Donald A. Migliori, a lawyer with Motley Rice said. “If you put every actor who in part or in whole allowed the events of 9/11 to happen in this courtroom, and take each of their respective shares of responsibility and aggregate it, you have 100 percent liability,” he said. “What is the number that you come up with?”

The defendants say they trust that the judge will keep those ghosts out of the courtroom.

Most of the families are represented by Motley Rice, an aggressive law firm based in South Carolina. Motley Rice, known for its tobacco, lead paint and asbestos litigation, initially represented 53 cases, and still has 30 after settlements.

Ms. Schiavo, who is a frequent television commentator on aviation disasters and terrorism, now works for Motley Rice and brought 44 of the 9/11 cases with her. In addition, Motley Rice had signed up nine on its own.

The plaintiffs acknowledge that the biggest difference between the two sides is over the value of pain and suffering. Economic losses are calculated by a mathematical model, and the margin for dispute is relatively small.

If there is anything that characterizes many of the remaining holdouts in the lawsuits, their lawyers acknowledge, it is that they tend to be people who would not have received high awards from the federal government’s September 11th Victim Compensation Fund — children, retirees, single people without dependents.

Pain and suffering is another matter, more ineffable. The Sept. 11th fund awarded a flat rate of $250,000 for pain and suffering for each person who died in the attacks, and another $100,000 each to surviving spouses and children.

Congress created the Victim Compensation Fund within days of the attacks, to protect the airlines from financial ruin by discouraging lawsuits. People who filed by a deadline of Dec. 22, 2003, had to relinquish their right to sue.

The fund paid $6 billion to survivors of 2,880 of those killed in the attacks, representing 97 percent of the families of the dead, according to its final report.

But in the mathematical model of the fund, despite the discretion exercised by its special master, Kenneth R. Feinberg, the economic losses of a child like Asia Cottom, whose dream of being a doctor was harshly interrupted before anyone could know whether she would realize it, could not compare with those of a stockbroker leaving behind a spouse and children.

Mrs. Cottom, a branch chief for civil rights at the Department of Agriculture, and her husband, on the staff at Choice Academy, an alternative school in Washington, had taken out life insurance on their daughter, because they thought it was the responsible thing to do. The compensation fund deducted death benefits like life insurance from any award.

The Cottoms and their lawyers would not say how much Asia might have received from the fund. Mrs. Cottom said she believed they would have received little if any more than the minimum $250,000 — an amount she found “insulting.”

She lost a daughter, she said, who had her first menstrual period just before the fatal flight, a school trip to Los Angeles. “I took her to Wal-Mart to buy sanitary napkins,” Mrs. Cottom said. “So she was growing up one day and the next day she’s gone.”

Her decision to reject the fund was not hard, she said. “To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year-old is worth $2, but because you’re the pilot of that plane, that’s worth $2 million?”