N.Y. City's Qualms Turned Aside in 9/11 Cases

Mark Hamblett

New York Law Journal

Southern District of New York Judge Alvin Hellerstein on Tuesday turned aside objections from New York City over how to proceed with the 10,800 claims of respiratory and other illnesses allegedly caused by toxic dust at Ground Zero.

Endorsing the views of two special masters appointed to help organize the cases brought by rescue workers, contractors and others who cleared debris after the 9/11 terror attacks,  Hellerstein told James Tyrrell of Patton Boggs, representing the city, that ranking claims by the alleged severity of illness without a medical diagnosis was the most logical way to proceed in a case of maddening complexity.

Special masters and toxic tort specialists James A. Henderson of Cornell Law School, and Aaron D. Twerski, the former dean of Hofstra University School of Law, have been working with both sides to assemble a so-called severity chart to take what they term a "snapshot" of the most serious injuries and diseases.

Hellerstein said he hoped the severity chart would help him establish priorities and find a way forward in litigation that threatens to extend for years. The chart would be the first step toward unearthing "bellwether" cases that could be tried or used as the basis for settlement talks.

Addressing the city's objections, Twerski said the city claims "there can be no shortcuts" and that by including people on the charts who may have had tests for respiratory or other problems, but no medical diagnosis, "would result in moving them improvidently to settlement."

Tyrrell said as much when his time came to object.

"Before you populate that chart, you need to have a diagnosis," Tyrrell told Hellerstein. "Before you take Joe Jones and just slot him in ... you can't do it just from tests. You have to have a qualified doctor give a diagnosis."

With as many as 387 diseases and ailments being claimed by the plaintiffs, the special masters divided the claims into several categories, including upper and lower respiratory illnesses.

Hellerstein took note of the city's objections, saying "defendants have complained that a large number of cases have very little merit."

He noted that in May the city cited a statistical sampling in which it claimed 13 percent of the filed cases "do not provide any specific injury" and large percentages of claimants have other problems, such as obesity or a current or past history of smoking.

The judge defended his method of measuring the severity of claimed illness while conceding the chart does not measure causation, including whether the dust at the World Trade Center site was responsible or whether other factors, such as smoking, played a role.

Causation and other issues, he said, would be the subject of the next phase of the massive litigation -- the building of a database that could bring some clarity and allow the court to group the cases into logical categories.

But Tyrrell said the plaintiffs "should only give us, before we load a plaintiff in [the severity chart], what they choose to give us and take their chances."

On the other hand, they could do a "good job and do a thorough diagnosis," he said.

The judge was not changing his mind.

"Look, the severity chart is not the end of the process, it's a substantial beginning of the process," Hellerstein said, adding that Tyrrell's insistence on a diagnosis now would make the process more difficult and expensive.

Plaintiffs lawyer William H. Groner of Worby Groner Edelman & Napoli Bern objected to the severity chart in one respect. Some people, he said, could rank higher with simpler, less expensive tests done in doctors' offices.

For example, Groner tried to persuade the judge to allow a higher classification on the severity chart for people who register inflammation in the sinus cavity with a simple endoscopy as opposed to the more expensive, and American Medical Association endorsed, CAT-scan.

Tyrrell objected and was supported by Twerski.

"There's no question that the CAT-scan is the superior test," Twerski said. "In cases where they suspect clients indeed have serious problems, then they would do the CAT-scans."

Hellerstein agreed.