World Trade Center Memorial
World Trade Center Memorial (NYLJ/Rick Kopstein)

More than 200 workers who say they suffered respiratory and other injuries after cleaning up buildings around the World Trade Center in the aftermath of 9/11 will get a second chance in their litigation against building owners and tenants following a decision by a federal appeals court Thursday.

The U.S. Court of Appeals for the Second Circuit said 211 plaintiffs who lost on summary judgment before Southern District Judge Alvin Hellerstein (See Profile) can now continue to litigate claims that their safety was jeopardized by hazardous conditions in the buildings.

The workers’ claims are separate from those made by first responders to the Sept. 11. 2001 attacks in New York and cleanup workers who removed debris from Ground Zero—some 10,000 people who accepted a settlement with New York City and its contractors covered by insurance funded by Congress.

The 211 workers had checked a box marked “none” on questionnaires asking them to identify “diagnosed” conditions, injuries and diseases tied to their work in the surrounding buildings. They were among a group of plaintiffs who claimed that building owners and tenant businesses “failed to provide for [their] safe, protection and well-being” by not monitoring working conditions nor providing equipment to protect them from airborne contaminants.

The defendants moved for summary judgment in 2012 based on the checking of the “none” box. But plaintiffs’s lawyers said their clients checked the box to help assemble a database used to structure the cases and move them forward, and that checking the box was not dispositive of injury or illness.

The attorneys submitted over 400 exhibits, including affidavits claiming injuries and symptoms tied to cleanup work. Among those claims were medical monitoring and fear of cancer.

More than half of the plaintiffs amended their responses to the diagnosis interrogatory and included an affidavit from a doctor who said “WTC exposed populations … have experienced increased risks [of] ‘WTC cough,’ new or worsening upper and lower respiratory symptoms, [and] asthma.”

Hellerstein would not consider affidavits that contradicted the prior sworn answers of the plaintiffs and granted summary judgment. The judge also held that claims for medical monitoring and fear of cancer could not proceed on a standalone basis under New York law.

The plaintiffs appealed to the Second Circuit, where Judges Gerard Lynch (See Profile), Denny Chin (See Profile) and Christopher Droney (See Profile) heard oral argument on October 9, 2013 in In Re: World Trade Center Disaster Site Litigation, 12-3403-cv.

Writing for the circuit Thursday, Chin said the district court erred in “granting summary judgment based solely on plaintiffs’ response of ‘none’ to the interrogatory.”

“While we appreciate that the sheer number of cases before the district court made its task of managing this mass tort litigation extraordinarily difficult, the district court was obliged to individually consider each plaintiff’s answer of ‘none’ in the context of any other evidence of injury,” Chin said.

Chin said the use of the word “diagnosed” created an ambiguity.

“It was possible that a plaintiff manifested symptoms of a condition, illness or disease that had not yet been diagnosed when he answered the interrogatory,” he said. “Indeed, claims arising from exposure to toxic or harmful substances often present nuanced and fact-specific questions as to whether and when a legally cognizable injury exists.”

Under N.Y.C.P.L.R.§214-c(2), a cause of action for a toxic tort accrues either when a plaintiff discovers an injury or should have discovered it through reasonable diligence, whichever is earlier.

“New York Courts have not established a bright-line rule for when symptoms or manifestations of a physical condition are sufficient to trigger CPLR§214-c,” Chin said. “Courts have instead tailored their inquiries as to when a legally cognizable injury exists in toxic tort cases to the particular facts before them, focusing on factors such as the extent of the plaintiff’s exposure to a toxic substance, her medical history, the onset of symptoms and the manifestation of a particular disease.”

For one category of plaintiffs who failed to submit “any evidence,” Chin said summary judgment was proper, but it was not for a second category of “those who offered core discovery responses” before summary judgment that provided evidence of injuries or illnesses from air contaminants.

As for a third category, those who offered late affidavits or amended interrogatory responses, Chin said Hellerstein was correct that plaintiffs generally “may not create material issues of facts by submitting affidavits that dispute their own prior testimony.”

But Chin said it was unclear that the late affidavits or amended answers “necessarily contradicted plaintiffs’ answers to the diagnosis interrogatory,” and some “may have had reasonable explanations” for doing so.

So for the last two categories, Hellerstein was instructed to make an individual assessment before deciding whether summary judgment should be granted.

The circuit went on to agree with Hellerstein’s decision dismissing 31 plaintiffs for failure to prosecute and his decision that independent causes of action for fear of cancer and medical monitoring could not stand.

Plaintiffs lawyer Marc Bern of Napoli Bern Ripka Shkolnik said Thursday he “always felt that Judge Hellerstein’s ruling with respect to these 211 people was inappropriate and didn’t follow the law and was really unfair. We’re very gratified that the Second Circuit looked at this in the light it should have been looked at to begin with.”

Denise Rubin of Napoli Bern Ripka Shkolnik argued for the plaintiffs. Lee Ann Stevenson from Kirkland & Ellis, now with Zuckerman Spaeder, argued for the defedants, with Richard Leff of McGivney & Kluger on the brief.