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Stealth tort reform? Some plaintiffs’ lawyers think it’s coming with terrorism relief. Many of the bills rushed through Congress after Sept. 11 include limits on victims’ right to sue airlines, aircraft makers, airports, the city of New York — and even, for several weeks, Osama bin Laden and al Qaeda. Defenders of these limits say they are a one-time response to the terrorist attacks. But some plaintiffs’ lawyers fear they may provide a model for future proposals to limit civil lawsuits. “I’m very much afraid that the tort reform people will use this as a springboard to advance administrative remedies,” air disaster lawyer Lee Kreindler told a Practising Law Institute symposium in New York on Nov. 16. “I’m certain that this is going to cause us a lot of trouble in the future.” Kreindler’s firm represents more than 50 Sept. 11 clients. He has been a prominent critic of the system set up by Congress to compensate victims and their families. Other mass-disaster lawyers have also grumbled in recent weeks over the Sept. 11 Victim Compensation Fund, which was part of the airline bailout bill signed into law Sept. 22. The more recent aviation security act, which puts airport security in the hands of federal employees, has more limits on suits. The earlier victim compensation law puts a cap on airlines’ liability for the four crashes at the limits of their liability insurance, around $1.5 billion per plane. In addition, by requiring victims and their families to choose between the administrative compensation scheme funded by the government and traditional lawsuits, the plan substantially limits the potential liability of everyone else. Plaintiffs who sue in court waive the right to be paid by the government. The U.S. Department of Justice has not yet published the regulations that will spell out exactly how the compensation regime will work. Attorney General John Ashcroft has named Kenneth R. Feinberg as special master for the compensation fund. A specialist in alternative dispute resolution, Feinberg was a special master in the Agent Orange cases involving soldiers who claimed injuries by defoliation chemicals used by the U.S. government in Vietnam. Feinberg has also served as special counsel on the Senate Judiciary Committee. Even so, lawyers are wrestling with loopholes and ambiguities in the law, passed less than two weeks after the attacks. One of them: No exception was made for suits against the terrorists. So a plaintiff who sues bin Laden (in the face of obvious difficulties in collecting any judgment) could be held ineligible for the federal compensation program. While no one believed this loophole would stand for long after it was discovered, lawyers speculated privately that a plaintiffs’ lawyer who sued bin Laden could, theoretically at least, find himself the subject of a malpractice lawsuit if the client were left without compensation. The aviation security bill, signed into law Nov. 19, closed the bin Laden loophole. It also extended protection to other parties, should they be sued. The beneficiaries were United Airlines; American Airlines; The Boeing Co., which manufactured the planes; the operators of Logan, Kennedy and Dulles airports; and the operator of the World Trade Center. Recoveries are held to their liability insurance limits. New York’s liability is limited to $350 million. Conspicuously left without any protection were the private companies that handled airport security on Sept. 11. ATLA’S VIEW Leo Boyle, president of the Association of Trial Lawyers of America (ATLA), frequently characterizes Sept. 11 as “mass murder, not a mass tort.” Boyle’s group supports the federal compensation plan, although it is lobbying to make it as victim-friendly as possible. This summer, ATLA was lobbying for a Patients’ Bill of Rights with a new right to sue HMOs. Now that Sept. 11 has swept the Patients’ Bill of Rights — along with most everything else — off the congressional agenda, ATLA finds itself in the more familiar position of fighting off proposals for piecemeal limitations on the right to sue. At the same time, it provides an opportunity for the group to improve the image of tort lawyers. In the first days after the attack, ATLA called for a moratorium on suits. It offered to represent, for free, anyone who chooses to go through the administrative procedure rather than take their chances in court. But some plaintiffs’ lawyers and other opponents of tort reform worry that it may be difficult for ATLA to draw a clear line around the events of Sept. 11. “There is a slippery-slope problem that we’re all concerned about,” says Joanne Doroshow, executive director of the Center for Justice and Democracy, a New York-based nonprofit group that opposes tort reform. “The more kinds of liability protections that actually pass through Congress, the more they’re likely to come back for more.” Don Nolan, a Chicago lawyer who represents plaintiffs in air disasters, says he has had many discussions with ATLA leaders about the precedent being set by the compensation system and the pro bono program. “We’re embracing a mechanism for adjudicating claims that we should not be so ready to embrace,” he says. Some changes do go beyond the events of Sept. 11. In October, President Bush signed an executive order giving Health and Human Services Secretary Tommy Thompson the authority to indemnify government contractors, including the makers of drugs and vaccines used to prevent or to respond to bioterrorism. Drug companies are also lined up to ask Congress to include liability protection in bioterrorism legislation that is under consideration. The move could widen protections for drug companies that already exist. For example, BioPort Corp., the sole U.S. manufacturer of anthrax vaccine, has a contract that indemnifies it for adverse reactions and claims that the vaccine doesn’t work properly. Many lawyers doubt that the company, which has a history of failing to meet federal quality standards, could expand production without also expanding the company’s liability protections. A federal administrative program already exists to process claims by those injured by childhood vaccines. The Maryland-based National Vaccine Injury Compensation Program also limits damages available to some victims and sharply curtails the role of plaintiffs’ lawyers. Tort reform advocates have not, so far, tried to use Sept. 11 as a beachhead for launching broad new tort reform proposals. Victor Schwartz, counsel to the American Tort Reform Association, does not think Sept. 11 will lead to sweeping federal changes in tort law. “I don’t think, politically, you can get 61 votes in the Senate for that,” says Schwartz, a partner in the Washington, D.C., office of Shook, Hardy & Bacon, referring to the votes needed to overcome a filibuster. “I don’t think this will be applied to matters not related to terrorism.”

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