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An avalanche of Sept. 11-related litigation against New York City is evaporating, lawyers for rescue and construction workers report. Many lawsuits are disappearing because the lawyers say they now have sufficient experience with the federal fund set up to compensate World Trade Center victims that they are confident injured workers will be treated fairly. Rather than pursuing litigation, they will drop their suits and seek compensation from the fund. Speaking of Kenneth R. Feinberg, the special master in charge of the fund, Michael A. Barasch, who filed 1,200 claims against the city, said, “He’s been great.” Barasch, of Barasch, McGarry Salzman Penson & Lim, said he expects that all of his clients will file for compensation from the fund rather than pursue litigation. Because people who are compensated by the federal fund are precluded from pursuing lawsuits, the move will limit the New York City’s exposure to liability by “hundreds of millions of dollars,” he added. Unlike litigants in lawsuits, people submitting claims to the federal September 11th Victim Compensation Fund do not need to establish fault. Instead, those who lost relatives in the attack or who themselves were injured are entitled to compensation under rules established by Feinberg. The awards are funded entirely by the federal government and will total $5.1 billion, according to an audit of the fund conducted by the U.S. Justice Department last summer. As of last month, the fund had received 1,890 death claims (63.5 percent) from the families of the 2,976 people killed in the terrorist attacks. Also, of an expected 3,000 injury claims, 1,711 had been filed. The deadline for filing claims with the fund is Dec. 22. According to the city, a total of 1,700 lawsuits have been filed raising claims stemming from the terror attack. Many of those suits came from rescue and construction workers claiming they suffer respiratory ailments from toxins inhaled while working. The suits are pending before Southern District of New York Judge Alvin K. Hellerstein, who has been designated as the sole judge with jurisdiction over suits arising from the attack. The designation was mandated by the legislation that set up the fund. An agreement between lawyers for the workers and the city has stayed those lawsuits past the Dec. 22 filing deadline to Feb. 28 in order to determine which workers sought fund compensation and which waived the right to sue. With the exception of a group of 55 sanitation workers who are not eligible for the fund, Barasch said that by Feb. 28 virtually all of the litigation brought by injured workers will have been withdrawn. Kenneth A. Becker, the head of a 22-lawyer unit established by the Corporation Counsel’s Office to defend Sept. 11 claims, said he was gratified that many firefighters have decided to pursue their claims with the fund rather than with the city. LAW DEPARTMENT UNIT In September 2002, Corporation Counsel Michael A. Cardozo announced the formation of a special unit to handle claims against the city spawned by the Sept. 11 attack. He said up to $6 million would be allocated annually to the unit to defend claims seeking damages, which ultimately totalled more than $12 billion, although only 1,700 of 2,300 notices of claim filed with the city actually ripened into lawsuits. Federal legislation, however, had capped the city’s liability at $350 million. Becker said that until the lawsuits are actually withdrawn, no decision would be made about redeploying the personnel assigned to the unit, which includes 17 paralegals in addition to the 22 lawyers. Becker recognized that the bulk of the 1,700 lawsuits pending against the city come from workers claiming respiratory problems. Early estimates put firefighters claims at 80 percent of the total. Even if most of the rescue and construction workers go into the fund, Becker added, the city still faces huge claims asserting that the collapse of 7 World Trade Center was caused by the improper storage of 6,000 gallons of diesel fuel to provide backup power to the city’s emergency command center on the building’s 23rd floor. SANITATION WORKER LAWSUITS In addition, 55 sanitation workers who handled debris after it left the World Trade Center site for burial at the Fresh Kills landfill on Staten Island will pursue litigation against the city because they are unable to participate in the fund, said their lawyer, Robin Wertheimer. Under the fund rules, only workers present at the World Trade Center site between Sept. 11 and Sept. 15, 2001, may apply for compensation. Initially, it was unclear as well whether many of the workers at the site would be eligible to apply to the fund because of a requirement that medical treatment be sought within three days of the attack. Though the rules gave Feinberg discretion to waive the 72-hour rule for rescue workers, Barasch said it was uncertain how that discretion would be exercised. Many workers waited significant periods of time before seeking medical help after first experiencing what later became known as the World Trade Center cough, he said. “Going to a doctor for a cough that would hopefully go away paled in comparison to the deaths of 343 firefighters and was the last thing in the world many thought of,” Barasch said. Besides, he added, many workers did not develop the cough until well past the deadline. When the cough developed, however, it presaged serious occupational asthma that could limit a worker’s ability to perform daily functions like carrying a child or climbing stairs. In the case of firefighters, Barasch said, future exposure to smoke or dust could cause a life-threatening inability to breath. SIX $1 MILLION AWARDS With 86 fund cases completed, Barasch said he is satisfied Feinberg will compensate any worker who was present at the site by Sept. 15 as long as he or she can present medical evidence of disability caused by inhalation of toxins. He also said the level of awards has been generous to six workers who are permanently disabled and are receiving awards of $1 million or more. For permanently disabled workers, Feinberg has set compensation for pain and suffering at $125,000, and at $25,000 to $40,000 for those temporarily disabled. Economic damages are available as well for those who can show that they are permanently disabled. Also citing positive experiences with the fund is Michael N. Block, of Sullivan, Papain, Block, McGrath & Cannavo, who said he is filing fund claims on behalf 200 firefighters. “To the extent he can within the law, Mr. Feinberg has done his best to make the fund work fairly,” Block said. He added that he is withdrawing 300 of 500 claims initially filed because those clients’ condition did not warrant pursuing claims with the fund. By not going into the fund those clients preserve the right to sue at a later date, should they develop lung cancer or some other serious disease. Both Anthony P. Gentile, of Godosky & Gentile, who initially filed 210 notices of claim with the city, and Barasch said that they expect to discontinue substantial numbers of claims for similar reasons. In all, Barasch estimated 520 workers will receive compensation for being totally disabled. Several hundred more who were able to return to work after a period of disability will receive awards of between $25,000 and $40,000 for pain and suffering, he added.

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