Lawyers stand to collect as much as half of the money sought in a group of lawsuits filed on behalf of workers allegedly injured by smoke inhalation in the post-9/11 cleanup. That shocking news, reported by The Post last week, is only one of the outrages surrounding this case.
Start with the fact that, while many of those killed and injured in the terrorist attacks have had their expenses met through sources like the federal September 11th Compensation Fund, no injured worker who joined these lawsuits has yet collected a dime.
This was entirely predictable: As I wrote in The Post in October 2006, federal district Judge Alvin Hellerstein’s decision to allow these lawsuits to proceed against New York City was “simply wrong.” I warned that, for all Hellerstein’s claims that he didn’t want to “enrich lawyers with endless stratagems of motions and delays,” his ruling would do just that.
Here we are, 3½ years later, and defense lawyers hired by the city have already made some $200 million, plus $75 million in administrative expenses. The lawyers for the plaintiffs, meanwhile, expect to collect big-time if they win – contingency fees that will eat up a third of the award, plus expenses that (as The Post reported) will push their total past the halfway mark.
Then there’s the fact that many of the cases themselves are dubious at best. The Associated Press reported that one worker is listed by the lawyers as suffering from “lung cancer,” when she actually only has asthma. Another worker had claimed — in an earlier, unrelated medical-malpractice suit — that his ailments predated 9/11.
Such deceptions are endemic to “mass torts,” the name lawyers give to legal claims stemming from a common cause that are too dissimilar to be grouped into class actions but too numerous to be tried individually.
Mass-tort lawyers recruit clients, even if the facts don’t support their cases, because they know judges will go along. As Chief Judge Dennis Jacobs of the New York-based US Court of Appeals for the Second Circuit has noted, judges handling mass-tort claims regularly process massive caseloads “without regard to whether the claims themselves are based on fraud, corrupt experts, [or] perjury.”
Judges allow such shenanigans because there’s simply no way any judge can handle civil trials for thousands of claimants and give due consideration to the facts of each case. So judges try to steamroll the parties into settling the case before trial.
To do that in the case of the 9/11 suits, Judge Hellerstein is selecting a few of the claims (12 out of some 10,000) to take to trial. By cherry picking good claims expected to win relatively high jury awards, he’ll try to ensure that New York City and several contractors who handled the cleanup face enormous pressure to settle.
The total payout will likely be massive, but the truly injured parties will be ill-served. The lawyers will inevitably agree to a “haircut” on the amounts meted out in the initial trial — because they know they can’t take all the remaining cases to trial, and that many of those remaining claims aren’t really valid. So, at the end of the day, Hellerstein’s decision will leave most of those truly sick from their efforts in the 9/11 response with less than they need to treat their ailments, after waiting years. Meanwhile, those with bogus claims will get payouts, and a huge percentage of the money real victims need will go to attorneys.
It didn’t have to be this way. If, back in 2006, Judge Hellerstein had properly given the city the immunity to which it was entitled under the state Defense Emergency Act, our elected representatives could have crafted a reasonable plan to take care of those injured in brave service during our time of tragedy.
It wouldn’t have been easy or costless, but out-of-court government compensation systems in other contexts have shown themselves to be fair, with much faster payout times and much lower administrative costs. With $1 billion in federal cash on top of billions more in available insurance proceeds, even New York’s inept City Council could have developed a better system than what we’re witnessing in Judge Hellerstein’s courtroom.
That approach would not have enriched the litigation industry. And it wouldn’t have allowed Judge Hellerstein to preside as king in the latest mass-tort legal farce. But it would have been better for everyone else involved.
James Copland is the director of the Manhattan Institute’s Center for Legal Policy and author of the new study, “Trial Lawyers, Inc.: K Street — A Report on the Litigation Lobby 2010” (at triallawyersinc.com).