PERSPECTIVES: Meeting the mission

Margaret Warner

Ten years ago, the 9/11 terrorist attacks on the World Trade Center in New York led to a large-scale rescue recovery and debris-removal effort that opened uncharted legal territory for insurers and claims services. Margaret Warner, partner with McDermott Will & Emery L.L.P. in Washington, was the principal architect and lead negotiator of the landmark settlement of more than 10,100 environmental tort cases against the City of New York and scores of private contractors that undertook those operations.

Ten years ago, an unprecedented public/private partnership mobilized to undertake sensitive rescue, recovery and debris removal operations at the World Trade Center site in New York.

The emergency circumstances made it impossible to put in place the usual formalities before work began. There were no written contracts, no project insurance in place, no anticipation that hijackers would use fully fueled jetliners as weapons for mass murder.

Ground zero became a burial site and a crime scene. For nine months in New York City, scores of contracting companies large and small, thousands of firefighters, police, sanitation workers, heavy equipment operators and laborers scoured the pile with a mission—to recover victims, restore Lower Manhattan, and deny al-Qaida any boasting rights.

As with many other modern disasters, mass tort litigation followed. From 2002 to 2010, more than 10,800 individuals filed lawsuits in New York federal court claiming that their work at the World Trade Center site caused them harm. These individuals alleged that they suffer from hundreds of separate medical conditions caused by exposure and failure to provide proper protection at the World Trade Center site. The legal issues presented are unique, and they required the courts to examine the essence of emergency response efforts of governments and public/private cooperation in a time of national crisis.

America's civil justice system is lumbering, costly and often unpleasant—no more so than with these 9/11 cases. Complex and thorny legal, medical, scientific and public policy questions pervaded each aspect of these cases. Medical science tells us that we will not truly know for years if more systemic ailments may have been caused by conditions at the site. The exactitude of the law takes patience.

The World Trade Center disaster site cases were litigated in the hothouse of New York politics and media while Osama bin Laden hunkered down in Pakistan. The city, contractors and workers were pitted against each other to assign blame. Tort litigation is about blame, but these cases were haunted by the empty chair of al-Qaida.

Some said that federal money earmarked for the 9/11 response should have been used to pay the plaintiffs immediately without engaging in the costly legal process attempting to answer the thorny questions. Others argued forcefully that if blame were assigned, no companies, with their essential know-how, manpower and equipment, would answer their government's call during the next national emergency. Many worried that most of these cases could not be resolved without another decade of wrangling over what could have been done better in the days and months after Sept. 11. Many further questioned the utility of numerous tense trials in which New York jurors would pass judgment on every litigant's best intentions in the face of the audacity of an enemy attack on Lower Manhattan.

It's easy to criticize, but harder to sit around a table or stand in a courtroom and find a fair solution for all in this unprecedented legal battle. It took time, but the parties found a solution. We forged a mass settlement for this mass litigation. Today, more than 10,100 individuals—96% of those who filed lawsuits—have chosen to accept that settlement. Almost 4,000 already have received all payments due them under the settlement. More than $200 million has been paid to date. More than $450 million more will be paid within a year of the settlement going into effect last January.

Each person who settled is having their case reviewed and evaluated individually by a neutral party experienced in this type of litigation. Almost all of the more than 10,100 who accepted the settlement also have received a special insurance policy that will provide them with a financial benefit should they develop certain cancers in the years to come.

Legal settlements aren't perfect; they can't be. They are hard-fought compromises that balance uncertainties faced by all in litigation. Once announced, they fade from media attention. But this settlement is working.

This settlement is paying out more quickly than most mass tort settlements. It provides some measure of closure to those who toiled at the World Trade Center site in the days and months after 9/11. It avoided the need to assign blame and prove cases in court while the only true blame falls on the terrorists.

These cases were settled in a manner commensurate with how New Yorkers tackled the 9/11 tragedy—with collaboration, creativity in the face of complexity, and a desire to ensure an American form of justice. It is further proof that the terrorists didn't get their way.

Margaret Warner is a partner with McDermott Will & Emery L.L.P. in Washington. She was the principal architect and lead negotiator of the landmark settlement of more than 10,100 environmental tort cases against the City of New York and scores of private contractors that undertook rescue, recovery and debris removal operations after the 9/11 terrorist attack. She can be reached at mwarner@mwe.com.