Legally Speaking: From Ground Zero to the Courtroom -- For Heroes of 9/11, The Fight Has Only Changed Location

John G. Browning Jul. 24, 2007, 11:44am

For James Zadroga, the late night errand to fetch his 4 year-old daughter a drink should have been a simple one. But on this January night, Zadroga's tortured, scarred lungs finally gave out, four years after the 34-year-old former New York City police detective initially developed respiratory problems while working in the rubble of the World Trade Center after Sept. 11, 2001.

Instead of making it to little Tyler Ann's room with her drink, James Zadroga's body would be found early the next morning, the bottle still clutched in his lifeless hand. An autopsy later performed by a New Jersey coroner attributed the death of Zadroga - a lifelong nonsmoker with no lung problems before Sept. 11, 2001 - to dust from Ground Zero.

James Zadroga was just one of thousands of emergency responders, workers, and volunteers from towns around the New York metropolitan area who toiled in the wreckage of the World Trade Center for days, weeks, even months after the terrorist attacks, and who have paid a terrible physical toll for their selflessness.

Few people realized in the initial aftermath of the World Trade Center attacks that a more insidious danger lurked amidst the twisted iron and shattered glass. The "pancaking" or downward explosion of the towers and the fire released hazardous substances into the environment and deposited an estimated one million tons of dust onto Lower Manhattan and the surrounding areas. This dust was composed of a mixture of building debris and combustion byproducts, including asbestos, lead, glass fibers and concrete dust.

The fires spewed harmful pollutants into the air, a toxic soup of metals, particulate matter, polychlorinated biphyenyls (PCBs), sulfuric acid, hydrocarbons, dioxins and volatile organic compounds (VOCs).

Despite the obvious smoke and particles in the air, at first workers were not required to wear personal protective equipment while on site. In the initial weeks after 9/11, few were given respirators and filters; even after such equipment was provided; it was not properly fitted on the workers, nor were they given instructions on the equipment's use and care, including replacing the filters. Astonishingly, by late October, only 29 percent of workers at Ground Zero were wearing respirators. Even then-Mayor Rudy Giuliani was seen visiting the site without wearing a respirator.

Over the months, about 40,000 people worked at Ground Zero, ranging from police officers, firefighters, and paramedics to volunteers like James Zadroga, contractors, and day laborers. A medical screening and monitoring program coordinated by Mount Sinai Center for Occupational and Environmental Medicine in New York (which has screened more than 16,000 of those who worked at the World Trade Center site during or after the attack) indicates that more than half the workers need medical treatment.

While workers initially noted nasal, eye, and throat irritation and a persistent, hacking "World Trade Center Cough", far more serious conditions began to emerge over time. These included asthma; chronic sinusitis; chronic bronchitis; pulmonary fibrosis, a scarring of the lungs; silicosis, an inflammation and thickening of the lungs caused by inhaling silica in crystalline form; sarcoidosis, which causes lung stiffness and loss of lung volume; as well as leukemia and other malignancies brought on by the carcinogens in the toxic air.

According to an August 2006 study in the American Journal of Respiratory and Critical Care Medicine, New York City firefighters and emergency personnel exposed to dust from the towers' collapse experienced a decrease in lung function equivalent to 12 years of natural aging-within one year after 9/11.
Congress took swift action to provide for 9/11 victims, creating a new federal cause of action for claims arising out of the hijackings and subsequent crashes and enacting the Air Transportation Safety and System Stabilization Act of 2001 (the ATSSSA).

Among other things, the ATSSSA provided for the creation of a Victims Compensation Fund, intended to compensate surviving relatives of those injured or killed in the 9/11 attacks. It also limited the City of New York's liability for all claims arising out of the terrorist-related crashes to $350 million or the limits of its insurance, whichever was greater.

More than two years later, when it became clear in February 2003 that Ground Zero workers were becoming ill at alarming rates from their exposure at the contaminated site, Congress provided a $1 billion fund to pay claims against the City of New York and its contractors for injuries and illnesses incurred during debris removal. Congress directed FEMA to set up a captive insurance company (the WTC Captive Insurance Company, Inc.) with this billion dollars, which would then disperse funds to satisfy such claims (including claims brought by City of New York employees). It was specifically anticipated that the fund would have to cover claims for years into the future.

A perfectly valid question is just how many claims brought by workers sick from their Ground Zero exposure have been paid to date? Shockingly, the answer is only one --$45,000 paid to an individual who fell from a ladder during debris removal and sustained multiple fractures. Not one penny has been paid to a single worker ill from exposure at the toxic worksite.

That doesn't mean that the WTC Captive Insurance Company hasn't been spending your federal tax dollars. On the contrary, by the end of the first quarter of 2007, the Captive had spent more than $64.6 million on "loss adjustment expenses". This included "claims administration" costs of over $9 million to cover overhead like salaries, benefits, office expenses and insurance for employees. That's right – insurance.

While the Captive disputes and denies nearly 10,000 claims for illnesses blamed on toxic exposure at Ground Zero - made by individuals who often have no health coverage at all-Christine LaSala, its president and CEO, is handsomely compensated to the tune of $350,000 per year, plus an additional $20,000 annually to cover health benefits for her and her family.

Where has most of the money gone? Lawyers.

The WTC Captive Insurance Company has paid out $45.7 million dollars for attorneys' fees alone. "Lead defense counsel," "coverage counsel", "preexisting claims counsel", you name it, the WTC Captive Insurance Co. has teams of lawyers, some billing $550 an hour and up for their time, working to fight tooth and nail against these claims in court.

As word spread about how the Captive was using the billion dollar fund Congress had provided, members of the Senate and House of Representatives expressed indignation. On July 31, 2006, U.S. Senator Charles Schumer wrote to Christine LaSala:

"I am disappointed that the federally-financed fund-which I shepherded through Congress-is not fulfilling the mission it was charged with: making sure these brave men and women have the resources they need to address the health impacts that resulted from clearing debris at the World Trade Center site…At the end of the day, the $1 billion allocated by the federal government should go to those who are sick or injured as a result of their work at Ground Zero as quickly as possible."

That same week, Congressman Jerrold Nadler was equally blunt in writing to Richard L. Skinner, Inspector General of the Department of Homeland Security:

"[I]t appears that the [World Trade Center Captive Insurance] company has never developed any procedures to award legitimate claims…clearly, it was not the Congressional intent to provide $1 billion in federal taxpayers money simply to fight 9/11 heroes in court, without any provision for paying valid claims."
Despite this political pressure, nothing has changed. Only the one previously mentioned claim has been paid, while nearly 10,000 others are stonewalled by the WTC Captive Insurance Co. The hundreds of Ground Zero exposure lawsuits initiated have been consolidated before U.S. District Judge Alvin Hellerstein in New York, and the WTC Captive's well-compensated attorneys continue to file motion after motion.

On September 7, 2006, the "James Zadroga Health and Compensation Act" was introduced in Congress. The act would extend long-term medical monitoring to everyone exposed to Ground Zero toxins and federally-funded health care to anyone who is sick as a result. It remains pending in both the Senate and the House of Representatives. Time ran out for James Zadroga, and is running out for other Ground Zero workers.

I was raised in northern New Jersey, practically in the shadow of the World Trade Center. Even today, when I visit family and gaze out at the forever-altered New York City skyline, I cannot help getting a lump in my throat as I look at what Bruce Springsteen described in "The Rising" as a "Sky of memory and shadow…Sky of longing and emptiness."

When those towers fell, a nation rose as responders like James Zadroga made their way to Ground Zero to help in any way possible. These individuals deserve better than to live out their shortened lifespans desperately sucking oxygen from portable tanks as lawyers bicker in courtrooms over their right to be compensated.

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