WTC Workers Can Press Forward With Lawsuits, Federal Judge Rules

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Workers who developed respiratory illnesses from cleaning up the debris of the World Trade Center site can press forward with their lawsuits against the city, following a ruling yesterday in which a federal judge expressed skepticism of the city’s argument that it had immunity.

The lawsuits are on behalf of about 3,000 firemen, police, paramedic, construction workers and contractors who participated in first the recovery and later the clean-up operation at the World Trade Center site and the landfill in Staten Island to where the debris was removed.The employees claim the city did not adequately supply them with respirators and later failed to ensure that the existing respirators were being used while the employees labored in an environment of mercury, asbestos, and other contaminants.

In an accompanying order, the judge, Alvin Hellerstein of U.S. District Court in Manhattan, also said he will appoint a special master to begin collecting information on the facts of each plaintiff’s case against the city. This enormous undertaking will involve creating a database that contains records of illnesses and diagnoses as well as provide information on which areas each worker was present in. This information, Judge Hellerstein wrote, paves the way for “meaningful” settlement discussions and trials.

“I think this is a real step forward for these victims of 9/11,” an attorney, Andrew Carboy, who represents 205 plaintiffs, mostly firefighters, said.”In recognizing their condition and situation the court is bringing this one step closer to a resolution, specifically by recognizing that they have a legal claim.”

The city has argued so far that it would be less able to respond to future disasters if it must make decisions knowing that it could later be sued. But Judge Hellerstein said that argument only goes so far.

Judge Hellerstein acknowledges that the city has a case for why it should receive immunity for the decisions it made in the immediate aftermath of the terrorist attacks, when there was still hope of finding survivors. But the city, the judge suggested, should not be shielded from lawsuits based on the decisions it made months later, when the work was to remove and sift through debris.

“As the emergency condition fades, … the need for immunity diminishes and the obligations and duties otherwise imposed once again must be protected,” wrote Judge Hellerstein.

Judge Hellerstein, who was nominated to the bench by President Clinton, said that it is not immediately clear at which point the city’s claim for immunity became invalid.

“That an emergency lasted for some time following September 11is without question,” Judge Hellerstein wrote. “But at some point after the attacks, the emergency conditions subsided, the extraordinary settled into a routine, and the Defendants’ argument for immunity loses cogency…”

Judge Hellerstein wrote that long after the attacks, there were “critical lapses in the enforcement of safety standards and in the dissemination of vital information about the safety of the air at Ground Zero to those most affected, the workers themselves.”

By January 2002, only 29% of workers were using respirators as required, according to the decision.

The city praised the ruling for not entirely dismissing its immunity argument.

The corporation counsel, Michael Cardozo, said in a statement sent via email: “We believe that as the facts fully emerge, the complex decisions that were carefully and thoughtfully made during the months after 9/11 will demonstrate the enormous good work done by the City and its contractors, and the absence of any legal liabilities.”

Mr. Cardozo said the city would continue to call on Congress to create a victims compensation fund for workers who can demonstrate they became ill during the clean-up effort.

Judge Hellerstein did dismiss Con Edison and companies owned by developer Larry Silverstein as defendants. But the various contractors the city hired remain defendants, according to the ruling.


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