The Gulf Coast's endangered wetlands are a long way from the concrete towers of Lower Manhattan, but a wood paneled federal courtroom here on Pearl Street can provide invaluable lessons for handling the BP disaster that could save endless amounts of time, money and anguish.
In that courtroom, Judge Alvin K. Hellerstein last month approved a comprehensive monetary settlement that could be worth more than $700 million if it is accepted by 95 percent of 10,000 workers who toiled on the debris pile of the World Trade Center. The workers sued New York City and more than 100 private contractors who did work for the city during the nine month cleanup in 2001 and 2002, claiming that they were recklessly exposed to dangerous chemicals by a city overly eager to get things back to normal.
The parallels to the current situation in the gulf are many. Recently, a panel of national health experts met in New Orleans to look into the potential health risks to thousands of cleanup workers and volunteers who are being exposed to the raw petroleum washing up on the beaches, as well as the chemicals in the dispersants being used to break up the floating sheets of oil. Some have complained of dizziness, nausea and headache. BP claims the chemicals are safe and that the workers are reacting to the heat or to contaminated food.
The only certain way to know how this exposure will affect the health of workers is through long-term epidemiological studies. But those can take decades, and no one suggests that waiting that long is reasonable. Data is still being collected on how exposure to the ground zero dust nine years ago will impact the long term health of those workers.
Personal injury lawyers do not wait for epidemiologists to complete their work. In New York they hauled 10,000 lawsuits before the court without actually proving any link to the dust. The legal tab for both sides leading up to last month's settlement offer is in the hundreds of millions of dollars.
BP's recently announced $20 billion compensation fund is sure to attract personal injury lawyers the way a pile of day old Louisiana oyster shells attracts flies. Those receiving compensation will have to give up their right to sue, but the track record in New York suggests that many will pass up participation in the fund and will look for recourse in the courts.
Litigation on such a huge scale would drag on for many years, as it has in New York. But the proceedings before Judge Hellerstein suggest ways to make sure that those who legitimately are injured receive the help they need without unnecessary delay, while making it more difficult for people to grab money they may not deserve.
• Keep records. Sounds simple but it is important to know who worked where, when and for whom. We still don't know how many people worked at ground zero. Some responders have been forced to produce photographs to prove they were there.
• Set fair limits. Just as important as when the administration of the $20 billion fund begins is when it will end. When the original September 11th Victim Compensation Fund shut down in December 2003 many respiratory illnesses stemming from exposure in 2001 had not yet surfaced, leaving many little choice but to sue.
• Monitor. The sooner an independent medical monitoring system (not paid for by BP) begins, the easier it will be to establish a data base that can track linkages between the oil and certain diseases. Better yet, give workers a basic exam before they start.
• Communicate carefully. The U.S. government may be taking a passive role in the cleanup but it must ensure that risk is communicated with the same care and precision as operating a submersible a mile below the surface of the gulf. At ground zero, government officials glossed over significant details about where the air was safe, leading workers to make poor decisions about protecting themselves.
• Follow the science. Correlating injuries with recovery work is not the same as proving causation. The possible areas of concern should be clearly outlined as soon as possible. In the ground zero litigation, workers have complained of more than 350 different diseases. In addition, thousands who admit they are not sick now could end up receiving compensation awards because they are worried they could fall ill in the future.
Kenneth R. Feinberg, a Washington lawyer who oversaw the original 9/11 victim fund, has been appointed final arbitrator in the ground zero settlement. He also have been named administrator of BP's $20 billion compensation fund. Mr. Feinberg's experience in New York will help him foresee and possibly avoid some of the same pitfalls that have delayed the ground zero litigation for so long. The environmental damage and economic consequences of the gulf disaster will be difficult enough to overcome without making the victims suffer unnecessarily by repeating the mistakes of the past.
Anthony DePalma, a former New York Times correspondent, is author of "City of Dust," to be published by FT Press in September.
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