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The Upcoming 9/11 Trial Isn't About Money But Elusive Justice

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"Money is the universal lubricant. It makes it easier to go on with one's life."
--Judge Alvin Hellserstein

Ten days after Sept. 11, 2001, Congress passed the September 11th Victim Compensation Fund. The law was designed to provide government relief to family members of victims and to those who were injured on the ground. In order to participate in the program, which paid out over $7 billion, claimants waived the right to litigate.

Of the 96 families that chose to litigate, all eventually settled except for one. The wrongful death trial against United Airlines and airport security firm Huntleigh USA begins Nov. 7, 2011, more than 10 years after victim Mark Bavis left Logan Airport in Boston on UAL Flight 175, the second plane to hit the World Trade Center.

The Bavis family wants answers that they likely will never get, such as what the United States government knew and told the airlines about terrorist threats in the days leading up to Sept. 11. On Oct. 17, 2011, Judge Hellerstein will hold a closed-door conference with the parties to rule on the government's designated "sensitive security information." In 2009, he said that he favored keeping more than 1 million pages of 9/11 documents secret.

According to The New York Times, "[Judge Hellerstein] said the trial would focus on whether there had been negligence in screening, which he said was the responsibility of United and Huntleigh." In a lawsuit involving negligence, a plaintiff must prove elements of liability:

  1. The existence of a duty of safety owed by the airline and security firm to passengers
  2. A breach of that duty (the plaintiff will have to show that the defendants did not take reasonable and necessary precautions to prevent injury)
  3. The defendants' conduct was a substantial factor in proximately causing the passengers' deaths

In 2002 I predicted that if one of these cases actually made it to trial and key documents were not withheld by the court, then a reasonable jury would hold for the plaintiff. In addition, if the plaintiffs could prove that the defendants were "grossly" negligent, the court could permit an award of punitive or punishing damages against the defendants.

According to the Boston Globe, "[Judge Hellerstein] said he is inclined to allow jurors to consider awarding damages for the final '21 minutes of terror' on United Flight 175 before its crash into the World Trade Center." (Such damages were not available under the Victim Compensation Fund.) In this regard, the plaintiff's attorney "intends to use an animated re-creation of Flight 175, showing the flight pattern, with all its erratic twists and turns, from the time it was seized and diverted until its ultimate crash into the World Trade Center."

A settlement can only provide money, with no admission of liability or explanations. Even though the small group of litigants settled their cases for a substantial sum of about $500 million dollars, the Bavises, according to The New York Times, "say the case is not about money. They say they want to prove in a public courtroom what they and their lawyers believe was a case of gross negligence."

Trial lawyers often say that "the devil is in the details." But we may or may not get those details, depending on what documents the judge designates as sensitive security information on Oct. 17. I frequently tell my college students that "it's good to be the judge" because of the power that comes with the position. While Judge Hellerstein has looked after the financial interest of the victims' families, it's not always about the money. I believe he dreads sifting through these documents and being held accountable for his ruling on their admissibility at trial, and privately hopes for a last-minute settlement.

I wrote to Judge Hellerstein early on with my thoughts on this case, and I now offer him my two cents for the trial in November:

Your Honor, I wouldn't greet the Bavis family with the insights you imparted to counsel at a June 25, 2007 court conference:

I learned long ago as a lawyer that many cases of principle stop being cases of principle when there are elements of expense or recovery that are presented. ... [P]eople say, 'I don't care what the recovery is, I want my day in court,' until someone gives them a check. It is very crass and it probably will come back to be critical of me, but there is an expression that is sometimes very useful: 'Money is the universal lubricant.' It makes it easier to go on with one's life.

Your Honor, unless you order another trial delay, prepare to reacquaint yourself with the Bavises. Again and again.

Resources:

My 9/11 civil liability website, with a position paper on 9/11 airline liability and letters to Judge Hellerstein and the New York Attorney General

9/11 litigation court orders from the United States District Court, Southern District of New York

Payment statistics, September 11th Victim Compensation Fund