On September 11, 2001, Michelle and Clifton Cottom's 11-year old daughter Asia died on American Airlines flight 77 when hijackers crashed the plane into the Pentagon. She was heading to Los Angeles on a school trip. In a few weeks, the lawsuit they and the families of 41 other victims have brought against the airlines will finally come to trial. At issue in these first trials is not the airline's liability but establishing adequate damages, specifically the monetary equivalence of the victims' pain and suffering as well as the grief of surviving family members. Congress set up a Victim Compensation Fund (VCF) for 9/11 largely to avoid trials and settlements that could have bankrupted the airlines.
But how can any court accurately price an 11-year old's life? While most other 9/11 cases have long been settled thanks to Kenneth Feinberg's able management of the VCF, the current lawsuits involve for the most part people, like the Cottoms, who would have received lower awards. Why? Because Feinberg's compensation scheme used lost economic value as its main standard, not only computing the victim's likely future earnings but also estimating the market price of lost services. Although Feinberg then augmented awards based on further information about survivors' personal hardship and relationship to the victim, survivors of victims with low or no earning potential received significantly less compensation than high earners.
Michelle Cottom sued the airlines because she found the victim compensation calculations unfair and offensive. As she put it in a New York Times interview: "To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year old is worth $2, but because you're the pilot of the plane, that's worth $2 million?" (September 4). In their daughter's case, moreover, the compensation fund would have deducted what the parents collected from a life insurance policy they had taken out on Asia.
Michelle Cottom's complaints about the cheap pricing of a child's life have a long history. At the turn of the 20th century, Americans were jolted by a series of well-publicized child death cases which received shocking low awards: 6 cents for a New York boy, 10 dollars for a three-year-old in Nebraska, one cent for a 12-year old in Missouri. In 1895 an angry New York judge set aside a verdict of $50 for the death of an eight-year old. Ordering a new trial, Judge Pryor expressed his distress that a bright, healthy boy could be assigned the "price of a poodle dog."
What was going on? Among other things, a clash between standard wrongful death calculations based on economic loss and a dramatic transformation in the economic value of children. As long as child labor existed, 19th century courts had been able to assign economic value to the loss of child life -- just like the 9/11 Victim Compensation Fund did for adults. But by the early 20th century Americans rejected any definition of children as economically productive -- a child was now exclusively an (expensive) economically useless but emotionally priceless being.
That created a legal dilemma: if children had no economic value, how could courts assign a monetary price to their lost lives? After all, courts could easily claim that children had become economic liabilities. That was the rationale for those cheap turn-of-the-century scandalous awards. Yet, gradually, after the 1920s, awards for child death began to surge dramatically, as sentimental considerations entered wrongful death lawsuits -- parents could now claim damages for the mental pain and suffering caused by the death of a minor child and in some states, for the loss of a child's society or companionship. Paradoxically, as children's labor declined, their estimated economic worth increased. New conceptions of childhood transformed the ledger of 20th century U.S. courts.
But, for some, any monetary estimate of a child's life remains offensive. If children are sacred and priceless, they argue, we can and should not monetize their worth. Of course, the concern extends to adult life as well. In his book, What is Life Worth?, Feinberg reports he took bitter criticism from two opposite sides. On one side, survivors complained that the amounts he set demeaned the true value of the lost lives. On the other, outsiders complained that he was pandering to the greed of relatives who had, after all, survived and was in any case cheapening life by assigning it monetary value.
But when it comes to children, the monetary calculation becomes even more controversial -- as if parents were profiting from their child's death. Even parents are reluctant to collect. In an early 1909 case, a Mrs. Lauterbach refused to file a suit for damages in the death of her son because the idea that "a pecuniary benefit might result from such action was abhorrent." Not surprisingly, parents often donate such monetary awards to charity, safety organizations, or scholarships for other children.
Those who sue often say that "It's not about the money." And it's not. Claimants ask for public recognition of their losses, fixation of responsibility for those losses, and enough damages to hurt the responsible parties. Payments for the love and a child's lost future seem just compensation. Asia Cottom, (NYTimes) dreamt of being a doctor -- the mother also tells Times that she had just had her first menstrual period before the flight -- "I took her to Wal-Mart to buy sanitary napkins.....so she was growing up one day and the next day she's gone."