Cyrus Dugger is the Senior Fellow in Civil Justice at the Drum Major Institute and recently launched TortDeform: The Civil Justice Defense Blog.
The fifth anniversary of 9/11 is behind us, but not the ongoing tragedy of the suffering of the Ground Zero workers and those who lived near the World Trade Center. As medical studies now confirm, many of these people are suffering serious health problems as a result of their exposure to World Trade Center contaminants, and they risk, over time, meeting a similar fate to those who perished on 9/11. Although 9/11 was a unique event in American history, the impediments Ground Zero workers and local residents have faced trying to secure compensation for their injuries are, sadly, typical.
While most of us are not at risk of developing a Ground Zero-related disease, should we ever get injured as a result of another's negligence, we will face the same justice system that often thwarts victims’ efforts to receive fair compensation and prompt medical treatment. In fact, if you think it is hard for national heroes like Ground Zero workers to receive compensation and treatment for their injuries, just imagine the daunting challenges average Americans face in court.
In the wake of 9/11, government officials made the decision to place economic interests ahead of human ones. Specifically, they downplayed the health risks downtown so they could reopen lower Manhattan, reduce businesses' economic losses, paint a picture of a defiant nation and avoid paying for the environmental cleanup of the area surrounding Ground Zero. As has been confirmed by the Environmental Protection Agency's own Inspector General , government officials misled the public by saying downtown Manhattan was safe for human habitation when it clearly was not.
According to a recent study by Mount Sinai Hospital, nearly 70 percent of the 9,442 first responders, workers and volunteers exposed to World Trade Center dust showed signs of new or worsened respiratory illnesses while working at the site. For nearly 60 percent of these people, the effects continued long after their work was finished. Each of these misled victims will now require medical monitoring and treatment for the rest of their lives.
Despite the findings of this study, the Republican controlled Senate just blocked a bill proposed by Sen. Hillary Rodham Clinton, D-N.Y., to designate $1.9 billion for the treatment of Ground Zero responders, workers and residents who have fallen ill as a result of their exposure. This bill would only have paid for Ground Zero-related medical expenses, and would not have supplement lost income resulting from these victims’ Ground Zero-related disabilities. Nor would this bill have made it easier for injured victims to prove the connection between exposure at Ground Zero and their resulting illnesses within the workers’ compensation system.
Despite its drawbacks, it was better than nothing. Yet even this bill was rejected by Senate Republicans as not “germane” enough to warrant full consideration. Adding insult to injury, just two weeks ago, the federal government released draft medical guidelines for autopsies that will make it unnecessarily difficult to prove a connection between an individual’s exposure at Ground Zero and their cause of death.
When a Ground Zero worker, downtown New York City resident, or average American seeks compensation for injuries they suffered due to the negligence of others, their road to justice is littered with landmines. Even though some federal and New York City funding was recently made available for their medical treatment—almost five years after the attacks—like all injured Americans, Ground Zero workers and local residents face daunting challenges "making the case" for their own workers compensation claim.
To make the case, plaintiffs injured by exposure to Ground Zero, like most injured Americans , have had to overcome unreasonable burdens of proof, excessively restrictive time limits for filing their claims and long waiting periods for hearings, appeals and rehearings. As a result, most Ground Zero plaintiffs have received no compensation. The fact that making the case has been so difficult for those who worked and lived near Ground Zero should give us all pause. The fact that the average injured American must often fight against similar odds in trying to receive fair compensation should also be a source of outrage.
In recent years, a mounting call for "tort reform" has been heard from numerous politicians and organizations, along with their corporate benefactors. They argue that our civil justice system overcompensates victims, makes it too easy to go to court and harms American businesses through large judgments.
Ironically, the very corporate interests that claim there are too many lawyers and lawsuits harming the American economy are themselves the most litigious members of our society. A recent study by Public Citizen found that in 2001 in Arkansas; Mississippi; Cook County, Ill.; and Philadelphia, corporations were approximately three to five times more likely to bring a lawsuit than individual tort plaintiffs. The study also found that when these corporations did file lawsuits, they and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.
More importantly, what the Ground Zero victims' experience demonstrates is that an entirely different kind of tort reform is necessary. What we actually need are new legal and administrative mechanisms that allow legitimately injured Americans to receive compensation quickly without having to face unfair procedural hurdles and burdens of proof.
When, five years after 9/11, an injured Ground Zero worker has still not received compensation for his injuries, we should all be ashamed. And when a similar fate befalls an average American who has likewise been injured by the negligence of another, it would be hypocritical not to be ashamed as well.
As a recent press conference at Mt. Sinai Hospital on Ground Zero with health victims wound down and photographers took their last pictures, in front of me I heard the repeated hacking of a victim with what has come to be called World Trade Center cough.
My first thought was, "I feel so bad for him."
My second thought was, "I'm glad I didn't get sick."
My last thought was, "Maybe I will."
