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Sept. 11 plaintiffs wait for answers, resolution Nearly 5 years later, lawsuits are stalled

Sacha Pfeiffer / Boston Globe | August 21 2006

In the aftermath of Sept. 11, 2001, a tiny percentage of people who lost loved ones or were injured in the attacks sued the aviation industry, spurning a federal compensation fund that ultimately distributed more than $7 billion to more than 5,500 victims.

Now, nearly five years after the historic disaster, roughly 60 lawsuits are still grinding their way through court. And the families pushing ahead with litigation, including numerous New Englanders, are mired in a massive legal case that has become a complicated behemoth for the federal judge overseeing it.

``I've never been in any litigation more frustrating than this," said Frank H. Granito, Jr., a New York lawyer who represents the family of an American Flight 11 passenger and several insurance companies in the matter.

The case pits those who consider the day's events an unpreventable tragedy against others who believe government and aviation officials ignored clear warnings that such an assault was possible. That lapse, in their view, led to the deaths of beloved friends and relatives, and they now want accountability and answers.

For some litigants, their decision to sue was met by public disapproval from skeptics who questioned their motives and dismissed their quest for justice as futile. But in interviews with the Globe, many family members said they are committed to pursuing the case until government, airline, and security officials are held responsible for their roles in the attacks. And they are aware that litigation is a gamble that could produce neither answers nor money, they said.

The New York-based case has been slowed by the federal government's sweeping refusal to release materials on aviation security, outraging lawyers for both sides. It has also been stalled by the South Carolina law firm Motley Rice, which made billions suing the tobacco industry and represents 53 victims in the case, or nearly 60 percent of all plaintiffs. Its clients include the families of Flight 11 pilot Captain John Ogonowski of Dracut, crew member Madeline Sweeney of Acton, Rhode Island native David Angell, creator of the sitcom ``Frasier," and many high-earning New England executives.

``Right now we have it under a magnifying glass, and it's impossible to really determine whether what Motley Rice is doing is a good or a bad thing," said Margaret Ogonowski, a mother of three who was widowed in the attacks, adding that she feels ``well treated by the firm."

``Motley is driving a new course," she said, ``and we have to step back and examine it when it's all finished to make a better determination as to whether they did a good job or maybe they botched it."

While other lawyers have resolved most or all of their cases -- at least 32 of the roughly 90 total lawsuits have settled -- Motley Rice has settled only three. Of the cases left to settle, all but 7 are being handled by Motley Rice, whose founding partner, Ronald L. Motley, said in an interview that his clients ``won't take cheap early money."

The firm is advancing to trial, where it says it can win jury awards larger than the settlements being offered and expose systemic failures that allowed the attacks to take place.


Waiting for a trial date
Motley Rice has maintained its stance despite repeated urgings to settle by US District Judge Alvin K. Hellerstein, who so far has denied requests by Motley Rice and other firms to schedule a trial. Hellerstein has also chastised Motley Rice, pledged to prevent ``rewarding holdouts who prefer to settle later rather than earlier in the hope that they might be able to use leverage to gain additional funds later on," and warned that not settling could mean ``you will not only be litigating for my lifetime but your grandchildren's lifetime."

Still, many of the firm's clients say they sued not for financial gain, but because they believe litigation will fully reveal whether government and aviation officials could have anticipated and prevented the events of Sept. 11. Some also sued because life insurance and other ``offsets" would have reduced their payments from the compensation fund, which awarded $2 million in death cases and $400,000 in injury cases, on average.

``We did not join this lawsuit or choose to sue for monetary reward," said Carie Lemack, whose mother, Judy Larocque of Framingham, chief executive of a market research firm, died on Flight 11, which originated in Boston. ``It was always about accountability and it remains about accountability today, because reforms that are desperately needed are not happening."

``You only settle when it's appropriate to settle, and if other families felt they needed to settle I can't judge that," said Lemack. ``For people who've chosen not to settle, I completely respect their decision and think the judge owes them a trial date. They deserve that. We deserve that."

Lemack and other plaintiffs reject suggestions that, by suing, they have prolonged an emotional ordeal that delays closure, strains families, presents unknown risks, and potentially enriches the lawyers representing them -- without a guarantee that they will find what they are searching for.

``If by litigating you're looking for answers, you might be disappointed," said Faith R. Arter, board president of the Massachusetts 9/11 Fund, founded to support people who lost loved ones in the attacks. ``Litigation's just not fun, and my real concern is emotional: How much more can you bear? But I want the families to get some peace out of the process, and if that has to be in a trial I support it."

According to several lawyers and plaintiffs in the case, Motley Rice has made unusually high settlement demands, often 5 to 10 times higher than similar plane crash cases. The higher demands stem from Motley's calculations for what it calls ``terror damages" -- compensation for the amount of time frightened victims knew they were fated to die -- of between $750,000 and $1 million a minute, according to those lawyers and clients, who requested that their names not be used because the settlement process is confidential.

Passengers aboard the airliners hijacked on Sept. 11, 2001, are believed to have known for as long as 46 minutes that death was imminent.

``I can tell you categorically we're not saying a minute is worth X or Y," said Donald A. Migliori, a Motley Rice partner. ``But, yeah, we probably value them differently because this is a very different case for us. We are adamant about getting value that is appropriate and reasonable and will stand review by courts of appeal, and whatever that number is, we're going to get it, by verdict or settlement -- and these defendants know we're not bluffing."

Migliori declined to disclose exact valuations, but said some of the firm's demands are ``past the eight-figure number" because the victims had extremely high incomes. Motley Rice will receive part of any settlements or verdicts reached.

Migliori and Motley also vowed to keep fighting for information that the Transportation Security Administration has tried to keep secret, such as airport security measures in effect before September 2001. TSA has also tried to bar plaintiff lawyers from conducting live depositions and to prevent them from hearing responses to their questions.


`Not going to settle'
Depositions of several airline and security company executives, as well as airport security screeners, begin Sept. 11 -- a date some family members criticize as insensitive -- and will be the first test of the Transportation Security Administration's proposed restrictions.

``We are driven to keep pushing for information about what happened, and when that is resolved only then will we stop," said Migliori, who insists Motley Rice is ready to try cases despite the administration's roadblocks.

There are risks to pushing toward trial. The consolidated case encompasses a wide array of claims for deaths, injuries, property damage, and insurance matters, but Hellerstein is trying to settle the death and injury cases first because, he has said, ``these are not just dry negotiations. Lives with extraordinary potential have been wiped out."

However, if Hellerstein senses settlement talks are fatally stalled, he could open settlement negotiations in the property claims for buildings damaged in the attacks, estimated at up to $50 billion, which could rapidly exhaust the roughly $10 billion to $20 billion total insurance coverage in the case. If the cases don't settle and a trial takes place, he has the legal power to reduce an outsized jury verdict.

Motley Rice lawyers say they are unruffled by those possibilities.

``We're not holding out to get more money, and we're not looking for the attention to be drawn to Motley Rice. We're representing our clients and trying to achieve our goals," Migliori said.

Mediations, led by New York attorney Sheila L. Birnbaum, continue this week and could spur additional settlements, as could the depositions of aviation officials slated to begin next month.

If the parties reach a stalemate in some cases, Hellerstein will have to decide whether to end settlement talks and schedule trials, or perhaps a single trial, for whatever cases are unresolved.

Motley, for his part, said depositions ``most certainly will turn out to be meaningless because of the irrational position of the federal government" on, for example, not releasing pre-9/11 security policies. A trial could be inevitable, he said, if certain clients refuse to accept settlements.

``All of these cases aren't going to settle," Motley said. ``They are absolutely not going to settle. My clients have a right to decide to end this, and as long as I've got a client who says, `I don't want their blood money; I want accountability through a jury verdict,' no force on earth can change that."

Motley, who had not handled an aviation case before Sept. 11, is critical of what he describes as ``the cozy relationship between plaintiff lawyers and defense lawyers that exists in the aviation bar after decades of inbred litigating."

Other firms, Motley said, have settled 9/11 cases for ``magnitudes less" than their clients deserved. ``There was an extraordinary system breakdown and an extraordinary failure of aviation security," he added, ``so they ought to have to pay the maximal damages, not the minimal."

The judge has repeatedly prodded Motley Rice to push aggressively for settlements.

``Why aren't you settling your cases?" Hellerstein said to Migliori at a June 8 hearing in US District Court in New York.

``We're working on it," Migliori replied.

``You're not working hard enough. Ms. Birnbaum [the mediator] tells me she is getting no response from you. . . . Tell your colleagues that the judge is getting very impatient with this."

``I will," Migliori said.

``And will not put up with more delay," Hellerstein added. ``There's much too much delay that has gone by and much too much work to be done in this case. I will not tolerate it."


`They're doing a service'
In addition to settling three of its cases, Motley Rice is now in ``striking range" on about five others and ``there's optimism on both sides that those numbers can be bridged," Migliori said.

Lawyers for American and United airlines, who are defendants in the case, declined to comment and did not return requests for comment, respectively.

Motley Rice, one of the country's largest plaintiff litigation firms, may be best known for helping the states win a $246 billion settlement from the tobacco industry. The firm has turned the Sept. 11 attacks into a business opportunity, establishing a ``9/11 and antiterrorism" legal practice and hiring Mary F. Schiavo, former inspector general of the US Department of Transportation, in 2003.

Several Motley Rice clients said they have a practical view of the firm's stake in the Sept. 11 cases.

``Of course they're in it for the money," said Loretta Filipov of Concord, whose husband, Alexander, was on Flight 11. ``But they're also doing a service for the country, they're doing a service for the people."

``It's never been about the money," Filipov said of her decision to file a lawsuit. ``There was never any question I'd take money from the government. This was about answers."

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