Last 9/11 Family Settles Suit Over Death of Mark Bavis at Trade Center

Sept. 21, 2011 — -- Of 2,977 victims who lost their lives as a result of the 9/11 attacks, the last survivor's family has settled its claims with the airline and a security company they had said were negligent in the death of their son and brother, Mark Bavis.

Don Migliori, an attorney representing the Bavis family, said the family's motivation for the lawsuit was to give Mark a voice, and they did so when publicly filing their evidence last week. Nearly all the families who lost loved ones in the attacks settled their claims through a $7 billion victims' fund established by Congress.

"They decided they have given as much voice as they can through the court system," Migliori said.

Mary Bavis, the named plaintiff, is the mother of Mark Bavis who was aboard United Airlines flight 175 from Boston when it struck the South Tower of the World Trade Center. The Bavis family's trial was scheduled for November in New York City against United Airlines and security company Huntleigh.

Other companies and cities that the Bavis initially sued had been dropped from the suit over time. The New York district court dismissed Massport, for example, which oversees Boston Logan airport, focusing on the checkpoint process, Migliori said. U.S. District Judge Alvin Hellerstein wrote in a court memo on Sept. 7 that United Airlines and Huntleigh USA may have had to assume the burden of proof in trial.

Migliori said nine years after filing the suit, the family settled on Monday night, realizing the court "changed the direction" in which they could describe how the hijackers passed the security checkpoints.

"While they hoped for a whole trial, they realized the court would not let them give out more information than what they filed last week," Migliori said.

In those public filings, the Bavis family says some Huntleigh security screeners could not recognize prohibited pepper spray, which hijackers used aboard the planes, could not describe Osama bin Laden despite being a known threat in 2001, and could not speak or understand English effectively.

But Migliori said the most "fundamental" security flaw was at the airport ticket counter. The Bavis family said the hijackers were not able to answer the most "basic" security questions but still passed through: if they packed their own carry-on luggage and had it with them at all times.

The family released a letter today to the public after this week's settlement explaining their position.

"With the stroke of his pen, Judge Hellerstein very cleverly changed this lawsuit. The lawsuit was about wrongful death, gross negligence and a complete lack of appreciation for the value of human life," the family wrote. "He instead made it a case about a federal regulation. He ignored 100 years of aviation law and relied on an environmental case to apply federal preemption. He essentially gutted the case so that the truth about what led to the events of Sept. 11, 2001, would never be told at trial."

"Last week's filing was comprehensive but it wasn't nearly as detailed as what our experts and witnesses testified. While the family is gratified it could present that information to the public, it was tempered that the court would not let them tell the whole story," Migliori told ABC News.

The Bavis family had said it is not interested in money but wants justice.

"From the very beginning my family has wanted accountability and an airing of the facts to explain why this happened so easily and we have yet to get there," Mike Bavis, the victim's brother, told ABC News before the settlement was announced.

In a statement in response to the settlement, United Airlines said "the tragic events of 9/11 impacted all of us, and we are pleased to resolve this case."

Huntleigh, which Migliori said United Airlines hired for the security checkpoints, did not return a request for comment.

Migliori said the family has "mixed feelings" about the settlement, the monetary amount of which is confidential.

"The family had hoped that a public trial on the issues would be a way of contributing to public awareness of security concern and also be a way to help educate TSA today on how not to repeat history," he said. "So the fact that they can't do that in a courtroom is very disappointing. But the family fully intends to continue to tell the story outside the courtroom for the rest of their lives without Mark."

"Very little has been revealed as to what the airlines knew when they knew it and what steps they did take and what steps they could have taken to prevent this," Mike Bavis told ABC News before the ten year anniversary of 9/11. "So we would like those questioned answered publicly."

The Bavis family has been active in remembering Mark, who was a scout for the National Hockey League's Los Angeles Kings, including creating the Mark Bavis Leadership Foundation in his honor.

Ten years after the September 11 attacks on the World Trade Center and the Pentagon, deceased victims' families and the injured have been compensated over $7 billion.

Migliori represented 56 of the families who opted not to participate in the fund. He said he represented his clients pro bono because the fund paid out a fraction of value of the claims.

The September 11th Victim Compensation Fund of 2001, created by Congress, distributed $7 billion to survivors and victims' families. There have been 2,983 families of those who died and received an average of just over $2 million tax-free per claim, according to Kenneth Feinberg, former pro bono administrator of the fund.

In addition, 2,300 physically injured 9/11 victims or those who suffered from respiratory problems cleaning up the World Trade Center were each awarded $400,000 tax-free, on average, Feinberg said.

Feinberg started distributing compensation 11 days after the program was established and began cutting checks in April 2002, until the fund expired by statute in June 2004.

Feinberg said 94 families who lost a loved one on September 11 opted not to participate in the fund and decided voluntarily to litigate in Manhattan. And now all 94 have settled over the past five years.

The families that opted out of the fund and eventually settled may have received on average of under $5 million, using figures from the report of Sheila Birnbaum, the 9/11 mediator. The information, however, is confidential.

For most lawsuits that are not pro-bono, attorneys receive 33 to 50 percent of their client's reward, depending on state laws and client agreements, said Brian Fitzpatrick, professor of Law, Vanderbilt Law School.