Who Should Pay for 9/11?

Sept. 10, 2007 — -- Amid thousands of settlements and thousands more lawsuits winding their way through the U.S. court system six years after the Sept. 11 attacks, there remains a small, anomalous group of 9/11 victim families whose grief has apparently overwhelmed their desire for any compensation.

Among the families of the 2,974 who died, about 13 families have never signed up for the compensation fund or filed a lawsuit, Sept. 11 Victim Compensation Fund special master Kenneth Feinberg told ABC News.

"They were paralyzed by grief," Feinberg said last week. "I met with most of them. They were so overcome with the recent death of a loved one that they were clinically depressed. Some of them couldn't get out of bed. I offered to fill [the fund] forms out for them and get all the details together and they just said, 'Just leave it on the kitchen table.'"

"And I never heard from them," he said. "My biggest single disappointment was that 13 families did nothing. They never filed with the fund. They never filed a lawsuit."

Feinberg did not provide the names of the families, and while the names of fund claimants were posted on the U.S. Department of Justice's Compensation Fund Web site as claims were made, they were removed 90 days after posting. The last name was removed in June 2004, presenting a challenge to accurately matching a comprehensive list of claimant names and court filings with the official list of 2,974 victims of the Sept. 11 attacks to determine the identities of those the families.

None of the dozens of lawyers, advocates, victim families, government officials and medical personnel who spoke to ABC News, on or off the record, fault the 97 percent of victim families that filed for settlements with the fund or the families who opted to file lawsuits.

But it's clear that the families who didn't seek compensation are the tiniest of minorities. Elsewhere in the globe-spanning, gut-wrenching matrix of 9/11 litigation, vexing legal battles rage on, as heated and unsettled today as the fires that still burned on the wasteland of wreckage at "the Pile" months after the two towers had fallen.

Meanwhile, the numbers of newly diagnosed respiratory ailments among rescue and recovery workers continues to swell each year, according to city health officials, increasing the prospect of Sept. 11 litigation stretching well into the next decade.

The lawsuits pit sick recovery workers and residents against the city and the federal government, contractors and building owners against insurance companies, and victim families against the airlines, the U.S. government, foreign governments and international organizations, with billions and billions of dollars at stake and with no end in sight.

"This litigation is unprecedented,'' said Gregory Cannata, lead counsel for about 600 workers who became sick after cleaning the debris and dust from buildings near the twin towers, and who is involved in representing thousands of more recovery and cleanup workers who toiled at ground zero.

The collapse of the World Trade Center towers brought 200,000 tons of steel, 600,000 square feet of window glass, 5,000 tons of asbestos, 12,000 miles of electric cables and 425,000 cubic yards of concrete crashing down into lower Manhattan, according to a joint city and federal report issued in September 2002.

The combustion produced a caustic cauldron of concrete dust, glass fibers and cancer-causing asbestos, as well as particles of lead, chlorine, antimony, aluminum, magnesium, iron, zinc and calcium. About 24,000 gallons of jet fuel and burning plastics released carcinogens including dioxins, polycyclic aromatic hydrocarbons, polychlorinated biphenyls and polychlorinated furins, according to a 2004 scientific analysis that called the collapse the "largest acute environmental disaster that has ever befallen New York City."

'Our Numbers Keep Growing'

The federally funded Mount Sinai Medical Center's consortium of five 9/11 monitoring and treatment sites has screened more than 22,000 of the 40,000 to 50,000 estimated rescue and recovery workers. No reliable figures exist from any organization or city agency on the exact number of rescue/recovery and cleanup workers.

"We're still getting between 400 and 600 new enrollees a month in the past year," said Mount Sinai's Marie Stelluti. "In August alone, we saw 740 new responders coming for their first comprehensive medical exams.

"Our numbers keep growing," she said, ruefully, adding that "nobody knows the total estimate" of how many people will begin showing signs of respiratory illness in the months and years ahead.

Separately, more than 3,000 FDNY firefighters have sought respiratory treatment and more than 5,000 active or retired members are receiving medical treatment for illnesses believed to be 9/11-related, according to the Fire Department, which oversees the treatment and monitoring of its members apart from the Mount Sinai program. The FDNY went into Sept. 11 with about 13,300 firefighters and officers.

The department's official toll of firefighters lost that day is 343, but anecdotal reports gathered by ABC News from firefighters, advocates and independent counselors indicate that many more have died since that day from suicides, lung ailments and other related medical conditions. Similar figures were not immediately available from the New York City police or representatives of the hundreds of iron workers, construction workers, carpenters and other first responders.

Legal Claims Skyrocketing

Along with a spike in reported respiratory illnesses in the last year is a similar jump in the numbers of legal actions filed against the city. About 3,361 notices of claim — the first step in a lawsuit — relating to Sept. 11 were filed against the city in 2007 fiscal year, which ended June 30, 2007, according to the office of New York City Comptroller Bill Thompson. That's well more than twice as many as were filed in the previous fiscal year — 1,123. Nearly 361 were filed in fiscal 2005, and 55 the previous fiscal year.

The New York City Law Department estimates that more than 4,000 Sept. 11 lawsuits have been filed against the city alone and that an additional 4,600 active notices of claims are winding their way through the courts. Legal actions against the city, though, are only a small part of the puzzlelike maze of litigation pending in federal court in downtown Manhattan.

Six long years after the Sept. 11 terrorist attacks, the massive effort to sort out who is legally responsible for the thousands of deaths and billions of dollars in property damage caused by the attack and the tens of thousands of people who may have gotten sick from its aftermath is still playing out and is far from over.

Lawsuits on behalf of 11,000 firefighters, cops, cleanup crew workers and downtown residents are still working their way through the courts. Lawsuits have been filed against insurance companies, building owners, the city of New York, the airlines, the federal Environmental Protection Agency, the contractors who built the World Trade Center, Saudi banks, al Qaeda and many more. Many of the cases could drag on for years to come.

Sept. 11 Victim Compensation Fund

Predicting a scenario such as this one, lawmakers early on set up the Sept. 11 Victim Compensation Fund, which paid out $5.99 billion to 2,880 families of 9/11 victims and more than $1 billion to 2,680 people who were injured — mostly for respiratory or lung injuries — including $626 million to more than 1,300 injured firefighters, according to the fund's final report.

The 97 percent of victims' families that participated in the fund gave up their right to file future lawsuits. The families of those who died have been awarded an average of nearly $2.1 million, with payments ranging from $250,000 to $7.1 million, the report said.

'Accountability'

Nearly 100 lawsuits have been filed against the airlines and security companies. Of those, more than half have settled, leaving 41 cases on behalf of 42 victims or injured survivors, according to lawyers and plaintiffs involved in the cases. The settlement amounts are sealed and confidential.

Six of the remaining cases brought by victims' families will go to trial on the issue of damages only, beginning Sept. 24. Whether or not the airlines and security companies are actually liable for 9/11 will still be determined later. The damages trials are intended to set guideposts for future settlement talks.

Mike Low's daughter Sara was a flight attendant who was killed when the plane she was on crashed into One World Trade Center. Low said his decision to forgo the fund settlement stemmed from a need to find answers to questions he just couldn't let go of.

"A trial — with its chance of discovery [material] and testimony — was one of the ways we hoped to shine a public light on one of the nation's dark and shameful failures,'' Low told ABC News. "Sara would have been disappointed with me if I just took some kind of settlement. I can't live the rest of my life with her image asking, 'Why did you quit?'"

But Low's quest comes with a clearly painful share of frustration. "Here we are six years later, and there's almost no accountability," he said.

Firefighters, Rescue Workers, Cleanup Crews

In all, more than 11,000 people have sued New York City, the Port Authority and dozens of private companies for negligence in exposing them to toxic dust and chemicals in the aftermath of 9/11. Plaintiffs have also sued WTC Captive Insurance Co., the $1 billion insurance company fund set up by Congress to insure New York City and its contractors after 9/11.

The WTC Captive Insurance Co. money is earmarked only to defend the city and its contractors against lawsuits and pay out claims if the city and entities lose a case in court. The lawsuit against the Captive says that $74 million has been spent defending the city and contractors against claims from injured workers.

Some have called for the Victim Compensation Fund to be reopened as more and more people become newly sick with respiratory illnesses that appear related to 9/11 exposure.

"I think the only justification for reopening the fund would be 'the only reason these people weren't in the fund is because they hadn't [yet] exhibited symptoms,'" the fund's Feinberg said. "Fairness would say that they should be given a window to reapply.'"

Having grappled with the grim calculus of assigning financial value to different victims' lives — both with the Sept. 11 Victim Compensation Fund and a similar, previous fund set up for Holocaust victims— Feinberg sees both sides of the argument.

"That's the argument in favor," he said. "There is an argument against. I don't see any fund for [1995] Oklahoma City [bombing victims]. I don't see any fund for [2005 Hurricane] Katrina victims. There isn't even a fund for the families of the dead in the first World Trade Center attack [in 1993], committed by the very same people. Why should Congress reopen the fund just for these people?"

In the end, Feinberg said, he believes the fund should be reopened.

About 10,000 people — 60 percent of them city firefighters and cops — are suing New York City and contractors for injuries sustained from the cleanup, according to plaintiff attorneys. City attorneys, however, say the figure is closer to 8,000 actions.

Either way, legal experts expect that thousands more could be added to the existing cases — which, while consolidated do not constitute a class action suit — as more people get sick. The consolidated cases are currently on hold, until the 2nd Circuit Court of Appeals decides whether New York City is immune from liability. That appeal will be heard Oct. 1.

Plaintiff attorney Marc Bern said one case has settled, for about $45,000.

Included in the consolidated group of federal lawsuits are about 600 cleanup crew workers who worked at buildings near the World Trade Center site and are suing dozens of building owners and their insurance companies for similar claims in exposure to toxic chemicals. Lawyers are just beginning discovery and the case is nowhere near reaching trial.

An additional 190 people who worked at both ground zero and at off-site buildings are involved in a third subset plaintiff group of lawsuits.

Thousands more plaintiffs may still be out there. Another case, on behalf of potentially tens of thousands of people who live and work in lower Manhattan and Brooklyn who were exposed to dust from the collapse, has been filed against the Environmental Protection Agency. That lawsuit claims that the EPA failed to adequately clean the debris and dust after the disaster and misled residents and workers by saying the air downtown was safe to breathe. That case has also stalled on the issue of whether the government is immune from suit. It has been appealed to the 2nd Circuit, though no arguments have been scheduled yet.

Linking existing and future lung and respiratory illnesses — not to mention post-traumatic stress and other trauma-related disorders — directly to the 9/11 attacks remains a challenge, even as the number of reported illnesses climb.

Albert Barrette, director of Inner Imaging, which has conducted advanced diagnostic cardiological scans known as electron beam tomography on hundreds of firefighters, cops and other first responders, says the lack of a definitive link despite so much anecdotal evidence is relatively easy to explain.

"You've got to crack [patients] open and look inside their lungs and hearts and you can't do that until they've died," he told ABC News in 2006. Barrette ardently believes that the rash of illnesses he's seeing are directly 9/11 related, but he says that the toxins, dioxins and other hazardous materials he keeps finding inside first responders "don't pipe up and say, 'Hi, I'm from the Trade Center.'"

Barrette said he believes "100,000 people will die in the next couple decades from 9/11."

Insurance Company and International Claims

After more than five years of legal fighting, seven insurance companies agreed earlier this year to pay Larry Silverstein and the Port Authority a total of about $4.5 billion in insurance claims from 9/11. Silverstein Properties Inc. leased the World Trade Center from the Port Authority in July 2001.

More than a dozen insurance companies, World Trade Center tenants — such as the owners of Windows on the World restaurant — and neighboring property owners are suing the airlines, the Port Authority, security companies and construction contractors, alleging that the Twin Towers were negligently designed, built and maintained. The lawsuit claims, among other allegations, that they knew or should have known that the buildings were terrorist targets and that the buildings were inadequately protected against a potential attack.

Hundreds of people, including victims' families, insurance companies, the Port Authority and Cantor Fitzgerald, have filed suit against hundreds of alleged supporters and financiers of the Sept. 11 attacks, including al Qaeda, the Saudi Bin Laden Group and foreign banks and charities, for allegedly aiding and funding al Qaeda while allegedly knowing about the group's intent to attack the United States.

The case, which is potentially worth tens of billions of dollars, is still in its early stages, and due to the massive size and scope, is expected to last for years. About 100 motions are currently pending and several key issues — including which defendants will remain in the case — are still awaiting appeal in the 2nd Circuit. The bin Laden Group and the foreign banks and charities have denied any involvement in the attacks.

"We're really many, many years away from a trial," said lead plaintiff's lawyer James Kreindler.

ABC News Research Department's Lisa B. Schwartz and Sheelagh McNeill contributed to this report.