9/11 families navigate tough legal choices

(story appeared September 11, 2002, "Wall St. Journal")

Julie Sweeney, left, whose husband Brian was killed when his United Flight 175 slammed into the World Trade Center, cradles a picture of him in his flight suit. He was a Gulf War veteran.

By Steve Irsay
Court TV

NEW YORK — Among the countless calls she's received and made over the last year, two really stand out for Julie Sweeney. The first was an answering machine message that her husband, Brian, left three hours after she dropped him off at the airport on September 11, 2001.

"Hey, Jules. It's Brian. I'm on an airplane that's been hijacked," he said in a calm, slow voice at the start of the message. Moments later, the plane in which he was flying, United Flight 175, slammed into the south tower of the World Trade Center.

In the next few agonizing months without Brian, 38, a Gulf War veteran and former flight instructor, Julie Sweeney did a lot of grieving, and started asking a lot of questions.

The second important phone call months later lasted four hours. Sweeney spoke with attorney Mary Schiavo, former Transportation Department inspector general and a vocal critic of government and airline safety policies. Hanging up the phone that day Sweeney, 30, of Barnstable, New Hampshire, knew what she had to do: forgo guaranteed compensation from the government and file a lawsuit.

She is one of the few who has. A year after 3,300 people where killed or injured in the Sept. 11 attacks only about 70 lawsuits have been filed. Plus, just recently, two large class action suits were filed on behalf of nearly 2,000 victims. Still more have filed notices that they intend to sue.

A year after the deadliest terrorist attack on U.S. soil, the legal picture is far from clear and many experts say it could be difficult to predict how things will develop.

Mary Schiavo, former Transportation Department inspector general, is representing 9/11 victims like Julie Sweeney.

'I walked into this without the money and if I still walk out of this without it, I still lost Brian' — Julie Sweeney

"I would suspect that an awful lot of the victims are still in recovery and only in the later stages of that process would they be in a frame of mind to consider litigation," said attorney Robert Cunningham, whose Alabama practice specializes in catastrophes. "It is difficult to evaluate the case in the cold hard light of day when the emotions are running as high as they are in the case of 9/11."

In addition, the unprecedented Victim Compensation Fund, established by Congress shortly after the attacks, slowed the rush of wrongful death lawsuits. About 100 families so far have gone this route, avoiding the gamble of a lengthy legal case with a guarantee of being compensated millions of dollars in a matter of months.

The purpose of the fund was not only to insulate the airlines from a tsunami of suits, but to provide victim's families with a "no-fault alternative to tort litigation."

But survivors such as Sweeney liken the payout to taping a bandage on a gaping wound: it covers the damage but there is no diagnosis and no real cure. In addition to the money — the amount of damages she is seeking is not specified — survivors like Sweeney hope a lawsuit can make someone accountable for the deaths of their loved ones and force changes to security procedures that may prevent future incidents.

But a year after the attacks, thousands of other victims' families are still wondering what to do as they weigh the economic, emotional and strategic factors of embarking on legal battles that could last a decade or more.

Who's suing and why

The most curious aspect of the legal wrangling is that those who were believed to be truly responsible for the attack — Osama bin Laden and al Qaeda — are among the least likely to pay. Not that people aren't trying.

Indeed, bin Laden was named as a defendant in the first suit filed after Sept. 11. The action is on behalf of the then-pregnant widow known only as "Jane Doe." Her last conversation with her husband was when he called to tell her he was standing on the roof of the north tower, awaiting helicopter rescue.

At the time of the filing, less than a month after the attacks, critics said the suit broke an informal moratorium set by plaintiffs' lawyers. But Jane Doe's lawyer, James Beasley of Philadelphia, said he believed he had little choice.

"We certainly had enough information about bin Laden and those characters and we don't want to drag this out forever for these people," Beasley said. Other defendants in the "Doe" suit include Afghanistan and its former Taliban leaders. "The other thing that we were worried about was that we were steam rolling through Afghanistan at the time so if we whacked these people it would be harder to build a case and collect."

At least two similar suits followed, each seeking to tap into the more than $56 million in alleged Taliban and al Qaeda assets frozen by the Justice Department in the U.S. and abroad. The suits were helped by a January ruling which held that bin Laden, whose whereabouts remain a mystery, can be served with civil lawsuits through Afghan and Pakistani newspapers and broadcast outlets.

The two recent class action lawsuits have upped the possible financial stakes. In August, 600 family members filed a trillion dollar suit against Osama bin Laden's family construction company, Saudi Arabian princes and the Sudan. The suit, modeled after action filed against Libya in the Pan Am flight 103 disaster, seeks to cripple banks, charities and individuals who allegedly financed the attacks.

There is even another $1 trillion suit. This one on behalf of 1,300 people killed and injured in the Sept. 11 attacks and adds Iraq as a defendant along with bin Laden and al Qaeda.

Sadly, there are not only the dead to consider when it comes to mapping the post 9/11 legal landscape. There are the wounded. Many of them police, fire and rescue personnel complaining of respiratory ailments allegedly caused by breathing contaminated air as they worked at Ground Zero. Already 1,500 people have filed notes of intent to sue New York City for damages. The amount sought is more than $8 billion. The claims cover not only health ailments, but lost earnings from businesses and their employees. The City Law Department is launching a special division to investigate and handle the claims.

Just one day before the first anniversary of the attacks about 1,000 families of victims filed suits against the Port Authority of New York and New Jersey, the owner of the trade center. About 50 suits filed, seeking hundreds of millions in damages, narrowly beat the one-year legal deadline for filing. One suit is filed on behalf of 730 people.

While the loss of life on Sept. 11 will always be foremost, the economic damage is also staggering. Approximately $40 billion in insured losses were incurred, according to a report by the Insurance Information Institute, making it the biggest insured disaster in U.S. and world history. The first of many possible insurance disputes began a little over a month after the attacks.

World Trade Center lease holder Larry Silverstein and his investors became locked in litigation with a number of insurance companies over whether the crashing of two planes in the towers should be considered as one event or two. If it is defined as one, as the insurers claim, Silverstein stands to collect $3.5 billion. If the policy is interpreted as indicating the attack was two incidents Silverstein will be owed double coverage, or $7 billion.

In the end, though, money is not equivalent to human value. Winning one of these cases can swell a lawyer's pride, not to mention pocketbook, and perhaps provide the surviving victims with some solace.

But Julie Sweeney understands the true score.

"What is winning? Is winning a big lump of money or getting the answers? Do answers come with a big lump of money? I walked into this without the money and if I still walk out of this without it, I still lost Brian."