Remembering those still with us: protecting September eleventh survivors from their future.

• Author: McCarthy, Nell M.

INTRODUCTION

Eleven days after the terrorist attacks of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). (1) Title 1V of the Act created the September 11th Victim Compensation Fund of 2001 (the "Fund"), an administrative compensation scheme for those victimized by the attacks. (2) The Act presents the purpose of the Fund with great simplicity: "It is the purpose of this title to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." (3) This Comment questions the effectiveness of the legislation in achieving its stated purpose, examines the source of its failure, and offers a proposal to remedy the situation.

The Fund's failures stem from restrictive eligibility guidelines and unconstitutional limitations imposed on those deemed ineligible for the Fund. The definition of eligible individuals in the rules promulgated to administer the Fund limited the pool of people eligible for compensation to those who died or sustained physical injury during or immediately following the planes crashing into the World Trade Center ("WTC" or "towers") and the towers collapsing. (4) Additionally, driven by the broader purpose of the ATSSSA--protecting the airlines involved in the 9/11 attacks--(55) Congress capped the liability of the airlines at the limits of their insurance coverage. (6) This cap limited the airlines' liability to approximately six billion dollars, a pool from which all parties not eligible for the Fund must seek compensation. (7) In contrast, the legislation placed no cap on the amount eligible claimants could recover from the Fund. (8)

In combination, the restrictive definition of eligible individuals and the airlines' limited liability created a class of victims, those injured by the 9/11 attacks but ineligible for the Fund, whose recovery--if any--will be limited to the airlines' insurance coverage. (9) This class notably includes the estimated 300,000 people exposed to the toxic plume released into lower Manhattan after the collapse of the World Trade Center towers, (10) as well as the rescue and recovery workers who arrived at the site more than ninety-six hours after the attacks. (11) This Comment asserts that Congress had no authority to cap the liability of the airlines with respect to those victims ineligible for the Fund. It discusses the grounds on which the limited liability provision of the legislation should be held unconstitutional and proposes that an alternative compensation scheme to anticipate and resolve the claims of exposure-only injury victims should be created.

1. THE PROBLEM

   A. The Purpose of the Victim Compensation Fund

   The Fund is the largest single-incident social welfare program in the history of the United States. (12) Viewed in the light most generous to Congress, it was the product of a compelling desire to assist those most deeply and immediately impacted by the tragedy of 9/11. (13) Congress passed the ATSSSA only hours after it was drafted, (14) producing minimal legislative history to indicate its intent. (15) However, the few references to the Fund in the debate over the ATSSSA made congressional intent clear:

   To ensure that the victims and families of victims who were physically injured or killed on September 11th are compensated even if courts determine that the airlines and any other potential corporate defendants are not liable for the harm; if insurance monies are exhausted; or are consumed by massive punitive damage awards or attorneys' fees, the bill also creates a victims' compensation fund. These victims and their families may, but are not required to, seek compensation from the Federal fund instead of through the litigation system. --Sen.John McCain (16) The heart of every American aches for those who died or have been injured because of the tragic terrorist attacks in New York, Virginia, and Pennsylvania on September 11th. Our first priority should be ensuring that their needs are met and that they receive compensation. --Sen. Patrick Leahy (17) The Treasury of the United States has been opened by the Members of this Congress to ensure that every family will receive just recovery. --Rep. Jim Turner (18) It is paradoxical to fully support the airlines while reducing support for survivors who need to resume their lives. --Rep. Stephanie Tubbs Jones (19) Don't we want to ensure that all legitimate plaintiffs receive compensation? --Sen. Orrin Hatch (20) The statements of the Special Master of the Fund, Kenneth Feinberg, (21) also point to the purpose of the Fund:

   The Fund provides an alternative to the significant risk, expense, and delay inherent in civil litigation by offering victims and their families an opportunity to receive swift, inexpensive, and predictable resolution of claims. The Fund provides an unprecedented level of federal financial assistance for surviving victims and the families of deceased victims. (22) Despite the admirable purpose expressed by those associated with the Fund, the eligibility requirements of the Fund were insurmountable for many. The Special Master's definition of eligibility, (23) although a practical response to the challenge presented to him, gave rise to the problem of precluded recovery for those victims not meeting his strict definition.

   B. Defining Eligibility

   Title IV defines eligible claimants as those individuals who were present at the World Trade Center, Pentagon, or crash site at Shanksville, Pennsylvania "at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes of September 11, 2001; and suffered physical harm or death as a result of such an air crash." (24) This language raises the question: who suffered "physical harm" in "the immediate aftermath" of 9/11?

   C. Defining Physical Harm

   1. Physical Harm Compensable by the Fund

      The Final Rule defines the physical harm necessary to be eligible for the Fund as:

      [A] physical injury to the body that was treated by a medical professional within 24 hours of the injury having been sustained, or within 24 hours of rescue, or within 72 hours of injury or rescue for those victims who were unable to realize immediately the extent of their injuries or for whom treatment by a medical professional was not available on September 11.... (25) Although Title IV grants the Special Master the power to define harm as necessary to the adjudication of the Fund, (26) the Fund's definition of harm is different from the definition of physical harm developed by modern tort law. Despite recognition of exposure-only injuries as a class of injury in recent mass toxic tort decisions, (27) the Final Rule specifically excludes exposure-only injuries from eligibility. (28) These are victims who were exposed to carcinogens and toxins released into the air when the WTC towers collapsed and who may not manifest symptoms of disease for many years. The Special Master presented an administrative justification for excluding exposure-only victims from the Fund: victims who never manifest an injury would be overcompensated if they were compensated today; victims who manifest severe injuries might be undercompensated if they receive an estimated compensation today. (29) The Special Master went on to say that "[w]hile Congress might later consider whether an administrative program for latent harm caused by the September 11, 2001 terrorist-related aircraft crashes may be appropriate, the language of the statute that created this Fund does not contemplate awards for that purpose." (30) This recognition of the possibility of latent injuries is one of the few acknowledgments that a congressional response may be necessary. Without a congressional response, the members of this recognized class of victims will never recover for their injuries.

   2. Physical Harm Compensable at Common Law

      Under the Fund legislation, any litigation relating to the events of the 9/11 attacks, including lawsuits for personal injuries, must be brought as a federal cause of action in the Southern District of New York and will be controlled by the law "of the State in which the crash occurred." (31) Professor Robert Rabin has surveyed the potential causes of action available to exposure-only 9/11 victims: (32) emotional distress over prospective future physical harm ("cancerphobia"), (33) medical monitoring, (34) and present probabilistic recovery for future harm. (35) Applying New York's case law to potential claims of exposure-only victims of 9/11, (36) Rabin concluded that cancerphobia claims are unlikely to succeed. (37) Medical monitoring claims, on the other hand, would be "fairly strong," (38) while present probabilistic recovery is an "open question in New York." (39) Ultimately, Rabin concluded that "uncertainty is the byword for the exposure only claimant in both the liability and the health spheres." (40) Although he reached no definitive conclusion, Rabin's article indicated that exposure-only victims do have common law rights and their injuries cannot be dismissed as collateral damage.

      While Rabin asserted that the exposure-only victims may have a valid legal claim, whether those claims have any hope of success is an entirely different question. The Special Master has, on multiple occasions, dismissed the chances of success of any lawsuits stemming from the events of 9/11. (41) In an effort to encourage potential claimants to opt into the Fund, he speculatively compared the experience of litigating a tort claim with the experience of filing a claim with the Fund:

      [The alternative] is the idea of litigating ... for seven or eight or nine years, hopefully getting a verdict, hopefully having it sustained on appeal, then paying your lawyer 40 percent of a fee, and then netting something at the end of the day while dragging through constantly remembering the horror of September 11, this is an...