The 9/11 litigation database: a recipe for judicial management.

• Author: Hellerstein, Alvin K.
• Position: F. Hodge O'Neal Corporate and Securities Law Symposium: The Future of Class Actions

The terrorist attacks on the Twin Towers on September 11, 2001, presented the American legal system with unprecedented challenges regarding whether, and how, to compensate those who suffered harm as a result. Congress stepped in almost immediately to provide a victims' compensation fund that dealt primarily with those who were directly and immediately affected. (1) But many other harms manifested later. In the months that followed as many as 60,000 persons came to the World Trade Center (WTC) to aid in what amounted to around-the-clock rescue, recovery, and debris removal at the WTC site. (2) Of that number, over 10,000 responders filed tort claims for injuries they claimed to have suffered as a result of exposure to contaminants at the site. (3) Aside from workers' compensation and disability insurance, their lawsuits in federal court were their only means by which to seek damages for their injuries.

No one questions that the atmosphere around the WTC site was a toxic cocktail of epic proportions, especially in the earlier months. (4) Plaintiffs' complaints set forth claims of negligence, violation of safe-place statutes, and failure to disclose the true nature of the relevant risks. (5) The plaintiff responders wound up alleging over 380 different injuries arising from their exposures. (6) They claimed that the City of New York (the City), the Port Authority of New York and New Jersey, four prime contractors and hundreds of subcontractors were liable to them in tort. (7) Congress assigned all of these responder claims to the United States District Court for the Southern District of New York, (8) and the cases were ultimately consolidated before Judge Alvin K. Hellerstein, who presided over all of the tort claims arising from the 9/11 attacks. (9) An article entitled Managerial Judging: The 9/11 Responders' Tort Litigation, coauthored by Judge Hellerstein and Special Masters Henderson and Twerski, recently published in the Cornell Law Review, contains a comprehensive analysis of the 9/11 litigation and ultimate settlement. (10) This Article will focus and enlarge on one aspect of that subject, the creation of a program of core discovery and a database to gather and maintain information about all 10,000 claimants. The function of the database was to aid the court and the parties to manage discovery and to choose cases for further and intensive discovery and early trial in order to make it possible for the parties to negotiate a comprehensive settlement of the massive litigation.

1. WHY A DATABASE?

   No judge and no set of attorneys can simultaneously litigate 10,000 cases alleging so many different injuries. In large-scale pharmaceutical drug cases, typically the plaintiffs allege that ingesting the drug caused only a limited number of ailments. (11) Attorneys choose representative cases for trial and, after some experience with litigation, the parties are able to value the cases based on such metrics as length of exposure and severity of injury. (12) From discovery and the trial results in handfuls of bellwether cases, each side learns the vulnerability of the other on such issues as liability, causation, and size of recovery. (13) These lessons apply without great difficulty to the larger number of claims remaining in the litigations. (14) No such path was available to Judge Hellerstein in the 9/11 context. (15) The wide range of injuries alleged, including the varying locations and lengths of exposures, the dizzying array of prior medical histories, the differences in the types of protective equipment provided and the efficacy of their use made the task of retrieving and managing information very complex and difficult. (16) Furthermore, Judge Hellerstein, realizing that this was public litigation that touched raw nerves in the American psyche, was intent on assuring that the relevant information was available not only to the court and to the parties but to the general public as well. Information had to be retrieved and presented in ways that allowed all who sought access to it to understand its import. Transparency was more than a slogan. It reflected a deeply held conviction about the management of the cases. (17)

   As a practical matter, what did all of this mean? At the outset, Judge Hellerstein hoped that more specific pleadings might provide sufficient information to help structure discovery. (18) However, the federal rules governing pleadings aim primarily at providing fair notice of the basic nature of the claims being asserted rather than imposing legal structure on those claims. (19) Thus, federal civil pleading requirements are relatively lax and, in the 9/11 litigation, did not help to provide the court with sufficient information even to begin to think about settlement. (20) Working in conjunction with the Special Masters (co-authors Henderson and Twerski), Judge Hellerstein developed core discovery questions that all parties were obligated to answer. (21) The core discovery order asked for information on such items as the specific work performed by each plaintiff, the availability and use of personal protective equipment, and the nature and severity of the injuries allegedly suffered by each plaintiff. (22) Although the answers to these questions provided information about a number of issues, it was not possible, informally and intuitively, to correlate information from 10,000-plus plaintiffs and hundreds of defendants. (23) It became clear that the only way that anyone could get their arms around the factual complexities of this case was to construct an electronically searchable database. (24)

   1. The Severity Chart

      From the outset Judge Hellerstein made it clear to the Special Masters and the parties that his priority was to see to it that those most seriously harmed would receive the highest awards. (25) This desire had to be tempered by the realities of tort law. To the extent that some plaintiffs could not causally relate their injuries to exposures at the WTC site, recoveries would have to be adjusted downward to reflect the weak causal links. Nonetheless, severity of injury rather than nuances regarding causation became the watchword for recovery. Implementing that commitment proved to be no easy task.

      Designing a Severity Chart correlating major types of injury with levels of relative severity was difficult for several reasons. Out of the 380 different injuries alleged, it was necessary to choose those that were sufficiently important to be included on a Severity Chart of manageable length. (26) Second, objective criteria for evaluating the relative severity of injury had to be identified. Third, an injury rated as relatively severe for one ailment might be far less severe than an ostensibly lower rating for a different ailment.

      Aware of the scientific literature that had been published following the 9/11 disaster (27) and mindful of the answers previously given to core discovery questions, the court and the Masters concluded that a variety of different respiratory diseases were the most frequent and plausible illnesses reflected in plaintiffs' complaints. (28) In addition, large numbers of plaintiffs complained of rhinosinisitus and gastroesophageal reflux (GERD). (29) As for objective criteria by which to evaluate the severity of injury, fortunately the American Medical Association and the American Thoracic Society publish helpful severity ratings. These ratings are relied upon in a variety of nontort compensation contexts (30) for all of the diseases included in the Severity Chart.

      Working out cross-injury comparisons proved to be especially difficult. Ultimately, counsel came up with their own evaluations for injuries within each category. Because Judge Hellerstein desired that consensus be reached and made clear that he would rely on the rankings once established, negotiating the Severity Chart with counsel was no easy matter. Defense counsel expressed concern that the "objective" diagnostic tests relied on to determine the presence of disease were subject to great variation, depending not only on the integrity and expertise of those administering the tests but also on the pre-test conduct of the plaintiffs. For example, results from breathing tests designed to measure lung capacity could vary significantly depending on whether the plaintiff smoked immediately, or shortly, before the test. Medical records were often silent on such matters. Was it sufficient to test for GERD by endoscopy or was a more reliable, albeit more costly, MRI required? Was it necessary to have a confirming diagnosis by a physician interpreting the test results? (31) Answers to these and a number of other questions had to be negotiated. When agreement could not be reached...