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There appears to be some confusion regarding how to protect your legal rights to claim damages for personal injuries you may have incurred because you were exposed to dangerous airborne toxins or chemicals during the WTC rescue/recovery effort. We are advised that firefighters were not provided with adequate or appropriate respiratory protection at least during the first ten days to two weeks after the September 11 tragedy. As a result there may be a viable claim against the City of New York for its failure to supply the appropriate protective equipment.
Generally in order to seek damages against the City of New York a person must file a Notice of Claim within ninety (90) days of the occurrence giving rise to his injury. Taking September 11th as the earliest possible date of injury, the ninety (90) days would expire on December 10, 2001.
However, with regard to the injuries caused by the latent effects of exposure to toxic substances, the ninety (90) day period of limitations does not begin to run until you knew or through the exercise of reasonable diligence should have known that you were injured.
Thus, an individual who has worked at the site who has suffered no symptoms whatsoever has no reason to file a claim because he does not know nor should he know of any injury.
With respect to individuals who have had minor coughs or discomfort, they could file a claim but it may not make sense to do so. First, filing a claim thereafter requires that a lawsuit be commenced within a year and ninety days and if the only injury was a minor temporary cough such a lawsuit would have little or no value. Moreover, to settle such a lawsuit would require that a “General Release” be given to the City of New York which might prevent further claims if more serious injuries develop as a result of the exposure in later years.
For example, if a firefighter develops a terrible disease four years from now (such as Leukemia) and that is the first time that he knew or should have known of his injury, he would still have ninety (90) days from that date to file a claim against the City and a year and ninety days from that date to bring a lawsuit. If he had previously given a General Release to the City to settle a minor claim for a cough he might be precluded thereafter from making the claim for the more serious disease. Of course this assumes that doctors could link the cause of the disease to the WTC exposure.
If a firefighter however does have some significant or potentially significant injury which he has already discovered, such as pneumonia, diminished lung capacity, asthma or the like then a Notice of Claim should be filed by December 10, 2001.
Counsel for the UFA, Michael N. Block of Sullivan Papain Block McGrath & Cannavo, P.C., 120 Broadway, New York, NY (212) 732-9000 is available to you for the preparation of filing such claim. You are of course free to go to any attorney you choose.
Finally, the Federal Government has passed the “September 11 Victim Compensation Fund of 2001" statute. It provides an unlimited fund to provide damages to individuals suffering physical harm or death in the terrorist related attacks of September 11, 2001 “or in the immediate aftermath” of such attacks.
It is not clear whether the term “immediate aftermath” includes rescue workers who were exposed to toxic materials in the days following September 11, 2001. If the regulations under the statute include such individuals, it may very well be the best way to proceed. Under the procedure set up by the statute no lawsuit is required. A claim is submitted to a special master who renders an award within four (4) months of the claim being filed. The award is paid within twenty (20) days thereafter. There is no appeal. The regulations for the statute however have not been promulgated. We do not know if rescue workers are covered. Under the circumstances the above information regarding the Notice of Claim still applies. If it turns out that the Federal statute is available to rescue workers, the Notices of Claim can be withdrawn. The time limit to bring a claim under the federal statute is two years from the date that the regulations are promulgated.
You should also be aware that the Association of Trial Lawyers of America, the national group with the top personal injury lawyers in the country has offered to supply an attorney to anyone utilizing the Federal claim process. There would be no legal fees.
Back To Top Fraternally, WILLIAM F. MIRRO
Recording Secretary, KEVIN E. GALLAGHER
President
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