Chief Leader - March 09, 2010by ARI PAUL
Andrew Carboy said that he found the document in a pile of three million papers that the city delivered to plaintiff attorneys last summer, and it will likely become a part of the public record during the trials due to begin in May, in which thousands of 9/11 response workers are suing the city for nearly $1 billion in damages.
City: Unforeseeable Occurrence
"The city's defense to the case is 'This was an act of war, a man-made disaster, no one saw this coming, and as a result this is like responding to Pearl Harbor. What do you want from us?' " Mr. Carboy said in a phone interview March 2. "It overlooks there's liability for failure to comply with [U.S. Occupational Safety and Health Administration] regulations in advance. You protect [firefighters] in all responsibly foreseeable circumstances."
He added that the document shows that building collapses were a type of disaster firefighters commonly faced that would require a respirator.
"If it's a dust hazard you wear an airpurifying respirator," Mr. Carboy said.
Both he and other FDNY advocates said that the discovery of the document would help plaintiffs in their cases against the city and contractors.
"It's a game-changer simply because this memo highlights that the department had a responsibility to do this and they failed to do so," said Uniformed Firefighters Association President Steve Cassidy.
Joseph Hopkins, a partner at Pat- ton Boggs, the outside law firm assisting the city in the 9/11 trials, said in an e-mail, "In response to plaintiffs' requests for documents and to meet its discovery obligations, the city has, to date, produced more than five-anda half million documents from a myriad of agencies and nearly one million documents from the FDNY alone. The millions of pages of documents produced include documents outlining the respiratory policies applicable to work performed at the WTC Site. The single document that plaintiffs complain about concerned ordinary firefighting operations, had no relevance to the unprecedented circumstances following the collapse of the World Trade Center towers, and was promptly produced when requested."
The several dozen cases set for trial were chosen by a Federal Judge, the city and the plaintiffs' attorneys out of thousands of Ground Zero health cases.
Respirators vs. Masks
Retired FDNY Deputy Chief Jim Riches, an outspoken 9/11 health advocate, explained that the department had been examining the need for respirators after the 1993 World Trade Center bombing. While firefighters are equipped with oxygen tanks, he and Mr. Cassidy said that these only have a 30-minute supply of air and are meant for interior firefighting.
"They knew about it in '93," Mr. Riches said of the department. "They didn't enforce the rules down there [after 9/11]. Everything there was paper masks."
Respirators were not issued to Ground Zero responders until December of 2001.
Mr. Carboy also took issue with the fact that the city did not produce the document during the original discovery period for the case, saying its lawyers had maintained that it was irrelevant to the case. But he argued that when a party believes that information is privileged or shouldn't be divulged in a case, it should be flagged for the court instead of disregarded.
"There's a proper way of doing things in Federal court," Mr. Carboy said. "If you have an objection, you move for a protective order."
Led to Disabilities
The UFA leader has claimed that the lack of respirators for his members has resulted in many having to retire early due to respiratory illness. He also believed that the incidents of cancer among his members would increase.
"Much has been made of the fact that we were told the air was okay," Mr. Cassidy said. "Most firefighters knew instinctively that the conditions we were operating in weren't safe. We did it anyway. In the first few weeks we were hoping to save someone who was trapped. In the months that followed it was critically important to find the bodies of those who had been lost."
He said of the city, "I don't know what their argument is. It doesn't matter. They had an obligation. They didn't do it."