NY Times - November 20, 2010by MIREYA NAVARRO
Their responses, delivered to a federal judge in Manhattan, ended months of wrangling over whether the city and its contractors were shortchanging the workers for the respiratory and other illnesses they developed after toiling in the smoldering ruins of the World Trade Center.
The judge, Alvin K. Hellerstein of United States District Court, threw out a smaller settlement in March, arguing that the plaintiffs deserved more and lawyers were getting too big a cut.
A 95 percent approval rate was required for the latest accord to take effect. The plaintiffs barely cleared the threshold by the Tuesday night deadline they were given: 95.1 percent of the 10,563 workers accepted the settlement's terms, according to documents filed on Friday.
In their lawsuits, the firefighters, police officers and other workers argued that the city had failed to provide adequate protective equipment and supervision as they retrieved victims' remains at ground zero and cleared smoky debris.
"This settlement is a fair and just resolution of these claims, protecting those who came to the aid of this city when we needed it most," Mayor Michael R. Bloomberg said in a statement. "We will continue our commitment to treatment and monitoring of those who were present at ground zero."
Still, many plaintiffs were pained by the vigorous legal defense mounted by the city as the lawsuits began flowing in 2003.
Under the terms of the settlement, individual payments will range from $3,250 to $1.8 million or more for the worst injuries, lawyers estimated.
The payout system ranks injuries in four tiers of severity. More than half the plaintiffs fall into the fourth tier - the most severely injured - and will get about 94 percent of the payout, the lawyers said.
The decision to settle was hard for those who felt shortchanged by the terms, which rate how conclusively an injury can be linked to exposure to dust and fumes at the World Trade Center. For example, some types of cancer did not qualify for compensation or were compensated at lower amounts than respiratory illnesses like asthma.
Jennifer McNamara, whose husband, a firefighter, died of colon cancer last year, had initially resolved to opt out of the settlement, which she felt was insultingly low, but later changed her mind. She explained to friends in a letter that she did not want to delay the settlement for the many plaintiffs who needed it to pay mortgages and medical bills.
She said she was also thinking of her 3-year-old son, whom she is raising alone, in accepting her $76,000 share, from which she must pay legal expenses and a 25 percent lawyers' fee. "I hope you all understand what an emotionally agonizing and draining decision this has been," she wrote in the letter, which she shared with The New York Times. "It has kept me up at night and caused me many tears. It is not a decision I am completely at peace with, nor will I ever be, but I don't know what more to do."
In recent months other plaintiffs expressed a weariness with the legal fight and concern that they might die before they saw compensation.
Kenny Specht, a retired firefighter now fighting thyroid cancer, had been a vocal opponent of the settlement, which allotted him $127,000 to $158,000. But he changed his mind, and also explained his decision in a letter.
"I am not sure that holding out for a better offer will ever be something that is attainable," he wrote.
Judge Hellerstein, who oversaw all of the cases, emerged as a champion of the workers as the litigation dragged on. As a May trial date approached, a settlement was finally brokered in March. But the judge rejected it, saying the money allotted to the plaintiffs, whom he saluted as "heroes," was inadequate, and the lawyers' fees were too high.
He relented in June when lawyers negotiated $125 million more for the plaintiffs, partly by reducing lawyers' fees to 25 percent from one-third. He urged the workers to accept the accord as an "imperfect but fair" resolution.
The settlement would have paid out $712.5 million if all of the plaintiffs had opted in.
The lowest acceptance rate, 87.4 percent, involved plaintiffs who stood to get only a few thousand dollars because they were not afflicted with a qualifying illness under the settlement yet feared falling ill in the future.
In the end, 520 plaintiffs opted out or did not respond by the deadline.
"The city and its contractors have an array of powerful defenses to these claims and do not admit any liability," the chief lawyer for the city, James E. Tyrrell Jr., said in a statement on Friday.
Settlements have also been reached in recent weeks with other defendants in the litigation, including the Port Authority of New York and New Jersey, owner of the World Trade Center.
The cases of plaintiffs who have decided to fight on will continue before Judge Hellerstein.
Those opting out included two former city police detectives, John R. Walcott and Richard J. Volpe, who said they thought the accord did not offer enough certainty that the estimated amounts offered to them would be paid once the claims administrator was finished evaluating their work and medical histories.
"Basically, I give up all my rights, and I'm at the mercy of the Captive fund," said Mr. Volpe, 43, referring to the WTC Captive Insurance Company, the city's insurer, which would pay the settlement from a federal compensation fund. He said his payment was estimated at $20,000 to $40,000 for asthma and other conditions and did not acknowledge kidney disease, which he said was his most serious illness.
Another struggle continues in Washington, as many plaintiffs also lobby to win passage of a federal bill providing for their health care. The House of Representatives has approved the bill, which authorizes the payment of more than $7 billion for medical care and monitoring and the reopening of a victims compensation fund, but approval of the Senate version is uncertain.