9/11 cleanup workers settle with New York City

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Case in Point

December 7, 2010

9/11 cleanup workers settle with New York City 

More than 10,000 plaintiffs alleged that the city, the port authority, and dozens of contractors involved in the Ground Zero cleanup operation failed to monitor dangerous air quality conditions, provide respirators, or warn workers of the hazards of breathing contaminated air at the site. In re World Trade Ctr. Disaster Site Litig.

When the World Trade Center towers collapsed on September 11, 2001, police officers and firefighters spent 18 days searching for survivors and remains. Over the next several months, thousands of workers assisted in site cleanup, including iron and construction workers to separate building fragments, engineers to demolish the buildings, sanitation workers to transport the debris to landfills and operate the landfills, and additional police officers to monitor the landfills.

Air sampling at the site revealed particulate matter containing asbestos, volatile organic compounds, dioxins, heavy metals, toxic polychlorinated biphenyls, and other contaminants. Fires continued to burn underground for three months, causing a constant pall of smoke.

The more than 10,000 workers began requesting that the city provide respirators as early as September 12, but there were not enough respirators to go around. The cleanup operation didn’t end until May 2002, after which the city transferred authority over the site back to the Port Authority of New York and New Jersey.

As a result of breathing the contaminated air, thousands of workers began suffering from severe asthma, chronic lung disease, and acute sinusitis. Some workers contracted cancer or cardiac problems—sometimes fatal—that were linked to the operations.

Several classes of cleanup workers sued the city, the port authority, and dozens of contractors involved in the operation, alleging that the defendants didn’t monitor the dangerous conditions, provide respirators, or warn them of the hazards, among other claims. Eventually, 10,043 plaintiffs opted in.

The city and port authority argued that they were entitled to immunity because they were following federal agency directives. The port authority also noted that the city had assumed control over the site for the duration of the cleanup effort.

The city and its contractors settled with the class in March, but the district court rejected the settlement as too low. In June, the parties amended the settlement, and last month, 95 percent of the class members agreed to join the settlement, as required by the court before settlement could be finalized.

The defendants’ insurer agreed to pay $628.5 million, including $23.4 million as part of a cancer insurance policy and $62.5 million as capitalization of the permanent disability fund. They are potentially liable for another $25 million in contingency payments if certain conditions are met and to pay 2 percent of the settlement amount for each 1 percent of all plaintiffs who opt in to the agreement in excess of the required 95 percent.

The plaintiffs were divided into four tiers, ranging from workers who haven’t yet suffered an injury but fear they will in the future (tier 1) to workers who suffered catastrophic injuries or the survivors of those who died (tier 4). Those in the first tier will receive $3,250, while those in tier 4 will receive between $800,000 and $1.5 million. The amendment also specified that the class attorneys will receive no more than 25 percent in fees and will not receive fees based on money paid to the cancer fund.

In addition to the settlement with the city and its contractors, the plaintiffs reached separate settlements with other defendants. The Port Authorities of New York and New Jersey agreed to pay $47.5 million, two of the contractors at the landfill will collectively pay $24.3 million, insurers for the barges that transported debris will pay $28 million, a respirator manufacturer agreed to pay $4.15 million, and a construction company working on new structures at the site will pay $1.4 million.

Citation: In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-00100 (S.D.N.Y. Nov. 19, 2010).

Lead plaintiff counsel: Kevin K. Russell and Amy Howe, both of Washington, D.C.; Paul J. Napoli, AAJ member William H. Groner, Denise A. Rubin, William J. Dubanevich, Christopher R. LoPalo, and W. Steven Berman, all of East Meadow, New York; AAJ members Brian J. Shoot, Frank V. Floriani, and Wendell Y. Tong, and Andrew J. Carboy, Susan M. Jaffe, and Marion S. Mishkin, all of New York City.

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