Remember how the firefighters, cops and rescue workers who answered the call of duty at New York's Ground Zero were exploited shamelessly for war propaganda—as if saving lives in New York was somehow the same as taking lives in Iraq? Well now look what's happening to them. It seems all that talk about honoring the heroes was a mile wide and an inch thick. From the New York Times [2], June 23:
A federal judge heard oral arguments yesterday on the city's motion to dismiss a lawsuit brought on behalf of more than 8,000 firefighters, police officers and construction workers who say they were harmed by exposure to toxic substances while working at ground zero.
The city's lawyers have argued that the city cannot be sued because it has legal immunity under a state civil defense law.
During the hearing, Judge Alvin K. Hellerstein of United States District Court in Manhattan focused on how long after Sept. 11 the legal immunity claimed by the city lasted and whether the $1 billion federal insurance fund that has been set aside to cover such claims against the city could be considered evidence that it could, in fact, be sued.
The questions are crucial to determining whether the responders and other workers can seek damages from the city and 150 private contractors for ailments they say they suffered as a result of the work they did downtown in the nine months after the twin towers collapsed.
Lawyers representing the workers argue that after the first two weeks the city was guilty of an "inexcusable violation of basic safety laws" because it did not ensure that the workers had proper protective equipment, like half-face respirators, and the training to use them.
They also argue that Congress would never have established a $1 billion insurance fund in 2003 if it believed that the city was immune from negligence lawsuits. The money came from the $20 billion recovery package approved by Congress following the attack.
"The city is not going to pay a dime out of its own pocket" if the injured workers are allowed to sue, said Kevin K. Russell, a Washington-based lawyer with Howe & Russell, who represented the workers in yesterday's proceedings.
James E. Tyrrell Jr., a lawyer with the Washington-based firm Patton Boggs, representing the city yesterday, acknowledged in court that the city had asked Congress to create the $1 billion fund in case questions about liability jeopardized the city's fiscal future. He said that if the money was not used to cover such claims it would be available to help the city pay for other expenses related to Sept. 11.
Judge Hellerstein noted from the bench that the federal insurance fund's existence was not necessarily an admission by Congress that the city could be sued, a point with which the city's lawyers agreed.
However, at several points in the proceedings Judge Hellerstein did raise questions about the extent of the city's immunity under the State Defense Emergency Act. The act, a piece of cold war civil defense legislation, was originally intended to protect cities and private contractors from negligence lawsuits after they respond to a foreign attack.
The judge asked whether the city's immunity under state law continued through the long period of cleanup. "In considering this situation, maybe the immunity was less and the duty was more over the long period of cleaning up the debris," Judge Hellerstein said, referring to the duty of the city and its contractors to ensure worker safety after it became clear, within two weeks of the attack, that there were no more survivors to be rescued.
Mr. Tyrrell, the city's lawyer, argued that the legal immunity began on Sept. 11 and continued for nine months. He said the city's emergency declaration was renewed every five days as required by law and did not end until June 30, 2002, when the cleanup was considered complete.
Lawyers representing the workers assert that in the nearly five years since the attack, more than 300 responders have gotten cancer and thousands of others have become sick from a variety of respiratory ailments and other diseases that they say are linked to toxins released by the towers' collapse and the fires that burned for months afterward.
The city says that more than 200,000 respirators were distributed to workers at ground zero. But there were conflicting statements at the time from government officials about the safety of the air downtown and whether wearing the protective masks was mandatory. Some workers said they took off the masks when they became uncomfortable or when they made communicating with other workers difficult.
Several health studies have shown that a high percentage of workers exposed to ground zero dust and smoke have complained of respiratory and gastrointestinal problems. Fire Department studies also have shown that firefighters suffered a substantial loss of breathing capacity. And at least one death, that of Detective James Zadroga earlier this year, has been formally connected to ground zero dust by a medical examiner.
The city has argued that it will be handicapped in responding to any future disasters if the possibility of negligence lawsuits is left hanging over its head. It also says that injured workers can now receive workers' compensation and free medical treatment.
Lawyers for the workers are similarly concerned about the future, and whether responders to new disasters would be properly protected. They also say that the workers' compensation system is difficult to navigate and that many workers are left with few, if any, options for receiving medical treatment.
The hearing on the city's motion to dismiss the lawsuit will continue on Monday.
See our last report on how New York's heroes are getting screwed [3].
