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  • World Trade Center Settlement Gets Backing Needed to Take Effect
    – New York Law Journal
    (November 22, 2010) Enough plaintiffs have accepted a massive settlement of claims alleging respiratory and other health problems from the post-9/11 response and cleanup at the World Trade Center site to seal the deal. Read more…

  • 10,563 Ground Zero 9/11 Workers Agree On $625 Million Settlement
    – Medical News Today
    (November 21, 2010) 10,563 ground zero workers who inhaled toxic dust and risked health consequences have agreed on a $625 settlement and ceased suing - the amount could go as high as $815 million.
    Read more…

  • 9/11 Health Deal Gets OK
    – The Wall Street Journal
    (November 20, 2010) More than 95% of Ground Zero workers agreed to accept a settlement of long-running litigation over respiratory diseases and other injuries suffered in recovery operations following the Sept. 11, 2001, terrorist attack.
    Read more…

  • Deal settles most lawsuits over WTC toxic dust
    – The Associated Press (AP)
    (November 19, 2010) A deal reached by New York City and workers exposed to toxic dust that blanketed ground zero after Sept. 11 will resolve an overwhelming majority of the lawsuits over the city's failure to provide protective equipment to the responders. Read more…

  • Ground Zero workers exposed to toxic dust take pay deal
    – BBC
    (November 19, 2010) Thousands of workers exposed to toxic dust after the 2001 terror attacks in New York have accepted a legal settlement and ceased litigation. Read more…

  • Lawyers: Sickened 9/11 Workers Reach Settlement Deal With City
    – NY1
    (November 19, 2010) By Friday, more than 10,000 people who became ill from working conditions at the World Trade Center site following the September 11th terrorist attacks had accepted a settlement deal with the city. Read more…

     

Press Release!

How To Maximize Your Recovery Under The Settlement and Zadroga

To secure the maximum compensation available to you for your World Trade Center claim, it is important that you understand the interplay between your WTC settlement and the James Zadroga 9/11 Health and Compensation Act of 2010 ("Zadroga Bill").

The pending cash settlement offer is just one of source of potential monetary recovery. While the City and its contractors have already settled (the “Captive Settlement” or “SPA”), several defendants in the litigation have not yet settled. Also, the Port Authority of New York and New Jersey has just entered a separate settlement agreement that will likely add additional money to your overall recovery if you named them in your claim. Thus, in addition to the settlement award from the City and its contractors that has already been offered to you, additional settlement funds may be coming as these remaining defendants settle. Such settlement money would be in addition to the Captive Settlement. If you follow the recommendations here and accept the pending settlement, you will be able to secure the compensation under this settlement (and with others who settle later) and still remain eligible for compensation under Zadroga. If you do not follow the recommendations, you may end up losing out on this settlement while having no guarantee that the Zadroga bill will ultimately pass the Senate vote.

To explain a little more about Zadroga, on September 29, 2010, the United States House of Representatives passed Zadroga in a beneficial form that now allows you to settle your case against the City and its contractors and to remain eligible to apply for compensation under Zadroga. Any settlement money you receive for your WTC case prior to Zadroga's enactment will be deemed a "set-off" (a dollar-for-dollar deduction) against the benefits payable to you under Zadroga for a Victims' Compensation Fund payment (but the litigation set-off will not reduce the health benefits available to you under Zadroga). In other words, you can still apply for Zadroga compensation if and when the bill becomes law even after accepting the pending settlement and receiving the guaranteed compensation offered to you under the SPA. The relevant excerpt from Zadroga is as follows:

(iii) SETTLED ACTIONS - in the case of an individual who
settled a civil action …, such individual may not submit a claim
under this title unless … a release of all claims in such action was
tendered prior to the date on which the James Zadroga 9/11 Health
and Compensation Act of 2010 was enacted.

Thus, in order for you to receive compensation from any settlement and remain eligible for compensation under the Zadroga Bill, you must settle your claims in your WTC case prior to the enactment of the Zadroga Bill.

Some of you may want to keep litigating. That is your right and your decision, but we believe it is a highly risky decision. If you keep litigating, you may not receive another settlement offer before Zadroga is enacted into law. The SPA offer is on the table now, but defendants may not put another offer on the table in the future, and you cannot force them to make another offer. In fact, defendants have informed us point blank that the current settlement offer is the only settlement offer they intend to make – they do not intend to make any offer (much less a better offer) to those who reject the SPA. Therefore, if you and others who are eligible do not opt in to this settlement by the November 8th deadline so that we achieve the requisite 95% opt-in rate, there may be no settlement on the table from the City and its contractors before the Zadroga bill is enacted (i.e., passed by a vote in the Senate and signed into law by the President). In that situation, your only way into Zadroga would be to withdraw (voluntarily drop) your lawsuit without receiving any money or other benefits for doing so (no cash, no cancer policy, no lien waivers). If you were found to be entirely ineligible for Zadroga at that point, you could get back into your lawsuit by reinstating it within 90 days after the finding of ineligibility – but if you are found to be eligible for Zadroga and are unhappy with your recovery, you will not be able to get back into the lawsuit.

If you want to keep litigating because you think you can get more money at trial than through settlement, then you are weighing the benefits and risks of litigation against the certainty of an immediate settlement (assuming 95% or more of plaintiffs opt in), plus whatever additional settlement monies come in from other defendants you have sued, plus whatever money you may obtain if Zadroga is enacted (minus your set-off for settling). The risks of continuing to litigate are high. Judge Hellerstein could dismiss your case based on one of the City’s many defenses, which he has called “potent.” If your case is dismissed, you would probably not be eligible for Zadroga benefits (though this is so far uncertain). If your case is not dismissed, Judge Hellerstein could refuse to let one or more of your expert witnesses testify based on a case called Daubert, which federal courts use to keep weak science out of court. Even if your expert witnesses are allowed to testify, it could be years before you get to trial. If you get to trial, the jury could find that your injuries were not caused by your World Trade Center work, or the jury could find in your favor but award you relatively little in damages – yet you would still be responsible for enormous trial expenses and a one-third contingency fee. (We have reduced our fee to 25% for those who settle, but not for those who go to trial.) Even if you win at trial, defendants may appeal, which could take many months and might reduce or overturn your damages award. If you opt in, on the other hand, you will receive swift and certain compensation according to a fair formula. We think the balance is clearly in favor of settling now, while the SPA offer is on the table.

You are not legally required to opt into the settlement to be eligible for Zadroga. If you opt-out of the current settlement, you can still apply for compensation under Zadroga (when and if it is enacted) if you settle your case and sign releases before the enactment date -- but if the defendants do not put another offer on the table (and they say they will not), or if they make an offer that is still lower than you are willing to accept, then you would have to withdraw (voluntarily discontinue) your lawsuit within 90 days of the bill’s enactment before applying for Zadroga benefits. You could not reinstate your lawsuit unless you were found ineligible for compensation under Zadroga and reinstated it within 90 days of the finding of ineligibility. If you are found eligible you must take whatever compensation is given under the Zadroga bill and cannot reinstate a lawsuit if you are not happy with that amount.

Plaintiffs in In re: World Trade Center Disaster Site Litigation who are weighing settlement against continued litigation should keep in mind that the current settlement is with most – but not all – of the defendants in their cases. Settling with the remaining defendants represents even more compensation for the plaintiffs and is anticipated to occur in the upcoming weeks.

At a Court conference held on October 5, 2010 to discuss the status of the Settlement and of other negotiations with defendants for additional settlements, Judge Alvin K. Hellerstein said:

"I think this is a good deal, and if we get more settlements, it will be a better deal.” Judge Hellerstein continued, discussing the risks ofopting out of the settlement: “People have to realize that the alternatives are very tough. This is not an easy litigation. There are potent defenses. There's a lot of work that needs to be done. There's a high risk in a trial. There are appeals. It's going to be very hard for people to make recoveries in the cases. I'm not saying it's not possible. Of course it's possible, but the efforts will be huge and the risks will be high. And this is a fair deal. I think it's a fair deal. …"

"People look at their injuries and they look at their recoveries and some of them may feel “I'm not recovering enough.” No one recovers enough. These are difficult physical injuries that people have experienced and feel that they should be compensated more. Some of them feel that way, but this is a settlement, a settlement of disputed issues. … And the prospect of gaining immediate certain recovery versus the uncertainty, risk, expense, confusion and difficulty prolonged litigation offers to an injured life it seems to me the balance is clear that people should come in. Of course, they have to make this decision for themselves. But we have this November 8 date, and people have to make these decisions for themselves and do the right thing for themselves because, as I look on it, it seems to me that the choice is rather clear."

When you look at your options, taking this settlement offers significant advantages. First, you will still be eligible for compensation under the Zadroga Bill, should that legislation be enacted. Second, plaintiffs who opt-in will receive the MetLife Cancer policy. Third, most plaintiffs who opt-in will benefit from the defendants’ waiver of any demands for repayment of workers compensation benefits that you may have received or will be eligible to receive in the future that normally are deducted from a settlement. Fourth, you will avoid the substantial expenses (tens of thousands of dollars) of paying experts to testify at trial. These four benefits – Zadroga, the cancer policy, the lien waivers, and expense avoidance -- are not available to those who go to trial, where the costs of litigating and workers compensation payments will be deducted from settlement amounts. Further, the cash benefits of settling will increase when we receive additional settlement offers from other defendants in the WTC litigation who have not yet settled.

We believe taking this settlement and remaining eligible for Zadroga gives you guaranteed fair and reasonable compensation under the settlement agreement while still maintaining your ability to maximize your return if and when Zadroga is enacted. By accepting the settlement now, you combine certainly with possibility – you maximize near-term cash and minimize long-term risk without giving up your eligibility for Zadroga. If you agree, please sign your settlement papers to opt-in to the settlement while still keeping the door to Zadroga wide open.


** This statement has been approved by Court Appointed Legal Ethicist Roy D. Simon, Esq. **

 

 

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