October 17, 2001 - Colorado Legal Experts Predict Flood of Litigation from Sept. 11 Terrorism
Oct. 16--Some legal experts predict a torrent of litigation from the Sept. 11 terrorist attacks despite a government plan to compensate victims.
Targets of such suits could include the airlines whose planes were hijacked and used as weapons, security companies that allowed armed men to board the planes, the owner of the World Trade Center, the U.S. government and even Osama bin Laden.
"I guarantee there are claimants out there right now clamoring for their attorneys to file a suit," said Scott Robinson, a Denver lawyer who has handled numerous wrongful-death cases.
As part of a plan to bail out the struggling airline industry, Congress recently passed legislation that would offer an unspecified amount of government funds to victims.
There's a catch, however: To collect, a victim must give up the right to sue the airlines and other businesses that may have some liability. And a court battle could take years.
But some lawyers say the bill could result in minimal awards to many who would receive far more from a jury.
"This is just another example of tort reform under the guise of helping an industry," said Stephen Long, a lawyer with Shughart Thomson & Kilroy of Denver. "We stabilize the airline industry by reducing the rights of the victims."
In spite of the objections, there is plenty of support for the plan within the legal community.
"I have never seen the plaintiffs' bar as united as it is on this issue," said Denver lawyer Craig Silverman.
The Association of Trial Lawyers of America, a professional group that represents plaintiff's lawyers, helped draft the legislation.
The group's involvement is unusual since it normally lobbies to broaden the right to sue.
"This is a situation without precedent in our history in terms of how it happened and the magnitude of the loss of human life," said Carlton Carl, the trial lawyers' spokesman.
The United and American flights that crashed into the New York twin towers each carried about $1.5 billion in insurance. Estimates for damages in New York are reportedly as high as $50 billion.
"It became immediately apparent to our leaders that the majority of people injured or killed in this event would never be compensated by suing the airlines since their insurance coverage is limited and they (airlines) were already begging for a bailout from Congress," Carl said.
The compensation plan is not perfect, said Marc Kaplan, past president of the Colorado Lawyers Association. But it may be the best option for victims whose total claims may amount to more than insurance will pay, he said.
So far, no major suits have been filed related to the attacks, Carl said. The trial lawyers association called for plaintiff's lawyers to refrain from litigation -- at least until details of the government plan are worked out.
The group is offering pro bono service to those who accept the government compensation to help them through the process. The Colorado Trial Lawyers Association, the national trial lawyers' group and other state groups are recruiting lawyers to offer the legal aid.
But legal experts don't expect the solidarity to last. Cracks are beginning to show. One New York law firm tried to lure disaster victims with a three-line advertisement on the front page of The New York Times last week. "Victims 9/11 disaster: Free consultation," it said. "Don't apply to fund without learning more," the firm Broder & Reiter suggested in the ad.
At least one veteran of litigation involving terrorists applauded the government plan. Thomas Sutherland, professor emeritus at Colorado State University, spent six years as a prisoner of Islamic Jihad, a terrorist organization based in Iran. A federal judge recently awarded Sutherland $353 million. He and his family will receive $53 million of that award. The money will come from Iranian assets deposited here decades ago by the shah of Iran and later frozen by the U.S.
"That seems to make sense to me that the people would be guaranteed they would get an amount of money for compensation," Sutherland said. That's better than the chance of losing in a courtroom.
Bin Laden has been sued twice in federal court in the bombing of U.S. embassies in Africa and a car bombing in Saudi Arabia. It won't be as easy to get cash from accounts the Saudi renegade may have spread around the globe as it was to tap into Iranian assets held here, Sutherland said.
Any litigation that arises from the attacks will be complicated and pose difficulties unlike those in more typical cases, Robinson said.
Even the Columbine school shootings, a case that raised a mountain of legal questions about who should bear responsibility when kids go wrong, posed fewer hurdles for litigants, Kaplan said.
The biggest hurdle confronting litigants in cases stemming from the attacks will be proving that the defendants could have foreseen the events and protected against them. That won't be easy, experts said. "It's more foreseeable for kids to be shooting each other, even though it's shocking, than it is to predict a terrorist act like this," Kaplan said.
Potential litigants will also find that taking a case to court will be expensive, Robinson said. And proving their case will require expensive investigation into information that may be inaccessible. "We're talking about enormously widespread evidence, much of it classified," Robinson said. It is difficult for lawyers to take a case on a contingency basis when the ability to foresee a destructive event is questionable, he said.
The Port Authority of New York and New Jersey, owner of the World Trade Center, and the development company that leased the complex, could also be sued. A public address announcement discouraged workers in the south tower from evacuating after the first plane hit the north tower. Some may have died because they heeded the announcement. "That could be a problem for the building," Silverman said.
The list of those who could be taken to court goes on. According to the legal experts it includes: --Architects and engineers who designed the complex. Especially if there is evidence that the towers should have withstood the impact of the fuel-laden jets. "Hindsight is 20-20," Silverman said. "It may be that a building can be built to withstand that kind of devastation, but that probably wasn't foreseeable." --Private security companies and airports. The media have reported lax security at American airports, including Boston's Logan International Airport, where two of the flights originated, since Sept. 11. --Business cases could also end up in court, said Peter Houtsma, chairman of the litigation department at Denver law firm Holland & Hart.
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