by Adam Zimmerman (Loyola Law School - Los Angeles)
[I]n the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero. The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders. After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.
The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002. After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court. In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015). Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky.
As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute. Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages. Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time.
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