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6-23-10 Settlement Fairness Hearing

VIEWS: 3 PAGES: 219

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 1 UNITED STATES DISTRICT COURT
 1 SOUTHERN DISTRICT OF NEW YORK
 2 ------------------------------x
 2
 3 In Re WTC Disaster Site Litigation           21 MC 100
 4                               Fairness Hearing
 4
 5 ------------------------------x
 5                               New York, N.Y.
 6                               June 23, 2010
 6                               10:10 a.m.
 7
 7 Before:
 8
 8               HON. ALVIN K. HELLERSTEIN,
 9
 9                               District Judge
10
10                     APPEARANCES
11
11 NAPOLI BERN RIPKA LLP
12      Attorneys for Plaintiffs
12 BY: PAUL J. NAPOLI, ESQ.
13      MARC JAY BERN, ESQ.
14 WORBY GRONER EDELMAN LLP
14      Attorneys for Plaintiffs
15 BY: DAVID E. WORBY, ESQ.
15      WILLIAM H. GRONER, ESQ.
16
16 SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO P.C.
17      Attorneys for Plaintiffs
17 BY: NICHOLAS PAPAIN, ESQ.
18      MICHAEL N. BLOCK, ESQ.
18      ANDREW J. CARBOY, ESQ.
19
20
21
22
23
24
25
              SOUTHERN DISTRICT REPORTERS, P.C.
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 1                  APPEARANCES
 1                  (Continued)
 2
 2   McDERMOTT WILL & EMERY
 3     Attorneys for Defendant WTC Captive Insurance Company
 3   BY: MARGARET H. WARNER, ESQ.
 4     ANDREW J. GENZ, ESQ.
 4
 5   PATTON BOGGS LLP
 5     Attorneys for Defendants City of New York and contractors
 6   BY: JAMES E. TYRRELL, JR., ESQ.
 6     JOSEPH E. HOPKINS, ESQ.
 7     JONATHAN M. PECK, ESQ.
 7     CHRISTOPHER M. DiMURO, ESQ.
 8
 8   NEW YORK CITY LAW DEPARTMENT
 9   OFFICE OF THE CORPORATION COUNSEL
 9     For Defendants City of New York
10   BY: MICHAEL A. CARDOZO, Corporation Counsel
10
11    AARON TWERSKI, Special Master
11    JAMES HENDERSON, Special Master
12    KENNETH FEINBERG, Special Master (Via Videoconference)
13    MATTHEW L. GARRETSON, Allocation Neutral
13
14    ROY D. SIMON, Court-Appointed Legal Ethics Expert
15
16
17
18
19
20
21
22
23
24
25
             SOUTHERN DISTRICT REPORTERS, P.C.
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1          (In open court)
2          (Case called)
3          THE COURT: We have a long day before us, but if we
4    move along and avoid repetition as much as possible, we should
5    get the benefit from efficiency and finish this as quickly as
6    possible.
7          Each of you has an agenda before you. If anyone
8    doesn't, we should have some spare copies, which will list the
9    speakers.
10         Let me just list the general purpose and identify what
11    we're going to do. There will be two big sections of this
12    presentation. The first section, nine speakers, I think, will
13    deal with the people who are the protagonists, the lawyers who
14    worked this settlement, developed it, after working a lot on
15    the litigation, and others who came in for the settlement
16    purpose; the idea being to explain what kinds of decisions,
17    what considerations for these decisions, have to be thought
18    about intelligently to approach the settlement.
19         The plaintiffs' lawyers will tell you the history of
20    the lawsuit, the difficulties they thought they could surmount,
21    and why they think the settlement is a good one.
22         The defendants will talk about the defenses they were
23    going to mount, which would be brought before me in very short
24    order if this case were to proceed, why they thought these
25    defenses would stop this lawsuit and deny any recovery
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1    whatever.
2          Michael Cardozo, New York City's corporation counsel,
3    will discuss some special aspects which drive the city not only
4    as a defendant in this lawsuit, which it is, but also the
5    government and the caretaker of the lives and welfare of all
6    the people in the city, including all the people who came to
7    work to first engage in the search and rescue operations and
8    then to clear the debris of the World Trade Center and allow
9    Manhattan and the city, and the nation, to get back to work.
10         Then we'll have the people involved in the settlement.
11    Ms. Warner, counsel for the Captive Insurance Company, whose
12    indefatigable energy and intelligence really drove the
13    settlement. And all of us have an enormous debt to pay to her.
14         Matthew Garretson; Roy Simon, the ethics expert; the
15    special masters; all these people will come before you and
16    discuss the settlements themselves and how the settlements will
17 work.
18         Then we'll have a short break. This will be a big
19    chunk of words this morning, and I will ask for your indulgence
20    and patience. I want to get this through, if possible, without
21    any breaks, and it may be a few hours. Then I plan a short
22    break for 20 minutes -- we may not have lunch today -- and then
23    to hear the public comments.
24         I will hear every public comment. It may be that some
25 of you may want to leave or not hear them all. I will hear
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1    anybody who wishes to speak. I will stay as long as necessary.
2    If necessary, I'll come back tomorrow. But anyone who wishes
3    to speak will have at least me as an audience.
4          That's basically it. And unless there's some question
5    or comment, we'll start.
6          And the first thing will be an objection for the
7    record that Mr. Tyrrell wants to put onto the record. And
8    since we didn't take a roll call at the outset, even though I
9    know you all, please announce who you are when you speak for
10    the benefit of the reporter and everyone else in the room.
11          MR. TYRRELL: Good morning, your Honor. My name is
12    James Tyrrell, and for the record, I am counsel for the City of
13    New York and its contractors and settling defendants.
14          I appreciate the opportunity, before the proceeding
15    begins, to make a brief statement for the record on behalf of
16    the city and its contractors.
17          As your Honor is aware, the parties have reached a
18    private settlement after almost two years of extensive
19    negotiations. The city and the contractors fully support that
20    settlement.
21          As your Honor is also aware, the city and the
22    contractors have objected, respectfully, and continue to
23    object, to the Court's assertion of any jurisdiction over the
24    settlement. The parties believe that the private settlement
25    that they have agreed to is fair to all involved, and while the
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1    parties very much appreciate the Court's acknowledgment of that
2    fact, it is the parties' position that the settlement is
3    effective and binding without any approval by the Court.
4    Accordingly, the city and the contractors object to today's
5    hearing and to your Honor's exercise of jurisdiction or
6    authority over the settlement or its implementation. Thus, the
7    city and contractors expressly reserve and preserve their
8    rights to challenge your Honor's exercise of jurisdiction or
9    authority over this private settlement, its implementation, or
10    any future private settlement. I appreciate your Honor's
11    indulgence in that regard.
12         THE COURT: Thank you. Your objections are noted for
13    the record and overruled. I've expressed myself previously.
14    There are numbers of reasons we're making this ruling.
15          I should note that the settlements and approvals of
16    mass torts, to everyone's surprise, does not have a long
17    history. Originally these kinds of cases were treated as class
18    actions, and a class action clearly has the approval of the
19    court. Then the Supreme Court, because of the existence of
20    ever more possibilities of litigation, ruled that one could not
21    have a class action for this kind of a concept without dealing
22    with those who might come after, and the existence of various
23    classes make the settlement difficult. It then became the
24    fashion to deal with individual cases brought together in some
25    kind of coordinated or consolidated fashion. There has not
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1    been any desire on the part of various judges to review and
2    express an opinion of fairness or not, not because there is an
3    absence of jurisdiction but because it is, in my opinion,
4    extremely difficult for a judge to become involved in the
5    interstices of the settlement and deal with something the
6    parties have dealt with over a period of time.
7          These mass tort cases are difficult in so many ways.
8    One way is that these cases tend to be litigated by a small
9    group of lawyers representing a large number of individuals.
10    The rules of professional conduct in relationship to multiple
11    clients are difficult, and that's why I had Roy Simon come into
12    the case, in effect as a special master, though not really
13    denominated as such, to assist the parties and meet with his
14    accumulated wisdom. Roy Simon, who's here and will speak
15    briefly, is a distinguished professor of ethics and
16    professional responsibility. He's written widely on the
17 subject. His textbooks are classic in the field. And it's not
18    because I distrust in any way the plaintiffs' lawyers, but
19    where there are multiple parties represented, where there is a
20    strong need on the part of the plaintiffs to liquidate an
21    enormous investment over the years, different kinds of
22    considerations come into play, and to make sure that everything
23    not only was fair but appeared to be fair, I appointed him.
24         The same reason it causes the Court to become involved
25    in a settlement. Normally when there are two parties who are
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1    adverse and similarly situated, you can depend on the
2    bargaining table to bring about fairness. There is an
3    incentive to represent one side as vigorously as possible.
4    That may be true in the aggregate, but this settlement is
5    driven not only by aggregate numbers but also by an
6    accumulation of individual cases, the merits of which are
7    varied, enormously varied, and it's necessary for a plaintiff's
8    lawyer to deal with the internal conflicts among all his
9    various clients. Now where there are many lawyers who proffer
10    these cases, there's a check, but that's not always the case.
11    In other words, there is a need for some impartial other, the
12    judge, to become involved in the process, to make sure there is
13    fairness, fairness not only in the large but in the individual
14    and not only with regard to the individuals but also in
15    relationship to the means of the lawyers, because the lawyer's
16    got to stay in business. The lawyer's got a staff to feed.
17    The lawyer has given up almost every other activity for years
18    to run this case. There is a motivation on the part of the
19    lawyers, which even though disciplined and checked, lawyers
20    have this professional responsibility, to need someone to come
21    in from the outside to look in.
22         When I looked at this settlement originally, I had
23    reservations and comments. That's part of my job. As one of
24    my colleagues e-mailed to me afterwards, what is not the Court
25    supposed to do in relationship to this issue of fairness? The
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1    issue of fairness is the quintessence of what a judge has to
2    do, that justice is not only served but appears to be so. And
3    that's why I became involved; not because of any need to be
4    more aggressive or to assert jurisdiction. It doesn't benefit
5    me. It's only additional work and raises enormous risks for
6    everybody concerned; not only me but to the parties. Just
7    think what would happen if my comments had broken up the
8    settlement and there would be years more of litigation.
9          The short of it is that there is a need for assertion
10    of jurisdiction. There are cases that support it. Now is not
11    the time to go into it. But I wanted people to understand, in
12    relationship to Mr. Tyrrell's forceful objection, or the
13    continuation of the objection, why I did what I did. Then of
14    course, in a sense, the proof is also in the traditional
15    flavor, the savored flavor of an approved settlement in terms
16    of process, amounts, fairness, distribution, all these things.
17          All right. I think we're ready to begin, Mr. Napoli.
18          MR. NAPOLI: Thank you, your Honor.
19          THE COURT: That reminds me of a comment. Many rabbis
20    are known for excessive words. This one particular rabbi I
21    have in mind, who was a very eloquent speaker, used to come up
22    to the podium and say, "Before I begin to speak, I just want to
23    say a few words."
24          Mr. Napoli, a few words.
25          MR. NAPOLI: Thank you.
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1          May it please the Court, my co-counsel, counsel for
2    the defendants, ladies and gentlemen, I'm here today not only
3    as a plaintiff liaison counsel but also the attorney who
4    represents over 9,000 individual plaintiffs, with my partners,
5    that have been part of this litigation for the last seven
6    years.
7          Your Honor, thank you for allowing us the opportunity
8    to come back and present to you this amended settlement process
9    agreement.
10            Your Honor, I present this agreement to you from a
11    unique perspective. As an attorney among many in our firm who
12    took on a litigation no one else would, having opposed motion
13    after motion, conducted deposition after deposition, reviewed
14    document upon document that was provided by the defendants,
15    after seven years of hard-fought litigation, I present to you a
16    settlement I can recommend to all plaintiffs. It encompasses a
17    process in which all plaintiffs should participate. There is
18    no question in my mind that this settlement is substantial,
19    fairly administered, and good for all plaintiffs.
20            With my presentation, your Honor, I hope to address
21    some of the issues that you've asked us to address in what this
22    settlement provides both in benefits, substantial cash, and
23    other benefits, what it provides in the efficient
24    administration of those benefits and the distribution of those
25    benefits to the -- to the current plaintiffs, and how it
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1    intends on providing those benefits now.
2          I'm also going to be talking a little bit about what
3    went on in the negotiations in how some of these values were
4    determined and the relativity of some of the values.
5          Your Honor, ultimately, the goal of any litigation is
6    to end with a settlement or a plaintiff's verdict at trial. A
7    settlement offers plaintiffs certainty. Even in a very good
8    case where liability seems clear, where there are no questions
9    about causation, a case may end up in a defendant's verdict.
10    And your Honor, even where plaintiffs are successful at trial,
11    or where they have a good result, there can be appeals brought
12    by the defendants, and those appeals can drag on for years.
13         Any seasoned trial attorney would tell their client,
14    and I tell this Court, as the Court already knows, that a
15    settlement is preferable as an outcome in any litigation. The
16    settlement agreement we are presenting to you provides a
17    certain outcome where plaintiffs will be paid a cash award in
18    real dollars now. The plaintiffs who participate in this
19    settlement will not be subjected to continuing months and years
20    of further discovery and motions and will not have to incur any
21    additional costs.
22         These negotiations that were conducted over a period
23    of two and a half years with the Captive Insurance Company were
24    conducted at arm's length. At many times during the
25    negotiations, your Honor, not only was it adversarial, but it
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1    was out-and-out hostile. We worked hard but professionally to
2    come up with each and every term in this settlement agreement.
3          THE COURT: Can people see the screen?
4          MR. HOPKINS: There's another monitor here, your
5    Honor.
6          THE COURT: I know, but this side of the room can't
7    see that. I can see that. Okay.
8          MR. NAPOLI: The results of these negotiations, your
9    Honor, was a settlement that is very comprehensive, over 110
10    pages, very detailed in every aspect to ensure fairness to not
11    only the aggregate group but to each of the individuals that
12    decide to participate. It resulted in a distribution matrix
13    with tiers, and its components ensure that plaintiffs are
14    fairly compensated.
15         THE COURT: This is the agreement of settlement, a
16    very fat looseleaf book we've put together. It's a bound
17    document, and it's available, is it not, Mr. Napoli, for
18    anybody to see?
19         MR. NAPOLI: Yes. It's been available since the last
20    hearing on our website. We could also make copies available to
21    anybody who would like them in hard form.
22         THE COURT: And it's on the court website as well.
23         MR. NAPOLI: The nature of any judicial process is the
24    litigation is slow and painstaking, requiring years of
25    intensive discovery and motions before a trial date is set. In
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1    these cases, we've worked for more than seven years to bring
2    what would prove to be, in May, only twelve cases for trial.
3    The settlement we have negotiated will achieve an economies of
4    time, effort, and expense and provide compensation quickly
5    without the need for these motions, discoveries and ongoing
6    trials.
7              Let's discuss the substantial cash and other benefits.
8              The results of the negotiation. The Captive aggregate
9    settlement offer, as we've disclosed to you at our last
10    hearing, your Honor, is a lump sum payment that encompasses
11    each plaintiff's individual claim, if another -- if enough
12    individual claimants agree to participate in the settlement.
13    The Captive will pay between 625 million to $716 million on
14    behalf of its insureds. These numbers vary depending on the
15    number of plaintiffs who opt in to the settlement process as
16    well as the number of future claims that are presented over the
17    next five years.
18             The settlement agreement provides for cash
19    compensation that will pay the plaintiffs the value of their
20    physical injuries, and later on in my presentation I'm going to
21    go through those values for each tier and each individual
22    injury, and we've provided these charts that describe the
23    dollar amounts that a plaintiff would be awarded based upon
24    what tier they would be in, and they're available throughout
25    the courtroom.
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1          The Captive, through this negotiation, is required to
2    pay certain fees and costs of the administration. They will be
3    paying Mr. Garretson's fees and other fees associated with the
4    administration of the process.
5          Through this settlement and this Court's assistance,
6    and Mr. Cardozo's assistance, we've been able to obtain a
7    waiver of workers' compensation liens. That was another
8    benefit we were able to obtain, from two providers, City of New
9    York and Liberty Mutual, and continuing benefits, something
10    unheard of in litigation. And this, as you know, is a unique
11    case and this is a unique settlement term.
12          We also were able to obtain -- and I'll describe in
13    more detail -- a permanent disability fund that will provide
14    additional funds for those people who are on permanent
15    disability.
16          And we also were able to get another unique aspect --
17    a cancer policy for those who develop cancer in the future.
18          The cash awards that I've described are broken down
19    into four tiers -- Tiers 1 through 4, Tier 1 being the least
20    injured plaintiffs and Tier 4 being the most severely injured
21    plaintiffs. Tier 4 is further broken down through a range of
22    injuries based upon least severe to most severe.
23          One of the issues your Honor raised two hearings ago
24    was that people need to know how much money they're going to
25    receive, and there are now set amounts of awards for Tiers 1 to
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1    3, and in Tier 4, there will be ranges disclosed to each
2    plaintiff to understand where their case can fall, after
3    Mr. Garretson has done his job, where we believe their payments
4    will fall. And there's also other cash awards contingency
5    future payments for the next five years, assuming certain
6    conditions are met.
7              So I'd like to go through the tiers, and I'll start at
8    the lowest tiers. And that's, the lowest level of disease
9    would be Tier 1, and that would encompass those people who have
10    injuries that don't qualify under Tier 2 to 4. Some may have
11    injuries but they don't have that objective standard that may
12    have put them in -- or which would have put them in other
13    tiers.
14             Tier 2 consists of the lowest levels of injury of some
15    of the other types of common injuries that we were seeing
16    throughout the litigation.
17             And Tier 3 deals with a little bit above that, a step
18    above that.
19             So what we have in Tiers 1 to 3 are the lowest levels
20    of disease, requiring the lowest level of proof, that had the
21    lowest level of causation, and in turn, they had the lowest
22    levels of value, but these people are being compensated not
23    only with cash, but they will also be able to receive the
24    benefit from what they fear most in the future, and that is a
25 cancer policy, a fear of developing cancer in the future, so
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1    they will get both a cash benefit and a policy benefit.
2          THE COURT: Cancer that has some relationship to the
3    work that was done; right, Mr. Napoli?
4          MR. NAPOLI: Yes. Everything -- all these injuries,
5    every category, every level is negotiated with counsel for the
6    defense and Ms. Warner, and every injury and every level has a
7    relation to those injuries that were found to be common for
8    those people who worked at the World Trade Center site.
9    Whether it be from the city's own World Trade Center Health
10    Registry or from one of the Centers of Excellence, all these
11    injuries have been found to have some relation, if not a direct
12    relation, to the work at the World Trade Center in general.
13    But as part of this settlement -- one of the most contested
14    topics in any litigation is ultimate causation, and the
15    causation factor is assumed. One of the benefits of the
16    settlement is that these plaintiffs, if they did not have a
17    preexisting injury, can take advantage of the settlement and
18    be -- have the ability to resolve their claim without having to
19    go through the motions, the discovery and the trials that have
20    been ongoing for seven years. And that's reflected in the
21    dollar amount. And the dollar amounts between the tiers are
22    shown up on the board.
23          All qualifying plaintiffs who participate in the
24    settlement process will receive an initial payment of $3,250.
25    Those plaintiffs in Tier 2 and Tier 3 will receive additional
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1    accelerated payments upon providing the proof necessary to
2    establish not only working at the site, your Honor, to
3    Mr. Garretson but also the medical records that are eligible to
4    qualify them being presented to Mr. Garretson as well.
5          Tier 4 are those plaintiffs who have suffered the most
6    serious life-threatening and debilitating injuries. These
7    plaintiffs will undergo a different process because these
8    plaintiffs will be eligible for much higher awards under the
9    settlement agreement. The Tier 4 process will also take longer
10    because it is governed by a points system, which Mr. Garretson
11    will describe a little later, and he has brought several
12    examples that he will go through to show us the varying levels
13    of claims and the different types of injuries in his
14    presentation.
15         Instead of there being an accelerated payment in Tier
16    4, there will be two additional payments in Tier 4 above the
17    initial payment of $3,250. And those payments will consist of
18    an interim payment, which we predict will be paid out -- once
19    Mr. Garretson has an opportunity to review approximately
20    40 percent of the claims, he will be able to predict with
21    sufficient accuracy the value of a point in which he could feel
22    comfortable in distributing an interim payment. And the second
23    payment, when he's done with all his work, will be a final
24    distribution. And Mr. Garretson will talk to you a little bit
25    about the time line we believe that that will occur.
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1          But all plaintiffs will receive the initial payment
2    upon meeting the 95 percent, and the Met Life policy will be
3    issued around that time, we presume, and then thereafter,
4    Mr. Garretson will use his time to work on the Tier 4 claims.
5          One of the purposes of dividing the claims into tiers
6    was to separate out for Mr. Garretson those claims, the more
7    serious claims so he can concentrate on those and efficiently
8    process those claims as quickly as possible, so not only Tiers
9    1, 2, 3 receive payments quickly, but all tiers can receive
10    payments as quickly as possible.
11          Tier -- what I have on the board, your Honor, is what
12    we, the parties, at this point predict the value of a point
13    would be in the various dockets. And this is based on the
14    eligible plaintiffs list that was provided to the Captive under
15    the terms of the amended settlement agreement, and these claims
16    are based on what the plaintiffs allege their injuries to be
17    and they are, in essence, unverified at this point by
18    Mr. Garretson. So if all was to hold true on the eligible
19    plaintiff list, with some caveats, we believe that the high and
20    the low point value on an MC 100 case, someone on the pile,
21    would be $7.52 to $9.19. And we're taking a very conservative
22    approach in estimating the range here at this hearing in the
23    Court.
24          With -- 21 MC 102 and 21 MC 103, for those who are not
25    aware, deal with separate dockets that your Honor oversees.
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1    21 MC 102 deals with building owners, of people who worked in
2    buildings around the World Trade Center site as office cleaners
3    in general, and those dollars are significantly less because
4    approximately a third of the time by those individuals were
5    spent in city buildings, and so the value is proportionately
6    different because not all their time, not 100 percent of their
7    time was spent on the site.
8          In 21 MC 103, as your Honor knows, that docket is
9    broken down in people who not only worked on the site but also
10    worked off the site in buildings surrounding the area. And so
11    the Captive did not pay 100 percent of the value of those
12    claims because not all their time was spent in city or
13    contractor areas or buildings, and so this is one of the areas
14    where we believe -- and I'll discuss later -- that other
15    defendants will be contributing ultimately to the point values
16    of the dollars hopefully in either settlement process or trial
17    process.
18         So what does this equate to? And it's a little
19    difficult to see, and I will try to explain what these values
20    translate to, but an important point that I think needs to be
21    made, your Honor, is that the Tier 1 claims -- some people are
22    concerned that the lowest level of injury was receiving any
23    money whatsoever. The Tier 1 claims amount to no more than
24    1.28 percent of the total potential available funds of
25    $712.5 million that would go to the plaintiffs. So that's no
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1    more than 1.28 percent. For those who have an opportunity to
2    look at this chart --
3          THE COURT: How many total claimants are there?
4          MR. NAPOLI: The total claimants --
5          THE COURT: The total eligible.
6          MR. NAPOLI: I've got that chart somewhere.
7          THE COURT: Well, if you don't have it handy, someone
8    else will have it.
9          MR. NAPOLI: I can get up in a little while and --
10          THE COURT: It's coming, like magic.
11          MR. NAPOLI: Sorry I left it on the desk. They're --
12    in 21 MC 100, there is 9,788; in 21 MC 102, there is 360 that
13    are part of this settlement; in 21 MC 103, there are 619 that
14    are part of this settlement.
15          So if people can't see, I don't know --
16          THE COURT: We can dim the lights.
17          MR. NAPOLI: Andy, can you pull out these dollar
18    values, or the top row? Do you have that capability?
19          THE COURT: Do you have the dollar value of
20    1.28 percent in Tier 1, Mr. Napoli?
21          MR. NAPOLI: Oh, the dollar value? I don't have that
22    offhand, no, your Honor.
23          THE COURT: We'll get to it as you come along.
24    Ms. Warner has it handy; yes? No. Okay. We'll get it.
25          MR. NAPOLI: That's perfect.
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1          The only reason I wanted to break this out, your
2    Honor, was to show you one of the aspects of this settlement.
3    It takes into account the various levels and severity of injury
4    in Tier 4 of each group of injuries. Just like in tier -- in
5    the tier system, Tier 1 to 4, where Tier 1 is the lowest level
6    of injury and Tier 4 is the highest, in each category of
7    injury, for example, chronic obstructive pulmonary disease, an
8    A1 injury is the least severe and in turn would get the least
9    amount of money compared to an A4, which in that category would
10    get the highest range of awards.
11          THE COURT: Let me just add a word here. We found, in
12    constructing the model for discovery about a year and a half
13    ago -- this is the findings of two special masters, Professor
14    Twerski and Professor Henderson -- that there are medical
15    criteria that were objectively established and generally
16    followed by medical practitioners. And so each disease could
17    be categorized, identified, and ranked according to severity,
18    based not on the subjective reports of the people, the
19    claimants, but by actual medical tests that were traditionally
20    used in the business. So this came out of a classification
21    developed by the American Thoracic Society, dealing with all
22    kinds of respiratory issues, and the American Medical
23    Association, which guided doctors in the field. Once they were
24    able to establish this, it was possible to rank the severity of
25    diseases according to objective criteria, and I insisted that
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1    this is the way that the criteria would be established.
2    Otherwise, it's impossible to rank anybody according to
3    subjective complaints. Not to say that people can't feel they
4    have a serious disease, but in law we require proof, and this
5    was the objective proof and it makes every person equal.
6          So what you've heard -- and it's rather complex, but
7    it comes down to some very clear and simple notions. People
8    are compensated on two main criteria: how serious, objectively
9    speaking, objectively quantifiable, is their disease; and
10    according to various kinds of research that was done, what is
11    the general relationship of a disease to having worked at the
12    World Trade Center and related sites. Once we were able to be
13    possessed with this information and after most arduous
14    negotiations, the lawyers were able to establish values that
15    answered to the two main criteria, relationship to the work,
16    severity of injury, and then there were many other rankings.
17    Did a person have a prior disease in this field? Was the
18    person a smoker? And so on. So by fine-tuning -- and that's
19    what the points mean. And I don't want us to get lost in the
20    minutiae of this, although the minutiae are most important, but
21    the criteria are modified and adjusted to take into account the
22    various issues that are brought to the table by each claimant.
23         So this is not a class settlement. It's a series of
24    individual settlements, each person having a different stage in
25    terms of claiming value. This is what you're going to hear,
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1    but I wanted you to have this framework.
2          And there's one thing more that's been reported in
3    this in the newspapers that I wanted you to have up front, and
4    that's this issue of asserted fraud. The theory is that there
5    are lots of people who get excited by lawsuits, think they can
6    make a killing, they come in and join, and they have no
7    relationship to anything that went on. Well, we have winnowed
8    this process over the years, and the process of doing this
9    discovery required individualized information, so those who are
10    there just because of the excitement of joining were winnowed
11    out along the way, and their numbers are gone.
12         The second big thing to remember is that in order to
13    claim any kind of recovery at all, they have to show, by proof,
14    that they were at the work site for some period of time.
15         And the third is that the people remaining may not
16    have objective quantification of having been injured, but sure
17    enough, they feel injured. They have a cough or inability to
18    sleep or some other kind of an ailment, or fear of an
19    ever-increasing ailment. We thought it appropriate to
20    compensate those people as well.
21         Now as in everything else in life, money is limited.
22    So the problem is, how do you distribute the money in
23    relationship to everybody's claims, which vary enormously? And
24    you can have different criteria. The criteria that we insisted
25    on from the outset, when we ranked these cases, how we handled
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1    these cases, is a criteria of severity and relationship.
2          I'm sorry for interfering, Mr. Napoli, but I think
3    it's important.
4          MR. NAPOLI: Not at all, your Honor. It certainly
5    helps.
6          So your Honor, the point I want to have the Court take
7    away from this slide is that the dollar values ascribed to each
8    category are based upon the work that the Court has done and
9    the special masters have done with the parties in ensuring that
10    objective criteria is used and it's done based upon severity.
11    And not only is the dollar value ascribed within each category
12    based on severity but throughout the various disease
13    categories.
14            For example, one of many of the points in the
15    negotiation was the relative value between -- between the
16    injuries, and just looking at interstitial lung disease, which
17    we believe was more serious than COPD, the values would be
18    ascribed proportionately between those relative values of the
19    various types of injuries. And this same method --
20            (Proceedings interrupted)
21            THE COURT: This is Special Master Kenneth Feinberg,
22    who's busy with British Petroleum and some of the other
23    problems that we've been reading about in the newspaper, but he
24    is appearing here on a special TV hookup. He'll be here
25    promptly at 11:00. We're being prepared for his coming on.
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1    When he comes on, he will come on and whoever's speaking will
2    stop.
3            Go ahead, Mr. Napoli. We have about ten minutes
4    before he comes on.
5            MR. NAPOLI: Okay. So this same methodology was used
6    across the dockets in 102 and 103 as well. And as
7    Mr. Garretson is able to review files and verify files, we will
8    be able to refine and report the point value, and we're hoping
9    that the claims will be submitted as quickly as possible. I
10    know our office and Mr. Carboy's office are working hard to do
11    that, and we're going to encourage the other plaintiffs'
12    lawyers involved to also submit their claim quickly so that we
13    can -- we can refine the point value, give absolute certainty
14    to individual plaintiffs.
15           In addition to this cash award, there's additional
16 cash award in the permanent disability fund, and the permanent
17    disability fund is a separate fund that was established of
18    $62.5 million to pay those people who have been found
19    permanently disabled either by workers' compensation, Social
20    Security Disability, or the City of New York Pension Board.
21    And this money is in addition to the monies that they would
22    receive on the grid or the matrix that I previously showed.
23    And the disability itself is partially factored into the
24    injury, so this would just be additional money on top.
25           In addition to the disability fund, this settlement
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1    also provides for additional monies for surgeries that may have
2    been performed. And again, like the permanent disability fund,
3    the fact that someone had surgery or is scheduled to have
4    surgery is factored in to the original matrix that was shown
5    two slides ago. So this money is additional money if somebody
6    had undergone any of these surgery payments.
7          So that encompasses in general the cash benefits that
8    are awarded to individuals who participate, but in addition,
9    for the next five years, there will be an additional sum of
10    money that they will receive. For lack of a better analogy, I
11    would say, in a sort of a structured settlement type of system,
12    if certain conditions are met, they will be provided additional
13    payments that will come through from the Captive to
14    Mr. Garretson and be distributed to plaintiffs and their
15    counsel.
16         Noncash components and -- but significant, include the
17    Met Life cancer insurance policy, and I stated earlier, as a
18    unique case, this case required some unique settlement terms,
19    and one of the unique settlement terms that we were able to
20    develop with Met Life Insurance Company ultimately, with the
21    assistance of Ms. Warner and McDermott Will & Emery was a
22    policy that would provide for the tier that many people have,
23    whether they're slightly injured or seriously injured, of
24    developing cancer in the future, and this policy is there to
25    provide them some comfort for -- to have additional monies
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1    should they develop any of the listed cancers in the policy.
2    And even the list of cancers in the policy was a negotiated
3    item that took time to develop, and we still have not finally
4    gotten State Insurance Fund approval, but we believe we'll have
5    it shortly, and this is going to be a key component to the
6    settlement agreement.
7          All eligible settling plaintiffs, if they settle, are
8    eligible to be covered under this cancer policy. Enrolled
9    plaintiffs do not need to establish causation to receive
10    benefits, and that was -- that was particularly important to
11    the plaintiffs' counsel that our clients didn't have to come
12    back years from now and try to associate their cancer
13    specifically with their work at the site. Do they have to
14 establish their work at the site? Yes. But there's a
15    presumption that's inherent in the policy, so at their time
16    when they're suffering the most with a cancer, they don't have
17    to go back and start another fight. They will be eligible
18    automatically for this award.
19         It will provide a hundred thousand dollars in benefits
20    for those who are nonsmokers, 50,000 who are smokers. The
21    policy will continue for a minimum of 15 years. One of the
22    items we were able to negotiate with Metropolitan Life was that
23    if there was money remaining in the pool, they used actuaries
24    to determine what they believed would be the likelihood of
25    future developing cancers, as any company would in setting
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1    premiums and policy limits, and one thing we were concerned
2    about is, if there was money left at the end of the 15 years,
3    we wanted this to continue, and they agreed. So as long as
4    money remains, this policy will continue on and on. But in the
5    first seven years, god forbid, if there is an epidemic, they
6    will cover all the potential disability claims that may come
7    in. But one of the -- one of the great things about this
8    policy, if what we fear doesn't come to fruition, it will go on
9    until the money is exhausted after -- after 15 years.
10          THE COURT: The money being the accumulated premiums
11    paid into the policy and the best returns allowed.
12          MR. NAPOLI: Yes, your Honor.
13          Other noncash benefits. Not everybody is aware -- not
14    all plaintiffs certainly, not all lawyers even -- but in a
15    personal injury action, which these are individual actions,
16    those awards come tax-free. There is no taxation on bodily
17    injury claims by the IRS, so these monies will come tax-free,
18    not only the matrix awards but the permanent disability awards,
19    and the surgery awards will come tax-free. And we believe
20    that's a significant noncash benefit.
21          Another benefit that I described a little earlier was
22    the waivers of the compensation liens by the City of New York
23    and Liberty Mutual Insurance Company, and they're continuing
24    benefits. So what that means is, people who are currently
25    receiving checks from workers' compensation will continue to
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1    receive those checks and that these -- the City and Liberty
2    Mutual have voluntarily agreed not to claim their statutory
3    right to obtain those monies back. We are hoping that other
4    companies, such as Chartis and other companies, do the same
5    thing, and we're in talks with them asking them to do that.
6          Another noncash benefit is the process will be quick
7    and efficient. I've worked with Mr. Garretson before and I
8    know others, both on the plaintiff's side and defense side, who
9    have worked with him before, and one thing I'm sure of is that
10    once his work begins, it will be done well and it will be done
11    quickly and efficiently.
12          Another noncash benefit is that there will be no
13    effect, if somebody participates in this settlement, on their
14    Social Security Disability payments. So if they're currently
15    Social Security Disability -- disabled by Social Security, they
16    will continue to receive their payments. They will not have to
17    pay Social Security back any amount. If they are receiving a
18    disability pension from the City of New York, whether they're a
19    firefighter, police officer, or sanitation worker, this
20    settlement will have no effect on those benefits. They will
21    continue to receive those benefits.
22          Another noncash benefit -- ultimately, your Honor, all
23    this actually translates into more money in the pockets of
24    these plaintiffs. But there is a reduced legal fee in this
25    case. For those who participate in their case, the lawyers
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1    have voluntarily agreed, and we've asked the Court to order,
2    that the fees be reduced from 1/3, or 33-1/3, to 25 percent.
3    These items are not benefits to those who do not settle. Those
4    who do not settle as part of this will not receive the waivers
5    and do not get the process and do not have the benefit at this
6    time of the reduced legal fees.
7          I see Mr. Feinberg is on the screen and so I'm going
8    to sit down and hand the mic over to him for the moment.
9          MR. FEINBERG: Can everybody hear me and see me?
10         THE COURT: Yes.
11         MR. FEINBERG: Before I say anything, I welcome any
12    instructions from the Court as to what the Court would ask me
13    to comment on of aspects of this or just my overview, but I'd
14    welcome any instructions as to how Court would like to proceed.
15         THE COURT: I think two areas, Mr. Feinberg, would be
16 useful, not to duplicate -- can you hear me?
17         MR. FEINBERG: Yes, I can hear you, your Honor.
18         THE COURT: All right. I think your comments on the
19    overall settlement, the impression of the overall settlement, a
20    description of your role, and a comment on how people should
21    decide if the Congressional bill is pushed out before then and
22    they feel there might be some kind of a choice.
23         MR. FEINBERG: Okay. Thank you, your Honor, and I
24    will comment.
25         First I want to apologize to everybody, especially the
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1    Court, for my inability to be there physically in person. As
2    you can understand, I am in the middle now of a conflicting
3    obligation on behalf of the citizens of the United States and
4    will shortly be leaving Washington and couldn't be in New York
5    today.
6          I think that the overall settlement is a good
7    settlement. It is worthy of approval. I am admonished by the
8    Court's comments a few weeks ago that the perfect is the enemy
9    of the good. Of course this settlement could be better. There
10    could be changes made to it. Nothing is perfect. But if you
11    ask me my considered opinion as to this settlement versus no
12    settlement, I would urge that the settlement be deemed fair and
13    reasonable, that it be approved by the Court, and that it be
14    implemented as soon as possible. I say that because the terms
15    of the settlement, in some respects, are an improvement not
16    only over the earlier proposed settlement, but when compared to
17    the 9/11 Victim Compensation Fund itself, the payments I
18    believe will be made more quickly. There is a certain a
19    minimum floor amount for every single claimant, and there is a
20    process in place for the review of the individual awards and
21    eligibility determinations that is an improvement over the 9/11
22    Victim Compensation Fund. So in evaluating the dollars, the
23    procedures, the outreach to claimants, I am impressed. The
24    final reason that I urge settlement be approved -- can you
25    still hear me?
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1          THE COURT: Yes.
2          MR. FEINBERG: Hello?
3          THE COURT: Yes, we hear you.
4          MR. FEINBERG: Okay. The final reason that I would
5    approve the settlement is because, what is the alternative?
6    That is the issue that I come back to time and again. These
7    members, these eligible claimants, have waited and waited and
8    waited, and if they litigate, they will continue to wait. That
9    is unacceptable. Many of these claimants were not eligible for
10    the 9/11 Victim Compensation Fund for the simple sole reason
11    that the statute expired before they manifested physical
12 injuries. Otherwise, they would have received compensation,
13    just as their brethren received compensation. So when you
14    consider the alternative, more litigation, uncertainty of
15    result, I have no problem whatsoever urging that the Court
16    approve this settlement and that it be implemented as soon as
17    possible.
18         Secondly, under the settlement, as I understand it, I
19    will play the role of the claims appeal neutral. This to me is
20    personally and professionally very important. I have lived
21    with the 9/11 claims process for the past nine years, and I
22    have observed and monitored the effort by these current
23    plaintiffs to get some justice in the form of compensation. I
24    have agreed, at the Court's request, and at the request of all
25    parties, to serve pro bono as the claims appeal neutral. Any
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1    single plaintiff who files a claim and is unhappy with the
2    resulting decision concerning that claim, eligibility, the tier
3    in which that claimant is placed, the calculation of the
4    claimant's award amount, any other miscellaneous reason, under
5    the settlement I will reserve -- I will have the authority to
6    review that individual claim and render a decision. Every
7    plaintiff can be confident that if they opt in to the
8    settlement and have their claim reviewed, I have ultimate
9    authority, under the terms of the settlement, to review that
10    claim and either approve it as is or modify it. And I will
11    serve in that capacity at the pleasure of the Court and the
12    parties for as long as that appellate process is deemed
13    appropriate. That is the role that I understand, under the
14    settlement, I will play.
15          Finally, the Court asks me to comment on a third
16    point -- how each plaintiff should decide whether or not to opt
17    in to this settlement and participate or opt out. To me, it is
18    a simple choice. You have waited long enough. If you opt out
19    in the hope that there will be a better legislative alternative
20    down the road, I believe personally you are making a mistake.
21    The legislative process grinds slowly. I would say that after
22    waiting more than five years for the legislation to be enacted,
23    it is still not on the verge of enactment. I do not have to
24    render a personal opinion concerning the well-intentioned
25    efforts of Congresswoman Maloney, Congressman Nadler, and
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1    others, to state the obvious. It's been five years. The
2    legislation has been reported out of a House committee. It has
3    not yet been acted on by the full House. There has virtually
4    been no activity at all in the Senate. So I believe that each
5    plaintiff, in deciding the various options -- do I sign up for
6    the settlement or wait further for legislation -- I believe
7    that it would be the more reasonable, considered, appropriate
8    decision to take advantage of this settlement. Now it is
9    possible --
10         THE COURT: Ken, let me add this. There is nothing in
11    the settlement that says anything having to do with the
12    legislation. There's no provision in this settlement that
13    precludes anyone from doing anything afterwards except you
14    can't sue again in this lawsuit. But we are not preventing you
15    from going to Congress. Should there ever be some Victim
16    Compensation Fund, it's up to Congress to decide whether it's
17    advisable or not to include anyone who receives compensation
18    here. There's nothing in this settlement that has any
19    provision whatever that limits your rights in respect of any
20    kind of activity by Congress.
21         MR. FEINBERG: So that's my view on the evaluation
22    that each plaintiff should make. I have said publicly and
23    privately, it is my personal opinion, as the former
24    administrator of the September 11 Victim Compensation Fund,
25    that every single plaintiff would be wise to opt in to this
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1    settlement.
2          I want to make one final point. The 9/11 Victim
3    Compensation Fund worked in large part because of the work of
4    this Court. Judge Hellerstein wisely made it clear to all
5    litigants that they should consider the 9/11 Victim
6    Compensation Fund as a viable alternative to litigation, and he
7    met with and counseled various individual grieving family
8 members about the choices and why the 9/11 Victim Compensation
9    Fund was a priority option.
10          My final point here is that I believe the Court has
11    reviewed this settlement not only with the legalities in mind
12    but with an eye toward providing maximum compassion and
13    understanding concerning the fragility of many of these
14    plaintiffs. The Court, I believe, will continue to protect the
15    various interests of these plaintiffs in a manner that is
16    rather unprecedented, and I believe that if the Court finds
17    this settlement fair and reasonable, urges that it move
18    forward, I believe that every single plaintiff will have the
19 benefit of the Court's imprimatur and, more importantly,
20    understanding of the needs of these class of plaintiffs.
21          In sum, for all of these reasons, I would urge every
22    plaintiff to accept this settlement and opt in to it, and I
23    would urge the Court, as a friend of the court and the parties,
24    to find the settlement fair and reasonable and to do all it
25    can, as it did seven or eight years ago, to urge plaintiffs, in
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1    their own best interest, to take advantage of this settlement.
2          I thank the Court and the parties and, again,
3    apologize for the video rather than my physical presence.
4          THE COURT: Thank you very much, Mr. Feinberg.
5          Mr. Napoli, I think if you could start to draw your
6    comments to a close, unless there are some high points that you
7    want to make.
8          MR. NAPOLI: I will move along quite speedily, and
9    I -- following Mr. Feinberg, I think he's addressed a lot of
10    the points that I raised, and I will go through the slides as
11    quickly as I can.
12         One of the benefits that we spoke of was the reduced
13    fees from 33 to 25 percent that people who just take the
14    settlement will take advantage of.
15         But another big concern that we've heard throughout
16    our talks and the town hall meetings was a concern of
17    continuing health benefits, and the City and Mr. Cardozo will
18    acknowledge, when he speaks -- so I don't want to give it all
19    away, but -- the World Trade Center workers who participate in
20    the settlement will continue to receive medical care, including
21    monitoring at the Centers of Excellence funded by the City of
22    New York.
23         So aside from these cash and noncash benefits, the
24    efficient administration of the process is something that we
25    try to achieve in court that is going to be done in a speedily
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1    manner through an administration headed by your Honor, and part
2    of that oversight that your Honor has put in place, the
3    judicial oversight of the settlement agreement, will call for
4    protocols for the approval of common benefit expenses that
5    are -- that are expenses that benefited all the individuals in
6    moving the case forward, that will be protocols in place for
7    the approval for each plaintiff's attorney to participate, for
8    the case-specific costs so clients can be assured that the
9    expenses their attorneys charge and the common benefit expenses
10    have been reviewed by an administration established by the
11    Court, and there are -- the appointment, as part of the
12    judicial oversight, we hope and we ask the Court to appoint key
13    figures in the agreement. And those key figures would be Matt
14 Garretson, who your Honor and I and Mr. Feinberg have spoken
15    about. He will be allocation neutral in the settlement
16    agreement. Professor Simon will oversee all lawyers'
17    communications with plaintiffs about the settlement to be sure
18    that the information that they're given is adequate and clear.
19    Mr. Feinberg, who was just on our video phone, will be the
20    claims appeals neutral, and he brings to this settlement a
21    perspective your Honor brings to this settlement, a unique
22    perspective, having dealt with the Victims Compensation Fund
23    and those people who participated in it originally, those
24    people who brought lawsuits originally. And so the parties
25    look forward to having your participation and Mr. Feinberg's
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1    participation. And we also would ask and, as has been
2    occurring throughout this last stage of the amended process
3    agreement, that the special masters continue to have a role in
4    assisting the parties in any issues that may arise in
5    implementing this amended process agreement.
6            So I'll be brief, because I know both Mr. Garretson
7    and Mr. Simon are going to talk, but Mr. Garretson's role will
8    be --
9            THE COURT: Why don't you leave that to Mr. Garretson.
10    He's going to speak.
11           MR. NAPOLI: Certainly. And Mr. Simon I will leave to
12    Mr. Simon.
13           THE COURT: Right.
14           MR. NAPOLI: In the end, your Honor, the process
15    that's been developed has inherent in it a system of checks and
16    balances so that the Court and the plaintiffs will be assured
17    that the distribution of the funding of this settlement is fair
18    and appropriately allocated among individuals.
19           I do want to talk, though, for a moment, your Honor,
20    about something that Mr. Feinberg raised, and it has been, in
21    some respects, the elephant in the room, and I've been asked a
22    lot of questions, not only on the phone, by e-mail, reporters,
23    clients, you name it, about the Victims Compensation Fund, and
24    I'm going to go right to that slide.
25           There's a talk of reopening the Victims Compensation
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1    Fund. And Mr. Papain touched upon this at the last hearing and
2    called it a gamble. And there's a quote I found talking about
3    gambling, says, before you gamble, you need to know the rules
4    of the game, the stakes, and the quitting time. And from my
5    perspective, your Honor, as the plaintiffs' liaison counsel, I
6    think it's important for us and all plaintiffs' attorneys to
7    tell the clients and the plaintiffs the facts of the
8    legislation and what -- if it does come into play, what they
9    can look to, and if it doesn't come into play, the Victims
10    Compensation Fund, what should they be weighing. And I think
11    it's important to touch upon it for a moment here today.
12          And so the first thing that I think that needs to be
13    considered by any client in weighing the Victims Compensation
14    Fund and if -- whether or not to wait to see if anything occurs
15    is that we know, not only has this bill been pending for five
16    years, we know very few bills, less than 2 to 3 percent,
17    actually ever become law, that over 11,000 bills were
18    introduced and only 442 became law in the Congressional session
19    of January, 110th Congress. I think that is something for
20    plaintiffs to consider.
21          The plaintiffs should also consider the Victim
22    Compensation Fund we talked so much about does not actually
23    exist at this point. There is no offices, there is no
24    building, there's no structure. You could send Santa Claus a
25    letter, but you can't send the Victims Compensation Fund a
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1    letter. There's nowhere to send it to. It has no employees,
2    it has no administrator, and it has no funds.
3           And part of the benefit of having Mr. Feinberg as a
4    neutral -- as a court-appointed neutral is he can impartially
5    tell us what his views are, and he told us, so I will skip over
6    those slides.
7           THE COURT: I think we have the point. There is no
8    Victim Compensation Fund, there is no legislation. Whether
9    there ever will be legislation, we don't know. What shape it
10    will have, we don't know. And it's important for people to
11    focus on the merits of this case and this settlement and not
12    think of what may or may not be in the future.
13              MR. NAPOLI: One last point before my conclusion, your
14    Honor, on this topic. And it's, if it was to come into play,
15    it would be six months, if a miracle upon miracle happened,
16    that a President would sign it. And as Mr. Feinberg told us
17    the last time he was present in this courtroom, it took 33
18    months for him to review everything, to establish everything,
19    and pay out on those claims. So we're talking conservatively
20    three to four years from now. And if you do file a claim in
21    the VCF, the VCF did deny people originally. Not everybody was
22    able to participate in it. That's -- there's no guarantee that
23    the award would be higher or lower or they would get an award
24    at all.
25              So these are the types of things that we believe
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1    plaintiffs should consider in weighing whether or not to wait
2    or not to wait.
3          And so with that, your Honor, and knowing what's ahead
4    on the agenda, I would also ask, as Mr. Feinberg has asked,
5    that this Court, in reviewing the settlement agreement, in
6    hearing the presentations of the parties today, that this Court
7    find, at the end of the presentation, that this settlement is
8    fair, reasonable, and more than adequate compensation and
9    should be approved by the Court.
10          Thank you.
11          THE COURT: Thank you.
12          MR. PAPAIN: Your Honor, just a couple of minutes, if
13    I may.
14          THE COURT: Introduce yourself.
15          MR. PAPAIN: My name is Nicholas Papain. I am a
16    member of the firm of Sullivan Papain Block McGrath & Cannavo,
17    and we are co-counsel with the Napoli firm, co-liaison counsel
18    for the plaintiffs in this case.
19          Your Honor, in sum, with regard to the additional
20    benefits that are provided under this new settlement, they
21    provide for the plaintiffs up to 25 percent more in value than
22    the prior settlement, and that is because of the increased
23    compensation of 50 to 55 million by the Captive, by the
24    reduction in the fees from 1/3 to 25 percent, resulting in
25    additional approximately $55 million to the clients, the
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1    waivers of the workers' compensation liens that have been
2    mentioned, and also we have the improved compensation for
3    certain cancer victims.
4          Your Honor, in furtherance of this new proposed
5    settlement, we have already begun our town hall meetings. My
6    firm, as you know, your Honor, represents 690 9/11 rescue and
7    recovery workers, including 640 of New York City's bravest,
8    that is, New York City firefighters and fire officers.
9          When we had our first round of town hall meetings,
10    your Honor, after the March 11th settlement, among the
11    questions that were asked were the judge's comments, what your
12    Honor -- the reservations that your Honor had expressed at the
13    March 19th court hearing. Our clients heard what you had to
14    say. Our clients appreciated what you had to say. Yesterday,
15    when we had our town hall meeting at which approximately 240 of
16    our clients were present, in a town hall meeting that was open
17    to the press, at a town hall meeting at which this Court was
18    represented by Special Master Aaron Twerski, at which
19    Mr. Feinberg spoke, and at that town hall meeting I was able to
20    announce that we too -- and when I say we, I mean the parties
21    to this litigation -- had heard and responded to your Honor's
22    statements and that those reservations that our clients had
23    heard your Honor state had been addressed with these additional
24    benefits.
25         At this town hall meeting that the press was present
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1    for, they heard our clients ask very pointed questions. These
2    were live questions. And they heard us answer those questions
3    to their satisfaction. And the more information we provide to
4    our clients, your Honor, such as at these town hall meetings,
5    the more they understand that this settlement provides the best
6    and most effective way to resolve their claims and for them to
7    receive reasonable compensation for their losses.
8          Your Honor, I close by saying that it is our firm
9    belief that as our clients learn more about this settlement and
10    what their options are or aren't, that they will appreciate and
11    fully accept the terms of this settlement for, your Honor, in
12    many instances a trial, if they get past the motion to dismiss,
13    will cost more than the money that is being paid to them under
14    this settlement. For indeed, your Honor, the money that the
15    Captive Insurance Company is putting into this settlement, if
16    the settlement is not accepted, will be turned around and used
17    not to pay these claims but to defeat these claims, and that is
18    not going to render justice for our clients. This settlement
19    will bring some justice that is long overdue.
20         Thank you.
21         THE COURT: Thank you, Mr. Papain.
22         The next speaker is Mr. Tyrrell. Mr. Tyrrell is lead
23    counsel for the defendants.
24         MR. TYRRELL: Good morning, your Honor. May it please
25    the Court.
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1          It has been my privilege for the past six years to
2    serve as lead counsel for the City of New York and all of its
3    contractors. They are now in the position of being the
4    settling defendants.
5          My job today is not in any way to reargue or restate
6    our defenses, other than indicate to the Court that in the
7    balancing exercise that took place, in the crucible of the
8    negotiations that led to this settlement, among other things on
9    the table were those defendants. They were hotly -- were those
10    defenses. They were hotly debated on both sides, and the
11    existence of those defenses were weighed in what became the
12    compromise that resulted in this settlement. But so that the
13    Court and that the public and the plaintiffs have an
14    opportunity to understand what those defenses were that went
15    into that process, I propose to briefly review some of those
16    defenses here.
17          THE COURT: And this is important because those who
18    wish to litigate this case will be confronting this in rather
19    short order. The next schedule leading towards trial was the
20    making of motions that raised these defenses and argued them
21    and requiring me to rule on them.
22          MR. TYRRELL: Your Honor, by way of starting with a
23    summary, the defenses at least that I will talk about today --
24    and there are others -- fall into four categories.
25          The first of those is state and federal immunity.
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1    What do I mean by that? The defendants are protected, are
2    protected, we believe, from nearly all of the claims asserted
3    in these lawsuits by no less than three New York immunity
4    statutes and laws, as well as by a federal immunity law, which
5    applies because the activities that occurred here occurred in
6    the nature of a civil defense effort to protect its country and
7    to protect the city of New York and the state of New York from
8    the terrorist activities. So we have the immunity issues to
9    deal with.
10          Secondly, I respectfully suggest that the unusual and
11    complex nature of this case is going to present or would have
12    presented a very difficult burden of proof for the plaintiffs.
13    The plaintiffs must prove, after overcoming the immunities, if
14    they can, that they were injured, that each of their alleged
15    injuries was caused by their particular exposure in 9/11 work,
16    that the exposures or the events that they complain about were
17    the fault of the defendants. It is respectfully suggested that
18    proving all of these things would be, for many of these
19    plaintiffs, a very difficult burden.
20          Third, the defendants are entitled to -- would be, we
21    believe, entitled to dismissal of what plaintiffs have
22    considered some of their strongest claims, those that arise
23    under the New York Labor Law and General Municipal Law, where
24    essentially less of a showing of fault, if they applied, would
25    need to be made, but we believe that plaintiffs will not be
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1    able, for reasons I will talk about momentarily, to establish
2    their claims under those statutes.
3          And finally, I will wrap up by talking about statute
4    of limitations and other defenses briefly that are applicable
5    as well as to pick up the theme of the trial process.
6          They say justice delayed is justice denied, and we
7    were a long way. Despite the fact that the Court was pushing
8    us very hard to a deadline in May to start trials, there were
9    still at that point a hundred motions pending, with a hundred
10    more to be filed, and Daubert hearings and all of the other
11    things that the Court well knows that, no matter how one tries,
12    were going to take time to resolve.
13          So let me talk briefly about the immunity issues in
14    particular.
15          I say to you that there were four specific statutes
16    that were involved. The state, the so-called New York State
17    Defense Emergency Act provides -- I'm sorry. I skipped my
18    space here. The New York State Defense Emergency Act was
19    written and intended by the New York legislature to apply
20    specifically to the type of rescue and recovery efforts that
21    took place after 9/11. It is a unique statute. It is very
22    narrow in scope, but when it applies, thank god rarely, in a
23    situation where this country is attacked, the immunity that it
24    affords is extremely broad. We believe that it would
25    ultimately have to be concluded by this Court that that act
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1    does apply, and if it did, we believe that the great majority
2    of these cases as a matter of law would have had to be
3    dismissed.
4          Why did the New York legislature pass this statute?
5    The bottom line is, in the case of a catastrophic attack on
6    this country and the state of New York, the New York
7    legislature made a tough policy choice. It decided that it was
8    more important for responders and public entities to jump in
9    without any thought as to their liability and provide for
10    rescue, recovery, recovery of the state, than it was to subject
11    them to second-guessing based on the fear of liability. So the
12    legislature said under those circumstances there would be no
13    such liability.
14          Your Honor is well aware, though the press and the
15    public may not be, that we tried to have this case dismissed
16    several years ago and presented arguments to the Court. The
17    Court at that point decided that, yes, the statutes may well
18    apply but that the factual record needed to be fully developed
19 in order for the Court to make that decision in individual
20    cases. As your Honor is aware, that record is close to
21    completion, which is why so many motions were pending before
22    your Honor at the time that this settlement was first announced
23    in March. In every case then the plaintiffs would have to
24    overcome the State Defense Emergency Act in order to proceed
25    any further, and those motions were teed up to be decided in
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1    the lead cases at the time that this settlement was announced.
2          If I can go to the next slide, that Defense Emergency
3    Act's requirement applies if -- in the event that the state and
4    the contractors -- city and the contractors were performing
5    civil defense activities. It's hard to believe that what
6    occurred in the immediate aftermath of 9/11 was not a civil
7    defense activity. It will be disputed, but we believe the
8    defense would carry the question of whether that response was
9    done in good faith. And it is unquestionable that the work was
10    done during or following an attack. That's all that's
11    necessary. If that act in fact occurs, the law says that the
12    city and the contractors -- and I put it here in bold -- shall
13    not be liable for any injury or death to persons or damage to
14    property as a result thereof. It is a sweeping immunity. Not
15    only was the State Defense Immunity Act implicated but two
16    other New York immunities -- the New York State Disaster Act as
17    well as the Common Law Immunity would apply.
18          In the interests of timing, your Honor, I'm not going
19 to go through the elements of that now, other than to say that
20    there were three separate state statutes that could have
21    exempted the defendants from all liability whatsoever. On top
22    of that is the so-called federal Stafford Act immunity.
23          THE COURT: There's a long opinion that I wrote that
24    deals with these issues, and a Court of Appeals decision as
25    well. There are numbers of areas of dispute. I would have to
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1    resolve them. If I resolve them in favor of the city, the case
2    would be over. If I resolve them in favor of the plaintiffs,
3    the case would continue. Those are open questions.
4          I think Mr. Tyrrell's point is that anyone who wishes
5 to think about doing better in the lawsuit but not
6    participating in the settlement will immediately have to
7    confront these very difficult issues that Mr. Tyrrell is
8    talking about. How they will be resolved is an open question.
9          MR. TYRRELL: And to add briefly, your Honor, as you
10    well know, when we took your decision up on appeal, we were
11    urging these issues be decided sooner. The appellate court
12    agreed with your Honor that it would be decided after a more
13    fully developed factual record. But significantly, the Court
14    did make essentially a landmark decision when it said that that
15    Stafford Act immunity, which had never been decided by an
16    appellate court before, could in fact apply, not just to the
17    federal government but to those who worked under the auspices
18    of the federal government. So all of these complex issues were
19 going to be embroiled in what your Honor would soon have been
20    required to decide.
21         Moving on, and moving away from the issue of
22    immunities. I spoke about the issue of labor law and labor law
23 defenses. Many of the plaintiffs believe that they could bring
24    their acts under the labor law where there's a lessened
25    standard of proof. The difficulty with that is, the New York
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1    labor law applies to a typical construction site. Your Honor
2 would have to decide here whether it applied at all. Certainly
3    the argument by the defense was that the unprecedented disaster
4    after 9/11 was not a typical construction site. But if you
5    went beyond that, the law in New York is clear that those
6    statutes provide or cover only persons who are mechanics,
7    working men, or laborers who are working for another for hire.
8    In these cases many of the plaintiffs, certainly most of
9 Mr. Papain's clients, are firefighters and police officers.
10    The law in the state of New York has been uniform that the
11    labor law claims are not extended to the firefighters and
12    police officers because they did not work for another for hire.
13    They worked, respectively, for the fire department and the
14    police department.
15          THE COURT: So their cases would not be thrown out, if
16    Mr. Tyrrell is correct; they'd have to measure up to an
17    ordinary standard of negligence rather than the more liberal
18    standards that would apply to working people.
19          MR. TYRRELL: That's correct, your Honor. Now there
20    are, if I can go on --
21          THE COURT: And also it would complicate the trial
22    because there would be complicating discussions in juries.
23    They'd have to have different standards in mind. But that's
24    something we would get to if we had to.
25          MR. TYRRELL: And your Honor, if I may, moving on to
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1    the next point, I'm trying to move through this quickly because
2    I know there are many from the public who wish today to be
3    heard, and to some extent your Honor's heard too much from me
4    over the last six years.
5          THE COURT: No, I wouldn't say that, Mr. Tyrrell.
6          One of the nice things that happens in a long case is
7    there's a good camaraderie that develops among counsel for both
8    sides, and with the Court. But I think you want to talk about
9    the Daubert issues in this situation because it deals with
10    everybody's proof.
11         MR. TYRRELL: Yes, your Honor, and that's my next
12    point. But I do want to be sure that I speak to the fire
13    department fire officers and police department personnel who
14    are making decisions as to what they want to do, and there is a
15    special provision of the General Municipal Law that applies to
16    them that says under certain circumstances they can sue those
17    who violated a duty and injured them. Typically, in the old
18    common law, firefighters and police officers were believed,
19    quite properly so, to be engaging in hazardous activity because
20    it was the nature of their job, and thank god for them. But
21    under the common law, they were not allowed to recover. Under
22    these statutes, they are. But the way New York frames these
23    statutes says that they had to have been injured in a sudden
24    accident, and of course the nature of the claims under these
25    statutes are that they were injured by an extended period of
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1    exposure to allegedly toxic substances. So in short, even
2    under this provision that the law -- that the state adopted for
3    their benefit, given how narrowly it was drafted under the
4    unique circumstances of this case, it is questionable whether
5    they would have been able to have benefited from it.
6          So I turn now to science, which your Honor has invited
7    me to talk about. And I think it's important to say, again,
8    for our -- for the audience, the general audience and certainly
9    for the press, as they report it to our general audience, that
10    in any trial, the plaintiff bears the burden of proving all of
11    the elements of their case. Here, given the complexity, that
12    would have been difficult. It's often assumed by many, because
13    we use such terms as the World Trade Center dust, that the
14    World Trade Center dust would have caused these people's
15    injuries and that they would not have to do more than show that
16    they were there. Well, we know, as lawyers, and as the Court
17    knows, that simply reciting the words "World Trade Center dust"
18    without explaining what it consisted of, because it certainly
19    was not uniform, whether it contained particular toxins,
20    whether those toxins affected a particular individual under
21    particular circumstances, whether there was a medical --
22    general medical exception that exposure to a particular toxin
23    at a particular level could cause a particular injury, I mean,
24    just reciting these things begins to indicate how complex and
25    difficult that burden of proof would have had to be.
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1          Your Honor said, talk about Daubert hearings. Well,
2    in the federal courts, basically only good science is supposed
3    to go to the jury and the Daubert decision, the famous United
4    States Supreme Court decision, imposed upon federal judges such
5    as your Honor the task of being what is called the gatekeeper.
6    You have to look in advance at the science that both sides are
7    offering and decide if it meets certain minimum standards in
8    order to ever reach the jury. We would have had very difficult
9    lengthy hearings before your Honor on the question of all of
10    the different diseases -- if we count them correctly, 383
11    separate diseases that are claimed to have been caused by
12    exposure to what was there in the aftermath of 9/11. Your
13    Honor would be dealing, for all of those people, with all of
14    those separate diseases, with the medical science as to whether
15    they could establish adequate, reasonable likelihood of
16    causation to have taken it to the jury, and even then, if they
17    got it to the jury, the jury would be making decisions as to
18    whether, on balance, they carried their burden of proving that
19    their particular injury was not caused by a preexisting
20    condition. Many of the injuries we know are common in the
21    general population. Unfortunately, medical science is not
22    advanced to the point of being able to tell you yet what causes
23    rhinosinusitis and sleep apnea and other things that many of
24    these plaintiffs indicate that they've suffered from. So the
25    difficulty for your Honor in the first instance and for the
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1    jury ultimately to make a decision in favor of the plaintiffs
2    was substantial.
3          If I can kind of draw to a close, because I've tried
4    to give everybody a feel, you would expect a defense lawyer to
5    be passionate about his defenses, and I'll come to why -- the
6    only reason why today that is important to talk about. But
7    I'll touch briefly on the issue of causation.
8          You know, there are certain medically accepted
9    standards. Your Honor talked about when we identify severity,
10    we go to the books, the American Medical Association, the
11    American Thoracic Society. There are pretty well-accepted
12    principles, for example, that certain types of cancers, namely
13    our tumor cancers, require a certain latency period -- let's
14    just say for a particular one, ten years. But in this case
15    many of the plaintiffs assert -- who have those illnesses claim
16    that they manifested those illnesses within six months or two
17    or three years after their exposure period. Well, medical
18    science is probably going to say that the proof isn't there and
19    that that's medically implausible. In any event, those issues
20    would have had to have been dealt with.
21         Take the flip side of that -- diseases that manifested
22 too late. Certain diseases like asthma or breathing
23    difficulties, once an insult occurs, that's when you have it.
24    You don't wait three years before you manifest it. And yet
25    there are numerous plaintiffs in this population who have
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1    honestly said that their first manifestation of a breathing
2    difficulty or a lung problem was two or three years later.
3    Once again, at least established medical science would come and
4    say, not likely to be connected to 9/11; manifested too soon.
5          And we've already talked about such issues as
6    preexisting conditions. You know, from the jury's perspective,
7    if you had asthma all your life and you now say it got worsened
8    because you were there at 9/11, you have a tough row to hoe.
9    The jury is going to -- if they believed you, is going to
10    substantially discount your damages because you did have a
11    preexisting childhood, for example, asthma condition.
12          And then there are many conditions, smoking and
13    others, allergies, where it would be difficult for plaintiffs
14    to sort out the issue of causation.
15          So if I can, I'd like to sort of draw to a close with
16    the following observation: Were we to have proceeded here as
17    we were supposed to on May 16th but for the announcement of
18    the settlement, I suggest that in the absence of this
19    settlement, the road to resolution for any plaintiff is a long
20    one. For example, we would have now, for anyone who opts out
21    of this case, as we did for the lead plaintiffs your Honor had
22    selected -- the 60 and it ultimately became 12 -- all of the
23    discovery that we had to conduct for those 12 would have to be
24    conducted for anyone who's now headed for trial. Medical
25    record production, depositions, medical exams, expert
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1    discovery. In addition, your Honor would face, as to each of
2    those plaintiffs, pretrial motions tailored to their cases.
3    Just on the ones you initially selected to work up, you had a
4    hundred motions pending, as you well know, because your office
5 was completely cluttered with paper, and we had 200 more to
6    file by the deadlines that you set -- another hundred to file
7    by the deadlines that you set. That would have to be done all
8    over again.
9          In addition, the trial process itself, the way our
10    system works, particularly in a complex toxic tort
11    litigation -- and I've spent most of my career doing this, for
12    35 years -- jury selection is not an easy task. Trying to find
13    people who can be neutral, who do not feel themselves that
14    they're witnesses to what happened --
15         THE COURT: I think judges ought to hire you to clamor
16    for more pay for judges. Look how hard we work.
17         MR. TYRRELL: Your Honor, any time. Just like
18    Mr. Feinberg, I'll do it pro bono.
19         Witness testimony will not be easy and will be
20    lengthy. This is a case replete with experts. We looked at,
21    just for example, a listing of potential categories of expert
22    testimony, 84 that we were up to with just the 60 starting
23    cases that you had us work on. And the documentary evidence
24    has been enormous.
25         If we got through trial, we'd face posttrial motions
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1    before your Honor. If we got through all of that, we'd be up
2    to appeal.
3          There is no doubt that those who say that justice
4    delayed is justice denied. Not that everyone would not be
5    trying their best, not that you did not push us very hard, and
6    I will testify to it.
7          THE COURT: It's interesting. There are two appeals
8    that went up on this case that are pending. One is the
9    jurisdictional issue and the other one the immunity issue.
10    Five years were consumed by those appeals, more or less. While
11    those appeals were going on, hardly any work was done during
12    the cases. So those are just two issues. If we were to go to
13    judgment on particular cases, appeals would go up on those
14    cases, depending, of course, what happens, but regardless who
15    was winning or losing, there would be appeals. And the time
16    that would be taken up to appeal to the Second Circuit would be
17    substantial. And it's always the possibility in mass tort
18    cases, where there have not been very many Supreme Court
19    decisions, that the Supreme Court would take it as well. I had
20    this very much in mind in disapproving the first settlement.
21    It's a very large concern too. What Mr. Tyrrell talks about is
22 not just puffery. It's real. The prospect of appeals in our
23    justice system is necessary, absolutely necessary, but taking
24    up the time away from the progress of the cases, it would be a
25    very serious issue.
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1          MR. TYRRELL: Your Honor, for me to close -- and I
2    appreciate this opportunity --
3          THE COURT: I want you to touch on one point,
4    Mr. Tyrrell.
5          MR. TYRRELL: Yes, your Honor.
6          THE COURT: I know how this is moving. With all these
7    potent defenses, there's a lot of money being paid out here.
8    Why is that? Why don't you want to go ahead and try this case?
9          MR. TYRRELL: Your Honor, there's risk on both sides,
10    and in all candor, my clients and the WTC Captive Insurance
11    Company, that has basically spent years trying to negotiate
12    this settlement, does not want to see this money spent on
13    defense costs, even if we win, rather than on a fair settlement
14    if a fair settlement can be brokered. And you give me a great
15    segue to my conclusion. We fought very hard for two and a half
16    years. We sat across the table with very able lawyers and we
17    said, "Get real. We're going to kill you with these defenses."
18    They turned around and said, "Here's the nature of our claims."
19    The crucible of that fight is what produced the settlement that
20    sits in front of you now. It isn't perfect, but it is an
21    honest, bargained-out settlement in which monies are going to
22    go to people who are certainly in need of it, given their
23    circumstances in life. And we are going to end the enormous
24    transactional expense that has been going on that commend, we
25    respectfully suggest to your Honor, the approval of this
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1    settlement.
2          We thank you very much for your time.
3          THE COURT: Thank you, Mr. Tyrrell.
4          Before I get to Mr. Cardozo, I just want to illustrate
5    what Mr. Tyrrell is saying with an anecdote. When I started
6    practice, I had the privilege of working for probably the most
7    brilliant lawyer I've ever encountered, and we'd stay up before
8    a big case all night long, and the following morning my mentor
9    saw his argument brilliantly and saw his opponent's arguments
10    just as brilliantly, and he was rendered passive by the
11    brilliance of his analysis.
12          What Mr. Tyrrell presents are extraordinarily potent
13    defenses. Mr. Napoli wanted to talk about the counters. He
14    persuades you that way as well. It's the nature of litigation.
15    One side goes, that side will persuade the judge that side
16    should win; then the other side goes and that side should win.
17    It's the art of judging to be able to cut through all of this
18    and come up with a just result. Suffice it to say, these
19    defenses that Mr. Tyrrell talks about are extraordinarily
20    potent, have not really been dispositively answered in prior
21    decisions. There are many issues that have to be decided, not
22    only those that he spoke about but others as well, in
23    connection with these issues. It will be a very difficult
24    decision, whichever way I decide it, and if a trial were to
25    result from it, those issues would be preserved and would
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1    complicate an appeal, taking time, effort, and posing great
2    risk. So even defendants with an array of good defenses need
3    to settle if the defendant wishes to avoid the risks of
4    litigation. Nobody knows how these things go out, and
5    sometimes the issues you think are trumped by an issue that
6    just comes out somewhere else.
7          Thank you very much, Mr. Tyrrell. Thank you very much
8    for your excellent presentation.
9          Mr. Cardozo, the Corporation Counsel of the City of
10    New York. Mr. Cardozo and I have been friends for many, many
11    years. I've watched with great respect how brilliant a job
12    he's done for the city all this time, and it's been a pleasure
13    and a privilege to have him in the courtroom.
14          MR. CARDOZO: Thank you, your Honor.
15          I'd like to begin -- Michael Cardozo, New York City
16    Corporation Counsel. I'd like to begin by picking up on the
17    last question you asked Mr. Tyrrell about why do you settle,
18    because I think there's another aspect in this case that none
19    of us can forget. 9/11 was an attack on the United States of
20    America, but it was also an attack on New York City, which I
21    have the privilege of representing here today, and has left a
22    scar on the city and every one of its workers, and employees
23    and residents.
24          My office looks out on Ground Zero, and I am reminded
25    virtually every hour that I look out my window of that horrific
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1    day. And the question that we're wrestling with in this
2 courtroom today is how -- how can you fairly compensate the
3    people, the heroes, who went down to the pile, who worked
4    tirelessly to put this city back on its feet. It wasn't the
5    fault of the contractors or New York City, at least in our
6    view, that these people were injured, for the reasons that have
7    just been alluded to, but there is no question that some of the
8    people were in fact injured and suffered damage, and they --
9    unfortunately in our system, we don't have a 9/11 Victims
10    Compensation Fund here. We have the need for either a trial or
11    a settlement. And the -- I rise to speak not only in favor of
12    the settlement and to explain some of its terms but to express
13    the view on behalf of Mayor Bloomberg, myself, and the entire
14    city government, that the reason that this settlement that we
15    support so vigorously should be approved is that it will enable
16    this horrible battle between the city and the contractors on
17    the one hand and the heroes of 9/11 on the other hand who
18    performed so nobly, it will enable that battle to end and, in
19    our view, end very, very fairly, particularly in light of the
20    defenses that have just been discussed.
21          And so I want to start by saying, your Honor, on
22    behalf of the Mayor and myself, that the city strongly approves
23    this settlement, urges that you approve it, and I urge that the
24    plaintiffs opt in.
25          Now I want to address my specific remarks today to
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1    make clear to all of the plaintiffs what is not affected by
2    this settlement, because there's been some misunderstanding,
3    and it's very important that people, as they face the decision
4    as to whether to opt in, understand what is not being affected
5    by this settlement. Some of the people who have spoken before
6    me have alluded to that, but I want to make this clear, on
7    behalf of New York City.
8          Number 1. Healthcare. Today we are maintaining --
9    the city is maintaining what we are calling and have called
10    three Centers of Excellence, which provide healthcare services
11    to people who think that they have been injured as a result of
12    9/11, and those healthcare services offer physical and mental
13    monitoring and treatment. There are -- the three include the
14    healthcare maintained by the fire department, which provides
15    health and monitoring for the firefighters, includes the
16    consortium headed by Mount Sinai, which provides monitoring and
17    treatment to World Trade Center responders at eight clinics
18    throughout the New York metropolitan area, and a third
19    healthcare center maintained by AJC at three other locations.
20    And people who feel they have been injured and have suffered
21    damage, health damage, can go to those facilities. There are
22    numerous -- thousands, literally thousands of people who have
23    done so, who are continuing to be serviced. And a point to
24    understand is this settlement has absolutely nothing to do --
25    nothing will change as a result of the settlement as far as
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1    this healthcare is concerned.
2            THE COURT: To put it in a positive light, the city
3    intends to continue; right?
4            MR. CARDOZO: That is correct, your Honor. The city
5    has every intention of continuing to provide the healthcare
6    services that have been provided ever since the centers were
7 established, and nothing, absolutely nothing, will affect that
8    in any way whatsoever.
9            THE COURT: And those who decide to come into this
10    settlement should know that that representation continues, so
11    even though there's nothing in the settlement about continuing
12    healthcare, it's important to know that the city will continue
13    to maintain the healthcare that has been administered up to
14    now.
15           MR. CARDOZO: That is correct, your Honor. And also
16    relating to healthcare, it should be recognized that at least
17    as far as New York City workers are concerned, obviously they
18    have health insurance, and nothing will be -- nothing that this
19    settlement provides for would affect them in any way
20    whatsoever. So it is very, very important that people
21    understand that their healthcare benefits will not be affected
22    by this settlement.
23           Number 2. It's been spoken about previously, and that
24    is workers' compensation benefits. Ordinarily when there's a
25    settlement of this nature, anyone who has received workers'
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1    compensation benefits has to take a certain portion of those
2    benefits, be it lost wages or health benefits, and pay them
3    back because they've now been compensated. The city has --
4    feels this settlement is so important and feels so strongly
5    that this settlement should be approved and that people should
6    take advantage of it that the city is waiving its right to
7    claim those workers' compensation benefits back and will waive
8    anything that happens in the future as far as those workers'
9    compensation claims. If you're getting workers' compensation
10    benefits, not a thing will change with respect to those
11    workers' compensation benefits. That, the city estimates, is
12    worth about $20 million that New York City is giving up. But
13    in the interests of this settlement and to assure that people
14    don't misunderstand this in any way, the city has agreed to do
15    that.
16            Number 3. This settlement has absolutely no effect on
17    pension, on city pension benefits. As we all know, there are
18    city workers who have -- are entitled to a pension when they
19    retire. Legislation was passed a number of years ago providing
20    for a presumption that if you became ill and had to retire,
21    you'd get extra workers' compensation -- extra pension
22    benefits, and as of today, actually, there's over 1800 city
23    workers who have retired on a WTC-related disability pension,
24    the so-called pension that's being -- that is available. Not
25    a thing will change as a result of the settlement. If you are
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1    entitled to receive a disability pension, you will receive
2    it. This settlement has nothing to do with that.
3          I think it's very important, again, as people evaluate
4    their options, to understand that their pensions will also not
5    be adversely affected.
6          And so let me close where I began. It is in
7    everyone's interests to put this horrible chapter of American
8    history behind us. Compensation can only go so far in healing
9    these wounds. But given where we are, the incredibly
10    time-consuming process that would have to be followed because
11    we are in a trial situation, the very substantial defenses that
12    have been alluded to that we believe may well prevail if some
13    or all and the very, we think, fair compensation that this
14    settlement affords the plaintiffs, we urge emphatically that
15    the Court approve this settlement and that the individual
16    plaintiffs opt in.
17          Thank you very much.
18          THE COURT: Thank you very much, Mr. Cardozo.
19          The next speaker will be Margaret Warner, who is
20    counsel for the Captive Insurance Company. Captive Insurance
21    Company is funding the settlement, and Ms. Warner will tell us
22    about that.
23          MS. WARNER: May it please the Court, Margaret Warner,
24    McDermott Will & Emery. It is my honor today to appear before
25    your Honor and to represent the WTC Captive Insurance Company.
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1          Your Honor, I will attempt to be brief. Much has been
2    said already today. I hope that I will be able to further
3    allow the plaintiffs and the public to understand the very
4    personal attention that has been given in this agreement, in
5    the negotiations, and in the process to ensure this is a fair,
6    adequate, reasonable, and just settlement of this litigation.
7          Several of the prior speakers have discussed these
8    negotiations. I would merely add a few items. They were not
9    arbitrary. These negotiations were undertaken at all times, by
10    all of the participants, with the vigor that comes from this
11    very serious subject matter and these very, very important
12    plaintiffs and also with the rigor that comes from the need to
13    analyze information, to arrive at a conclusion of a unique
14    piece of litigation.
15          There was, as part of the two years of negotiations, a
16    review and analysis of thousands of individual medical records
17    of these plaintiffs, there was an analysis of the innumerable
18    filings made by the parties to your Honor in the litigation,
19    and there was the analysis of extensive discovery that had
20    happened in the litigation. Both sides worked hard and, as
21    Mr. Napoli noted, most professionally, given the subject
22    matter, to achieve a fair result, a fair result for everyone.
23    We consulted extensively with practicing doctors, with doctors
24    who every day see the kinds of medical conditions that have
25    been alleged by these plaintiffs. We discussed with them what
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1 were the fair approaches to determine how to arrive at a
2    settlement for an individual plaintiff, not just for 10,000
3    people in the aggregate but for each individual plaintiff, how
4    could we arrive at an appropriate mechanism, a process, to
5    ascertain and value their injuries. We worked very closely,
6    under the strict medical criteria that are laid out in the
7    settlement process agreement at pages 53 through 66. Those
8 medical criteria, which will serve as the basis for
9    Mr. Garretson's work and Mr. Feinberg's work as the claims
10    appeal neutral, were based completely on the standards
11    developed and established by the American Medical Association
12    and the American Thoracic Society.
13          We also looked very closely at what each individual
14    type of injury there was and how could we develop a process to
15    treat plaintiffs fairly but consistently so that we could make
16    sure that the qualifying injuries that each plaintiff alleged
17    could be handled in a manner that were not just fair for each
18    individual but fair across the board, consistently, for this
19    entire important population of plaintiffs. And that was, as
20    the Court pointed out earlier, not an easy task, but it was a
21    task that we went about with great analysis and care.
22          I would like to give a few statistics here, because I
23    think they help to inform the process of how we did this and
24    will allow the plaintiffs to understand why they may be placed
25    in a particular tier.
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1          You can see on the sheet here that the number of
2    plaintiffs, as we believe they are consisted currently to the
3    eligible plaintiffs list that the plaintiffs' lawyers have
4    provided to us, how many plaintiffs are in each tier. But let
5    me inform that a little bit more and give you some statistics
6    that are not on the page.
7          In the 21 MC 100 docket, which is the main docket for
8    the workers and fire and police personnel who were on the pile
9    and at Fresh Kills, I will lay out for you the specific numbers
10    of plaintiffs as we understand them who are in each tier.
11          2,569 plaintiffs, through the information provided by
12    the plaintiffs' lawyers, allege that they are in Tier 1.
13    That's approximately 26 percent of the plaintiffs. Those
14    plaintiffs have injuries. They may not be qualifying injuries,
15    but we have accounted for them, as Mr. Feinberg noted, under
16    the settlement. Those plaintiffs will receive approximately
17    1.6 percent of the total monies. And I specifically note here
18    what the Court stated earlier, that we have made every effort
19    in this settlement to provide compensation to the people who
20    are most injured and whose injuries are most plausibly related
21    to their work at the WTC site and surrounding locations. A
22    core principle from day one of these negotiations, based upon
23    the guidance that the Court and the special masters gave us and
24    based upon fundamental principles of fairness and justice, are
25    that the most money should go to those who are most severely
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1    injured and who can most plausibly prove that their injury is
2 causally related to these conditions.
3          So I note that Tier -- the Tier 2 plaintiffs, there
4    are 1497. That's about 2 percent of the money will go to them.
5          Tier 3 plaintiffs, about 791, about 1.56 percent of
6    the money will go to the Tier 3 plaintiffs.
7          And that leaves us with the Tier 4 plaintiffs. The
8    eligible plaintiffs list indicates to us -- and it is
9    unverified at this time and it will be subject to Mr. Garretson
10    and Mr. Feinberg's work, but it indicates to us that
11    approximately 50 percent of the plaintiffs in these lawsuits
12    will be in Tier 4. And those 50 percent will receive
13    approximately 94 percent of the cash under the settlement. And
14    again, we believe that this is very important and that this
15    demonstrates that this settlement process was an attempt to
16    provide fundamental justice and fairness to individuals and
17    that their cases will be analyzed on an individual basis.
18          Let me discuss the scope of the settlement so that
19    everybody has a clear understanding of whom can be involved in
20    this settlement. The Court has noted that one has to prove
21    that they were working at the site. It's important to state
22    that there are certain limitations, however, and these
23    limitations again were negotiated carefully among the parties
24    to ensure that we had a fair and just result.
25          To be eligible to participate in the settlement, a
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1    plaintiff must have filed a lawsuit or submitted a notice of
2    claim prior to April 12, 2010. And many of the plaintiffs have
3    asked, why is that? And the reason is very, very simple, but
4    very important. The reason is so that when this settlement was
5    announced, the benefits of the settlement are available to
6    those plaintiffs who filed their lawsuits or their notices of
7    claims in a timely manner soon after they were of the view that
8    they had an injury. The need for this cutoff, your Honor, is
9    clear. It ensures fairness to the current plaintiffs and so
10    that there are not others, perhaps we could call them
11    latecomers, who would only come into this after we announced
12    the initial settlement in March. This provision protects those
13    plaintiffs who, working with their lawyers, have been litigants
14    in this case for the last five to seven years.
15          Secondly, it is very important for everyone to
16    understand -- and it's been said but I'll say it again -- that
17    this settlement covers claims made against the city and the
18    contractors and subcontractors who worked to clear the debris
19    pile at Ground Zero and who worked at Fresh Kills. That is the
20    reason why the 100 docket represents most of the money going to
21    this settlement, and the 102 and 103 dockets have lesser
22    payment amounts because the city and the contractors had far
23    more limited involvement at the locations that are at issue in
24    the 102 and 103 dockets, and those are the dockets that you set
25    up your order to manage these cases.
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1          In addition, by statute --
2          THE COURT: In a word, the city was sued in various
3    buildings in the neighborhood, like on Cedar Street, Vesey
4    Street, Rector Street, a lot of different buildings in the
5    area, and many of those, the city was either a landlord or a
6    tenant, and people injured in the building have the right to
7    sue the contractors, the people in possession of the premises
8    in which they're working and the owners of the companies. So
9    all the people came in.
10         And the World Trade Center site, the city's
11    departments of design and construction supervised the entire
12    work that went on, was directly involved in the cleanup effort.
13         In the other buildings the city was a passive
14    defendant, as we term it in the law, by reason of being the
15    tenant in possession or the owner of the premises in connection
16    with the work. So the city has different roles as a defendant
17    in the 102 docket as compared to its role in the 100 docket;
18    the 100 docket being the docket for the World Trade Center
19    site, the 102 docket being the docket for the remaining
20    buildings. There's another docket, the 103 docket, just as
21    these things are not simple enough here, to make another
22    complication, the 103 docket covered people who worked in both
23    places and required to be similarly resolved. So what
24    Ms. Warner is telling you is the rationale for allocating the
25    amounts for certain sites.
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1          MS. WARNER: And finally, your Honor, with regard to
2    the scope of the settlement, by statute, no payments can be
3    made to plaintiffs who previously received awards from the
4    September 11 VCF. That was by statute and by decision in the
5    Second Circuit.
6          Now there's been a lot said about the qualifying
7    injuries. I will not say a tremendous amount more about this,
8    but I would like to be clear for the plaintiffs that the
9    negotiations attempted to group these various and disparate
10    injuries into ten disease groups in an effort, again, so that
11    there could be a fair and consistent distribution of the
12    settlement amounts among the plaintiffs. And again, pivoting
13    off of the very important work done by the Court and the
14    special masters in the litigation, we attempted to develop,
15    again, with the physicians, severity levels or disease types
16    within each of these disease groups. All of this was to make
17    sure there was consistency and so that an individual plaintiff
18    receiving his or her award from the allocation neutral would
19    understand that the process for that plaintiff was the same as
20    the process that every other plaintiff can go through.
21          These disease groups, as you see on the screen and as
22    Mr. Napoli laid out earlier, are defined. The first three are
23    really lower respiratory conditions, the next two are upper
24    respiratory conditions, and the bottom are a variety of the
25    other types of conditions that the plaintiffs have alleged and
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1    have suffered from in these cases. Mr. Napoli went through the
2    qualifying injuries for each of the tiers. Again, I will not
3    go over that, other than to say that every effort was made here
4    to find a mechanism to provide compensation appropriately to
5    each tier. And as Mr. Feinberg pointed out, that was not the
6    case with the VCF. So in each of these tiers, there will be
7    compensation given, and quickly, as Mr. Garretson will lay out.
8             And furthermore, I would like to stress what
9    Mr. Napoli said and then stress what Mr. Tyrrell said, which
10    is, this settlement allows each plaintiff to avoid the
11    necessity of proving causation, and that is a huge benefit to
12    this population, given the very difficult issues here.
13            THE COURT: They just have to prove they were at the
14    site.
15            MS. WARNER: They need to prove they were at the site
16 and they need to prove, based upon in which tier they are,
17    their medical condition based upon their medical records, and
18    they have to provide a claim form.
19            THE COURT: But they don't have to prove the
20    relationship between their particular medical injury and the
21    conditions at the site. That would have been a very tall order
22    of proof for a trial, as Mr. Tyrrell points out, that will not
23    have to be done in the settlement.
24            MS. WARNER: That is correct, your Honor. And as I
25    note with regard to the qualifying injuries in Tier 4, these
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1    would have been very difficult, but we have not made that
2    necessary for these plaintiffs.
3          Having said that, what we have done is we have
4    attempted and we believe achieved the goal again of fairness
5    and of consistency to provide a situation in Tier 4 where the
6    amount of compensation that any individual plaintiff will
7    receive will be commensurate with the general principles that
8    are at play here -- the principles of, as you noted earlier,
9    what their condition is, the severity of their condition, and
10    whether there is some basis in medicine for those conditions to
11    be connected to the exposure at the site.
12          THE COURT: And one consequence of laying all this out
13    in extraordinarily difficult work is that it will be possible
14    for each plaintiff to be able to predict with a reasonable
15    degree but not complete accuracy what the likely result of
16    entering into this settlement will be. It is predictable, it
17    is transparent. And that's one of the goals that I thought was
18    very well achieved in this settlement.
19          MS. WARNER: That's exactly correct, your Honor. And
20    if I may just point out three particular items, because we've
21    seen these in the questions that have been raised by the
22    plaintiffs, in the media, and in other places, and I just want
23    to point out the example of what -- of what we have just been
24    discussing here.
25          The interstitial lung diseases are diseases that are
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1    valued at a very high level in this settlement because these
2    particular conditions are the types of conditions that are
3    certainly among the most serious of the medical conditions
4    faced by these plaintiffs but they also are the most plausibly
5    caused by the conditions. Similarly --
6          THE COURT: What are these kinds of diseases?
7          MS. WARNER: These are conditions of the lung, the
8    lining of the lung. They are a variety of things like
9    sarcoidosis, bullous lung disease, they are conditions of the
10    interior parts of the lungs that medicine can say might --
11    might have some relationship to the kind of exposure at the
12    site. Again, I would note that even in this context, the sort
13    of Daubert issues that Mr. Tyrrell has described will be ever
14    present in the litigation, but for purposes of settling these
15    cases and finding a compensation mechanism for these
16    plaintiffs, clearly these are very serious diseases that have
17    plausible causation here, given the situation.
18          THE COURT: To explain in a very crude way, the body
19    has a type of lubricant that lines all the respiratory tracts
20    and all the other methods of transporting air or food or other
21    things in the body from one place to another. It is thought
22    that because of the particular toxins in the air, that kind of
23    a lubricant has been worn away and people therefore suffer a
24    great deal of friction in terms of what comes through their
25    body, causing pain and causing annoyance and sometimes a
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1    shutting down of bodily functions. I'm no doctor, but it's a
2    very rough type of trying to explain the severity of this kind
3    of injury. Now, I mean, this is a disease in life. People get
4    it. But it is thought that it is well advanced and suffered
5    with a great deal more frequency because of the conditions at
6    the 9/11 site. If one were having to prove this at a trial,
7    there would be a lot of problems, but they will not have to
8    prove it in terms of the settlement. I hope that I've got that
9    right.
10            MS. WARNER: That's correct, your Honor, and if I may
11    contrast the interstitial lung diseases with the cardiac
12    conditions that have been alleged here, clearly the cardiac
13    conditions that have been alleged here are subject on the grid
14    to a lesser amount of compensation, and that is to demonstrate
15    what we believe strongly are the rather tenuous connection that
16    these sorts of cardiac conditions have to the situation here
17    and the more likely situations that they are related to the
18    general health and genetic predisposition of some of the
19    plaintiffs.
20            THE COURT: So there are very serious diseases that
21    people have that will not merit a high level of compensation.
22    That's because of the second criteria I mentioned for
23    relationship. This settlement is not a compensation scheme
24    generally; it's a settlement of a particular lawsuit raising
25    particular issues. And therefore there has to be a
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1    relationship between the disease and the issues of the lawsuit.
2    It's not logically and thoroughly followed to the extent
3    100 percent because in life we have to be practical, but it
4    does drive the differences in amounts.
5            MS. WARNER: And if I may address specifically, your
6    Honor, cancer, which clearly is of great distress to many. We
7    have attempted to address the issue of cancer very thoroughly
8    in this settlement. First of all, as Mr. Napoli explained, we
9    have used this innovative insurance policy to provide a benefit
10    to every potential plaintiff here so that if they do develop
11    the enumerated cancers down the road, they will be able to have
12    some compensation for their families. The present cancers
13    presented an extraordinarily difficult issue for the litigants
14    and for the Court. The Daubert issues associated with cancer
15    are very, very serious. So what we did in this settlement was
16    we attempted -- and certainly after the Court's concerns, as
17    the Court expressed on March 19, we attempted working again
18    with our physicians to address cancer very specifically. The
19    type of cancer is extraordinarily important here. The
20    nonrespiratory solid tumor cancers under the settlement will
21    receive a lesser amount of compensation.
22           THE COURT: Give an example of the type of cancer; can
23    you?
24           MS. WARNER: Any type of nonrespiratory system cancer,
25    for instance, a hard tumor cancer of, let's say, a breast
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1    cancer, would receive a lesser amount of compensation because
2    medical science indicates that the latency periods associated
3    with that sort of cancerous process, the process of irregular
4    cell development, takes a long period of time, and that because
5    it's not involved with the respiratory system, the potential of
6    causation related to the exposure at the site is lessened. So
7    in that situation, the settlement provides for what we would
8    term a moderate amount of compensation.
9          If there is a solid tumor cancer that involves a
10    respiratory tract, they will receive -- the plaintiffs who have
11    that condition will receive a higher payment because while it
12    is unlikely that there is causation, it is a plausible argument
13    to make in this very unique situation here and this
14    extraordinarily complex scientific and medical situation that
15    would be presented to your Honor.
16         THE COURT: This is one of the great advantages of
17    settling. Medical science knows very little about these
18    cancers as to their causation. Is there a relationship or not?
19    No one can say definitively. Can the exposure to the toxins at
20    the World Trade Center shorten the latency period and bring out
21    a cancer sooner than before? Nobody really knows. The
22    advantage of having a settlement is that we can provide
23    compensation for these kinds of cancers even though in a
24    lawsuit, it's improbable that a relationship can be proved. So
25    there's a tremendous distinction that we're able to bring.
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1    This settlement can bring a benefit that a lawsuit, even if all
2    the defenses that Mr. Tyrrell outlined were surmounted, could
3    not bring, because of the absence of proof.
4          MR. TYRRELL: And finally, on the cancer issue, your
5    Honor, and one that you raised most specifically to the parties
6    on March 19th, is the very, very difficult question of blood
7    cancers. The amended settlement provides for the highest
8    cancer payments to be made to those who demonstrate a
9    blood-related cancer. And that is because, while causation
10    again is uncertain in this situation, medical science tells us
11    that blood cancers tend to present in a lesser number of years
12    than the hard tumor cancers, and it is a possibility that there
13    could be -- given the kinds of substances that were at the
14    site, due to the fires that burned, there is a possibility. So
15    the blood cancers in particular receive the highest levels of
16    payment in certain situations, about $300,000, we believe, even
17    though, again, these are still very unknown and unknowable, at
18    this point, medical issues associated with causation of blood
19    cancers.
20          Your Honor, if I may say, we have tried -- I believe
21    the device is now out of -- it's not working anymore. I think
22    we've exhausted it.
23          If I may say a few other items. We again have tried
24    to look at this from a plaintiff's perspective and to let every
25    plaintiff know that if he or she opts in to this settlement,
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1    their situation will be looked at individually. Even though
2    there are 10,000, they will be looked at individually. So
3    their specific situation of their age, their length and date of
4    service at the site, their secondary qualifying injuries, their
5    date of diagnosis, any preexisting conditions, there will be a
6    very careful look at, Mr. Garretson will go through it, on each
7    and every one of their specific plaintiff's condition.
8          THE COURT: There's a preference given to those who
9    opt in early. The sooner that people opt in, the faster their
10    claims will be processed. Natural inertia on the part of
11    people, especially because it's unnecessarily complicated in
12    the documents, to wait, to wait and see, or wait just for the
13    sake of waiting. But there's a benefit that comes in coming to
14    these decisions early. Mr. Garretson's going to discuss that.
15         MS. WARNER: And your Honor, again, coming early and
16    having your case looked at individually.
17         Mr. Cardozo discussed the liens. Mr. Napoli discussed
18    the liens. I want to say one more thing about them. For an
19    individual plaintiff who currently has been receiving workers'
20    compensation benefits, this will be a very, very important
21    aspect of their compensation. It will mean probably thousands
22    of dollars that will not have to be relieved by the liens and
23    thousands of dollars going forward for their continuing
24    benefit. Again, I want to assure these plaintiffs that we have
25    looked individually at their situations.
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1          One other point, your Honor, that hasn't been
2    mentioned is that there are additional benefits to the
3    settlement. The additional benefits beyond the current money,
4    beyond the cancer policy, beyond the waiver of the liens,
5    beyond the other items that have been noted are that there are
6    additional sources of funds to these plaintiffs that could come
7    here and that we urge to come here. The city --
8          THE COURT: This Friday, this Friday there will be
9    another session of this court. We're going to discuss with the
10    people, the defendants in the 100 case who have not been part
11    of the settlement, we're going to discuss with the people in
12    102 and 103 the advisability, at least they should consider, of
13    coming into this settlement process, of adding their monies to
14    the money that we already have, further to include benefits and
15    to end a very expensive and very difficult lawsuit.
16         MS. WARNER: And in addition to that, your Honor,
17    there -- as you know, one of the unique aspects of the entire
18    rescue, recovery, and debris removal operation was that the
19    city set up barges that brought the debris from Lower Manhattan
20    over to the Fresh Kills landfill on Staten Island so that this
21    material did not have to be trucked through the city and be
22    further the subject of exposure. Immediately after 9/11 the
23    city went out and attempted to buy as much insurance in the
24    commercial marketplace as possible. As we have discussed
25    previously, that was successful only to a degree, and therefore
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1    Congress enabled the establishment of the WTC Captive Insurance
2    Company. But one of the situations that they could obtain in
3    the commercial market was marine insurance, and so there are
4    insurers who have not participated yet in this settlement who
5    insured the barges and certain of the pier locations where many
6    of these plaintiffs received their exposure. As part of this
7    settlement, the city has given to the plaintiffs' lawyers the
8 opportunity to negotiate with these marine insurers to obtain
9    more compensation for those plaintiffs who were exposed on the
10    piers and the barges, and we have made that possible as part of
11    this settlement.
12          Your Honor, let me please wrap up. I've said many
13    things many times about this settlement over the time frame
14    since January, and I have tried to convey at all times that
15    what we have been about here was a mechanism to strike a
16    balance and to find a mechanism to be fair, objective,
17    consistent, certain, and fast in getting this settlement out to
18    these plaintiffs.
19          Your Honor, I am very proud that I and my colleagues
20    were the lead creators and negotiators of this settlement. We
21    were ever mindful that the tragic circumstances that bring us
22    to this courtroom were caused by terrorists, not by any New
23 Yorkers. This settlement provides each plaintiff and the city
24    and the contractors with the opportunity for a just closure.
25    On behalf of the WTC Captive, I thank most sincerely the first
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1    responders and workers for their patriotic service at the site.
2    They brought this city back from the devastation that was
3    wrought by Al Qaeda. They deserve this settlement, they waited
4    for this settlement. We are grateful for their service.
5          I also thank the special masters, Professors Twerski
6    and Henderson; Professor Simon; Mr. Garretson; and Mr. Feinberg
7    for their willingness to serve to bring this unique settlement
8    about.
9          But most especially, I thank your Honor. I thank you
10    for your commitment, I thank you for the discipline that you
11    brought upon us, and I thank you for allowing us to develop a
12    settlement of which we can all be proud and of which we can say
13    that we found a manner to close this litigation in a fair,
14    just, reasonable, and certain way.
15            Thank you.
16            THE COURT: Thank you very much, Ms. Warner. I thank
17    you. I think when it comes time to look back on a body of work
18    to reflect all the contributions you've made to law, this
19    document, this very lengthy but brilliant document, will be a
20    very good reflection of the excellence of your work.
21            I'm advised that our words have become a match for
22    computer capabilities and we need to take a break. Not because
23    of any need for a bathroom break but because the computer needs
24    a break. So we'll take about 20 minutes.
25            Before you go, before you run, just one minute. Let
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1    me just tell you what's going to come, because I'd like you all
2    back. Mr. Garretson is going to run through a number of
3    hypothetical cases to make it clear how this document will work
4    and so there will be an element of predictability, a large
5    element of predictability to every claimant who comes into the
6    process.
7          Mr. Simon's going to talk about communications and the
8    methodology of communications and the fairness of that
9    particular process.
10         And Professor Twerski on behalf of also Professor
11    Henderson is going to tell you some more insights in terms of
12    this settlement process.
13         And I do urge you to come back for it because it is a
14    vital part of what we're doing. And of course then what
15    follows will be the comments of the public. So we'll take a
16    20-minute break.
17         (Recess)
18         (In open court)
19         THE COURT: Mr. Garretson.
20         MR. GARRETSON: May it please the Court, my name is
21    Matthew Garretson, and I'm here to present further information
22    regarding the allocation process and related claims procedures.
23         I'd like to start my presentation by introducing my
24    firm, the Garretson Firm Resolution Group, to the individuals
25    here in the courtroom today. Throughout my short presentation
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1    today, I will introduce you to the experienced and
2    knowledgeable people as well as some of the state-of-the-art
3    processes and systems we've put in place to support this
4    settlement program.
5          When I speak of experience, just by way of
6    introduction, we have experience with numerous national mass
7    tort and class action matters. Over the last 12 years, we've
8    processed hundreds of thousands of claims; we've audited them
9    and paid them. We've worked on large complex national cases
10    involving tens of thousands of people, as well as very unique
11    and individualized matters involving issues like clergy abuse
12    or civil rights violations.
13          With respect to compliance, what you'll see here today
14    is a very objective, neutral administration program that is
15    fully in line with the negotiated settlement process agreement.
16    To that process agreement we're going to bring the controls and
17    review procedures that have served us well and served the
18    parties well in prior settlement programs. You're going to see
19    a glimpse of how it's very driven by systems to bring the
20    efficiency that you've heard everyone speak about today, and of
21    course the hallmarks of anyone serving in my capacity and my
22    firm's capacity is that we're neutral, we're impartial, and
23    that we're fair.
24          So in sum, as I said, we've successfully handled many
25    settlements of similar size, sophistication, and sensitivity,
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1    and likewise, we will get this program done right with
2    compassion.
3          The role of an allocation neutral, well, I think it's
4    perhaps redundant, but it's worth restating. They are neutral,
5    we should be neutral, transparent, and efficient with all
6    administrative aspects of the settlement process agreement.
7    When we talk about those terms, what that means is we're going
8    to be objective, we're going to evaluate each and every claim,
9    each individual based on the predetermined factors that have
10    been outlined here today and that I'll further articulate in my
11    presentation. There's going to be a fair distribution of
12    settlement proceeds, an oversight and governance by us, by
13    Professor Roy Simon, and the other individuals involved in this
14    administrative program, including Mr. Ken Feinberg.
15         There's a sophisticated infrastructure that's been put
16    in place. I spoke a little bit about people, process and
17    systems, but it's not just us at the Garretson firm who is
18    going to be -- who are going to be looking at medical
19    information regarding these plaintiffs. We have various levels
20    of medical experts involved, technologists that support the
21    systems and bring the efficiency and a seasoned management team
22    around us.
23         The processes that I'll be going over fairly quickly
24    in the interest of time are the medical records review, the
25    process of -- the processing of claims, if you will, the
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1    reconsideration, the coordinating of appeals, and of course the
2    processing of payments for plaintiffs. And I'll also give a
3    glimpse, as I mentioned, of the web portal and other technology
4    that will be supporting us.
5          What I would like to share with everyone in the
6    courtroom today is that across dozens of programs over the last
7    decade, one thing I can say with confidence is that this is a
8    state-of-the-art settlement program. It moves money quickly.
9    And I've been witness to too many programs where the money sat
10    for well over a year before it began to be in the hands of
11    deserving claimants.
12         This program provides a unique cancer insurance
13    policy. It's unlike anything I've seen in any settlement
14    program before.
15         There's a process of both the reconsideration to us as
16    the allocation neutral as well as the appeals to Mr. Ken
17    Feinberg. There's the oversight of Professor Simon, and then
18    the transparent, objective process that allows plaintiffs to
19    know on the front end the approximate payment range before they
20    opt in, and I can't express how unique and important that is to
21    easing the anxiety of claimants or plaintiffs who would
22    otherwise be entering into some black box, where they would not
23    know, until they came out the other side, what their award
24    range is.
25         And the waiver of liens and continuation of benefits
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1    is without -- without precedent. In the Vioxx settlement
2    program alone, we resolved over 53,000 liens associated with
3    claimant payments. This is a terrific benefit, and it's never
4    been done before.
5          THE COURT: Yes. It's an important point to inject
6    that the city has given up its right to liens on its
7    compensation carrier. It's important to understand the process
8    and some of its complications and repercussions. When a
9 compensation carrier or disability carrier pays money to a
10    claimant, that's an advance on a recovery for an injury or for
11    lost compensation or for something else. And then when there
12    is a recovery and the claimant then gets full compensation for
13    whatever injury that claimant suffered, or the compensation
14    that was lost by way of a recovery in a lawsuit, the disability
15    or compensation carrier comes in, in effect, and says, "Look, I
16    advanced you this money. Now you have a full recovery, you pay
17    it back. Otherwise, you'll have a double recovery." So that's
18    what goes on.
19          Now one of the reasons that this is a problem is that
20    we have a settlement now with compensation being paid for any
21    one of a number of reasons or perhaps just because these are
22    people who are heroes of 9/11 and because it's one city that
23    needs to be governed as an organism that everybody contributes.
24    And so the argument that will be made, if it is ever to be
25    litigated -- and I will be the one in charge of that
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1    litigation -- is whether there is a fit, whether there's a
2    match between the recovery by way of a compromise settlement,
3    and what is due to the lienholder. In most cases the disparity
4    of bargaining power between the claimant and the lienholder is
5    such that nothing goes on, really; the lienholder just grabs
6    the money, takes it out of the settlement and people go on. In
7    this case, if we ever go to that, there will be a real contest,
8    because I will be regulating it. Now the city, in what I think
9    is an extraordinarily wise policy by the Mayor, and by the
10    Corporation Counsel, has agreed to waive its lien and its
11    compensation carrier to the same effect. But there are other
12    companies involved that we still need to talk to, and that
13    problem is just beginning. And if there is a dispute, those
14    disputes will come to me, because it's what you call an
15    ancillary or supplementary jurisdiction to deal with the
16    efficiency and effectiveness of the settlement.
17          We all have to remember, this is public money that is
18    funding the settlement. It's FEMA money. And there are
19    different interests that are affected here because the FEMA
20    money has not been set up to make awards to insurance carriers
21    who want to grab back what they've advanced for because of
22    their insurance obligations. But those insurance obligations
23    may not entitle them to recapture money. That's all going to
24    be litigated, if it ever is litigated. I hope that the same
25    public spirit that informed the city in waiving its liens will
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1    inform other carriers also involved with the public interest to
2    similarly waive their liens. But that will come in the future.
3          I'm sorry to interrupt.
4          MR. GARRETSON: No, your Honor. That's very
5    appropriate. In fact, I'm very pleased to say that just this
6    week we received Medicare's agreement to waive all liens they
7    have and these payments being made presently.
8          So, milestones. One thing I'd like to point out is, I
9    know at times when you see a complex settlement agreement --
10    we've seen many of them -- people say, how in the world will
11    this get done? Well, the short answer is, step by step, in a
12    very methodical way.
13         The dates I'm going to show you are, of course,
14    subject to the threshold that's being met as well as some other
15    conditions, such as work verification, but we're now leading up
16    into this opt-in to the settlement period, that assuming that
17    that would conclude on September 8th, that we would have a
18    final settlement agreement effective date of September 30th,
19    2010. From there, what is very unique, as I said, about this
20    settlement program is, within 20 days, these initial payments
21    of $3,250 would be processed, begin to be processed to all
22    claimants participating in the settlement program, regardless
23    of which tier they are in. And of course that would mean those
24 that have complete files.
25         Contemporaneous with that, the firms, the law firms
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1    are involved -- are already in the process of testing and being
2    ready to submit all of their claims forms to us. That is a
3    45-day window. I think we'll be complete well inside of that.
4          For Tiers 2 and 3, within 70 days, we estimate that
5    the final accelerated payments -- and I'll review those
6    accelerated payments for everyone here in a few moments, but
7    those final accelerated payments that Mr. Napoli shared will be
8    processed, and that would mean the Tier 1, 2, and 3 are
9    bringing their process to a close in just a matter of a few
10    short months.
11         THE COURT: Before Thanksgiving. Before Thanksgiving.
12         MR. GARRETSON: Yes.
13         THE COURT: This process finishes September 30. That
14    means that Tiers 1, 2, and 3 will be paid and parts of Tier 4
15    will be paid before Thanksgiving.
16         MR. GARRETSON: It's a very aggressive time frame but
17    very manageable.
18         During this time we'll also be issuing deficiency
19    notices, and I know that that sounds like it's just
20    nomenclature that wouldn't matter to us, but I can tell you
21    from running several settlement programs that too often people
22    find out five, six months down the road that there's some piece
23    missing from their file. That's not this program. We're going
24    to be notifying counsel, as soon as they upload information
25    into our claims system, of any deficiencies, and we'll be
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1    working with them to cure those during the next 90 days on a
2    rolling basis.
3          Interim payments. This is the tier, the first -- I
4    should say the second, because everyone gets an initial
5    payment. This is the second payment to the Tier 4 claimants,
6 and basically what this is is, once we get through about
7    finalizing 40 percent of the reviews for Tier 4 plaintiffs,
8    we'll be in a position to pay approximately 40 percent of the
9    estimated final award for each Tier 4 plaintiff. We are not
10    going to ask them to wait until the very end of the program to
11    receive their payment.
12          THE COURT: I want to stress how important this is.
13    The Tier 4 people, the ones who were most severely injured, who
14    were subject to a lot of different adjustments to make sure
15    these are individual settlements appropriate for each
16    individual, going into the prior history of medical ailments,
17    prior smoking habits, intensity of injury and so on, now most
18    settlements don't pay anything until everything is done. The
19    feature of this settlement is that to the extent that people
20    can be paid, they will be paid and they will get their money
21    early. The interim payments are scheduled and, if all goes
22    well, could be paid by when, Mr. Garretson?
23          MR. GARRETSON: The interim payments should be
24    complete within six months of the final settlement agreement
25    effective date, and that's for files that are complete, you
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1    know, that we could put in the queue as complete files that we
2    could begin work on.
3          THE COURT: So everyone will be paid, including the
4    Tier 4s, its initial payments before Thanksgiving. Before
5    Easter, they'll be paid 40 percent of their claims. Now this
6    is very rapid. There are very few settlements I'm aware of
7    that proceed this efficiently.
8          MR. GARRETSON: Yes. During this -- also during that
9    time frame leading up to the issuance of interim payments and
10    continuing throughout, we'll be completing our initial audits,
11    subject to the settlement process agreement terms. We will be
12    responding on a rolling basis to all reconsiderations,
13    reconsideration requests, and then we will begin the process
14    and procedures, working closely with Mr. Feinberg so that he
15    can issue and respond to all appeals within a 290-day time
16    frame. And those, of course, would continue to be done on a
17    rolling basis. We estimate that it's possible to complete the
18    allocation process in 315 days and then be in a position, once
19    appeals are done and all reconsiderations, to complete the
20    final distributions, all of this within an aggressive but very
21    doable one-year time frame.
22         You heard a little bit about the review of medical
23    records, and I mentioned that it is not just individuals at the
24    Garretson firm who will be reviewing those records. We will
25    bring our billing and coding specialists, who are experienced
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1    in looking for diagnoses and other criteria in medical records,
2    as well as our panel and team of registered nurses, but very
3    unique to this program and overseeing the review process that
4    we employ as well as aiding us to clarify any ambiguity we
5    might find in the medical records is a panel of leading
6    physicians from leading medical institutes, and they're also
7    practicing physicians, and they have a lot of hands-on
8    experience with the types of illnesses and diseases they'll be
9    reviewing. And all that will be supported through the systems
10    and processes that I've mentioned.
11         The objective criteria by which we'll be reviewing --
12    I won't read -- list the ten qualifying injury categories or
13    the components thereof, but I would like to speak a little bit
14    about the adjustment factors.
15         As you'll see as we continue for the Tier 4 claimants,
16    there is a process by which we assign the base points to the
17    qualifying injury and then make adjustments to those base
18    points based on secondary qualifying injuries, preexisting
19    injuries, the timing of the diagnosis of such injuries, the age
20    on 9/11, the last date of alleged exposure, the duration of
21    exposure, plaintiff's smoking history, and the location of the
22    alleged exposure. But beyond making those adjustments to the
23    base awards, which I will show several examples of, plaintiffs
24    will qualify for additional payment criteria based upon the
25    qualifying surgeries that are provided for in the settlement
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1    process agreement, mixed orthopedic injuries, and the permanent
2    disability fund.
3          The number one rule when we administer or parties
4    settle aggregate settlements, meaning settlements involving
5    hundreds if not thousands of people, is that it's not a rule
6    that everyone must receive the same payment but what is a rule
7    is, we need to treat similarly situated individuals the same,
8    and that is why this tier system works so well. And of course
9    there's examples, and I won't get into the details, but we have
10    Tier 1, 2, and 3, which have those fast fixed payments. If you
11    recall, that's the interim -- the initial payment for Tier 1,
12    and then for Tier 2 and 3, they also receive the accelerated
13    final payment, and then Tier 4, being the higher level of
14    injuries based on the criteria discussed by the other
15    presenters today, will receive this interim and final payment
16    based on their point score.
17          The claims submission process and the technology to
18    support it. I've mentioned it. I won't spend a lot on this
19    because of course not everybody in the room needs to understand
20    the supporting technology. But what it will highlight for
21    everyone in the room is why this settlement program will be
22    efficient and resolving faster payment, which means faster
23    closure, and that is, we will be reporting to counsel, as they
24    submit claims forms into our system, any informational
25    deficiency we have so that they can immediately begin to cure
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1    those. Why that's important is, as we've said and as your
2    Honor has said, we're going to process these claims on a first
3    in and first out basis, so the number one objective plaintiffs
4    and their counsel have is to ensure that they're collecting and
5    providing us the plaintiff records and data so that we can get
6    their file in a position where it's substantially complete and
7    then it will go into the queue and we will begin our work. But
8    as I said, we are not going to delay the notification of any
9    deficiency. Counsel will be told automatically and daily of
10    any deficiencies that exist in any of their clients' files.
11    And of course once those submissions are complete, first in and
12    first out will be the mantra within each tier, and we will
13    begin the work verification, the qualifying records, the
14    criteria adjustments, looking for the application of additional
15    payment criteria such as surgeries, orthopedic injuries,
16    permanent disability, as well as the derivative and decedent
17    claims.
18          The payments. I just want to review it with the risk
19    of being overly repetitive. I really want to just make sure
20 everyone's following, before we go into the point system, that
21    it only applies to Tier 4. Tier 1, again, the initial payment
22    of 3250 within 20 days of the opt-in threshold being met, that
23    process will begin and could logically be concluded. Tier 2
24    and 3 receive that initial payment and then the accelerated
25    payments, the fixed accelerated payments, based on which docket
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1    applies to them that Mr. Napoli articulated. But as you see,
2    those remaining accelerated payments may be upwards of $7,750.
3    And each of those tiers receives the unique cancer insurance
4    policy that was discussed earlier. It is Tier 4 that receives
5    the interim payments I mentioned of 40 percent as well as that
6    final distribution within one year of the final settlement
7    agreement effective date.
8          So how does the point system work for the Tier 4
9    plaintiffs? Well, first we're going to identify the
10    plaintiffs' most highly valued qualifying injury and severity
11    level. There is base points articulated in the settlement
12    process agreement or -- and just to point to that exhibit so
13    that everyone might view it later. The settlement grid, which
14    is Exhibit C, contains those base points. These base points
15    will be added to or subtracted from, depending upon the
16    adjustment factors. Each Tier 4 qualifying plaintiff will
17    receive a total score that combines all these factors, and then
18    we will present that information in final form to the
19    plaintiffs and his or her counsel and then they will have the
20    opportunity to submit a reconsideration directly to us if
21    perhaps they believe there was an error made or perhaps the
22    documents were reviewed incorrectly.
23          THE COURT: There's a gentleman, the gentleman in the
24    second row, that looks to have some health issue. Are you all
25    right, sir?
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1          MR. PRAGER: I'm fine.
2          THE COURT: Do you need to walk around a little bit
3    just to get some circulation in you?
4          MR. PRAGER: No, not circulation. I had three
5    operations and I'm --
6          THE COURT: How about a walk around the room or
7    something like that? This is taking a long time, and I
8    understand that some of you may be having some difficulties,
9    but if anyone is having any kind of difficulty, we can adjust
10    to it and accommodate.
11         Sorry, Mr. Garretson.
12         MR. GARRETSON: Thank you, your Honor.
13         So after the final points are reviewed, we'll submit
14    them, people can request a reconsideration and, after we
15    determine the outcome of the reconsideration, may further
16    appeal to Mr. Feinberg.
17         So against that backdrop, let me walk you through a
18    few examples. As I get through a few of them, in the interest
19    of time, I might start speeding up, and if anyone has any
20    questions, we can address those later.
21         But the first example is an interstitial lung disease
22    impairment level 2. As you would see in Exhibit -- or Exhibit
23    C, that starts with 60,000 points. Points are not dollars yet.
24    All we're talking about is a point system that we will then
25    translate into dollars at the end. So it starts with 60,000
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1    points. And just to -- for purposes of -- well, I'll save the
2    point value till I get a little farther along. 60,000 points.
3    They were first diagnosed within seven months. There's no
4    effect on that, those numbers. That would only be affected if
5    it was diagnosed at a later time. 55 years or older, there is
6    a slight decrease. And that's 55 years or older at the age of
7    9/11.
8            And let me just make a quick point here, your Honor.
9    Of course that's not to imply that somehow older people are
10    less valuable than younger people. It is simply a universal
11    rule in any mass tort settlement program that I've been
12    involved with that because younger people will live with their
13    illness and disease longer, that they generally receive a
14    higher level of compensation.
15           So 55 years at the age of 9/11, there was a decrease.
16    This individual is a nonsmoker so there's no impact. And then
17    there are no impacts related to the day, the last day of
18    exposure, the duration of exposure, or the location. When we
19    look at the days, on the last day of exposure, we're looking to
20    see whether somebody was there just on 9/11, for 9/11 and then
21    a couple days or all the way through September 15th or later.
22    Duration of exposure simply means how -- for how many hours,
23    consecutive hours during that time frame were you exposed.
24           So under this scenario, after the slight adjustment on
25    age, there's 54,000 points, and we've determined, with the help
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1    of counsel, that a range of value for each point will be
2    between $7.52 and $9.19, and so by multiplying those numbers,
3    those dollar values times 54,000, you see that we have a range
4    of qualifying injury payout for this interstitial lung disease
5    of 400,000 roughly to 500,000.
6          THE COURT: Hold on, Mr. Garretson. For the benefit
7    of people who are having difficulty getting all these technical
8    criteria into their mind, it's not important now to know just
9    what all these technicalities mean. So let me give you a few
10    generalities.
11          Remember that restrictive lung disease are the kinds
12    of diseases that have affected adversely the lining of your
13    respiratory tract. So instead of the body smoothly passing
14    things down into your lungs, you get a lot of friction causing
15    coughing, irritation, phlegm and other kinds of things like
16    that that make it difficult to breathe. And then there's an
17    impairment level, what degree of severity is involved. These
18    points reflect issues of severity. And they range from
19    something in the 600s marking one disease to something as high
20    as 200,000, which is the situation of death. So these points
21    reflect on a scale the degree of severity. If we're talking
22    about a base point of 60,000, that's probably about a third of
23    the way up towards severity. So these are efforts to measure
24    the severity of a particular category of disease and further
25    adjusted by various other factors that Mr. Garretson is talking
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1    about. But don't try to remember points, but just think of it
2    in terms of some way that we are quantifying the degree that a
3    person is injured in a category that is considered to be
4    related to having worked at the World Trade Center sites and
5    related sites.
6          MR. GARRETSON: Thank you, your Honor.
7          So carrying forward from Example 1, once we -- all
8    we've done now is evaluated their qualifying injury payment.
9          THE COURT: And why we're doing this now is to show
10    that when a person walks into the system, that person going
11    through this analysis will be able to understand what category
12    of recovery and what amount of recovery, though not with
13    complete precision, that person's going to get. He will know
14    approximately what he will get at the end of this process.
15    That's how the base points will relate to that person. So it
16    is considered -- and Professor Simon's going to get involved in
17    this a little bit -- that through the protocols of
18    communication that we will be offering and other kinds of
19    meetings, people will be able to know in advance, in this Tier
20    4, what they're likely to recover in the settlement process and
21    thus make a better and more intelligent decision whether to opt
22    in or to stay out.
23          MR. GARRETSON: That's correct.
24          So Example 1, just continuing on, we have the
25    qualifying injury projected payout that I carried forward from
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1    the previous slide of roughly 300,000 to 500,000, and then we
2    add and evaluate additional payment criteria. This individual
3    had a single lung transplant and was eligible for an additional
4    $100,000 payment. He was also granted permanent disability and
5    received yet another 25,000 to $30,000, depending on the point
6    value as we discussed.
7          THE COURT: This is a hypothetical.
8          MR. GARRETSON: Yes. For a projected payout of
9    531,000 to $627,000.
10             THE COURT: So a person with an interstitial lung
11    disease that has the severity of causing that person to lose a
12    lung, being a certain age and whether or not he's a smoker
13    before or not will be able to anticipate how much he will get.
14             MR. GARRETSON: That's exactly correct.
15             So a couple more examples. This is an asthma/RADS
16    case, impairment level 1. It starts with 7500 points as its
17    basis.
18             THE COURT: What is RADS?
19             MR. GARRETSON: Restrictive airways disease.
20             THE COURT: The accumulation of scar tissue is such as
21    to make it difficult for a person to breathe. A person who
22    wheezes, for example, displays what could be RADS.
23             MR. GARRETSON: So in this situation, because of the
24    factors that were discussed with respect to causation, which
25    were outside the scope of what we're doing, we're applying a
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1    predetermined set of criteria, but here, this individual is
2    first diagnosed within seven months of the last day of exposure
3    at the 9/11 site and therefore received an increase of
4    30 percent, which took the basis points up. This individual
5    also had a second injury that they qualified for, chronic
6    rhinosinusitis impairment level 2.
7          THE COURT: And what is that --
8          MR. GARRETSON: Which --
9          THE COURT: -- rhinosinusitis?
10          MR. GARRETSON: I would say chronic runny nose, but I
11    don't want to be trite about it.
12          MR. GRONER: It's chronic upper respiratory disease,
13    your Honor.
14          THE COURT: Meaning something in the tubes that come
15    from the trachea?
16          MR. GRONER: No, no. It would be the nasal passages
17    and the sinus passages, chronic inflammation.
18          THE COURT: Okay. Thank you.
19          MR. GARRETSON: So the point here is to show that this
20    individual with asthma and RADS also had a secondary disease,
21    and both are considered within the settlement program, so
22    having added those points together, then we make the same
23    age -- type of age adjustments, determine if they were a
24    present or former smoker, and then go through the process of
25    looking at the time of exposure.
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1          THE COURT: So the methodology of the settlement, this
2    is also important. And important also in terms of
3    understanding the benefits of it is to look at the most severe
4    injury that a person shows and to figure out the compensation
5    level. But if that person, it's also the case, has suffered
6    another kind of injury, there's an additional adjustment factor
7    that takes that into account. So a person who suffers from two
8    diseases is considered to be more seriously afflicted than a
9    person with only one disease.
10         MR. GARRETSON: Exactly.
11         So here, carrying down this continuum, your Honor,
12    this has a qualifying injury projected payout of $78,500 to
13 roughly $96,000. And then again, just a point of
14    demonstration, to that qualifying injury projected payout, this
15    individual, if they were permanently disabled, would receive
16    the additional compensation of $63,800 to $78,000, yet again
17    augmenting, nearly doubling the qualifying injury projected
18    payout.
19         Just a couple more. This just shows within -- now the
20    previous example was asthma/RADS but it was at impairment level
21    1. And this is just to show how we further stratify, if you
22    will, within each disease category, the levels of severity.
23    Here we have a level 4. It is an 85,000-point base point.
24    Going through the diagnostic criteria --
25         THE COURT: Roughly 12 times the compensation for an
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1    adjusted factor that a person with impairment level 1 would
2    get.
3           MR. GARRETSON: So it shows --
4           THE COURT: All these values are weighted in favor of
5    severity. The more severe the injury, the higher the
6    compensation. It's not just in a linear way, but it is a
7    measure of geometrical progression.
8           MR. GARRETSON: And the point here is to show, with
9    these increases, the increases based off the time of diagnosis,
10    we have a qualifying injury payout upwards of a million dollars
11    for this example, and yet again, just to show that each of
12    these, once they have a qualifying injury projected payout, go
13    through a procedure of evaluating separate payment for
14    disability and/or surgery and/or mixed orthopedic injury. Here
15    we have a total projected payout enhanced again by permanent
16    disability.
17          Lung cancer, impairment level 2, 10,000 points. Same
18    kind of process. Just to make a point, each case is going to
19    be treated with this same objective process, the same type of
20    adjustments and factors and come out in the end with a primary
21    qualifying injury projected payout.
22          An evaluation of surgery, disability, and orthopedic
23    injury. Here we have a mixed orthopedic injury that could be
24    awarded up to $10,000 based on the allocation neutral and their
25    medical support staff review of medical records.
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1          And finally, this is an upper digestive, 1,950 points.
2    Same kind of treatment as I've shared. Regardless of where you
3    start in the qualifying injury, these adjustment factors will
4    be similarly applied to everybody who participates in the
5    settlement program. And even when the settlement values on
6    a -- for instance, an upper digestive impairment level may be
7    quite a bit less than the highest value asthma/RADS level, each
8    level of injury in Tier 4 can continue on to be reviewed for
9 the surgery for the permanent disability and the mixed
10    orthopedic injury.
11         And then as I said, if you think about it
12    logistically, what is going to begin to happen are plaintiffs
13    are going to begin to be informed by their lawyers, which --
14    where they should fall, based on their tier and qualifying
15    injury, the assumed adjustment factors, and I think most people
16    should know -- those adjustment factors are rather
17    straightforward. They will have an idea of their projected
18    payout. We will then run through this process that I've
19    articulated here this afternoon. We will present our findings
20    back to counsel that they can then review them with each
21    individual participating claimant, plaintiff. At that time
22    they can submit to us a request that we -- for reconsideration
23    and instruct us as to what they believe our error has been.
24    The standard for reconsideration is proof that we misapplied
25    these objective criteria that, again, are very straightforward
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1    and are known before you go into the doorway to begin this
2    settlement program. If you still disagree with our finding,
3    you believe that we've abused the discretion granted to us
4    within this settlement process, the appeals to Mr. Feinberg may
5    occur, and his decision would be final and binding.
6          So with that, your Honor, I conclude --
7          THE COURT: They would not be coming to me. The
8    purpose here is to have a self-contained appellate process.
9    Mr. Garretson and his staff making the initial determinations
10    and any determinations on reconsideration, and then any appeals
11    going to Ken Feinberg as the appeals neutral, and that ends the
12    process.
13         This is a typical way that many benefits programs are
14    administered. In ERISA cases that is the model that's
15    followed, and you can come to a court afterwards, but the rule
16    for appeal is very narrow and there's a great deal of deference
17    to the discretion exercised within that process itself. It
18    will not be appealed to me. This will be a self-contained
19    process. Very simple reason for that. There's a value in
20    prompt and efficient administration. The value in keeping down
21    the cost of administration and speeding up the process in
22    distributing checks, if cases came to the courts, once they
23    come to me, they can also be appealed to the Court of Appeals.
24    The entire process would be slowed, and it would be impossible
25    to make the kinds of payouts with the speed and efficiency of
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1    the payouts that Mr. Garretson is describing.
2          Like everything else, there's a tradeoff. It was my
3    interest to make sure that there was an integral internal
4    process which would deliver justice and the appearance of
5    justice, and I'm satisfied that with the process that
6    Mr. Garretson described, including the appeals to Mr. Feinberg,
7    we've achieved that goal. And it's especially critical because
8    we have a very wide range. We have some settlements at $3,250,
9    and we have another possibility of settlement at $1,800,000.
10    That's an extraordinary range, with the same lawyer
11    representing possibly both people. It's important that there
12    be a judge to evaluate that kind of fairness. And it's
13    important that we devise a system that can capably deal with
14    that kind of a disparity so that people know why there is a
15    disparity, understand and accept it and allow the process to
16    function with fairness and efficiency.
17         MR. GARRETSON: Thank you, your Honor. That
18    concludes -- I'd be remiss if I didn't say that on behalf of my
19    colleagues that we're very thankful and grateful for the
20    opportunity to serve these heroic men and women, the parties,
21    and the Court.
22          If I can just conclude by saying, I recognize the
23    importance of this program. Everyone involved deserves our
24    best, and they will in fact get that from us.
25         Thank you, your Honor.
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1          THE COURT: Thank you, Mr. Garretson. Professor
2    Simon.
3          PROF. SIMON: Thank you. May it please the Court, my
4    name is Roy Simon. I am honored that the Court has appointed
5    me to serve as the legal ethics expert in this process.
6          As a law professor, I have devoted the last 25 years
7    of my life to studying and writing about and trying to improve
8    the conduct of lawyers. As the court-appointed legal ethics
9    expert, I will be a neutral, impartial monitor to watch over
10    the plaintiffs' lawyers. I am working for the Court to help
11    safeguard the interests of the plaintiffs who deserve our
12    deepest respect. My purpose as the court-appointed legal
13    ethics expert is to ensure that the information the plaintiffs'
14    lawyers give to their clients about the proposed settlement and
15    its advantages and disadvantages is full and fair and accurate
16    and in no way distorted by possible conflicts of interest, so
17    that the clients have all of the facts they need to decide
18    whether to participate.
19          The settlement agreement, which you have held up for
20    us to look at from afar, is lengthy and complex, detailed,
21    dense, so the plaintiffs' lawyers plan to send a letter
22    summarizing its terms. I have approved this letter, and I
23    understand that you will be examining and approving it before
24    it is sent out so that when the plaintiffs receive this letter,
25    they can have complete confidence that the letter is accurate.
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1    Additional communications will be posted on the internet, and I
2    will review those as well. Nothing the clients need to know
3    will be withheld or slanted or exaggerated.
4          By negotiating this settlement, the lawyers have given
5    the plaintiffs the opportunity to obtain a swift and certain
6    payment. The difference between settlement and litigation is
7    the difference between a bank account and a lottery ticket.
8    Opting into the settlement is like money in the bank, but
9    opting out of the settlement is, for all of the reasons given
10    by Mr. Tyrrell -- the defenses, the Daubert problems, the
11    appeals -- opting out is like trading that money for a lottery
12    ticket. The price of that lottery ticket ranges from hundreds
13    of -- from thousands of dollars for those in Tiers 1, 2, and 3,
14    to tens of thousands or even hundreds of thousands for those in
15    Tier 4.
16         This is a momentous decision. It is not my job to
17    recommend that any plaintiff accept or reject the settlement.
18    But before any plaintiff makes this -- this huge decision to
19    stake their financial future on a world of uncertainty or,
20    instead, to give up future possibilities for a settlement offer
21    now, it is my job to ensure that each individual plaintiff has
22    all of the information that that person needs to evaluate the
23    settlement and that the information is accurate.
24         The plaintiffs' lawyers are working hard to get their
25    clients all of the information they need. To give the
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1    plaintiffs maximum confidence in what the lawyers tell them, I
2    am looking over the lawyers' shoulders with the plaintiffs'
3    best interests in mind. In short, my goal is to give the
4    plaintiffs and the public added assurance that the lawyers are
5    telling it like it is, making full and fair disclosure to each
6    and every plaintiff.
7          I am honored that you have appointed me to monitor the
8    lawyers who are assisting these deserving and honorable
9    plaintiffs.
10          Thank you very much.
11          THE COURT: Thank you, Professor Simon.
12          I want to repeat something I said earlier. I did not
13    appoint Professor Simon because of distrust of the plaintiffs'
14    lawyers. I want everyone to know how hard they have worked.
15    They took these cases when there was no one to take these
16    cases. They've invested a huge amount of time and energy and
17    capital, now over a period of seven to eight years, in moving
18    these cases. I can't tell you how much work that has involved,
19    nor how much capital that has involved, nor how many sacrifices
20    they made in giving up other opportunities to represent
21    clients. This case has been exhausting. It's required 24
22    hours of work sometimes by multiple people in their law firms.
23    It's doubtful to me that there was enough manpower left in
24    these law firms to do anything else of any sizeable
25    proportions. No one brings these cases for nothing. Sure,
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1    there is an expectation of recovery and the potential of a fee,
2    but there's also the potential for a loss and a recovery of
3    nothing. Now a contingent fee lawyer can take those risks in
4    the ordinary run of cases because the lawyer has many such
5    cases and some will succeed and some will fail. But when you
6    have a mass tort case of like this, with the numbers of clients
7    that are involved, there is no averaging that is possible.
8    It's an all-or-nothing affair.
9          Now when I looked at the recoveries at the beginning,
10    I made a comment that the lawyers were getting too much and the
11    people were getting too little. And as I insisted that there
12    be a reduction in fee, there has been a reduction in fee. And
13    as these lawyers have pointed out, that reduction had been
14    worth approximately $55 million. It could be more, because
15    there's a lot of incidents in this case as to which lawyers
16    generally charge but as to which they are not charging here.
17    For example, the benefits under a cancer policy, they're not
18    charging for that; all right? Other values in the case are not
19    being charged. The waivers of liens are not susceptible to
20    charges. So there's more than $55 million. It's not important
21    to value it; it's just important to know that there has been a
22    spirit in bringing about this settlement, because it is so
23    important and desirable as modified, that we've been able to
24    bring more value to the table. We've been able to bring a fair
25    process to the table, but we have not ended the lawyers' work.
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1    That will continue. And for this work, because they have
2    produced so much value, the lawyers are entitled to a
3    reasonable fee. Sure, it's large, but think of it. This is
4    compensation for seven and eight years of work. It's also
5    compensation in relationship to a very substantial benefit that
6    is being delivered, and it's a concept that is vitally
7    important because without this work, there could have been no
8    success in this case. There would have been no recovery for
9    the people involved. So we need to think about that when we
10    measure the fee and expenses recovered by the two law firms and
11    others involved in this case.
12          With regard to expenses, the criteria I've insisted
13    on, and to which they've agreed, is that there will be no
14    charges in addition to that which is actually charged or where
15    the service is provided by the law firm, the charge is no
16    greater than that which is commercially available, expenses
17    included, and they'll be subject to monitoring. All this to
18    bring about the largest possible net recovery to each
19    plaintiff.
20          With regard to Professor Simon, his role is extremely
21    important because his presence gives everyone assurance that
22    the message being delivered to each plaintiff is fair, clear,
23    and accurate. This is not to say that a message delivered by
24    the lawyers Napoli and Papain and their firms is anything else
25    or would have been anything else had they done it themselves.
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1           But this extra measure of precaution is useful because
2    it gives everyone, and me, the feeling that it will be done
3    right, not to pull over any message on someone that is not
4    proper, not to hoodwink anybody, not to impress anyone with
5    someone else's wisdom, but to make it possible for each person
6    to make a judgment for himself or herself: Is this a fair and
7    reasonable settlement, should I join it, and should I do it
8    now? That is Professor Simon's role. Thank you.
9           MR. SIMON: Thank you, your Honor.
10          THE COURT: The last word on this -- the next to last
11   word, is Professor Twerski speaking for himself and Professor
12   Henderson. They have been the special masters in this case and
13   for their work, everyone here has a great debt of gratitude to
14   pay.
15          MR. TWERSKI: May it please the Court, my name is
16   Aaron Twerski. I'm a professor of law from Brooklyn Law School
17   and the other special master in the case is Professor James
18   Henderson from Cornell Law School. The parties -- plaintiffs,
19   defendants, captive insurance -- know that we speak in one
20   voice. We have been on conference calls -- hundreds maybe,
21 maybe now even thousands of them -- together. We are, as
22   Professor Henderson says twins joined from birth at our hip.
23          What I say here today is clearly the view of both of
24   us. This case -- and let me say that we bring to this process,
25   between the two of us, 80 years of experience in tort law and
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1    product liability law. And it has taken all of those 80 years
2    to have made it through this. I think I can say without
3    equivocation that this is the most complex mass tort case in
4    the history of the United States. This is not a case dealing
5    with a single drug or a single toxic event. In this case there
6    are 9,000 or between 9,000 and 10,000 different people,
7    different injuries, different exposures, extraordinarily
8    complex to get the arms around it.
9         Secondly, it's been emphasized, but it needs to be
10   said again: This is not a Victims Compensation Fund. What
11   Mr. Feinberg administered after 9/11 was a Victims Compensation
12   Fund, which Congress basically gave him a blank check to
13   compensate people who were injured. This is a tort case. The
14   captive insurance company was insuring the city and its
15   contractors against tort liability. And tort liability
16   requires proof of fault, proof of causation, and all -- and the
17   difficulties that Mr. Tyrell spoke about, without question. So
18   this was not a giveaway program; this was tort litigation. And
19   as tort litigation, it had all of the pluses and minuses that
20   go along with tort litigation, the chances of significant
21   recovery if you won, of significant loss -- of no recovery if
22   you lost. I think it is, in our point of view, important to
23   point out why we believe this settlement is fair. In reviewing
24   the numbers and in reviewing the kinds of recovery, my
25   co-master, Professor Henderson, looked painstakingly at the
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1    Victims Compensation Fund and the kinds of recoveries that took
2    place under the Victims Compensation Fund, the kinds of monies
3    that were paid out by Mr. Feinberg, and found very comparable
4    recoveries under this settlement. And that's astonishing
5    because the Victims Compensation Fund was not fault-based.
6    This is a case in which there are all of these factors that had
7    to be -- all of these discount factors that had to be taken
8    into account. And so, therefore, the fact that we were
9    comparable in many ways to the Victims Compensation Fund is a
10   sign of how fair the settlement is. In fact, the recoveries
11   could have been -- lesser recoveries might very well have been
12   justified.
13         We are also aware, from our discussion with the
14   parties, that they did their own investigations from other mass
15   tort cases as to similar types of recoveries, and found them --
16   and found their numbers very comparable to the numbers that
17   were present in other mass tort cases.
18         So, anyone who is concerned about whether or not this
19   settlement is fair ought to have their minds at rest. This is
20   a fair and sensible settlement.
21         I think a word needs to be said about the fact that,
22   as we have heard today, 96 -- 94 percent of the monies of this
23   are going to the most seriously injured people. That did not
24   happen by accident. That happened because from day number one,
25   the instruction from Judge Hellerstein was: I am concerned
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1    with two things; number one, that those who are seriously
2    injured get the most compensation, and that there is a
3    relationship between the injury and exposure to the 9/11
4    worksite. Both of those things were taken into account. And
5    since it was the instruction from day number one, it led to our
6    ability to find objective criteria; and the judge insisted on
7    it, that we find objective criteria in order to measure the
8    injury. It wasn't going to be somebody's say-so; it was going
9    to be objective medical criteria, and that came from the
10   American Medical Association and from the American Thoracic
11   Society, and throughout all these categories that we've talked
12   about. So there ought to be enormous confidence in the numbers
13   that have been produced and the kinds of payout that will take
14   place to the injured plaintiffs.
15         One final thought: In administering this settlement,
16   the judge has put together what I consider to be a dream team.
17   One could not want better than Matt Garretson, one could not
18   want better than Ken Feinberg, and one cannot want better than
19   Roy Simon. This fund is going to be administered in a way in
20   which the question of its fairness, the question of its
21   transparency is simply beyond doubt. This is a terrific
22   settlement and -- I don't know if I step out of line, but to
23   say that I think that Professor Henderson and I recommend it
24   with great enthusiasm to all the plaintiffs in this case.
25         THE COURT: Thank you very much, Special Master
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1    Twerski.
2          Mr. Groner wanted to have an opportunity to say
3    something if something needs to be said in light of the issues
4    of the case. Now is his turn and then we're going to turn this
5    over to the public.
6          MR. GRONER: Your Honor, I was going to speak about
7    Workers Compensation, but I think that your comments satisfied
8    that issue.
9          THE COURT: Thank you, Mr. Groner. Thank you very
10   much.
11         All right, now we're going to hear from the public and
12   people who were involved in 9/11. I'm asked by James J. DeVita
13   if his turn could be advanced, and it is, so Mr. DeVita?
14         UNIDENTIFIED SPEAKER: He had to leave because of
15   health issues, your Honor.
16         THE COURT: He had to leave?
17         MR. NAPOLI: Your Honor, Mr. Greco approached me at
18   the break. His father is ill and he was going to go to the
19   hospital; he'd like -- he's number two on the list -- if he
20   could go first.
21         THE COURT: Yes, of course. Joseph Greco?
22         MR. GRECO: Good afternoon, Judge.
23         THE COURT: Good afternoon.
24         MR. GRECO: My name is Joseph Greco. I want to start
25   off by thanking you, Judge, Mr. Napoli and Mr. Bern for giving
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1    me this opportunity to speak to you once again regarding this
2    settlement. I'm sure you recognize my name; I was one of the
3    privileged speakers at the last fairness hearing where I did
4    speak about my approval on the last settlement deal. Judge, I
5    want to personally thank you for having both sides come up with
6    a bigger, better and very, very fair settlement. I am a
7    retired detective on disability from the NYPD. I'm currently
8    on 12 medications a day right now, and I do a breathing machine
9    five times a day to keep my lungs open due to my severe asthma.
10   I've been on steroids now for four years, which is now
11   affecting my bones, which I am told that's one of the long-term
12   effects. Every time my doctors try to wean me off the
13   steroids, I end up in the hospital. Some days, I can't even
14   walk, due to the steroids; other days, I walk with a limp. I
15   currently go to therapy three times a week to try to strengthen
16   my legs, but I was told, as long as I'm on the prednisone,
17   which is a steroid, that I'm going to have these problems; and
18   without the steroid, I can't breathe.
19         Judge, this settlement not only gives my family
20   compensation, although no amount of money is going to
21   compensate and bring back my health, but it does give me a
22   peace of mind that my family is going to be taken care of; and
23   like I told you at the last hearing, when I die my pension
24   dies. I also see that there's a permanent disability fund and
25   a cancer insurance policy for everyone involved in this
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1    settlement. And also what I understand is that there's going
2    to be a fair appeals process for people who don't agree with
3    their settlements and who warrant more money. And from all the
4    great things I heard about Mr. Feinberg and Mr. Garretson,
5    there's no doubt in my mind that this is going to be a fair
6    process. And that's all we can ask for, is that it's fair.
7          You know, I've been thinking a lot about the Zadroga
8    bill and this bill for the last couple of days, for about the
9    past week. Last week -- my son's been asking me for the
10   longest time to go fishing and I've been putting it off,
11   putting it off; I haven't been feeling too good. Last week, I
12   felt up to it and I felt pretty good that day, and I said I'm
13   going to take him fishing. I woke him up out of -- he was
14   sleeping. I said listen, Joey -- that's my son's name -- I
15   said, would you like to go fishing today? You would think he
16   hit the lotto, how high he jumped out of bed. He was dressed
17   in about 35 seconds, ready to go fishing. Anyway, we packed up
18   everything, packed up lunch, I had my breathing machine which I
19   carry with me all the time. And we went fishing on the boat.
20   Halfway through the fishing trip, I didn't mean feel too good,
21   I went inside the cabin and I did my breathing machine. So my
22   son ended up coming into the cabin and he says, Dad, can I ask
23   you a question? I said, yeah, what's a matter, Joe? He said
24   if something happens to you, who pays the bills? And I didn't
25   know what to tell him, I really didn't know what to tell him.
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1    I said, don't worry, Joe, nothing's going to happen to me. He
2    sees me all the time doing the machine five times a day at
3    least. And, you know, he's 13 years old, he's a smart kid, but
4    I really didn't know what to tell him.
5          And, you know, this settlement, people like myself we
6    really need this to go through. Our families have been through
7    so much; especially my family, we've been through so much this
8    past year. My case was one of the first cases picked to go
9    before you for trial. I was going through depositions for days
10   and days, my wife went through depositions, my doctors went
11   through depositions, my accountant went through depositions
12   with the city. I've had investigators from the city follow me
13   around, park in front of my house, take pictures constantly. I
14   mean they try contacting my kids on the computer, I've had
15   phone calls to my house pretending to be other people. This
16   just can't go on anymore, you know. And with your help and
17   with you approving this settlement, you know, we can put our
18   minds at ease, knowing that my family is going to be taken care
19   of.
20         Right now, my father's going through a very serious
21   operation, as I speak right now this afternoon. I would like
22   to be at the hospital, but this settlement means so much to me,
23   that I really wanted to be here. I mean my mother's not too
24   happy about it, but I really wanted to be here to explain to
25   you how much this settlement really means to me.
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1            THE COURT: It means a lot that you speak this way,
2    Mr. Greco. I thank you very much for your comments and I hope
3    that we'll have at least a 95 percent favorable vote.
4            MR. GRECO: I hope so too. And thank you for your
5    time, Judge.
6            THE COURT: The next speaker is Suzanne Conroy. She
7    has a letter; excuse me. I'll read her letter. Suzanne Conroy
8    is a widow of New York Police Department Officer Daniel Conroy.
9    Her daughter's birthday is today and she made a wise choice to
10   attend the birthday party that she's getting. Here's her
11   statement:
12           My husband Daniel Conroy passed away, from his World
13   Trade Center injuries in 2006. He has spent numerous hours,
14   days and months working at the site, under the most horrific
15   conditions and became ill because of his toxic exposure. No
16   amount of money will ever truly compensate my family and I for
17   our loss. That being said, I strongly feel that this
18   settlement is fair and reasonable. It will provide my family
19   with compensation that they deserve, in light of our heavy
20   loss.
21           She commends me, she commends her lawyers who have
22   worked hard in this case for many years, and I wholeheartedly
23   appreciate their symbolic gesture in cutting their fee because
24   it shows, she writes, that it's not about the money with this
25   case, it's about doing what's right for the workers.
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1         Lastly, she writes: I would like to state that this
2    settlement is great because people do not have to prove that
3    their injuries were a direct cause with their toxic exposure.
4    It was not the case when Daniel died and the New York Police
5    Department refused to acknowledge that his World Trade Center
6    exposure led to his untimely death. After three years and
7    numerous testimonials from Daniel's treating doctors, the
8    New York Police Department finally stated that Daniel's death
9    was related to his toxic exposure. This was a long and
10   exhausting process and I do not wish for any other person to
11   have to go through this arduous process. This settlement will
12   allow everyone to avoid this procedure, which is a huge
13   savings, in terms of time and money. And she thanks me for
14   time and consideration.
15         The next speaker is Candace Baker is Ms. Baker here?
16   She spoke last time as well remember. Come up, Ms. Baker.
17         MS. BAKER: I started off with "good morning," but
18   good afternoon, everyone. Before I speak before you today, I
19   would like to take the opportunity to extend a note of
20   gratitude to the following persons: Judge Hellerstein, I thank
21   you for your compassion and integrity in the search for honesty
22   and fairness. Mr. Feinberg, although he's not here, I would
23   like to say thank you for volunteering his services in this
24   delicate matter. Mr. Matthew Garretson and his resolution
25   group, I'd like to thank you for the many hours that you have
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1    ahead of you. I would like to say thank you to all of the
2    attorneys within the firms of Napoli Bern, Worby Groner Edelman
3    for all the time, effort, diligence that you have put in on our
4    behalf. I would like to say thank you very much for your
5    monetary sacrifice. I think that the amount of money that was
6    achieved was a wonderful settlement amount.
7         In listening today, I find myself that I'm very torn.
8    When I listen to Mr. Tyrell speak regarding the police
9 department and the fire department, I was very saddened. I
10   cannot say that I was not, because I was. Although we were
11   there and we were doing the job that we were paid to do and we
12   were ordered to do, many people could have stood aside and did
13   absolutely nothing. And because we stood up and we stood
14   forward, is why we have the city that we have today. As for
15   Ms. Margaret Warner, I'd like to thank you for the role in
16 which you've played. I listened very carefully as you spoke
17   very eloquently.
18         In the last week or so, I had the time to sit down and
19   speak -- to attend one of the recent town hall meetings. I was
20   provided an introduction for a basic understanding of the
21   settlement agreement and the calculation process. In addition,
22   I had the opportunity to meet with Mr. Lopalo of Napoli Bern to
23   become further enlightened of the settlement agreement. I also
24   was raised in my awareness of all the positive pros and cons --
25   pros of this settlement; it raised my awareness of the medical
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1    services that are available to us, some of which I was not
2    aware; reimbursement for some prescription plans of which I was
3    not aware of that either. The cancer policy that's put on the
4    table is absolutely fabulous because I am living testimony to
5    the fact that it was very difficult even inquiring of a cancer
6    policy once you're diagnosed with cancer. I never knew, like,
7    once you had it, that nobody would give you insurance.
8         I was also familiarized with the benefits of the
9    Zadroga drug bill, should it pass down the line. Although it's
10   a complicated and diverse agreement, I have a better
11   understanding of this point system. Even with my increased
12   comprehension, I find myself asking the same question numerous
13   times: Where do I fit in? How many points am I receiving?
14   Upon inquiry, with each response, I have some degree of
15   uncertainty and confusion in regard to the discrepancy and the
16   classification of cancer and the points rewarded respectively.
17   Cancer, by definition, is a disease caused by an uncontrolled
18   division of abnormal cells in a part of the body, a malignant
19   growth or tumor resulting from the division of such cells.
20   Myself as well as many other officers were retired as a result
21   of World Trade Center Disability Law, World Trade Center
22   Presumptive Bill, which included the onset of cancer
23   nonspecific as a qualifying condition to be disabling.
24         With no family history, no gene present, no past
25   history of smoking, once again, where do I fit in? In the
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1    article published in the New York Post, June 11, 2006, titled,
2    "Cancer Hits 283 Rescuers of 9/11," there were two particular
3    quotes of interest, the first being: "Doctors say cancer can
4    strike three to years after to toxins such as benzene, a
5    cancer-causing chemical that permeated through the World Trade
6    Center from burning-jet fuel."
7         THE COURT: Slow, Ms. Baker.
8         MS. BAKER: I'm sorry.
9         In relation to that statement, a Cornell University
10   research program on breast cancer environmental risk factors
11   published an article on brain chemical exposure and breast
12   cancer. It also named benzene as a chemical agent causing the
13   higher risk of developing cancer or dying from exposure. The
14   second quote that I observed was that of attorney Worby, where
15   he stated: We have nearly 35 of these cancers in a family of
16   50,000 Ground Zero workers. The odds of that occurring that
17   are hundreds of millions. He went on to state that: Others
18   suffer from tumors on the tongue, the throat, the testicles,
19   the breast, the bladder, the kidney, the colon, the intestines,
20   and the lung.
21         In my search for answers, I was told that the Daubert
22   standard was the reasoning behind the classification of
23   ailments. The discrepancy was due to inability to find actual
24   expert testimony as the causation of our ailments in relation
25   to the exposure. However, I contend that the burden of proof
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1    has not only been met by documented participation by the NYPD
2    and the Fire Department, but by the published reports of the
3    chemicals that we were exposed to, and by the proven existence
4    of our numerous ailments. For example, my cancer is classified
5    as a tumor and I am allotted 2,500 points; however, a person
6    with lung cancer is allotted 10,000 points, four times that of
7    breast cancer, and blood cancer is given 32,500 points or
8    roughly over 11 times that of breast cancer.
9         Our points should be the same if our disease is deemed
10   the same. To learn that you have this disease, our reaction is
11   the same as, if untreated, indisputably, our results will be
12   the same. As officers, we're ordered, under our oath, to
13   protect and serve and follow the commands as one and the same.
14   I ask that our cancers be regarded the same based on severity
15   or stage, not on location.
16         In addition, I ask that all of our surgeries for these
17   tumors be applied as qualifying surgeries, as they were deemed
18 necessary due to the severity of our conditions and recommended
19   course of action, as were chemotherapy, radiation, or
20   medications of which we were required to take.
21         Lastly, I ask that the point system in relation to the
22   illness be reassessed to reflect what we have endured. As I
23   conclude today, I agree we have waited a long time and through
24   all of our ailments and pain. I can believe I probably speak
25   for everyone to say that points will never be able to hold a
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1    true value for hours of surgery, countless doctors' visits or
2    days we just can't get out Of bed, moments of silence to
3    reflect on the way of our lives have changed. As I stand here
4    today, I ask for compassion and equity for all that have
5    suffered. Just as thousands of us were affected by 9/11, we
6    must remember that the fight against terrorism continues day by
7    day; and as new officers face this challenge, I ask that we
8    keep them in our prayers and I hope that they never ever have
9    to go through what we're doing today to receive compensation
10   for what we were put in place to help with.
11         THE COURT: Thank you, Ms. Baker.
12         MS. BAKER: Thank you.
13         THE COURT: Before you leave, I'd like to say a few
14   things. First, I want to tell you how much I appreciate the
15   eloquence and sincerity Of your remarks. Second, I want to
16   confess a certain degree Of frustration. Ken Feinberg wrote a
17   wonderful little book from his experiences as the special
18   master of the Victims Compensation Fund. His book is entitled
19   "What Is Life Worth?" At the end of the day, Ken felt an
20   extreme displeasure with the system where he awarded more money
21   to some people, less money to others; because we are all
22   children of the same God, we're all created equal, and nobody
23   asks if our suffering is because of one cause rather than
24   another. Certainly a disease like you had is just as
25   meaningful to you as some other disease to somebody else having
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1    the same effect. So why should there be different
2    compensation? It's an eloquent question. And the answer is
3    not going to satisfy you. It's the reason that Professor
4    Twerski gave, because this is not a compensation system.
5    Although I insisted that the severity of injuries drive the
6    settlements, there also is another factor, and that's
7    relationship to the provocation of the toxicity in the World
8    Trade Center and related sites. And it's that issue that is
9    frustrating you, and I understand it. But there's nothing I
10   can do about it.
11         If I were designing a compensation system -- and I
12   wouldn't be smart enough to do it -- I would do just the same
13   thing that you say should be done. But this is a settlement
14   system and not a compensation system. And so I have to pay
15   attention, and the lawyers have to pay attention to, what is
16   proven. You may be right, it may be that the insult to your
17   body that took place erupted in the way that it did to you and
18   that same insult erupted in a different way to another person.
19   Who knows? None of us knows. The cancer specialists don't
20   really know. So we have to do according to what is provable.
21   And that's what is meant by Daubert. The proof is very
22   difficult, it's uncertain as to many diseases, it's more
23   certain, more proven, with others. So we weighted the system
24   in terms of what's more likely to be proved. I can't tell you
25   you're right. I do tell you that we battled this and fought
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1    this issue in many ways. It would be a simpler, and I think
2    fairer, issue but we're not doing a compensation system. And
3    so we have to deal with where we are in our society. In our
4    society we have to do this according to what's proved.
5         Now, if we were to divide everything equally,
6    according to injury, people who have a disease more clearly
7    linked to their work would complain because there's clear
8    indication that their suffering was due to what happened. If
9    you can't prove that, then what we're doing is saying we don't
10   know where things arise from, we don't know what their cause
11   is, but if we find them, we compensate them. We could have
12   done that. But whatever we did would be unfair to somebody and
13   fair to someone else. So we went the classic way, the way
14   things happened, in terms of relationship to proof. That was
15   the system. It doesn't work for you as well as perhaps it
16   should have. I understand that. But there's nothing we can do
17   to change it.
18         I thank you for your remarks, I thank you for your
19   eloquence, I thank you for your continued interest. I was very
20   much taken by what you said in March and I'm just as taken now.
21         MS. BAKER: Thank you. Have a good day, everyone.
22         THE COURT: Next speaker is John Kearney. Is John
23   Kearney here? He was with the American Red Cross, and he
24   wrote: I would like to speak and tell all just how bad this
25   has affected my life, that I am on oxygen today, that I've been
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1    declared totally and permanently disabled, that I don't know if
2    I will live to see my grandchildren.
3         Next speaker is Andres Garcia.
4         MR. GARCIA: Good afternoon.
5         THE COURT: Good afternoon.
6         MR. GARCIA: Honorable Judge Hellerstein, all parties
7    concerned in working out this compensation: I want to really
8    thank you because you are taking me out of my disbelief that
9    this arrangement could be possible. I was at the Bay of Pigs
10   invasion and have had many experiences in which all I got in
11   return was a thank-you and a pat on the shoulder. And I was
12   very happy for that, because I don't give up very easy. So at
13   this point I want to say that this settlement is an amazing
14   thing. I know you guys have worked very hard. You all have my
15   deepest recognition and appreciation, and I hope that
16   everything goes well for everyone and all parties concerned.
17   Thank you.
18         THE COURT: Thank you, Mr. Garcia. Next speaker is
19   Mr. Kear, John Kear. Is mr. Kear here? Mr. Kear is an
20   electrician, Local 3. He writes: I want to state that the
21   litigation has gone on long enough and has waited years for
22   this settlement. The time for settlement is now. People need
23   to find closure and move forward. It's been an exhausting
24   process.
25         Next speaker is Kenneth Specht. Mr. Specht?
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1           MR. SPECHT: Good afternoon, your Honor. If it please
2    the Court, my name is Kenneth Specht.
3           THE COURT: You can stand straight. We'll all hear
4    you.
5           MR. SPECHT: I am a retired New York City firefighter.
6    I had the pleasure to work as a New York City police officer
7    for six and a half years, also the great pleasure to work as a
8    New York City firefighter for about 13 years after that. I
9    want to thank you today for the time that you've taken to not
10   only hear the important part of this settlement, this proposed
11   settlement from the lawyers, but to allow us an opportunity to
12   speak also. I also want to go on record and thank my lawyers,
13   Mr. Paul Napoli and Mr. Marc Bern. We haven't always had the
14   most equitable relationship. I think, though, that we look to
15   help the September 11th community; we just do it differently.
16   With that being said, I just wanted to go over a few things
17   that I have issue with.
18          You know, your Honor, I was diagnosed with cancer in
19   2007 at 37 years old. I spent three months down at the World
20   Trade Center site. Previous to my cancer diagnosis, I had
21   experienced severe GERD issues that required surgery in 2006.
22   About time that I started to feel like I wasn't going to escape
23   the World Trade Center free and clear of illness or injury --
24   about 2005, when I started to feel serious medical issues were
25   occurring, and they were obviously confirmed in 2006, my first
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1    surgery. I had never been under the knife before. I required
2    emergency surgery. I was transported from my firehouse in
3    Queens and rushed to the hospital. And as I stated, it was the
4    first time I had ever been under the knife.
5         In 2007, diagnosed with cancer, I went under the knife
6    again a second time; and then subsequent to that, I had
7    radiation. I started a foundation to keep the September 11th
8    issue on the front burner, as it relates to the New York City
9    Fire Department. I've sat for the past few years and I've
10   watched good men die at an early age, good New York City
11   firefighters, your Honor, die at an early age from cancer. My
12   problem that I have with this proposed settlement, as was
13   stated earlier, is the inequity as it relates to solid tumor
14   cancers and fair and just compensation. What we have here,
15   your Honor, is we have New York City firefighters who are
16   dying, or have died, of solid tumor cancers and are not being
17   issued a credit, for lack of a better term, that the solid
18   tumor cancer metastasized from their time at the Trade Center.
19         We have a problem receiving line-of-duty funerals from
20   the City of New York. We have a problem with the medical
21   community stating that our cancers that are killing us at an
22   early age are indeed in relation to our time at the Trade
23   Center. I'm not a separatist, your Honor; I do not believe in
24   divide and conquer, but as a New York City firefighter, I am
25   here to say that I do not believe that any participant of the
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1    Trade Center can verify their time, their location, and their
2    work efforts at the Trade Center any more clearly than a New
3    York City firefighter, your Honor. We were required to stand
4    for roll call each day, we were required to report our
5    locations, and the jobs that we were given to do were
6    documented clearly.
7         During the town hall meeting last week, I asked my
8    lawyer -- actually I had proposed a -- I described to him a
9    person, and I wanted to know what this person's family could
10   expect to receive in compensation. And the person I described
11   to you was a New York City firefighter in his early forties who
12   had spent many months working at the World Trade Center. This
13   person died of a solid tumor cancer, your Honor, he had no lung
14   issues -- and I do understand that this is a lung-driven
15   lawsuit -- this person died of colorectal cancer, never saw a
16   doctor for a lung issue at all. And I asked my lawyer, what
17   should we expect that this person or their family could receive
18   from this settlement? And he said $10,000. I find $10,000
19   unacceptable, your Honor --
20         THE COURT: It's the same issue that Ms. Baker
21   reported, it's exactly the same issue. And you're just as
22   eloquent as she is. Darryl Strawberry had colorectal cancer
23   that almost killed him, at the same age. That's the problem.
24   The problem is that this is the kind of cancer that exists in
25   society. And although it may have been affected by the insult
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1    of the air in 9/11, it doesn't get that provability effect.
2    And that's what's also driving the settlement. It is -- you're
3    touching upon an issue which really can't be resolved according
4    to the assumptions that started this lawsuit. And it's
5    particularly frustrating because there's no remedy, because if
6    you opt out of the settlement, you're in a worse situation for
7    the same reason -- you can't prove the relationship of the
8    injury to the cause. And without that proof, you will be out,
9    even if you pass all the other hurdles that exist.
10         So it presents you with you a very different and very
11   frustrating problem.
12         MR. SPECHT: Your Honor, I agree.
13         THE COURT: But I don't know how to deal with it or
14   how I should deal with it.
15         MR. SPECHT: I'm not sure that really I was looking
16   for satisfaction or completion as much as I was just looking to
17   go on the record with my feelings.
18         THE COURT: You've done -- it's a problem. I wish
19   there were enough money so that anyone who came up with any
20   kind of injury gets compensation in a significant amount just
21   because he was a hero on 9/11. But the very statement of that
22   problem indicates why it can't work, because we don't have that
23   kind of system. We didn't bring people down on 9/11 for the
24   potential reward of getting money; people came because it was
25   the right thing to do at the time.
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1         MR. SPECHT: Your Honor, I agree. And I stand up here
2    today shocked to the core after listening to Mr. Tyrell speak,
3    about what the City of New York, or possibly the federal
4    government, would look to institute as it relates to somebody
5    who chose to opt out and looked for a trial.
6         THE COURT: You have to look at it this way,
7    Mr. Specht. It's very important to understand. We have an
8    adversary system of justice. Mr. Napoli works on the
9 plaintiffs' side, Mr. Tyrell works on the defendants' side.
10   Mr. Tyrell is doing his job, doing it very well. It's his job
11   to present the defenses as vigorously as he can. It's
12   Mr. Napoli's job to present the condition of the plaintiffs as
13   vigorously as he can. It's the job of the judge to sift it out
14   and come to some judgment. And we think our system is better
15   because of the way that it takes lawyers on each side to
16   present the best of their case. Mr. Tyrell is a great lawyer.
17   It's his job to do what he did. I wanted him to do what he did
18   because everyone needs to know the choices. And if the city
19   weren't defended, just think about it, you know what goes on
20   all the time; they'd be eaten alive with all kinds of claims,
21   just and unjust claims both. It's the ability to mount a
22   defense that allows a judge to make a distinction between
23   what's legal and what's not. So he's doing his job, and we
24   should not think in any be critical.
25         MR. SPECHT: No, I'm not being critical, your Honor.
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1    I am stating, though, that I'm disappointed to hear what
2    avenues would be chosen to protect their interests.
3         Just real quick, your Honor: About two and a half
4    months into the Trade Center incident, I happened to be part of
5    a team that recovered 18 New York City firefighters. We were
6    broken down to two-hour -- we were broken down to two tours a
7    day. At that time there were 7:00 in the morning to 7:00 at
8    night and then the new crew would come on at 7:00 at night. I
9    was part of a crew that worked the 7:00 in the morning to 7:00
10   at night tour and, as I stated, we recovered the remains of 18
11   New York City firefighters. The night tour recovered five
12   more. It was the biggest single-day recovery of New York City
13   firefighters, I believe, for the whole World Trade Center
14   incident. I'm disappointed -- well, sometimes I question
15   whether the Trade Center did not eventually turn into a
16   construction site. I know what happened the first days and
17   weeks, the fires that burned for -- they burned forever, they
18   burned for so long. It was one time when, this one particular
19   day, which happened to be my last day at the Trade Center,
20   where we were handed rakes, metal forks, and with absolute
21   minimal, minimal, protection, Carhartt overalls and our fire
22   helmets and no breathing, no breathing assistance and all. And
23   this is two and a half, three months into the incident. We
24   were told to stand in front of -- there were three tremendous
25   grappling machines, and what they would do is they would come
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1    down and they would pick up large amounts of debris that the
2    human hand couldn't move -- they were tremendous -- and these
3    grappling machines would pick up the debris and the debris
4    would be shaken violently in front of two New York City
5    firefighters. And each team had an area to stand and watch
6    this grappling machine shake this -- the remains of the Trade
7    Center violently. And what we were told to do was, this was
8    our last shot to identify anything that may be in these -- this
9    debris. But what did we sacrifice, looking back on it now,
10   eight and a half years, by not having proper protective
11   breathing devices and partaking in watching these grappling
12   machines shake our future away?
13         I know what happened that day, your Honor, and I'm not
14   a physician, I'm a New York City firefighter and I can only
15   speak with my head and my heart, but I'm not sure now, looking
16   back on it eight and a half years later, that I would have been
17   part of that team that stood in front of that grappling machine
18   and allowed them to shake that dust and debris in my face for
19   hours on end. I tried to serve a cause and I tried to make
20   sure when I did look in that debris, if that was my last shot
21   to recover anything, that I took it seriously and I gave
22   somebody the opportunity to have closure. But to be told now
23   that what I participated in nine years ago in front of that
24   grappling machine, for as long as I stayed there and did that,
25   didn't contribute to my cancer, is a tough situation to
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1    swallow. I want to thank you for listening to me today. I
2    want to thank you for being an advocate. And that's it, your
3    Honor. Thank you so much.
4          THE COURT: Thank you, Mr. Specht. I had a case
5    dealing with the remains of those who couldn't be identified.
6    The city went through elaborate measures to try to identify
7    body parts. Eventually, they filtered the body parts -- they
8    filtered the debris so that there was a filter the size of a
9    nail. If you could get through that nail, that was debris.
10   Everything else was stopped in the search for body parts, so
11   that the body parts could be assembled, collected, and
12   identified through DNA and matched to a particular fireman who
13   was lost. I don't remember the percentages. I think more than
14   half the people who died, died without a trace; not a single
15   trace that was larger than a fingernail. There was an argument
16   that the surviving families made that the entire debris moved
17   to Fresh Kills was hallowed and should be made into a cemetery,
18   that this was not to be looked on as debris, it was to be
19   looked on as the remnants of living people. And the case came
20 to me, and I was forced to hold against the plaintiffs and rule
21   that the city was not under an obligation to create a cemetery.
22   There are certain memories that you're left with, coming out of
23   this experience.
24         Another memory had to do with a lawsuit against the
25   manufacturers of radios. The question was asked in a session I
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1    held in that case where I told the people that, as a judge, I
2    had to go by the law, and the law was probably against them.
3    They asked for an opportunity to speak, and for two or three
4    hours -- the stenographer was here, the microphone was here --
5    I listened to the stories. Among the stories was a question of
6    why were the police able to get out, largely, and why were the
7    firemen rushing in? And there was a problem with the radios.
8    The comment was made that our sons were heroes but they weren't
9    fools. So no one really -- there were answers but no one
10   really answered the question. No one can answer Ms. Baker's
11   question, and no one can answer Mr. Specht's question. And I
12   guess in many ways, our society can't answer its own question:
13   Why we were not able to detect in advance this terrible tragedy
14   and stop the terrorists before they did their work? The
15   questions we cannot answer just keep ringing in my head.
16         The bottom line, we have a practical issue; we have a
17   lawsuit. And our quest to answer the questions of injustice
18   have to be put down in the greater interest of doing justice to
19   the some 10,000 claimants who are before me. It's not
20   perfect -- the quest for justice hardly ever is -- but it's the
21   best that we can do. And I hope that when Ms. Baker and
22   Mr. Specht and others like them go back home and think about
23   all of this, that they will vote to approve this settlement and
24   to opt in, not because it's perfect -- it's far from perfect --
25   but because it's good, it's the best that we can do.
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1          The next speaker is Maurice Davis. Maurice Davis?
2    Maurice Davis is a volunteer, was a volunteer and he wants to
3    know about the extended coverage that we will get. Again,
4    Mr. Davis has to prove -- and people like him have to prove --
5    that they were at the site. It may be more difficult for
6    volunteers to prove that, but they have to get proof. And then
7    if they were at the site, their cases will be analyzed in the
8    same way as the people who were employed or policemen and
9    firemen. Am I right, Ms. Warner, on that?
10         MS. WARNER: That's correct, your Honor.
11         THE COURT: The next speaker is Lynette Colbert. Is
12   she here? Ms. Colbert?
13         MS. COLBERT: Good afternoon, Judge. My name is
14   Lynette Colbert. If it please the Court: I've heard a lot of
15   people speak, a lot of emotion. And there's an old adage:
16   Every man for himself, God for us all. And to apply that to
17   this, there is such a multiplicity of injury and emotion and
18   qualifying and painstaking work that has gone on over the years
19   to come to this conclusion. I'm retired with the New York City
20   Fire Department on a three-quarter pension. I have the
21   respiratory, I have the GERD, I have the everything. I was
22   just thinking the other day, I don't even want to eat anymore,
23   food doesn't taste more. Minuscule things like that. But I
24   know this is a fight.
25         I responded to assist others without regard for my
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1    health and my well-being. As a result, I sustained respiratory
2    injuries that have impacted my life on a day-to-day basis,
3    fatigue, the headaches, a multiplicity of things. Years ago,
4    when I was first diagnosed, either a physician or a
5    receptionist said, oh, you look so good. I said, well, I don't
6    have to look the way I feel, and that's something I strive,
7    Judge Hellerstein, to put forth that effort, as my attorneys
8    have, and I appreciate their efforts throughout this case, and
9    just to get the strength, the inner strength. I suffer with
10   the depression, three years penniless, I'm a single mom with
11   five children, three boys two girls, I have ten grandchildren.
12   I'm a grateful and gracious person; I'm not a squeaky wheel.
13   So for a long time, Judge, I self-medicated, I didn't want to
14   go, I didn't want to take the prednisone, I didn't want to take
15   the methotrexate, the hypertension meds, the inhaler meds. I
16   didn't want to do it. I fought it within myself. Could have
17   been wrong, could have been right, who knows. But I know for
18   myself that something was wrong. I went down to like
19   167 pounds. And God spoke to my mind: You have to eat. I
20   couldn't taste food, I didn't want to eat.
21         So I'm appreciative of this settlement. I'm not
22   looking at it -- as someone asked me a question the other day,
23   is it all about the money? Money answereth all things. I
24   don't love money; I need money, money makes everyone's world go
25   around. Your Honor, it took a long time for us to get where we
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1    are today, way too long. With my injuries, I don't know what
2    the immediate future holds and I'm grateful for every single
3    day, because tomorrow is not promised. My 13-year-old grandson
4    Tyneel says to me: I don't want you to die before I do. Are
5    you all right? When you're coughing -- and the coughing is so
6    violent, I take the methotrexate with the prednisone because it
7    quells the nausea that I have every day, every day. And I hide
8    it because I don't want my children to be afraid. I throw up
9    every day without that prednisone and that methotrexate, Judge.
10         This settlement offers guaranteed money and benefits
11   that are satisfactory and commendable, especially given the
12   fact that so many insurance money went into costly and, in my
13   opinion, unnecessary litigation. Thank you, Judge Hellerstein,
14   for sending both sides back to the negotiating table to come up
15   with a better deal for the workers. We deserve better and we
16   got it, additional finance, a waiver of New York compensation
17   liens, et cetera. I would like to thank my attorneys, each and
18   every one individually, for their painstaking efforts on my
19   behalf. Out of the 10,000, it was about me, not in a negative
20   way but I'm ill, I can't sleep, I have to take something to
21   sleep every night. Other than that, I'm just checking the
22   ceiling for cracks. So I'm grateful for this settlement, and I
23   will opt in.
24         The Napoli Bern firm has worked extremely hard on this
25   case and on this settlement. They advocated for me in my time
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1    of need. They have earned every penny, even at the 33 percent
2    rate, and I am grateful for this commendable gesture on their
3    behalf.
4         The cancer policy is another great part of this
5    settlement, because who knows what the future holds? My lungs
6    now, at 53, are 12 years used. The bill for Mr. Zadroga, it's
7    not guaranteed, so for us all to opt in on this settlement
8    would be very wise. Litigation takes time. Everybody's been
9    affected. I had no idea the amount of the plaintiffs that were
10   involved in this settlement, but when I heard it, I said, oh,
11   my goodness, what are we going to get, a MetroCard and a
12   chocolate chip cookie? So much painstaking recovery
13   information has taken place with my law firm and I'm grateful
14   to Mr. Garretson. And I'm grateful because, like I stated when
15   I first got up, every man for himself but God for us all. What
16   will affect you may not affect me the same way. I've got the
17   respiratory, some people have the bone, some have the cancer.
18   I mean at 53, to walk a block is hard for me. To look my
19   grandchildren in the eye and say, yes, I'll be with you next
20   year, I can't do that, because I don't know what tomorrow
21   holds.
22         So Judge Hellerstein, in my closing, I thank you
23   kindly for your compassion, your care on all our behalves. God
24   bless America.
25         THE COURT: Thank you very much, Ms. Colbert. The
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1    next speaker is Keith Delmar.
2         Hello again, Mr. Delmar.
3         MR. DELMAR: How are you, Judge? I want to thank you
4    for letting me speak again. I'm going to be short.
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1          MR. DELMAR: Right after I left the podium the last
2    time, I received a lot of press and I received numerous
3    additional friends. One of my friends is Kenny Spatt (ph),
4    sitting right over there. And when I left the court that day
5    on March 19th, the media was like a frenzy, as they say, and
6    I had to be -- I was almost torn, thinking that maybe the
7    decision that I thought I made, saying it was a good deal,
8    might have not been so, you know, so smart. Listening to you
9    speak that day made me happy that it wasn't just a bunch of
10    lawyers deciding my fate or my family's fate or the fate of
11    other New York City firemen and police officers, etc.
12          I want to thank my lawyers also for standing by me for
13    the past two to three months, and what I tell -- I get a lot of
14    phone calls from a lot of different firemen throughout the
15    city. Men I haven't ever even seen or talked to. All pre-9/11
16    firemen. And what they ask me is what do I think about the
17    lawsuit, and what I tell them -- in the last couple of weeks
18    what I tell them is, "When you receive your letter from your
19    attorneys, if you don't think it's adequate, you have other
20    options." Mr. Tyrrell seems to think that firemen don't fight
21    back. We do. So basically what --
22          THE COURT: I don't think he thinks that. He's
23    telling you --
24          MR. DELMAR: The city thinks that, your Honor. I know
25 they do. They've been thinking that since 9/11.
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1          THE COURT: Both sides are fighting pretty hard here.
2    I can tell you that.
3          MR. DELMAR: No, I understand both sides, but -- so
4    what I recommend to anyone in this case is to see what your
5    claim is going to be -- or your settlement is going to be
6    before you sign or opt in to anything. Because you don't want
7    to be told that you're going to get a certain amount of money
8    and then Mr. Garretson's firm decides that you're not worth
9    that much.
10          That's all I need to say, and I appreciate you letting
11    me speak again, your Honor.
12          THE COURT: Thank you, Mr. Delmar. And I think you
13    know that Mr. Delmar's purpose is the same purpose that I have.
14    It's to make sure that everybody understands his position or
15    her position and then makes an intelligent decision on the
16    basis of it.
17          Next speaker is Kojo Davis. Is Kojo Davis here?
18          Kojo Davis would say, "This litigation has gone on
19    long enough. This is a fair settlement and I urge other
20    plaintiffs to accept it. It allows for an expedited process
21    that will be fair and transparent. I am also happy about the
22    cancer insurance policy because of the future protection it
23    offers. Lastly, I would like to thank my lawyers for working
24    so hard on this case and the settlement. It's time to execute
25    this deal and move on."
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1          The next speaker is Richard Prager.
2          Mr. Prager, I hope I didn't insult you before.
3          MR. PRAGER: You didn't insult me, your Honor. I'm
4    going to insult a few people, and I don't do it because this is
5    a podium where I can do that.
6          Let me start off by saying, good afternoon.
7          THE COURT: Good afternoon, Mr. Prager.
8          MR. PRAGER: (Speaking unintelligibly) Yeah, I could
9    stand here and wear my hat. It's like the rabbi could wear his
10    yarmulke. I look white, American Indian. I take pride in what
11    I do. I miss standing 40 stories above the street looking down
12    because it made me feel alive. It's called living life to the
13    fullest. I've sat here at two of your court fairness hearings.
14    I've listened to insanity. I listened to the illegal
15    immigrants. They want their citizenship because they were at
16    Ground Zero. That's nice. I want pigs to fly, but it ain't
17    happening.
18          Am I gonna take this? I don't know. And my lawyer.
19    Don't ask me. And I'll tell you why. At this table, this
20    young man right here, at my deposition he wanted to know why I
21    went to Ground Zero. I don't know. Let's see. I'm an
22    ironworker, I build bridges, I build buildings. If you use a
23    crane to pick up steel, you have to have me there. Firemen and
24    policemen weren't gonna do it. You weren't gonna do it.
25    Everybody at that desk. You don't know what a choker is.
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1          Let me explain something to you. The two cranes that
2    came down, they weren't ironworker jobs. Because they trained
3    us. This table, the people that they represent, the city --
4    oh, I've worked on the Manhattan Bridge, the Brooklyn Bridge,
5    gone home sick from being seasick because it bounces up and
6    down. I don't know if I lose points because of that? Maybe
7    that helped to get me GERD. But the fact of the matter is,
8    they trained me, they paid for my schooling. Let's see. CAT,
9    Skanska, Yonkers, American Bridge, little bit of money from the
10    state and the federal government. And they sent me out as a
11    structural ironworker. That's why I was at Ground Zero.
12    That's why structural ironworkers and shipyard ironworkers were
13    at Pearl Harbor, opening up bows of ships. It's why we were at
14    the Merrill building. I guess we forget about the earthquakes
15    in California. I guess we forget about the bridges that have
16    fallen down. Who are the first responders there, other than
17    firemen and EMTs? We built this country. I didn't work in a
18    foundry. I don't shape the steel; I put it together. I can't
19    do that anymore. I never will.
20          I don't need to prove my injuries. They've got an
21    accident report. Ha ha ha. Do I care about a state of
22    emergency? No. I'll give you the first five days. Hell, I'll
23    give you the first twenty days, because it was no longer a
24    rescue. When it got to the recovery, emergency was over. The
25    Japs and the Nazis weren't coming up Broadway. Don't tell me
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1 about the emergency.
2          I'll go to trial. So you see me fidgeting around?
3    Forget about my breathing, the GERD and everything else. I
4    have it. It's documented. They took more bone out of my body
5 than they recovered from some victims, and I'm not done yet.
6    And I don't want the offer. I want a settlement that's fair to
7    me. Why? Because this -- this bench right here represents the
8    contractors and the city. Well, get this, your Honor. At a
9    podium just like this, another one of their lawyers,
10    representatives, came to my graduation and guaranteed me that I
11    would be a millionaire upon retirement. Welcomed me into the
12    fraternity of journeyman ironworkers.
13         I have a family. This lawsuit's not just about me.
14    It's not about money in my pocket. It's about putting my
15    9-year-old through college. It's about making sure that my son
16    with Down's syndrome wants for nothing. It's about making sure
17    that my grandchildren -- god forbid anything happens to their
18    mother or anything else -- are taken care of. My wife, who's
19    had to wash me, feed me, that's what this is about.
20         $10,000 for an orthopedic -- orthopedics? It's not
21    enough money here. Because a conservative estimate on a
22    regular job for my injuries is a couple million dollars. Would
23    you like me to get some of the payouts that have gone through
24    of injuries similar to mine on a normal job? I can get it
25    through my union. This is not fair to me. It's not fair to my
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1    family. I'm insulted. And I don't say that lightly, because I
2    didn't believe in even trying to sue. I didn't go to Ground
3    Zero to have to sue. I didn't go there to get anything. I
4    went there because this is my home. Forget about being a
5    citizen. I'm a convict too. This is my home. This is my
6    backyard, my living room. This is where I live, I eat and
7    play. And when people are in pain, I took an offer to help
8    them. Yeah. When you become an ironworker, you take an oath,
9    to defend the weak, you know, and to support them, and to
10    defend my city, my state, and my country. Do I feel like my
11    city or my state is willing to support me? No, your Honor, I
12    don't. All right?
13          I've gone through over a hundred thousand dollars
14    since my injuries. I was listening to some -- somebody speak a
15    few minutes ago, he was talking about documentation. Listen,
16    when I went to Ground Zero, my first day I knew what to bring.
17    It's in my folder. It's the receipts from McKinney's Welding
18    Supply. Two truckloads of gas and air, another cut vee (ph)
19    full of torches, 1500 foot of hose, tips, masks, with
20    replacement cartridges, that I handed out to police officers
21    who were running around with paper masks. And we ain't talking
22    about days later; we're talking about day one. How come I knew
23 what to bring but the city didn't know what to do? You figure
24    that out.
25          And when somebody can tell me why for five days it was
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1    mass confusion and then you want to hide behind some act of --
2    the emergency act? If it was an emergency, someone would have
3    known how to act. Okay?
4          You know, sitting here today, I've listened to a lot.
5    I don't like to sit. I sit, I lay down, I stand up, I walk a
6    half a block. I can't breathe. I don't go out. My day
7    consists of going to see a doctor, a lawyer, physical therapy,
8    or laying at home in bed. There's no riding a bike, there's no
9    taking my kid out to a ball game. My kid's 9 years old. He
10    ain't never been to a ball game. He's never gone to a beach
11    with me. He's never gone swimming. He never will. I can't do
12    these things. I can't drive a car. I can't afford to get into
13    an accident or I'll have a rod in the center of my skull.
14          Just -- just compensation? Listen, your Honor, I'll
15    be quite honest with you. I've gone to prison myself for
16    burglaries when I was a kid. And if they can catch a burglar
17    in New York and you can't catch Osama bin Laden with all the
18    technology you got, it's a shame, and it's a shame on what
19    they're trying to put off here.
20          I don't know about everybody else. For some people
21    that have some of these problems that can't be attributed, it
22    is a fine offer. For me, for what I was worth to my family, to
23    my trade and to what I've gone through, it's not.
24          To give you an understanding, I get the maximum
25    workers' comp, and because I was awarded before 2007, I get it
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1    for life. Great. $1600 a month. That's before child support.
2    It comes out to $460 every two weeks. My rent is 750; all
3    right? My wife goes to work a couple of days a week. That's
4    another 3 to $400. A month. I can't live this way. I would
5    love to go back to work. You know what I made in a day, just
6    with my deductions? They could send me out to a point job, 500
7    and some dollars, after taxes. I didn't get one check a week;
8    I got my paycheck, I got an annuity check, I got a vacation
9    check, $14 an hour, thank you. I got my health insurance,
10    hundred percent coverage. So if I went to the dentist, they
11    weren't going to yank my teeth out. I don't have that with
12    Medicaid. I don't have that with you -- I don't have that with
13    your settlement either.
14         THE COURT: No. Settlements don't do that,
15    Mr. Prager.
16         MR. PRAGER: I know, and I want compensation, not a
17    settlement. I'm sorry, your Honor.
18         THE COURT: No, Mr. Prager, you shouldn't apologize.
19         MR. PRAGER: No, I do, your Honor. I'll tell you why.
20         THE COURT: No, you shouldn't.
21         MR. PRAGER: I'm an American citizen. I was in the
22    Marine Corps, all right, and I was trained to do a job. And I
23    got to feel bad about coming here over freaking money that I
24    earned?
25         THE COURT: You don't have to feel bad about anything
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1    you said or did in coming into court. We invited you to come.
2    We didn't censor who comes. We didn't censor who speaks or who
3    doesn't speak. At the end of the day, all of you have to look
4    at the settlement and make a decision.
5          MR. PRAGER: I've made my decision, your Honor.
6          THE COURT: Well, I respect your decision, Mr. Prager.
7          MR. NAPOLI: Your Honor, ordinarily I wouldn't stand
8    up, but your Honor, I think it's important to address
9    Mr. Prager, who I know well. He's a client of ours and I've
10    spoken with him, and the associates at my office have spoken to
11    him as well, and if your Honor recalls, the end of the
12    negotiations of this amended process agreement, there was quite
13    a contentious argument over the orthopedic -- the orthopedic
14    list, or Exhibit I. Mr. Prager is on Exhibit I. Mr. Prager
15    was the person in one of the 104 people on that list that I
16    fought so hard for in the very end. Because it's people like
17    Mr. Prager who have respiratory and severe orthopedic injuries
18    that the orthopedic part of the settlement may not be
19    sufficient. And I've said it to Mr. Prager privately and I've
20    said it in front of Mr. Simon at the town hall meeting. This
21    is one of those circumstances where one size does not fit all,
22    where Mr. Prager needs to be in the office with myself and our
23    associates and to look at the medicals together to decide, does
24    he take advantage of the list that we negotiated for him and
25    opt out of this settlement agreement, at no cost to the
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1    95 percent? He will be exempted. That was the basis of this
2    list, provided he meets certain criteria. Mr. Prager is such a
3    person that would have advantage, I believe, from it. But I
4    don't believe it's appropriate here right now to counsel, in
5    front of a courtroom and reporters, Mr. Prager.
6          THE COURT: I agree with you.
7          MR. NAPOLI: But it is something that is -- and I
8    think Mr. Prager will acknowledge that when he calls, he speaks
9    to people in our office, and we care about him like we care
10    about all our clients, and the decision, his decision, the
11    decision that's going to be best for him, is going to be made
12    with our counsel and us having that discussion with him. And I
13    just -- because it is a nuance of the settlement agreement, I
14    thought it was appropriate for me to stand at this point to
15    point that out.
16          THE COURT: Thank you, Mr. Napoli. Thank you,
17    Mr. Prager.
18          MR. PRAGER: Thank you, your Honor.
19          THE COURT: The next speaker is Glenn Klein.
20          MR. KLEIN: Your Honor, I just had a couple of
21    questions that I wanted to have answered.
22          THE COURT: What's your name, sir?
23          MR. KLEIN: Glenn Klein.
24          THE COURT: Come up.
25          MR. KLEIN: As I said, I came here this morning with a
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1    couple of questions I wanted to have answered. My name is
2    Glenn Klein, your Honor, and I was with the NYPD. And the
3    questions were answered during the hearing this morning. So
4    basically what I want to do is just say thank you for your
5    compassion and taking that settlement that I wasn't too sure
6    about a couple of weeks ago, still not a hundred percent sure,
7    but I'm leaning more now on the side of going with it than I
8    was before.
9          THE COURT: Thank you, Mr. Klein.
10         MR. KLEIN: Thank you to the lawyers for taking your
11    time and making the settlement work for most people.
12         THE COURT: Thank you, sir.
13         MR. KLEIN: Thank you.
14         THE COURT: James Hagner.
15         MR. NAPOLI: Mr. Hagner's wife had a baby at 4 a.m.
16    this morning and -
17         THE COURT: Oh, how nice. So he writes, "I want to
18    accept this settlement 'cause I can't wait a few more years.
19    One is, I don't know how much time I have left on this earth
20    and I want to enjoy the rest of my life with my wife and kids
21    so I am hoping this all ends soon. Who knows when we would get
22    a chance to resolve this again. A bird in the hand" is worth
23    two in the bush.
24         Michael Lollo. Is Michael Lollo here?
25         Michael Lollo writes -- he was a New York Police
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1    Department policeman. "I want to ask what will happen if 95%
2    of the people don't accept the offer. Where do we go from
3    there? I hope this settlement goes through."
4          A condition of the settlement is that 95 percent have
5    to approve it. If they don't approve it, there's no binding
6    settlement agreement and we go back to the lawsuit. If
7    95 percent accept, then we go ahead with the settlement and the
8    5 percent who don't want to participate in the settlement begin
9    the lawsuit.
10          Next speaker is Scott Chernoff.
11          MR. CHERNOFF: Good afternoon, your Honor.
12          THE COURT: Good afternoon, Mr. Chernoff.
13          MR. CHERNOFF: Did you receive my letter? I mailed
14    you a letter. Just curious if you got it.
15          THE COURT: One minute.
16          (Pause)
17          THE COURT: Mr. Chernoff, I'm advised that I did. I
18    do remember having received some letters, and I put them in a
19    file. I read them all, but I can't remember sufficiently to
20    identify the writer with any particular sentiments. I just
21    remember broad-based sentiments. But I'm anxious to hear you,
22    so please go ahead.
23          MR. CHERNOFF: I'm just going to keep this short.
24    It's been a long day.
25          THE COURT: Say your piece, Mr. Chernoff. I'm here to
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1    listen.
2          MR. CHERNOFF: I'm a former New York City police
3    officer and 9/11 responder, and I was there at Ground Zero
4    thereafter, and I consider myself a poster child of a system
5    that has failed a particular person like myself.
6          I had -- I made claims, you know, of being affected by
7    9/11 and down at Ground Zero, and the city, you know, dismissed
8    them. Then personally sued and received no justice there. You
9    know, now I'm here. And I saw a lot of numbers and heard a lot
10    of people talk and overall looked great, but I question the
11    individuality, and I believe a person like myself will get
12    nothing in the end because it's like trying to fit a round peg
13    into a square hole, square hole that's been set up by other
14    people, the lawyers.
15             THE COURT: What was your injury?
16             MR. CHERNOFF: Ha?
17             THE COURT: What was your injury?
18             MR. CHERNOFF: My injury?
19             THE COURT: Yes.
20             MR. CHERNOFF: It was COPD. You know, I think I'm in
21    the lower tier, yeah. But I just wrote something down quickly.
22    I do not dispute the level of settlement for the most sick, but
23    it's the payouts to many who will receive very little and the
24    settlement process itself I question. I do not trust this
25    process, and I feel many will be forgotten. I'm still
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1    undecided. It's the individuality and point system I question
2    and do not trust, and I believe this system, the settlement
3    process has failed many, the majority, and will continue to
4 fail 9/11 plaintiffs. And I was sick enough for the city to
5    process out, forced to retire. They gave me an ordinary
6    disability; I'm not collecting accidental disability. I
7    collect very little. If it wasn't for Social Security
8    Disability, I'd be collecting very little at all. I'd probably
9    be destitute. And I just truly believe that overall,
10    especially seeing the settlement process, with the Garretson
11    firm, now the burden of proof will be placed on us again and
12    we'll have to reprove our case and we'll be put in front of a
13    review panel.
14         THE COURT: No.
15         MR. CHERNOFF: No?
16         THE COURT: That's not the case. You won't have to
17    prove your case. You'll have to bring out the medical proofs
18    of your injuries.
19         MR. CHERNOFF: Isn't it a point system though?
20         THE COURT: Then those are objective facts. They're
21    not a matter of proofs.
22         MR. CHERNOFF: What about the reconsideration?
23         THE COURT: It's whether you smoked, whether you
24    didn't smoke, how old you are, where you were and those kinds
25    of things. But it's not nearly the kind of proof that would be
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1    required in the lawsuit.
2          The question you raise, if I could just generalize it,
3    is a very important question. There are lots of people in your
4    shoes who, thank god, suffered but not as much as others in
5    terms of your injuries. You may have suffered enormously
6    subjectively; but objectively, your injury is less than others.
7          So how do you look at the settlement? Do you compare
8    it against others who get more, or do you compare it to what is
9    going to be the case if you say no? If you say no --
10          MR. CHERNOFF: I --
11          THE COURT: Let me finish for a moment and I'll let
12    you go again. If you say no, you can say that, "I'm tired, I
13    want to go in, whatever happens happens," or you can go
14    continue your lawsuit. And you have to ask yourself: Will I
15    do better in the lawsuit? The lawsuit will still require me to
16    prove everything the same way. And if you wait for the Zadroga
17    bill to come by, if it ever comes by, you'll still have to
18    prove everything the same way. But that was the condition with
19    the Victim Compensation Fund as well.
20          Bottom line, you've got to prove, objectively, in a
21    quantifiable way, what your injuries were to get approved. So
22    are you going to be better off if you decide not to? I don't
23    think so, but that's going to be your personal decision.
24          I'm sorry for interrupting you.
25          MR. CHERNOFF: No. I mean, that's exactly how I feel.
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1    You know, I'm happy -- I'm happy for the -- for the sickest.
2    I'm glad they're receiving some type of fair and reasonable
3    compensation. But when you generalize everybody in this
4    lawsuit and say everybody's receiving something fair and
5    reasonable, I don't believe a $3200 payment for everything I've
6    lost in my life -- my life changed after 9/11, not for the
7    better but for the worse, but because I'm not the sickest, I'll
8    receive very little, and I don't think that's fair. But you
9    say that's all part of the settlement process. You know what?
10    It is. It still doesn't make it right, and I have to explain
11    that to my children.
12          THE COURT: You've got a point.
13          MR. CHERNOFF: I know I have a point.
14          THE COURT: It's an important point. The question is,
15    how do you do something that's fair and then you run into a
16    very big problem.
17          I'll tell you another thing that this settlement
18    doesn't really compensate. It's the mental illnesses.
19          MR. CHERNOFF: That's right.
20          THE COURT: The people who finished up this whole
21    exercise of work and they were affected, if not physically,
22    they were affected emotionally, some more than others. And the
23    settlement's not doing much for those people.
24          MR. CHERNOFF: I'm one of those people, and I made
25    that question the last time I was here about psychiatric,
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1    psychological trauma.
2          THE COURT: I'm sure you are.
3          MR. CHERNOFF: That went on deaf ears though.
4          THE COURT: No, it didn't. It didn't go in deaf ears.
5    But to listen doesn't mean that you can do something about it
6    or even should do something about it.
7          In terms of the lawsuit, you'd have to prove
8    illnesses, and then once you prove illnesses, the mental
9    illnesses come with it. But it's very subjective. The juries
10    go all over the place.
11         In terms of the settlement, you have to have some
12    common standard, and often exercising common standard
13    sacrifices the kind of things you're talking about. And that
14    happened here. Whether we could have done better, it's hard to
15    know. Because once you start loosening up, then you've got to
16    take money away from something else. It doesn't increase the
17    amount of money. I would like more money put in, but at a
18    certain point in time, you say, okay, it's satisfactory. And
19    you have to go from there. And when you go from there, you
20    don't satisfy everybody. I understand that. And that's one of
21    the problems that we have to deal with. And if a lot of you in
22    your shoes are not sufficiently satisfied and you say, "Come
23    what may, I'm not going in," then this whole deal falls
24    through.
25         But that's not the question for you. The question for
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1    you is: Will I do better another way? And I don't think you
2    will. I just leave the question out there.
3          Thank you very much.
4          MR. CHERNOFF: Okay.
5          THE COURT: Thomas Wilson.
6          MR. WILSON: Thank you, your Honor, for this
7    opportunity to speak. I'm writing -- well, now I'm speaking.
8    I'm going off the letter.
9          THE COURT: You speak the way you want to speak.
10         MR. WILSON: I'd rather walk into a violent domestic
11    than speak before this whole group.
12         I'm speaking to you in order to request permission to
13    testify at the 9/11 settlement hearing on June 23rd, 2010. I
14    believe I have a unique situation or maybe in fact a very
15    common situation for many 9/11 responders. My situation is
16    that I was denied by a law firm, for reasons I'm not -- I was
17    denied representation or rejected by a law firm for reasons I'm
18    not entirely clear about. My situation is as follows:
19         During the events of September 11th, 2001, I was
20    employed as a New York City police sergeant. Officially, I
21    have documentation showing over 350 hours at the World Trade
22    Center site and Fresh Kills landfill. Like most responders, I
23    worked beyond my official 12-hour shifts and spent many
24    additional hours doing rescue and recovery operations. Like
25    firefighters. Picked up a rake at Fresh Kills landfill and
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1    then ate at the chow hall, which was on top of the landfill.
2    Also included making burglary or looting arrests down at the
3    World Trade Center site. I qualify under the presumption bill.
4          September 2008 I was diagnosed with oral cancer, the
5    tongue, at 39 years old. I worked at Ground Zero -- looking at
6    the charts, I guess I was 31, 32 at the time. The wonderful
7    doctor at Mount Sinai saved my life by removing the tumor from
8    my tongue and rebuilding my tongue with a skin graft from my
9    left arm. An artery was also removed from my arm and placed
10    into my neck to supply blood to my new tongue. My neck was
11    also dissected and lymph nodes were removed.
12         After getting out of the hospital, I followed up with
13    six weeks of radiation treatment. During this fight, I lost
14    approximately a hundred labs -- a hundred pounds.
15         I never smoked or chewed tobacco, which are primary
16    causes. I was an avid weightlifter. I passed three employment
17    physicals all my life, with the United States Army, the NYPD,
18    and then the Suffolk County Police Department.
19         As a side note, my second born was conceived while I
20    was working down there, working down there, and he was born
21    with a defect. He's doing fine now, but I don't want to open
22    up that can of worms with our children. You know, I guess
23    we'll find that out 30 years from now.
24         During my fight for recovery, I was advised to contact
25    the law firm of Napoli and Bern, which I did, and I mailed them
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1    a large packet of paperwork to their office regarding my oral
2    canner and GERD, along with all my documentation showing where
3    I worked and when. This was some time ago. I went about life
4    and never thought about it until last March, when I began to
5    see e-mails from Napoli and Bern addressed to me as "Dear
6    Client." I called Napoli and Bern during that period. I was
7    seeking their advice because I believed I was a client, and the
8    e-mails stated, "Don't talk to the press without talking to
9    Napoli and Bern first." It was during this call that I was
10    advised that I was denied as a client and that the e-mails were
11    a mistake. I spoke with the New York City office, and they
12    advised me tumor cancers are difficult to prove. I spoke to
13    the Long Island office, and they advised me that my case would
14    be reevaluated and I'd get a call back. I never received a
15    call back.
16         So my question I would like to ask at this hearing is
17    that: If a responder is denied representation, that filed way
18    before April of 2010, by a law firm, what are the options
19    available to be part of the settlement? And are many
20    responders with tumor cancers, which was mentioned earlier,
21    being denied representation? Tumor cancers by 9/11 responders
22    are becoming more prevalent, as was spoken to by detectives
23    regarding the New York Post in which tumor -- tongue tumors
24    were mentioned, and then also in January of this year the New
25    York Times had a beautiful spread about radiation, cause and
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1    effect, and they mentioned an individual that died due to
2    radiation treatment, but he had a tongue tumor that his doctor
3    attributed to Ground Zero. That's just as a side note. Again,
4    tumor cancers by 9/11 responders are becoming more prevalent,
5    and my denial and possibly many others are not being counted.
6    After all, there is no 9/11 cancer registry, which would be
7    beneficial to all responders. Maybe some type of independent
8    party could look at our cases, because I filed on time and was
9    denied, and as things stand now, I have no recourse.
10         And just -- my second question would be, you know, if
11    personally I can't be taken care of, that's fine, but second
12    question: Could this settlement work out some type of 9/11
13    registry? The firefighter that had cancer, maybe he went to MD
14    Anderson down in Houston. I went to Mount Sinai. But there's
15 no way of knowing that we worked together at Ground Zero.
16    There's no registry right now. There's a national cancer
17    registry. And that's all I have to say. And --
18         THE COURT: The two questions you put, I can't give
19    you advice what to do. I can only deal with the claims that
20    are in existence. There are remedies that you have which you
21    can explore. But it's not the right thing for a judge to give
22    that kind of advice.
23         As to the cancer registry, cases in controversy are
24    the business of the court. When the cases are resolved,
25    there's no more business for the court. Courts don't keep
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1    registries.
2          However, we have accumulated a huge amount of
3    information. It is the intention of the special masters to
4    collect and publish a great deal of this information, along
5    with comments on the procedures used by the court in moving
6    this case forward and organizing it. I don't know if that will
7    or will not include a cancer registry. And I do think that the
8    hospitals that treated you, including Mount Sinai, know this,
9    and have compiled some registries.
10          Thank you very much.
11          MR. WILSON: All right. I appreciate that. And like
12    I said, I wanted to thank you personally and --
13          THE COURT: Thank you.
14          MR. WILSON: Take care.
15          THE COURT: Robert Gayer.
16          MR. GAYER: Good afternoon, Judge.
17          THE COURT: Good afternoon, Mr. Gayer.
18          MR. GAYER: My name is Robert Gayer, and on 9/11 I
19    personally assisted in the recovery in any way I could. Myself
20    and other rescue workers went into the pit and helped search
21    for survivors.
22          THE COURT: More slowly, Mr. Gayer.
23          MR. GAYER: Excuse me?
24          THE COURT: Speak more slowly.
25          MR. GAYER: I'm sorry. I'm a New Yorker.
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1          On the night of day three, I went into the basement of
2    Building No. 5. As we searched the wall all the way down, the
3    deputy commissioner -- the deputy police commissioner of New
4    York City and I apprehended two men burglarizing a watch store.
5    After returning to the street level with the suspects, we then
6    continued searching for survivors down below, in the darkness,
7    through the thick smoke and the constant fear of having this
8    entire structure collapse and bury us alive. We were down
9    there for almost two hours. I was never so scared of anything
10    in my entire life as I was that day, but I continued to search.
11    I did what I felt was my duty to do as an American.
12         I did not get paid for what I did. I did receive an
13    award from the President and the senators for what I did. This
14    was something I had to do. I could not just stand by and
15    watch, knowing that I could be a part of something and help.
16         Shortly after my recovery efforts, I was encouraged to
17    get medical screening at Mount Sinai Hospital. Like many
18    others, there was no serious problems detected at the time. I
19    had sore throat and runny nose, a bad cough, and I found it
20    difficult to breathe. I couldn't sleep, and I began to suffer
21    from panic attacks. Like I'm having right now. I was told to
22    register with the September 11 Victim Compensation Fund. I was
23    told at that time that this fund was my only help -- my only
24    hope for my family and myself.
25         I went to the Victim Compensation office. I was
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1    informed that the fund was nearly depleted and that there was
2    no additional funds for anyone in the horizon. They were even
3    packing up their files in the office, Judge, to go home. The
4    fund was presented to me as my only solution, the only hope I
5    would ever receive. It was presented to me as a take it or
6    leave it, sign it or go. What would anyone in this courtroom
7    do if you were put in my position? It was either I take the
8    offer or walk away, feed my family or nothing. I had no
9    choice. I was pushed up against a wall. I did not know what I
10    should do. I was being put under so much pressure and duress.
11    I could not afford to play dice with my life, so I had to
12    accept their small award. I needed the money.
13          Unfortunately, the severity of my illness has
14    progressively far -- gotten worse as time went on. My last --
15    my financial situation is starting to fall apart. My medical
16    bills began piling up. I could no longer travel on planes, and
17    that whole thing affected my life because most of my job was
18    spent traveling around the country. Which I was eventually let
19    go. I had made a good living at that time. I have now
20    exhausted my entire savings and had to cash in my 401(k) plan,
21    because I lost half the -- half of it to taxes and penalty. I
22    do not have a pension to rely on.
23          My health continues to deteriorate over the years.
24 Through the WTC monitoring program, I lately discovered that I
25    have developed, like many of these other poor people that are
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1    in this room, emphysema, severe asthma, COPD, I have seven
2    nodules on my lungs, and many other things, illnesses that I
3 had no -- I had not received any compensation for when I was in
4    the Victim Compensation Fund. I also take, like many of the
5    other people, a lot of medications every day.
6          I was told this case would be a new chance for me,
7    when I found out about what was going on here, a new hope to
8    get my life back, a second shot at assurance so that my family
9    would be taken care of. The severity of my illnesses placed me
10 in the top bracket of the available recovery. I felt that
11    after all the years of so much hope that justice would be
12    delivered.
13         I then signed up with the law firm of Napoli Bern
14    Ripka. They told me that I should do well with the case, when
15    I signed up for the VCF, I was in no way in the health that I
16    am in now, and that because of my severity chart, I was in the
17    top payout and not to worry. I have been with them for five
18    years. However, I'm currently being told that I cannot recover
19    anything under this settlement, even after being told by so
20    many that I would do good, because I signed that VCF waiver. I
21 was told that I had signed away my rights years ago, and I was
22    informed that my service was much appreciated. However, your
23    Honor, there are always choices available to be made. Our
24    lives cannot be measured by the value that does not reflect the
25    pain we have endured and the injuries we have suffered and for
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1    those, unfortunately, that will continue to suffer.
2          There is no justice in turning away a worker merely
3    because he recovered substantially less under the Victims
4    Compensation Fund than he would have been entitled to under
5    this settlement. There is a choice to be made here, and that
6    is between what is right and what is morally wrong.
7          Judge, pretend you were at 9/11 today and you were
8    here to save my life. The innocent men and women in those
9    buildings did not have a choice. Their lives were taken. As
10    their families watched hopelessly as the lives of their loved
11    ones were extinguished. Time will eventually rectify the
12    enormous tragedy of such a loss at the site, the tragic passing
13    of those men and women. Thankfully many lives are saved
14    because of that. But because of the efforts of thousands of
15    selfless responders and volunteers, unfortunately for every
16    one -- for every innocent life recovered, another life was
17    given. The men and women who chose to come to the aid of the
18    helpless, who chose to enter what I can only describe as the
19    deepest pits of hell now stand before the nation with their
20    shattered lives. I am certain that if I am given the choice to
21 risk my life again that I would probably take it. I cannot put
22    a price on the choice I and many of my -- I and many like
23    myself had made that day.
24         I am not asking to be compensated for my services.
25 What I am asking for is the very same thing that we helped
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1    return to thousands of anxious families to this day -- the
2    security for my loved ones and the unity of a family and the
3    hope for a better future. I only ask for what is right, that
4 my family is to be taken care of. I now have nowhere else to
5    turn.
6            I would like to thank the Court again for giving me
7    this opportunity to tell you about my case.
8            I need to say in closing that it is a shame that I had
9    to stand -- put myself and stand before the public like this
10    and talk about my private life and my personal business. I was
11    told that this case was all about fairness and how it would be
12    made crystal clear to all of the victims and what they would
13    get in this case. I was never told anything like that from the
14    VCF. I was told -- I told everyone along this whole process
15    over and over again how I was told there was nothing else
16    available for me, that the VCF was all there was and the money
17    was gone and the program was ending and that I should take the
18    check. I was also told that this is my only way to get help
19    for my family, take it or leave it. How would you feel? Being
20    put under so much duress, coercion was what I was dealing with.
21    I was never told about any other case or that there would be
22 one. I was told about this case from a lady that worked in my
23    doctor's office, way after the VCF was over. And at that time
24    I did not have any other thing that was wrong with me like I do
25    now. I am so much more sicker.
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1          The VCF was a quick fix designed by the government to
2    keep the airline industry from going bust and to give help to
3    the families that lost someone, not like this case where the
4    correct steps are being taken to help the people with the
5    correct funds so that they can move on.
6          Judge, I did not get killed at Ground Zero, but I lost
7    my life there. I stopped living my life after that day. I
8    stopped being able to provide for my family for the way I
9    worked so hard for so many years. This case can give me and my
10    family so much peace of mind.
11         Tell me, Judge, what should I do? I gave so much and
12    asked for so little but to be helped. I was told that I'm in
13    Tier 4, that I have COPD and so much more. What do I tell my
14    wife and kids?
15          I want to thank this Court at this time.
16         THE COURT: Thank you, Mr. Gayer. I wish I could do
17    something for you, but I can't. It is the fact that when you
18    were in the VCF, this lawsuit was not in existence. It was in
19    existence later because Mr. Napoli decided, and his partners,
20    that they would take it on. And their ranks grew in number.
21    But when you went to the VCF, they were not around. And it's
22    part of the procedure of the VCF to ask you to sign a release,
23    just as the settling people here are going to sign a release.
24    That's always a part of the settling process. The release is a
25    reflection of a promise to end the lawsuit. It's the exchange
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1    that both sides make. That's a condition of the deal, a
2    condition of every settlement.
3          MR. GAYER: What would you have done, Judge?
4          THE COURT: I don't know what I would have done.
5    Probably the same thing you had done. Probably the same thing
6    you'd do. It's not something I could know.
7          Thank you, Mr. Gayer.
8          Mr. Moore, William Moore.
9          MR. NAPOLI: Your Honor, I just don't want to leave in
10    the air something, and I --
11          THE COURT: Go ahead, Mr. Napoli.
12          MR. NAPOLI: Thank you.
13          I'm particularly familiar with Mr. Gayer and several
14    other plaintiffs that are in similar situations where they've
15    either had injuries that have gotten worse or completely new
16    injuries that weren't compensated in the VCF. And our office
17    in those circumstances believe -- and Mr. Gayer knows, I've had
18    this discussion with him -- believe that there couldn't be a
19    knowing waiver. We were aware -- we didn't know you had that
20    injury, or the extent of the injury. And we take some issue
21    with the release and the waiver itself as to whether it's
22    sufficient.
23          During that interim time, your Honor knows, and you
24    mentioned earlier, Motorola came down, not only from this Court
25    but from the Second Circuit, and it seems to make clear the
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1    parameters of the release.
2          Your Honor, we negotiated -- as part of the
3    negotiation we pushed Ms. Warner to the brink, trying to get
4    her to take care of these people as if it was a preexisting
5    injury, and as you know from reading the agreement, we did not
6    win that fight. We could not persuade her or others. But I
7    wanted the Court to be aware, as Mr. Gayer is aware, we do
8    believe there is still an issue and that some people -- whether
9    we have a 2 percent chance or a hundred percent chance of
10    winning it, it depends on who you talk to, obviously, but it's
11    part of our goal --
12          THE COURT: Are they eligible claimants in this
13    settlement?
14          MR. NAPOLI: They would be eligible other than the
15    fact that they recovered under the VCF. And I don't want to --
16          THE COURT: But are they part of the --
17          MR. NAPOLI: They're on the eligible plaintiffs list,
18    yes, they are, your Honor. And so I don't want to do anything
19    other than to say, your Honor, that this was contemplated that
20    a decision, an independent decision has to be made with the
21    assistance of Mr. -- of Professor Simon overseeing it, as to
22    where and what is appropriate for him. Whether it is to opt
23    out and bring a motion to ultimately win to go to a Court of
24    Appeals, those are the types of things we are willing to do if
25    necessary. But I wanted the Court to be aware of the issue
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1    before committing, beyond Motorola.
2          THE COURT: Okay. Give me a moment, Mr. Moore.
3          (Pause)
4          THE COURT: I don't know that this is an issue that
5    needs to be or should be discussed here. This issue was not
6    brought to me before because I would have had a view on it.
7    And at this time it may be something we need to take up,
8    Mr. Napoli. It should have been brought to me.
9          Okay, Mr. Moore.
10          MR. MOORE: Yes, your Honor. If it may please the
11    court, my name is William Moore. I go by Michael Moore, the
12    other Michael Moore. My friends call me "Sicko" though, after
13    9/11. But that's not really so humorous. It's pretty serious.
14          Judge, I know you got the handout what I was going to
15    talk about. You would have discussed it if I wasn't here. I
16    would please ask that you do read this for me. It's modified.
17    It's actually a little bit different than what you have in
18    front of you.
19          THE COURT: You want me to read it?
20          MR. MOORE: Yes.
21          THE COURT: The one you're handing up?
22          MR. MOORE: If I may approach the bench.
23          THE COURT: Yes, sir. You want me to read it for you?
24          MR. MOORE: Yes, please.
25          THE COURT: "There is much encouragement out there
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1    that it is time to settle. Here I was informed just a few
2    months ago." I don't need to read your praising me. I'll skip
3    that part.
4          "There are so many hours, so many days, and so many
5    years we've waited for relief. It may finally be here. We
6    need to get better. More so we need to get on with our lives
7    and regain those precious moments that have been robbed from
8    us, and for some of us that time may be limited. Ten years has
9    been way too long. Please don't have us wait any longer.
10          "Personally, I proudly volunteered and I spent close
11    to 700 hours working at the WTC Ground Zero site within a
12    couple of hours of the attacks, which was declared an act of
13    war. Within a few months afterwards, I volunteered and was
14    proudly deployed to the Middle East to defend and serve our
15    country. Since then I was forced to leave the military because
16    I could no longer perform my job. I wanted to stay, but they
17    wouldn't let me.
18          "Currently I receive no VA benefits because my ailment
19    is from 9/11 and not from the military. Last year I was
20    suspended without pay and medical benefits and forced into
21    disability by my employer. I wanted to stay, but they wouldn't
22    let me. That action is due also to 9/11 WTC injuries, and now
23    yields me a new income of $1300 per month by Social Security.
24          "The eligibility determination excluded my time in the
25    military, even though I receive no current pension from that.
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1    That amount is less than what I used to make in a week.
2          "My house is in foreclosure, I can barely afford to
3    pay utility bills, and I receive frequent shutoff notices. I
4    don't qualify for most assistance programs. Although I
5    qualify, without success so far -- without success so far, I
6    have applied to Bank of America five times for a home loan
7    modification. Additionally, I've submitted for assistance from
8    the New Jersey Firemen's Relief Fund, but there I only qualify
9    for $125 assistance during this calendar year so far, even
10    though I've submitted over $80,000 worth of medical bills
11    during this past year. I've been seen by 19 physicians, and
12    I'm receiving treatments and evaluations from four university
13    hospitals. And I'm on medications listed. I'm convinced that
14    some of these medications has the potential to cause severe
15    effects. I use medical devices to deter cardiac dysrhythmias
16    and other dysfunctions. Now I have been referred to Memorial
17    Sloan-Kettering here in this great city, where my next
18    evaluation may lead to chemotherapy as well as stem cell and
19    bone marrow transplants. Thus far my medical expenses have
20    fallen between the 250,000 and $500,000 mark over the past ten
21    years. I may not ever regain my medical insurance, but so far
22    I've gotten by to some degree. I may not be able to get
23    evaluation from Sloan-Kettering. I'm in fear but have not yet
24    given up.
25         "As far as family goes, I've vowed for better or
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1    worse. She got worse. I promised to provide. I had to put my
2    youngest daughter out of state college. She's literally now
3    the breadwinner for the family. She works for a catering
4    business and not only bringing home the bacon but also lactose.
5            "Even my pet dog has been affected. We can't afford
6    to get him to a vet for treatment of a tumor. All my family
7    agrees that I'm no longer the same person. I no longer have
8    the endurance to socialize and attend family functions or the
9    interest and stamina to satisfy my wife's desires.
10           "Our eldest son weds in July. I know now I will not
11    be able to afford the gift I thought last year I could give.
12    Last night I received the last call from my son, who's going to
13    have to cancel the reception. Humility, I'm well beyond that
14    now.
15           "I'm in fear, I tell you, but I've not yet given up.
16    It's time to settle; isn't it? My emotional hurt far outweighs
17    my pain. It's with me every day.
18           "Don't think you have to choose either right wing or
19    left wing, choose to do the right thing, according to the
20    lyrics of Simon and Garfunkel in their song 'Here's to You,
21    Mrs. Robinson.'"
22           Thank you, Mr. Moore.
23           MR. MOORE: Thank you, sir. I do want to talk a
24    little bit.
25           THE COURT: Go ahead. Finish up, and then I'll let
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1    you get the letter.
2          MR. MOORE: Sure. I spent over 30 years in the
3    military, deployed around the world. My job, I was an
4    expediter. My primary mission was combat rescue, and I was in
5    Air Force special operations. My unit became famous in the
6    movie "The Perfect Storm," and I did lose a very good friend
7    during that mission, Rick Smith, and obviously I want to -- I
8    want to say I'm dedicating part of this to him.
9          I've also lost some other military guys that were with
10    me at Ground Zero. I had a guy that was with me in Saudi
11    Arabia on one of my deployments as an expedition Air Force, and
12    he's ten years younger than me, and he died a year and a half
13    ago, after spending two weeks here. His problem was cardiac,
14    and that's what I want to address, because that doesn't really
15    qualify for very much. Matter of fact, his family probably
16    doesn't even know that his condition was probably caused from
17    9/11. That's what I wanted to get into.
18         I just want to show a quick picture. I enjoyed
19    working with military for many years. I was a expeditionary
20    specialist. I would travel around the world and fix problems,
21    whether it was in a war zone, a search and rescue mission, it
22    didn't matter what it was. But I was very willing to go. It
23    was an exciting job. I'd get to parachute out at 30,000 feet
24    in the air with oxygen at nighttime, all good, good, fun stuff.
25    They paid me to mountain climb, scuba dive, all the good stuff.
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1 After, I'd also worked as a primary rescue person for the space
2    shuttle, working with NASA. I was deployed over to Germany,
3    which was a alternate landing site. And when I was done with
4    shuttle missions, as long as there was no problems, I would end
5    up going on a mountain climbing trip to increase my skills. So
6    I had a really decent job in the military. If you look at the
7    picture, basically --
8          THE COURT: Mr. Moore?
9          MR. MOORE: Yes.
10         THE COURT: I think we've got to talk about the
11    settlement.
12         MR. MOORE: Yes. I'm going to right now, sir.
13         One of the things I was utilized for was to be an
14    expediter, and part of being an expediter is being put in a
15    situation and being able to figure things out and get results
16    real quick. That's why I'm here, and that's why I asked to
17    speak today was because what's happened is not only information
18    that's been given to everybody here, perhaps even you, Judge,
19    and that's what I want to point out. I believe everyone here
20    has the right to know what's going on here. And this might
21    actually add to being -- for you to be able to give answers to
22    these people, sir, that have no explanations and why they're
23    being put down in such a low category.
24         (Continued on next page)
25
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1             MR. MOORE: And that topic is autoimmune diseases. If
2    you care to find out, I'll let the defense -- was the were
3    autoimmune diseases on the chart, as one of the diseases?
4    Anyone want to answer that?
5             THE COURT: We have -- what's on the chart is on the
6    chart.
7             MR. MOORE: OK, sir. But it was -- autoimmune
8    diseases was put on the chart by not the defense, by -- the
9 other group. Sorry. They had autoimmune diseases on there.
10    It was a negotiated off the chart, sir. And as being taken off
11    the charts, autoimmune diseases would have been in a much
12    higher category for those people that are in tier one. If tier
13    one, those people that are not meeting the criteria of the
14    disease, if they were in autoimmune disease, chances are, they
15    would be in a much higher tier. I don't know if anyone's very
16    familiar with that, but the thing is, the screening process
17    that was provided by the Centers of Excellence, which was
18    sponsored by the city, did not check us out for autoimmune
19    diseases. They screened for autoimmune diseases but they did
20    not actually try to find out how many people actually had them.
21            And what I mean about that, autoimmune diseases,
22    scientifically, two-thirds of autoimmune diseases are believed
23    to be caused by environmental exposures. I don't know if 9/11
24    was an environmental exposure but it seemed to me that it was.
25    All these gentlemen that complain about the problems that they
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1    have and why they're in such bad categories is because probably
2    those diseases that they have are autoimmune. And I talked --
3    sir, you mentioned how I was supposed to go to Sloan-Kettering
4    for cancer treatment. It's not a cancer treatment I'm going
5    for; it's the results of autoimmune. What it is called is an
6    amyloidosis. Amyloidosis is when the body's natural -- it's
7    amyloid protein which is produced in the bones -- and this
8    should be familiar with some of the people -- the amyloids
9    overreact and destroy all the parts of the body. It's a
10    systemic inflammatory disease and it -- whatever organs it
11    hits, it affects. So for the person that has an autoimmune
12    disease, and for whatever reason, that depends on the person,
13    the systemic disease will attack the heart in one person, the
14    brain in another, the lungs in another, and you talk about
15    interstitial lung disease? How about the interstitial
16    gastrointestinal diseases? Are you trying to tell me that
17    people didn't absorb through their digestive system those same
18    chemicals that they inhaled? You know they did. But yet on
19    the chart, there's not one mention of lower gastrointestinal
20    problems. But there is for the upper, because you know why?
21    They can isolate the organ and take minimum responsibility for
22    that. Once it's identified that you have an autoimmune disease
23    and it's a systemic disease, then it opens up a whole can of
24    worms because every organ is susceptible.
25         So really what my point is here: All the information
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1    hasn't been provided to you, Judge. The defense knows that
2    that was on the chart originally. Napoli Bern had it on the
3    chart --
4          THE COURT: The process was to get all the diseases
5    that were listed -- there are well over 300 of them -- and then
6    to categorize them. And I can't tell you now where in the
7    process that may have been listed, where it wasn't, but I can
8    tell you that that was an effort made to categorize all the
9    diseases that were experienced at the World Trade Center site
10    and to catalogue them and rank them. If we haven't done
11    justice by all of that, it's always possible. What we did is
12    our best to rank all diseases in the World Trade Center site.
13    That was done by a collaborative process. It wasn't intended
14    to drop anything out of it because the discovery process was to
15    become all inclusive rather than partially inclusive.
16         MR. MOORE: Right, but --
17         THE COURT: So it grew out of that. And from what I
18    learned -- I don't know very much, if anything, about
19    autoimmune diseases -- is that the absence of an immunity or
20    sometimes the excessive appearance of an immunity will take its
21    appearance in various other kinds of ailments, which did show
22    up on the charts and which we did deal with.
23         Now, I can tell you, on the etiology of diseases, that
24    we were prisoner of what medical science knew. If medical
25    science did not have an adequate knowledge of it, we couldn't
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1    very well deal with it. We did our best. Is it possible that
2    we missed something? Yeah, it's possible. But I don't think
3    so. I think we did our best.
4          MR. MOORE: Actually, sir, I need to debate that,
5    because it was missed. And one of the things is, I can show an
6    example of that right here.
7          THE COURT: Well, if you would like to write me a
8    letter with copies to counsel, with your points and showing us
9    what we may have missed, I'll be glad to read it.
10         MR. MOORE: Thank you.
11         THE COURT: Thank you very much. And here's the rest
12    of your -- next speaker is Perry Forgione. I want to mention
13    to the press that if any of you have deadlines that you have to
14    meet -- you've been very patient -- the last speaker -- and I
15    can advance that if you want to -- is Mr. Cannata, who has a
16    point of view as counsel for a number of people; he or
17    Mr. Grochow is going to speak. So if you can't wait for that,
18    alert me to it; if you want him to be advanced, I'll do that.
19         MR. FORGIONE: Good afternoon, your Honor. My name is
20    Perry Forgione and I'm a retired special agent with the Federal
21    Bureau of Investigation --
22         THE COURT: I'm sorry, we're not going to have too
23    many more speakers, so Mr. Forgione is 21 on the list,
24    Mr. Cannata was 27, so we're getting there.
25         MR. FORGIONE: -- and also a certified emergency
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1    medical technician. I was one of the many rescuers that day on
2    9/11. In fact, I heard and saw the first plane go in Tower
3    One, from our office at 26 Federal. So instinctively, based on
4    my training and experience over the years, I said to my
5    partner, I said we have to go down there, and he agreed. So
6    after we evacuated the 24th floor, Stan took the west side and
7    I took the east side, and I married up with a New York City
8    police officer and we assessed Tower One.
9          Upon that assessment, we pulled back, based on my
10    military training in a war plan that we used in the Air Force
11    called the Major Accident Response Plan, and we started what is
12    deemed to be now probably the largest emergency rescue
13    operation in the country, among all the law enforcement
14    agencies, the New York City Fire Department, the New York City
15    EMS, the court officers that came down, and we assembled on
16    Broadway and implemented what I had been trained to do all
17    along in the Air Force as an Air Force officer.
18         With that said, and experiencing the second plane hit
19    Tower Two and a concussion and debris and being forced into a
20    phone booth by a concussion in front of the Woolworth Building,
21    I stood there and we did what we thought was the right thing to
22    do. Joe, the New York City police officer, to my right,
23    said -- looked at me and we said, we've got to shut the
24    Brooklyn Bridge down. So I say, get on the citywide and do it.
25    And he did it; he's a hero in my eyes.
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1          But right after that, the ground started to shake and
2    I -- obviously, everybody knows what happened after that. The
3    tower started to come apart, and of course we grabbed those
4    people on the ground and went up Broadway, took some cover at
5    around 290 Broadway, and then came the cloud of debris and
6    everything became dark. And as the New York City police
7    officers and the New York City firemen came up here and told
8    you, they ran back down into the mayhem, with all the strength
9    and courage, to help those -- as well as myself and others --
10    and we pulled policemen and citizens, covered in dust, without
11    breathing apparatus other than me pulling up my T-shirt over my
12 mouth, from my training as an EMT on Long Island, and did the
13    best we could. But that obviously wasn't enough.
14         Shortly thereafter, we worked 12-hour days. I
15    immediately, as others, started experiencing the breathing
16    problems, the irritation of the throat and the eyes. And I
17    went to the chief engineer at the federal building and said,
18    there's something wrong here. And I told him to shut down the
19    air system in the federal building because he would -- the air
20    system at the federal building would take in most of the debris
21    and the smoke and ingest it because there's no windows that
22    open there. So he agreed, he said he'd change the filters.
23    And then I just recently found out about the pigeons that were
24    all deceased outside the federal building, but they were
25    cleaned up right away, so, of course, the EPA could not test
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1    those.
2          So then, I put in the Workers Comp form and said,
3    look, I have a breathing problem, there's something wrong. And
4    of course, like with the New York City policemen, that was kind
5    of diminished. And they said, OK, go to the doctor and, you
6    know, make sure you come back to work, which we did and we just
7    worked, I think, 21 days straight and just kept going to work,
8    and as a good veteran and as being ordered to by the powers
9    that be, just kept going. But as the Workers Comp claim
10    progressed and it got denied and then reopened. And I
11    persisted; it finally got approved because based on the test
12    results, November 9, 2004, my diagnosis of RADS, which is the
13    asthma caused by my duty performance as a direct result of my
14    presence at the World Trade Center incident, was approved. But
15    it shouldn't take almost two years.
16            So, as I'm doing all this on my own, all of my legal
17    work, I get a call from David Worby, who I didn't know but one
18    of the attorneys who knew me, Joe Scalia, had him call me, and
19    that's how I got in touch with the Napoli Bern law firm, which
20    I'm very thankful that that happened.
21            So I began to analyze everything that was on their
22    website, with specificity, line by line. And as I listened to
23    some of the people here today, I listened to the defendants'
24    counsel as well as the Napoli Bern, and I listened to
25    Mr. Feinberg at the town meeting. I do think, after great
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1    analysis, this is a good settlement and it's time to do the
2    right thing and to try to put this behind everybody because
3    it's gone on too long. And I just hope and pray that the other
4    8,000 people that could not be here to speak hear some of us
5    loud and clear because this is a long, long struggle here.
6          THE COURT: Thank you, Mr. Forgione.
7          MR. FORGIONE: Thank you.
8          THE COURT: Michael Gavin? Michael Gavin?
9          Mr. Gavin writes: This isn't about money, this isn't
10    about injuries or even death; rather, it's about the humanity
11    of the whole evolution.
12          Ilana Eberson. Ilana Eberson? Ilana Eberson?
13    Mr. Gavin was an EMT.
14          Ms. Eberson is with the American Red Cross. She would
15    like to discuss how the dust affected her hormone and endocrine
16    system, including early menopause.
17          John Nagle? Come up, Mr. Nagle.
18          MR. NAGLE: I would just like to take the time to
19    thank you, Judge Hellerstein, for giving us the opportunity to
20    speak. All the lawyers, you know, even for that matter the
21    Corporation Counsel, you know, you have to -- it was a long
22    ordeal, it's taken a toll over all of us, a lot of people have
23    suffered, including myself, injuries of breathing, GERD, it's
24    taken over the vocal cords as you can hear, and I've had a
25    cardiac problem as well, although I was not given
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1    three-quarters disability from the Police Department because
2    they consider it not to be part of their -- it's another ordeal
3    by itself. But even though I do have hypertension, they still
4    didn't qualify me for the three-quarters disability. So I was
5    forced out on half pay from the New York City Police Department
6    in 2005, and have been suffering from ailments from the World
7    Trade Center since.
8           My story is not really unlike anybody else's, you
9    know, pretty much the same thing. I just feel bad for the
10    construction workers, ironworkers that really aren't getting
11    anything right now. And we need to focus or concentrate on
12    something for them. We're all being compensated some way,
13    shape or form, which is good, the settlement, I'm appreciative
14    of it --
15           THE COURT: They're part of the settlement, same way
16    as everybody else.
17           MR. NAGLE: I know. I just feel like maybe more can
18    be done for people that didn't get help from the settlement.
19    Maybe we can all aim towards something for the people that
20    weren't helped enough, you know; they had families too. You
21    know, I don't expect to live a long time, maybe because of all
22    my heart ailments and my injuries from the Trade Center, maybe
23    they contributed, maybe they didn't, but I know it had
24    something to do with it because I wouldn't be here talking to
25    you about it if I didn't feel like it had something to do with
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1    it.
2          But long story short, I am thankful, I'm thankful to
3    be alive, thankful to have another chance. I died on the table
4    and they couldn't get me back to life for about four hours, so
5    when I came back, when I came back around with my heart
6    surgery, I said you know what, this is another chance and I
7    didn't know what the chance was for, Judge, maybe until now,
8    seeing what people suffered behind me. People have suffered
9    more than me obviously and people have suffered less than me.
10    But maybe we can figure something out, you know, and -- very
11    anxious and nervous as I speak because I've waited ten years,
12    nine years to say something, you know, for my voice to be
13    heard.
14         And, you know, I understand that the apprehension and
15    feelings, I understand that, because I went through it myself,
16    maybe not as worse or as bad as somebody else but I definitely
17    experienced such. And I say thank you. I'd like to put all
18    this behind us, get it done, get it over with, but at the same
19    time some people aren't going to be helped by this fund and I
20    just hope that the secondary ailments, like I have a temporary
21    blindness in my right eye that I get from circulation
22    problems -- and whether that's from my heart problems or not or
23    something from the Trade Center, I don't know but it's
24    something I experienced after 9/11. So I'm just hoping that
25    all this get resolved soon. If I leave this earth some day, I
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1    can be happy my family is taken care of and they have something
2    to go on and they know that their dad, you know, stood up here
3    and said what he felt, as nervous as he was, just to say what
4 he really felt and that, you know, this needs to be heard.
5          But I'm happy overall, I'm happy, and that's the point
6    I try to make to everybody back there. You know, somebody
7    looks at me, what are you happy for? But you know what, you
8    have to strive to be better, you have strive for the overall
9    good of everything and, yeah, you may not get something -- I
10    may not get exactly what I want but you have to say, all right,
11    let's move on, I'm not going to sit there and wallow in my
12    misery. It's not worth it for my kids. They want to see a
13    miserable dad for five, six years, or they want to see a happy
14    dad for five, six years? Let's choose the happy dad.
15         THE COURT: Good. Thank you, Mr. Nagle.
16         Matthew McCauley. Mr. McCauley's a partner of Parker
17    Waichman Alonso, LLP, and he represents people here.
18         MR. McCAULEY: Good afternoon, your Honor. I've
19    introduced myself before; Matthew McCauley from Parker Waichman
20    Alonso. At the outset, I have to say that I truly support the
21    settlement myself on a personal level, having been a first
22    responder myself and a retired New York City police officer. I
23    think that the attorneys involved in the case, Mr. Napoli and
24    the rest of the attorneys, worked very hard and very diligently
25    on it. But I also have to say that we represent 14 people, 12
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1    of which are abridged by the settlement, that I'm concerned are
2    not going to be included in this settlement. They are 12
3    people. One is a retired New York City fire captain, Edward
4    Deery. Another is a former commanding officer of the New York
5    City photo unit who took many of the photographs that were seen
6    throughout the world. Also people from the search teams as
7    well as other people from the Los Angeles fire department, and
8    just some other people, just 12 people who their notice of
9    claims went in on April 27th, by the terms of the agreement,
10    they are not eligible. And --
11          THE COURT: Because they filed after the cutoff date
12    of April 12th?
13          MR. McCAULEY: Yes. Which was negotiated during this
14    time period.
15          However, an eligible plaintiffs list -- we deemed an
16    eligible plaintiffs list was submitted on April 29th -- I'm
17    sorry, on April 30th to the parties during the pendency of the
18    negotiations. I stand here arguing for those 12 people, your
19    Honor, that those 12 people should be considered. Two of our
20    clients --
21          THE COURT: I tell you, Mr. McCauley, there has to be
22    a cutoff period. To admit more people after the cutoff period
23    would affect, because of their recoveries, everybody else's
24    recoveries. It wouldn't be fair to the people before, because
25    the settlements were negotiated in the context of the list that
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1    was available as of the cutoff date. I don't say that your
2    clients are not going to be able to settle, but they can't be
3    included in this settlement.
4          MR. McCAULEY: Your Honor, I fully understand and
5    respect the cutoff date is absolutely necessary in this mass
6    tort litigation or any mass tort litigation that I've ever been
7    involved in, I fully respect that. The negotiations that were
8    going on I understand were arduous and were heavy, to say the
9    least. The parties were aware of these people during the
10    negotiations for more than 41 days. We weren't consulted with,
11    they weren't consulted with. They're people who all have level
12    four injuries --
13          THE COURT: They couldn't be involved as a moving
14    target. They can only be involved with a fixed number of
15    people. And the issue for the parties in the renegotiated
16    period was whether or not any additional consideration was
17    going to be put into the deal. If there were a moving target
18    of people, an expanding list, you couldn't keep it fixed, you
19    couldn't measure if there would be additional evidence or not.
20    There is a cutoff list. There's nothing that can be done about
21    it. It's fixed.
22          MR. McCAULEY: Your Honor, thank you. I appreciate
23    the time you've allowed me and hopefully there will be
24    something for these other 12 people.
25          THE COURT: Thank you, Mr. McCauley.
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1          The next speaker is John Flannery with Wilson Elser
2    Moskowitz Edelman & Dicker.
3          MR. NAPOLI: Mr. Flannery withdrew.
4          VOICE: That's right, your Honor.
5          THE COURT: Mr. Flannery represents the Battery Park
6    City Authority. Come Friday, Mr. Flannery, we'll talk to you
7    about your matter on Friday.
8          MR. FLANNERY: Very well, your Honor.
9          THE COURT: Gregory Cannata? Mr. Cannata is the last
10    speaker. You want to speak as well, sir?
11         UNIDENTIFIED SPEAKER: Yes, your Honor.
12         THE COURT: All right, I'll hear the other people.
13         UNIDENTIFIED SPEAKER: Thank you, your Honor.
14         MR. CANNATA: Your Honor, as the Court is aware, I
15    opposed the first plan because under that plan there was no
16    award for medical care for the workers and no awards for lost
17    earnings, and it was only a minor award for disability. I had
18    extensive discussions with the liaison once that plan was
19    presented. I've written a number of letters to the Court; I
20    know you received them.
21         THE COURT: I read them; very well put.
22         MR. CANNATA: And now that the city has agreed to --
23    the city and Liberty Mutual Insurance Company have agreed to
24    waive their Workers Compensation rights, the plan is better for
25    those workers who are on Workers Compensation and who are
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1    being -- what I felt was treated unfairly under the first
2    proposal. And at this point, I can now support the plan,
3    although I don't love the plan. It is important, though, for
4    the Court to understand that New York City and Liberty Mutual
5    only represent -- only insure a small number of the workers who
6    are involved in this lawsuit, that there are other insurance
7    carriers --
8          THE COURT: I know.
9          MR. CANNATA: -- that are providing Workers
10    Compensation.
11          THE COURT: They're going to be the target of
12 additional discussions.
13          MR. CANNATA: And they must be, your Honor, because if
14    they aren't, there will be no deal, there will be no settlement
15    in this lawsuit.
16          THE COURT: Well, I don't know if there will be a
17    settlement or not, Mr. Cannata. It depends on everyone who is
18    a claimant, but I can tell you that there will be
19    conversations.
20          MR. CANNATA: Your Honor perhaps didn't realize it at
21    the time, but you did a big favor to these insurance companies
22    and to the employers' insurance companies by imposing and
23    maintaining the Evergreen order which prevented those carriers,
24    those employers from being brought into the lawsuit. They had
25    liability in this lawsuit but they were not part of this
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1    lawsuit, they were not part of the settlement. You saved them
2    literally hundreds of millions of dollars. And at this point,
3    they must realize that they have obligation to the settlement
4    and they have to be willing to forego their rights under the
5    Workers Compensation law. Alternatively, there is legislation
6    that can be brought. This was done after the Victims Fund was
7    passed. Workers Compensation was excluded from recovering any
8    money from the Victims Compensation Fund. That can be done
9    here again, and it should be done.
10            If the Workers Compensation issues are not resolved,
11    the nonuniformed workers are really getting nothing by this
12    settlement. All they're getting is an advance on their Workers
13    Compensation benefits. So it's crucially important that this
14    issue be addressed and resolved. I know Mr. Napoli is talking
15    to the carriers, but they have to understand that this must be
16    done.
17            Another issue that I'd like to address to the Court is
18    the CMOs, the case management orders, that are in Exhibit K of
19    the proposed plan. Exhibit K, your Honor, I don't know if
20    you're familiar with it --
21            THE COURT: I am, I am familiar with it.
22            MR. CANNATA: -- it affects those cases brought after
23    April 12th, 2010, in the 100, 102 and 103 cases. The 10,000
24    plaintiffs who are part of this settlement did not have to
25    prove causation in order to proceed with their cases.
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1    Causation is --
2          THE COURT: They were about to be required to prove
3    it, Mr. Cannata.
4          MR. CANNATA: I understand that, your Honor; causation
5    was stipulated as part of the settlement. They did not have to
6    prove that their asthma, cancer or GERD was caused by the
7    exposure. However, under the CMOs that I just referred to,
8    items 4 and 5 require within 90 days of filing of the complaint
9    an affidavit from a physician setting forth the causation,
10    setting forth the exposure, dates of employment, medical
11    records, the experts' background and a host of other issues --
12         THE COURT: Well, the fact is, Mr. Cannata, that those
13    facts -- leave aside the opinion, but the facts were required
14    in the discovery process months ago. So no one can complain
15    that he wasn't ready.
16         The second point is that we were about to get into the
17    issue of causation, maybe not by a particular client but by
18    similarly situated clients. So no one can complain that we
19    weren't up to that point as well. What defendants want to
20    know, and what the Court wants to know, is whether these are
21    real plaintiffs or they're just along for the ride. And we
22    need to know the basic facts that they should have accumulated
23    and given in discovery months ago. And we're ready now for the
24    opinions because these cases are ready for trial.
25         MR. CANNATA: Your Honor, I'm referring now to new
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1    cases that are going to be brought in the future. These aren't
2    cases that exist now. These are plaintiffs who've come after
3    April 13th.
4             THE COURT: And that's because people knew of these
5    cases long ago and they're coming in now. And we want to tell
6    the people that the basic issue that you're going to have to
7    confront is the issue of causation. So you might as well get
8    that proof early. There's no reason why, in the proper
9    management of these cases, I can't advance the requirement of
10 the specific item of proof which is basic to the case and draw
11    everybody's attention to it early, before money is wasted, both
12    by the plaintiff and by the defendant, and time is diverted by
13    the Court.
14            MR. CANNATA: The causation --
15            THE COURT: Mr. Tyrell, you wanted to say something
16    this?
17            MR. TYRELL: Well, your Honor, there's absolutely
18    nothing unusual about what is called a Lone Pine order, which
19    does just what you say.
20            THE COURT: I don't want to get to that, Mr. Tyrell.
21    I had my reasons for this. I approved of this, I know about
22    it, it's not something that was slipped over on me,
23    Mr. Cannata, this was done advisedly and deliberately.
24            MR. CANNATA: Well, your Honor, quite frankly, your
25    Honor appointed me as the liaison on the 102 and 103 cases.
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1    This order was submitted to you without my knowledge, consent,
2    or approval. Now, we have a procedure in this case, which I
3    thought we had anyway, where CMOs were presented -- are
4    supposed to be presented to the liaison and then submitted to
5    the court jointly. These CMOs that affect 102, of which I'm
6    the liaison on, were submitted to the Court without my consent,
7    without my approval. And it shouldn't have happened, your
8    Honor. Now, I don't believe that these CMOs should be signed
9    until we have a full discussion on this issue, and I request --
10          THE COURT: We've had discussion. If you feel
11    aggrieved by it, you can bring an application, Mr. Cannata.
12    But I intend to sign it.
13          MR. CANNATA: Thank you, your Honor.
14          THE COURT: There are two other speakers in the
15    audience? Come up please. The person with the yellow shirt.
16          MR. SPRUILL: If it please the Court, I'm Jules Edward
17    Spruill, Jr. I'm from North Carolina but I'm a native of New
18    York, Bronx, Edenmoore projects. And I'm former marine.
19    Though I can't tell you what I did, I served in the recon;
20    that's probably all you need to know. Several things: I was
21    told today to please come to this meeting. Every time I come
22    from North Carolina, I come on my own recognizance, which is --
23    well, that's another police term. I was also Suffolk County
24    police officer, so I've been around a little bit, I've seen a
25    few things. But my firm and the firms who work for me,
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1    Sullivan Papain Block McGrath & Cannavo -- hope I pronounce it
2    right -- anyway especially Ms. Zappa and Mr. Andrew Carboy,
3    every time I come here, the New York traffic gets me, I guess I
4    forget about it, I'm there late and the guy always waits for
5    me. And he says, look, I'm going to tell you everything that
6    happened, and it's been great.
7          But basically, when I came to 9/11, I came as a worker
8    not as a police officer and I worked there. As a matter of
9    fact, I paid $500 to become a teamster that day. And I worked
10    there and I hear people talking about the grapplings that shook
11    things out, and saw things, I worked 9/11 from day one, I
12    worked there until May the 26th, 2002. When the cars came out
13    of the basement, I pulled them out. When all the steel came
14    down the steel workers worked on, I pulled that steel out. I
15    pulled seven floors at one time. There was all 3,000 people
16    that passed there and nobody said anything about that. 3,000
17    New Yorkers that passed there. I worked there every day except
18    Saturdays and Sundays.
19         When I come on, we used to come in the tolls for free,
20    emergency situation. By the time I finished, we were paying
21    for tolls, to come there; but we didn't mind, we paid just the
22    same. When those firefighters shook out and found what they
23    found -- I found the arm, and I found the foot and a shoe,
24    brain matter -- we stopped every time and we held silence till
25    those body parts were removed. The first people, persons and
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1    things come out of there come to the DOT and Brooklyn,
2    truckloads, DOT in Brooklyn, we got out there, there was no
3    spray nothing like that. The people stood -- FBI agents stood
4    up there and they looked in those back of those trucks and
5    tried to find what they could find. And then we took those
6    same trucks we dumped them in a slide which went on a barge
7    which went out to Fresh Kills.
8          Then we had barges, Weeks, what they call Weeks barges
9    on the West Side, and those barges on the West Side we dumped
10    in. We also dumped in barges on the East Side. We came at the
11    end, looking down the West Side where -- that was my job, the
12    West Side, west tower. And I looked down there, and it was
13    looking into hell because we had to have a vent hole and you
14    could look right down into there. We were going to get there
15    eventually and we got there. But the fire just kept burning
16    and burning and burning.
17         And I listened, and I really do care, and I really do
18    love these individuals, because I know what they go through
19    every day. But don't let your pain be so great that you forget
20    about the people who are no longer here. Somebody, please talk
21    about them and what their people are going to get, what's going
22    to happen to their people because they can't talk for
23    themselves. Thank you.
24         THE COURT: They have been attended to Mr. Spruill.
25    It's not that we're neglecting them. This is one litigation of
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1    a number of litigations. And both in the Victims Compensation
2    Fund and in other lawsuits that I've managed, the
3    representatives of those people have presented their claims,
4    and they've been resolved.
5          MR. SPRUILL: I appreciate that.
6          THE COURT: Thank you, sir.
7          Another speaker? Yes, sir, come up.
8          MR. MALONEY: Thank you, Judge Hellerstein, thank you,
9    Mr. Napoli, Mr. Bern, Mr. Worby, Mr. Groner. I didn't --
10         THE COURT: Your name, sir?
11         MR. MALONEY: I'm sorry, my name is David Maloney. I
12    retired in 2007.
13         THE COURT: Your first name is David?
14         MR. MALONEY: Yes, sir, David Maloney.
15         I retired in 2007 from the New York City Police
16    Department. I retired with Joe Greco I was retired on the 9/11
17    bill. I'm here today, and I was here the last time during the
18    hearings, but I was downstairs, I couldn't make it up. I
19    apologize for not getting on the list. I didn't think I was
20    able to make it here today for personal reasons.
21         THE COURT: There's no problem, Mr. Maloney.
22         MR. MALONEY: During 9/11, I was down at the World
23    Trade Center when -- after the plane hit the second tower.
24    When the towers came down, we all got out and we ran, we ducked
25    as we were running, as debris hit us and smoke. We came back
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1    over, came back around to -- a lot of you guys know Building 7
2    came down -- we got into that debris also. I was working in
3    the Trade Center in a pickpocket unit in the basement for a
4    couple days prior to that. We got there a little bit late that
5    day, so we got there after the planes hit. I lost a big part
6    of my life, you know, that day, like many of us have, and --
7    sorry if I'm a little bit nervous; I testified in thousands of
8    cases and I'm a little nervous today. But I typed a letter. I
9    don't know if you got it or not, but I just want to read the
10    letter real quick.
11          THE COURT: Go ahead.
12          MR. MALONEY: I am typing this letter to express my
13    feelings on the settlement. I think that this settlement is
14 fair and will benefit my family and I. I have been through a
15    couple of surgeries and I lost a tremendous amount in my life.
16    I had a surgery done in 2006, called a genioglossal advancement
17    where they took back -- they cut parts of the back of my throat
18    out, they took out part of my soft palate, my uvula --
19          THE COURT: I did read your letter.
20          MR. MALONEY: -- a wire to put it forward, basically
21    to help me breathe. I developed severe asthma and RADS. I
22    also had a sinus surgery and to -- then I have to go back for
23    another sinus surgery in another month to put plates into my
24    nose. I also developed GERD. I'm on Nexium three times a day,
25    and a lot of you know how that is and what it does to your
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1    stomach.
2          Besides the asthma and the reactive airway disease and
3    the sleep apnea -- I was 77 times an hour. At the time I was
4    about 170 pounds at six foot tall. I developed -- in 2005,
5    they, thank God, misdiagnosed me with lung cancer. I was 32
6    years old at the time. I just kept getting chronic lung
7    infections along with bronchial infections and sinusitis.
8          Going -- I'm the fourth or fifth person to have my
9    type of surgery, and I also had my tongue moved two inches, to
10    help me breathe at night. So I thought that would prevent me
11    from wearing the C pap machine, which is a very annoying. I
12    usually end up throwing it across the room four or five times a
13    night. I'm on Advair 500/50, Nexium, Albuterol, I'm also on
14    the breathing machines with -- like Mr. Greco, and my mouth
15    constantly builds up with slur because I don't have the uvula
16    and parts of my throat to correct the saliva, so I kind of
17    drool a lot at times.
18          I'm on Allegra-D, prednisone, along with trazodone to
19    help me sleep. I'm on a bunch of other medications. Due to
20    all these illnesses, I cannot get life insurance. If I die, my
21    family is left with nothing, and I have three kids who are my
22 life. Also, when I pass on, my pension dies with me. I used
23    to coach in sports and I was very active.
24          I started out as a police officer, then I was
25    undercover detective, and then I made sergeant. Through that
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1    time, as I said, I had been involved in over 3,000 arrests and
2    I actually hired an attorney to actually sue not to retire. I
3    didn't want to leave. On the day I retired, July 31st, '07,
4    Commissioner Kelly called me to his office and gave me a box
5    with two small badges in it that were his. He ended up telling
6    me he wished he had more men like me in the force, and I really
7    had gratitude for that. I love the Police Department and I
8    worked with a lot of good firemen too, and we all spent a lot
9    of time down there. I don't blame anybody, and if you ask me,
10    I'll go down there and I'll do it again.
11          It's disturbing -- I lost a lot part of my life, but I
12    never ever would take back what I have done for people. I used
13    to coach my son in sports, and I really thought I was Superman.
14    This job was kind of like my identity, and when my identify got
15    taken away from me, I felt like that I wasn't super anymore.
16    All I want is my children to be provided for when I'm not
17    around.
18          I just went for, like I said, another CAT scan and had
19    those results where I needed another surgery. Mr. Napoli,
20    Mr. Bern has put in tremendous amount of time and care into
21    this suit. Back in the beginning of '07, I flew to Washington
22    and I went down during when Christie Todd Whitman, where I seen
23    how much they cared then. They have taken ever phone call I've
24    ever been in and they've been a tremendous help. I truly
25    100 percent believe in this suit, and I'm glad that it's
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1    finally coming to an end. A lot of my colleagues that couldn't
2    make it here today also agree with me, that are also involved
3    in this suit.
4          I just want to thank the Court, the Court's time and
5    everybody involved here for all their help. I really
6    appreciate that and especially you gentlemen sitting up there.
7    You've always had our back. Thank you very much. And thank
8    you, your Honor.
9          THE COURT: Thank you Mr. Maloney. Any other
10    speakers? I'll read two letters and then we'll close the
11    record. I'll read two letters and make my findings.
12          This letter comes from Bundy Chung.
13          "Dear Judge Hellerstein: Because of a previous
14    engagement to be out of town, I'm not able to attend. It
15    saddens and disheartens me that everyone, but those affected by
16    the World Trade Center disaster site, that is, the plaintiffs,
17    sees this new $712.5 million deal as potentially good."
18          He quotes me to say it's a very good deal.
19          "I applaud what the Court, all lawyers, all neutral
20    parties and everyone else did that helped come to this
21 settlement have done, but it's not enough. As you said,
22    plaintiffs will have to make that decision. As a first
23    responder, I agreed with Mr. Kenneth Feinberg that we are
24    indeed victims of injustice, not only because we waited so
25    long, but in comparison to the Victims Compensation Fund total,
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1    this new settlement amount is only millions versus the previous
2    billions."
3          That's not exactly fair, because there are many more
4    people involved in that here.
5          "Although most of the 10,000 plaintiffs have not died,
6    the continuing medical bills continue to mount and who knows
7    for how long. The settlement does nothing to alleviate the
8    stress of wondering if the federal government will pass An d
9    funds for our medical and prescriptions. How can a
10    $712 million settlement be considered fair when it pays no pain
11    and suffering, no loss of wages, no income, no guarantee of
12    future medical costs in coverage?"
13         The point is that there are no breakdowns. The
14    settlement amount is a totally-encompassing amount and there
15    are tax reasons why that is beneficial, because parts of these
16    would be, if broken into components, taxable. The way the
17    settlement is structured, the lawyers believe it's not taxable.
18         "Even the plaintiffs' attorneys are getting
19 $200 million." That's more than they're getting but that's OK.
20    "Just who are the real victims? The 512.5 million that gets
21    divided among the 10,000 plaintiffs, it's only based on a rough
22    categorization of medical illness. Even that is flawed, as
23    told in the town hall meeting, current cancer patients can't
24    gets upwards of a million dollars but there's a cancer clause
25    of awarding $100,000 to anyone afterwards. Clearly, there's no
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1    proportionate payout."
2          He quotes me by saying, "It's not a perfect
3    settlement. Settlement, by its very terms, means compromise,
4    and compromise means that you're dealing with imperfection.
5    This settlement can't restore people to who they were and what
6    they were the day before September 11th. This settlement,
7    however good, cannot restore health to those who lost health
8    and can't restore a life to those who lost life. So this deal,
9    although a compromise, is a good deal. It's a very good deal."
10         "But first responders, like myself, already made a
11    compromise with our health and safety, to continue looking for
12    remains and continue doing our duties, despite the questionable
13    assurance of the air quality being safe by government agencies
14    and having no proper breathing equipment provided by the City
15    of New York. It's my understanding that the Victims
16    Compensation Act was created to speed up litigation by offering
17    a settlement amount that made settlement attractive instead of
18    costly litigation. This new $712.5 million settlement offers
19    us nothing for our biggest issue, continued and future medical
20    costs and prescriptions, among other things. It's my opinion
21    that the City of New York has not made enough compromises. I
22    was a nonsmoking New York City fireman assigned to Engine 10 in
23    Downtown Manhattan, who was not even hired until January 2002,
24    and yet the same medical that found me fit for becoming a
25    fireman also forced me to retire when my lung capacity
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1    diminished by approximately 30 or 40 percent in three and a
2    half years. My biggest concern is future medical costs and
3    expenses, since I'm only 40 years old. This is not even to
4    mention the lost earnings or rank potential to maybe become the
5 first Asian American to hold rank in the fire department.
6          "As stated above, the settlement cannot restore health
7    and those who lost health and it can't restore life to those
8    who lost life. I understand what's at the table in this deal,
9    but to me, this current 712.5 million settlement does little
10    for the compromise I made losing my health, career and ability
11    to live the life toward the pursuit of happiness, like the
12    Victims Compensation Act did for the previous victims on
13    September 11th. As Mr. Paul J. Napoli stated, 'we believe a
14    debt was incurred on September 11th, a debt to these men and
15    women.'.
16          "Your Honor, I urge you to put yourself in the shoes
17    of the ailing first responders who made tremendous sacrifices
18    for the city and the nation and who are now in poor health,
19    some who have died, some who are dying, and others fearing a
20    future of unknown, and concerned about future medical or
21    prescription coverage, the loss of career and achievements and
22    daily activities most take for granted and still feel if it is
23 a good deal. Like many other first responders, I do not wish
24    to pursue trial but see going to trial as our only option
25    because the current 712.5 million, of which 200 million goes to
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1    attorney fees, does too little. As you stated, this is going
2 to be a process that puts money in their hands fast. But what
3    about the long-term and future medical and prescription
4    expenses? This settlement amount only offers a temporary
5    reprieve, not a final resolution to our turmoil. Most of us
6    suffer long-term health problems that will most likely get
7    worse while medical bills will continue to climb. Where is the
8    compromise for that? Please do not let justice be so blind
9 when the negligence is overwhelming and affects so many who are
10    just trying to do the right thing and may now lose everything
11    if this settlement amount is not increased. Thank you for your
12    time and consideration. Respectfully submitted, Bundy Chung."
13          The last letter I'll read is from the law firm of
14    Douglas & London, signed by Michael A. London.
15          "Dear Judge Hellerstein: We write as counsel to
16 numerous plaintiffs with cases and claims part of MDL docket
17    21 MC 100. As the Court is likely aware, our office had
18    certain concerns with the originally proposed settlement
19    announced on March 12. These concerns were premised upon
20    overall fairness and transparency of the settlement process.
21    Having served as court-appointed lead, colead and federal
22    liaison counsel in numerous mass tort and class action
23    litigations, many of which have been some of the largest in
24    recent years -- and in the aggregate they have resulted in
25    billions of dollars in settlement -- we submit this letter as
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1    support for this proposed settlement and to indicate that we
2    intend to recommend same to our clients.
3          "While we appreciate all of the efforts of counsel to
4    reach such a momentous stage of such a massive and complex
5    case, the terms and protections being afforded the claimants in
6    the originally proposed settlement agreement were, in our view,
7    simply not sufficient. To this end, we were tentative
8    objectors and we praise the Court for its guidance and
9    directives to go back to the drawing board.
10         "In stark contrast to the first proposal, the new
11    proposed settlement has rectified many of the inequities,
12    errors and troublesome aspects. While it is not perfect and
13    while it does not compensate every claimant as he or she surely
14    deserves, it is much better and is a more equitable program.
15    Indeed, a few highlights of just some of the issues that we
16    believe have been substantially rectified and which form the
17    basis of our prior objections and concerns are as follows:
18         "First, the appointment of Kenneth Feinberg provides
19    the ultimate indicia of fairness and due process. Having been
20    privileged enough to have Mr. Feinberg as a court-appointed
21    special master on other cases our office has been involved
22    with, and as the Court knows firsthand, Mr. Feinberg's
23    appointment and willingness to serve as an appellate neutral is
24    a tremendous development; and with his review of appeals, the
25    process cannot in our view be any fairer.
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1          "Second, the appointment of Matthew Garretson is
2    welcomed as he has a significant mass tort experience in many
3    complex and large-scale litigations; and based upon our
4    experience and history, he's always performed exemplary.
5          "Third, the increased awards for solid tumor cases are
6    more reasonable, 10,000 points for respiratory tumor cases and
7    2,500 points for nonrespiratory tumor cases where previously
8    they merited only 650 points.
9          "Fourth, the increased overall settlement value from
10    $575 million to $625 million, and even higher if certain
11    criteria are met.
12          "Fifth, the waiver of all Workers Compensation liens
13    on behalf of the City of New York and approximately," he says
14    "$50 million value." I think the estimate is fairer at
15    20 million.
16          "Six, liaison counsel to clarify what we believe to be
17    a discrepancy in the settlement agreement regarding points
18    awarded certain injuries and/or death because of blood cancers.
19          "Notwithstanding all of the above, we still have two
20    concerns regarding certain aspects of the settlement agreement:
21          "First, concerns over future filings: Section IV of
22    the settlement agreement has raised concerns regarding cases
23    possibly filed in the future and posits to discourage or
24    prevent same. As such, we believe this section warrants
25    further discussion with liaison counsel and more particularly
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1 we believe these annual $5 million awards should become part of
2    the settlement now."
3          There's an incentive that's built in depending on a
4    fewer number of later cases that he's referring to. But I
5 don't believe there are any discouragements or prevention or
6    All there is, is an advancement of proofs.
7          "The second concern is the Victims Compensation Fund.
8    Our concern in this regarding involves the potential reopening
9    of the Victims Compensation Fund and what effect such a
10    reopening will have on claimants herein should they opt into
11    the settlement. We are mindful of the Court's statements at
12    the June 10, 2010, hearing and we believe that enactment of the
13    fund would not bar the settlement of this litigation. However,
14    we write to ensure that in no way does settlement of these
15    claims under the terms of this settlement agreement bar
16    claimants' rights should the Victims Compensation Fund be
17    reopened.
18         "While we appreciate that this settlement is real and
19    is now, neither the settlement north legislative fund, if ever
20    reopened, should preclude anyone from recovery. Simply put, we
21    must try and preserve all equity and rights for the injured
22    here."
23         And this is a petition that has to be made to
24 Congress.
25         "While the above issues are concerns we've sought to
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1    express to liaison counsel, they remain unresolved and we
2    sincerely hope that they can be appropriately addressed within
3    the next ten to fourteen days."
4          Folks, this is a settlement; there are not going to be
5    any changes.
6          "This settlement is a landmark accomplishment for
7    which we greatly appreciate the Court's attention and
8    dedication. The dedication and work involved in this process
9    touched on so many substantive and important issues, including
10    legal issues, medical issues, causation issues, science-based
11    issues, liability issues, strengths, weaknesses, social issues,
12    political issues, and equitable fairness issues. Accordingly,
13    we applaud all involved and thank the Court for its time and
14    dedication.
15          "In whole, we support this settlement and intend to
16    recommend it to our clients and thank the Court for its time
17    and continued courtesies." Signed Michael A. London.
18          All right, that's all the submissions that we have.
19    As I told you before, I intend to approve this settlement and I
20    now do so, as a fair, adequate and reasonable settlement,
21    reflecting hard bargaining and concern for fairness of varying
22    parties. It is fair in amount, it is fair in procedure, it is
23    fair in the continued procedures that will be used to hear and
24    decide the various claims. So as of this date, June 23, I sign
25    this order approving the modified and improved agreement of
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1    settlement. And I will ask Ms. Dixon to file it in the court
2    records.
3          As part of this settlement, I now will sign case
4    management order number 10 in the 100 docket. This will
5    regulate cases that do not settle and may still be filed. And
6    as I said, the purpose of these is to advance the requirements
7    of proofs and specifications so that the merits will be
8    advanced and the absence of merit, if any, will be made clear.
9          This is not intended to discourage anything. It is
10    intended to hasten the process so that there can be a final and
11    speedy resolution to the controversy. And this, too, I give to
12    Ms. Dixon for filing in the court records.
13         Next, in 21 MC 102, I approve case management order
14    number 7, which does the same thing for the 102 docket. And in
15    a moment I'll do the same thing for the 103 docket. And I have
16    now signed everything that I am required to sign to make this a
17    fully effective approved settlement, ready for vote by the
18    people affected.
19         Now, I want to say one more thing. On Friday we have
20    another meeting here regarding status of the remaining cases
21    against other defendants in the 100 docket and in the 102 and
22    the 103 dockets. I believe that there are parties who wish to
23    settle. In some cases, they need to be organized in a better
24    way. There are major defendants that are still not part of
25    this process -- the Port Authority, the insurers of the workers
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1    at Fresh Kills, the insurers of the barges, and various other
2    defendants, some of which really ought to be out of the case
3    and some of which may be in the case. The purpose of Friday's
4    meeting with regard to these defendants is to find out how we
5    can advance this process. I intend to stay all litigation
6    activities at least for the time being so we can give full
7    attention to the settlement process. I believe that given the
8    leadership shown by the city, that others will want to follow.
9          This is a very expensive litigation. With the
10    extraordinary capabilities of Mr. Tyrell and Mr. Hopkins and
11    their firm, with them out of the case, it's a different kind of
12    a case for others. Some of these defendants have major
13    defenses and pending motions. I heard argument by the Port
14    Authority regarding what they claim is a jurisdictional
15    objection to some of these cases, that either did not pay
16    attention to the requirement that notice be given in advance or
17    that too much time or too little time was elapsed between the
18    time of notice and the filing of the lawsuit.
19          There are precedents one way by the New York courts;
20    there are precedents in a different way by the highest court in
21    New Jersey. And as a creature of interstate compact between
22    New York and New Jersey, ratified by the Congress, the cases in
23    New Jersey compel as much attention as the cases in New York.
24    I've read these cases several times and I've assessed arguments
25    several times. And I've not yet made up my mind how I want to
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1    go on this issue, and I'd let the parties know that I've been
2    not been able to come to a decision. It may be that the
3    parties would like to resolve these questions by way of a
4    settlement rather than wait for my decision, and appeals.
5          In the Fresh Kills situation, there are a finite
6    number of workers that are involved. We need to know who they
7    are. We need to know whether they fit into one, two, or three
8    or four tiers and where they fit, so that an evaluation can be
9    made of the values of these cases. We also need to know how
10    resolutions of these cases might fit into the larger picture.
11    So we're going to explore those kinds of issues.
12          With regard to the 102 case -- this can also be said
13    about some of the defendants in the 100 case -- we need to
14    explore how to create an organization of those cases.
15    Mr. Tyrell has been giving the organization to the 102 case,
16    but that's a very difficult situation because there's lots of
17    disparate tenants and landowners and construction contractors
18    in those cases; and with Mr. Tyrell out of the case, there is a
19    lack of leadership. And I've reached out to George Hritz of
20    the Hogan & Hartson firm -- it's a different name now -- who
21    has a considerable amount of experience in this field. He'll
22    be at the Friday meeting and I'm going to suggest him as a
23    liaison counsel to create some unity of purpose and planning
24    for those cases. In short, I want to explore with all of these
25    three dockets the feasibility of additional settlements while
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1    we still have this settlement inertia, to see if that's what
2    people want to do. Mr. Slattery -- Flannery?
3          MR. FLANNERY: Flannery.
4          THE COURT: Flannery, sorry.
5          -- for the Battery Park City Authority will also want
6    to be involved in this process; they may also want to settle
7    claims against the Battery Park City Authority. So that's
8    going to be the subject of concern, the major topic of concern
9    this Friday.
10         So we are finished with today. I thank you all for
11    your patience. I've been extremely moved by the statements of
12    the public. This has been a long and difficult process and I'm
13    very happy that it's resolved and resolved in favor of the
14    settlement, which in the passage of not too much time, and the
15    explaining of it by Mr. Garretson, I look forward to a speedy
16    distribution of checks to those who deserve to be paid and go
17    on with their lives. Thank you very much.
18         COUNSEL: Thank you, your Honor.
19                       ***
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