Here's the actual EPA statement, which specifically warns workers to wear respirators and keep debris wet. The monitoring data was publicly available.

It is absolutely false that a New York district court "found" that Whitman misrepresented anything. Read the Benzman v. Whitman opinion; it merely states that the plaintiffs' allege this, and, as FRCP 12(b)(6) requires, the court assumes the allegations arguendo. Even the most incompetent attorney understands the standards for evaluating a motion to dismiss, so one wonders why you would make such a bogus claim.

Good thing you're not like those dastardly reformers, whose supposedly make their arguments by misrepresenting the facts in poster-child cases.

Hi Ted,

This is a completely fair critique of my characterization of the case as to the findings of the court. It is true, as you state, that the court assumes the allegations to be true when considering a motion to dismiss, and in stating that the court found these facts at this point of the litigation oversimplifies the issue.

At the same time, I felt comfortable stating it as I did, because the court reaches it finding by relying on facts that don't need the benefit of this assumption.

The court sites to outside reports and sources, including the EPA's on Inspector General Report which often directly quote Whitman's public statements.

Unless, as cited in the opinion, these points aren't true as stated in the decision then the ultimate findings will be the same.

I will concede that the way it is stated above was not fair, and even in writing it initially I hesitated for the reasons you said, but I did because the facts the court relies upon, i.e. - the direct quotes of Whitman and others from public speeches - to reach its determination are not seriously contested such that they would need this usual deference as to a motion to dismiss.

To buttress the above see the included direct quotation by Whitman and by those she supervised.

September 11, 2001 attack:
•
September 16, 2001: “Our tests show that it is safe for New
Yorkers to go back to work in New York’s financial district”

(quoting Assistant Secretary of Labor for [Occupational
Safety and Health Administration]).

“The good news
continues to be that air samples we have taken have all been
at levels that cause us no concern” (quoting Whitman).

“The
Agency is recommending that businesses in the area planning
to reopen next week take precautions including cleaning air
conditioning filters and using vacuums with appropriate
filters to collect dust.”

September 18, 2001: “We are very encouraged that the results
from our monitoring of air quality and drinking water
conditions in both New York and near the Pentagon show that
the public in these areas is not being exposed to excessive
levels of asbestos or other harmful substances. Given the
scope of the tragedy last week, I am glad to reassure the
people of New York and Washington, DC that their air is safe
to breath [sic] and the water is safe to drink” (quoting
Whitman).

September 21, 2001: “EPA Disaster Response Update NYC
Monitoring Efforts Continue to Show Safe Drinking Water,
Air” (press release heading).

“New Yorkers and New Jersians
need not be concerned about environmental issues as they
return to their homes and workplaces. Air quality
monitoring data in residential areas has been consistently
reassuring” (quoting Whitman)

October 3, 2001: “Data Confirms No Significant Public Health
Risks; Rescue Crews and Nearby Residents Should Take
Appropriate Precautions . . .” (press release sub-heading).

October 30, 2001: “While we have fortunately not found
levels of contaminants that pose a significant health risk
to the general public, our efforts to monitor the area and
keep the public informed of our findings have not waned.”
(Id. ¶ 128.)

Plaintiffs state that these statements are
remarkable given that the EPA’s own tests revealed that the WTC
Page 15
15
dust contained concentrations of asbestos at levels above the
“so-called 1% danger threshold.” (Id. ¶ 129.)

Hi Ted,

I thought that we had bad a really balance and forthright back and fourth.

Then……………. I glanced at your first statement which I initially skipped over.

And I said to myself , I guess… I was wrong

you state that:

“Here's the actual EPA statement, which specifically warns workers to wear respirators and keep debris wet. The monitoring data was publicly available.”

How can you keep all of Ground Zero "wet" as an individual worker? You need it to rain.

The same press release which you reference, in multiple sections reassures that there are not significnat health risks (despite the fact that the EPA's own internal testing states otherwise).

“"We are very encouraged that the results from our monitoring of air quality and drinking water conditions in both New York and near the Pentagon show that the public in these areas is not being exposed to excessive levels of asbestos or other harmful substances," Whitman said. "Given the scope of the tragedy from last week, I am glad to reassure the people of New York and Washington, D.C. that their air is safe to breath and their water is safe to drink," [Whitman] added.”

I tried to find the section where they warn people should use respirators and found only this language from the press statement which you link to.

Nowhere can I find that it warns people that they must or in need to use these masks. All I see is that it says it is attempting to help make them available.

Moreover, the referenced dust masks would not have been sufficient protection, respirators were needed.

Although there were some respirators at the site, the assurances that the danger was minimal, in the very press statement you reference, encouraged people to take them off - as it was hard to wear them while rescuing people and being an American patriot.

"EPA has assisted efforts to provide dust masks to rescue workers to minimize inhalation of dust. EPA also recommends that the blast site debris continue to be kept wet, which helps to significantly reduce the amount of airborne dust which can aggravate respiratory ailments such as asthma. On-site facilities are being made available for rescue workers to clean themselves, change their clothing and to have dust-laden clothes cleaned separately from normal household wash.

Four quick points, because this is perhaps the biggest waste of time I've ever engaged in.

1) You repeat your mistake when you say the district court relied on facts. It didn't; it relied on allegations. If Whitman's statements in full context aren't false, then there's nothing wrong with them. If you still don't understand this, you don't understand Rule 12(b)(6) or what the district court was doing.

2) Dugger continues to confuse the EPA's statements about the Financial District with the EPA's statements about Ground Zero itself. The plaintiffs' lawyers do this because if they accurately characterized the EPA press releases, they wouldn't be able to state a claim for relief. What's Dugger's justification? Especially when he goes on to quote the EPA's remarks about the blast site.

3) Dugger seems to think it's impossible to keep workplace sites wet without rain. If true, one feels sorry for those asbestos remediation workers who work indoors, where it never rains, and thus must never be able to keep the site wet, since rain is the only achievable means of creating wetness. (One also wonders what Dugger thinks fire departments do: pray for rain?)

4) By the way, respirators are a synonym for dust masks, so your hair-splitting is both wrong and besides the point.

I find is incredibly ironic that you find this blog so useless given that you spend so much time over here.

Ironic to say the least. Why waste your time commenting?

To be honest, the coordinated move by a group of tort "reformers" including yourself began vigorously commenting on this blog starting Monday - often with less than substantive attack comments (but not alwayss ; )

I have to say that just to be honest, you seem pretty threatened over there at overlawyered.com by a blog that has only been around for just a couple of weeks.

To address you comments above. I already stated that it is not fair to characterize the decision as simply “findings” of fact. I state the reasons that I did do so above, at the same time it's a fair critique to say it's unfair to do so.

I quickly agree with fair points Ted, have you ever done so in all your years at legal blogging?

But to explain again... I stated that the court found that Whitman msirepresented the facts. What I should have said and meant to say was the court found that if the facts as plead were true Whitman conduct was so outrageous that it "shocked the contemporary conscious" and required that her usual governmental immunity be waived. I also said "found" because the most damning facts that were plead seem highly uncontestable. They consist largely of direct quotations (cited above) of statements by Whitman and those she supervised as well as the EPA’s own internal test results (so unless the EPA will contest it’s own test results I think we’re safe).

Indeed, since many of the pled facts seem uncontestable as they consist of quotations and the EPA’s own documents, unless these direct quotation are untrue, the court would reach the conclusion that Whitman did misrepresent herself and the following statements above by the judge are how she will analyze the case.

Okay great, hopefully we’re on the same page now.

I do also find it ironic that the tort “reformers” from overlawyered.com come over to Tortdeform.com and latch onto one small piece of a larger post. This whole discussion is about one small assertion about a fact about Whitman’s conduct which is just as easily supported by the EPA Inspector General’s report.

Ted, Now that we have had this back and fourth about this point which accounts for one half of one sentence…. Could you please actually engage the larger argument of the post (as a whole) with some substantive comments you have yet do so…. and it’d be nice to see.