TorteDeForm

Cyrus Dugger

9/11 & The Safety Is Too Expensive Business Model

There are a lot of great corporations in America today. Without corporations, our economy might indeed cease to function. Undiscriminating criticism of corporations, simply for being corporations, is not a productive exercise.

However, the reality is that there are also a significant amount of corporations which not only do not have the public interest at heart, but which also negligently and/or recklessly endanger the public health.

When corporate decision makers, make these choices, the following model can serve as a guide to the processes that may result.

The “Safety is Too Expensive Business Model”

• A corporation is making a profit or saving money by providing a service or making a product in a particular manner. Some aspect of this process endangers public health. However, the corporation continues the harmful practice.

• A group of people who are harmed seek a legal remedy and file suit (note that most of the time only a small percentage of Americans actually ever file suit for their injuries).

• The corporation denies any wrongdoing and/or attempts to conceal its involvement. Even if the corporation concedes limited responsibility, it contests the claims of each individual on the grounds that its conduct did not cause that specific person’s specific injuries.

• The corporation is forced to defend its conduct in court and is exposed to potential liability as well as public embarrassment. The responsible corporation then turns around, and with the help of its peers, cries for tort reform and liability caps because it claims litigation is too expensive and might bankrupt it or the entire industry.

• Of course, what this "too expensive" argument omits is that it was the corporation's own knowledgeable choice to cause the risk to public health which created the need to go to court, and ultimately exposed it to the potential financial loss that it subsequently laments.

The Governmental Response to the Health Effects of 9/11 Are Strikingly Similar

Unfortunately, the governmental response to 9/11 can be conceptualized as a case study of this very same "safety is too expensive" approach to doing business (or as in this case of governing).

A corporation is making a profit or saving money by providing a service or creating a profit. Some aspect of the processes endangers public health. However, the corporation continues the harmful practice.

• The health risks are immediately apparent to government officials in the wake of the attacks. Firefighters and others come down with "WTC cough" in the days and weeks after 9/11. More pointedly, the EPA's own tests made clear that the area was not safe. Although the EPA did not use the most up to date tests to evaluate downtown Manhattan, it did find the resources to do so for its own NYC offices.

• Federal, state, and city officials wanted to get people back to work after the 9/11 attacks in order to show a resolute nation. They also did not want to incur the additional economic costs of keeping lower Manhattan shut down, or to acknowledge the need for and therefore ultimately pay for a comprehensive environmental cleanup program. Towards both ends, government officials affirmatively encouraged people to return to the WTC site and the surrounding area before it was safe for human occupancy.

• A recent decision by U.S. District Judge Deborah A. Batts found that the conduct on the part of the EPA Chief in making public statements minimizing the risk was so egregious that it "shocked the contemporary conscience" and resulted in the waiver of the usual government immunity granted to federal officials. This same court also found that the EPA may have violated federal law.

• In taking this "safety is too expensive approach," authorities put their budgetary concerns over the safety and well being of New Yorkers.

A group of people who are harmed seek a legal remedy and file suit.

• Medical monitoring of 9/11 responders and workers show massive negative respiratory, mental, and other health effects with approximately 70% of those monitored showing significant negative health effects as a result of exposure to the contamination.

The corporation denies any wrongdoing and/or attempts to conceal its involvement. Even if the corporation concedes limited responsibility, it attempts to contest the claims of specific individuals by claiming that its conduct did not cause that particular individual’s injuries.

• As the health effects became apparent, government officials continued to deny a link between 9/11 and the harmed victims' injuries. Workers comp claims were often denied based on an inability to meet the high burden of proof required to show medical causation, and an overly restrictive statutes of limitations. In addition, many of the claims were contested and became stalled in an appeals process which kept victims from getting benefits for months or years.

• The danger only became apparent to the public by way of Freedom of Information Act filings and independent analysis by the private sector.

• As recently reported in the Daily News, city officials resisted issuing medical guidelines for diagnosing WTC related illnesses, and left this task to private institutions (until almost five years after the attack on September 1st 2006). A potential reason for this delay was a fear of strengthening a link between WTC and the reported injuries and therefore opening the city and its officials to potential lawsuits.

• The federal government continued to deny that it misled the public until (and to a degree after) the EPA's own Inspector General claimed that they did exactly that (there is now a class action lawsuit litigating the issue in New York Federal Court).

• Until only recently, the state implied that the illnesses of 9/11 first responders and cleanup workers were not linked to 9/11, and/or that it was too expensive to treat the victims.

• City officials still continued to strongly question a link between the WTC site and the reported injuries right up until the fifth anniversary of 9/11. Even after promising a new treatment program for 9/11 health victims, city officials have still expressed continuing doubts about this causal link.

The corporation is forced to defend its conduct in court, exposing it to potential liability as well as public embarrassment. The responsible corporation then turns around, and with the help of its peers, cries for tort reform because it claims litigation is too expensive and might bankrupt it or the entire industry.

• A mass of workers compensation claims, which were the only route to benefits for many cleanups workers, are filed by sick workers in the years after the attacks. Many of these claims denied based on both an inability to meet the high burden of proof required to show medical causation, and an overly restrictive statute of limitations. In addition, many of the claims were contested and became stalled in an appeals process which kept victims from getting benefits for months or years.

• These claims are delayed and denied out of hand because of a shortage of funds to cover all of these claims. Instead of attempting to secure more funding to address these workers compensation claims, the state-run (and largest) workers compensation insurer simply denied meritorious claims.

• City officials went so far as to deny and contest the workers compensation claim of its own former Deputy Mayor (Rudy Washington), who was responsible for coordinating the immediate response to 9/11 on the ground in the days immediately after the attack.

• Similarly, in a workers compensation hearing, the city went so far as to argue that the fact that 9/11 happened needed to be proven to the judge (the judge responded that it was not necessary to do so).

• City officials repeatedly stated that that it is simply too expensive to fully compensate these victims (at anoriginally estimated cost of five to ten million dollars for the City of New York). Only in the wake of even more supportive studies and increasing public pressure, did city officials relent and agree to fund modest treatment programs.

• In short, after administrators chose to put savings over public health, and after people became ill as a direct result of this decision, government officials complained that this effort was just "too expensive."

• Like its corporate counterparts, the government entities making this argument conveniently omit that it was their decision to mislead/not inform New Yorkers of the health risk of the WTC contaminants which proximately caused the harm they now complain is too expensive to address.

• Ironically, what is especially cruel about the "safety is too expensive model" is that in the long run it costs society as a whole more than protectivemeasures ever could have. In opting for potential liability for compensation after the harms occur as opposed to taking protective measures beforehand, the absolute amount of harm to society is increased. Pointedly, yesterday Senator Clinton stated to Congress that $1.9 billion will be needed over just the next five years to provide treatment. This estimate doesn't even include treatment of exposed Manhattan residents which the city has just recently dedicated only $3.2 million a year to address. The estimate also only assumes $5,800 will be needed for each victim each year (which seems to be a relatively conservative estimate).

• Although it would have been expensive to take preventative safety measures, in the long run it would have cost society far less than to instead be obligated to directly treat (and support the dependents of) the possibly thousands of victims who may fall ill from the collateral health effects of 9/11.

While 9/11 has affected this nation in many ways, this analysis of the events following 9/11, argues that the endangerment of public health is a symptom of an approach to governance which puts financial concerns over human concerns.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

Cyrus Dugger: Author Bio | Other Posts
Posted at 3:37 PM, Sep 14, 2006 in
Permalink | Email to Friend


Comments

I can understand (but not accept) it when corporations engage in this sort of behavior. Profit-seeking enterprises don't want to lose money, and the executives don't want to be held accountable by stockholders.

But this kind of behavior makes no sense in this case - there are no shareholders to worry about. Now, I don't live in NYC, but I used to work there way back before 9/11. Even then, the average New Yorker had a tremendous amount of respect for their police and firefighters. I would imagine those feelings are only amplified today.

As such, I can't imagine New Yorkers would give a damn about the costs of treating sick and injured 9/11 rescue workers.

The word hero has been cheapened by its repeated application to just about anyone who isn't currently in prison. (Do you read to your kids? You're not just a good parent - you're a hero. Do you act as the designated driver? Then you're not just a good friend, you're a hero!) But under any definition, the individuals involved in the rescue and cleanup operations of 9/11 are true, honest-to-goodness American heroes.

It angers and sickens me to think that those heroes and their dependents aren't being properly taken care of. Whether out of a sense of duty and respect or simply for political gain, I hope some politicians over there step in and do what is unquestionably the right thing by fighting for the sick and injured.

Posted by: Justinian Lane | September 14, 2006 4:31 PM