Cyrus Dugger

Devalued Suffering & The Problematic Aspects Of the 9/11 Victim Compensation Fund

In the wake of the fifth anniversary of 9/11 we all have a lot of remembering to do.

First and foremost, we must remember the lives we lost on that horrible day.

Second, and perhaps at this point, even more urgently, we need to remember and take steps to assist those first responders, cleanup workers, and downtown residents who have become sick from exposure to the contaminants released by the WTC site.

However, after remembering these two points, we should also think further about the larger implications of the 9/11 attacks, and our nation’s response to them. In the days before, the day of, and the days after the fifth anniversary, many commentators have and will focus on the national security and political undertones and implications of this anniversary.

Which political party and which politicians are using the anniversary to their advantage? How will these tactics affect the midterm elections? Are we safer as a nation?

Despite the importance of these questions, there is another “political” aspect to 9/11 that has as yet received little attention in the media. This issue is the tort “reform” aspects of the 9/11 Victim Compensation Fund (“VCF”).

Although many critiques of it have been made, the VCF was in many ways beneficial to victims’ families. The VCF allowed suffering families to get immediate financial compensation for their losses. In rendering speedy compensation, the fund may have helped families avoid a heartbreaking and drawn out litigation process.

At the same time, the VCF is unprecedented in that although it was primarily portrayed as humanitarian relief for victims families, it primarily served as a liability shield for airlines which was paid for by American taxpayers.

Indeed, the initiative was not pushed through in the days after 9/11 by victims’ families, but was instead secured through lobbying by an airline industry fearful of liability and extensive litigation.

Victims were given the choice to voluntarily enter the fund and waive their rights to otherwise sue in court, or to pass on the fund and try their luck in court.

A less well know part of fund is that it capped the potential liability of airlines to the maximum amount that would be covered by their insurance policies. Two months after the attacks, supplemental legislation was added which also limited liability for the airports from which the involved aircraft departed, the City of New York, and the Port Authority of New York and New Jersey to the maximum amount which would be covered by their insurance policies.

In short, victims’ families were offered a procedure to get them quick compensation, but which required waiving their rights to traditional suits. Moreover, even if they chose to forego this quick compensation and file traditional suits, the bill also limited the amount of money that all victims could receive to the maximum amount already insured.

An even less well know aspect of the VCF, is that it implemented the primary goal of the tort “reform” movement:

The limitation of plaintiffs’ claims for non-economic damages to the magic and inflexible number of $250,000.

Over the last decade the tort “reform” movement has launched an effective campaign to convince state legislatures to cap the total amount of money that injured persons can receive through the courts for their non-economic damages to a total of $250,000 (regardless of what the jury determines it should be).

In each of the fifty states, the tort reform movement has aggressively pushed to limit these types of damages. Recent federal legislation almost passed Congress which would have pre-empted all state laws, would have capped all non-economic damages in medical malpractice cases at this magic number of $250,000.

What kind of injuries does this $250,000 limitation include? In the case of the VCF the following harms cannot be valued at more than $250,000:

“physical and emotional pain,

suffering,

inconvenience,

physical impairment,

mental anguish

Posted at 5:23 PM, Sep 12, 2006 in Permalink | Comments (0) | TrackBack (1)