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Cyrus Dugger

Keeping Ground Zero in Perspective: The Problem With Heroes

Today, the NY Times has a story reporting that the recently deceased symbolic representative for sick Ground Zero Workers and first responders did not “rush” to Ground Zero in the wake of the 9/11 attacks as reported by some news sources. Instead, he served near Ground Zero beginning a little over three months after the attacks. When asked why they did not correct what became the public story the widow said she was too busy grieving as her husband came near to and eventually succumbed to death. The son, who went to the State of the Union with Senator Clinton as her guest to help bring attention to the issue, said that he did not know the exact details of his father’s work at Ground Zero and did not know the representation in the press to be different than the reality.

The discrepancy between the symbolic emblematic hero story, and the reality of the man, gives fodder to what has been a surprisingly and jarringly un-empathetic opposition by those opposed to medical care and financial support for Ground Zero workers.

Sadly, heroes are rarely “perfect” human beings under the microscope. For all we know, Ceasar Borja could have been a horrible person, a bad husband, or even a bad father.

However, what Borja definitely was, was a person exposed to contaminants at and near Ground Zero. While he came late to the cleanup effort, he began working there three months into a cleanup that lasted ten months, and ultimately spent at least 17 days working in the area around Ground Zero on security and traffic detail.

Pointedly, it appears Ceasar Borja himself never made any public statements claiming anything other than the truth. It appears he was too sick to deal with the media. His son was the primary teller of his story, but was a storyteller without knowledge of the exact contours of the story. It's unfortunate, but understandable how that might happen as one's father is dying.

So the change in the story is that instead of rushing to the pile in the immediate aftermath of 9/11, Borja, a cop who served New York for 20 years, was exposed to contaminants doing his job as a police officer.

Although it makes for a less completely heart wrenching sound bite, the fact that a police office like Ceasar Borja got sick with a Ground Zero related illness actually makes a stronger case of Ground Zero related illness for those who actually worked on the pile, worked closer to the day of the initial attacks, and/or logged more hours at the site. If even Ceasar Borja can get sick from his work at Ground Zero, others who worked more intensively are potentially at an even higher risk than many had thought to be the case before.

Without having to even look at the tort “reform” movement commentators’ attack on the right for all Ground Zero workers to access the courts, I want to make prediction about what they will say.

Actually, before I even make that prediction, I want to make clear where the tort “reform” movement comes out on the issue for all sick Ground Zero workers, including those who did race to Ground Zero immediately after the attacks.

Jim Copland, Director of the Manhattan Institute’s Center for Legal Policy, wrote a New York Post op-ed titled “Simply Wrong” criticizing the decision by Judge Hellerstein to not bar out of hand all 8,000 claims of Ground Zero workers and responders against NYC and its contractors. The suit was filed against these entities for not providing and implementing the use of proper safety equipment at Ground Zero. Copland would move to have all claims of these workers and first responders simply barred out of hand before discovery was allowed to investigate evidence of the extent, nature, and duration of the city’s failings.

Here’s what the right wing (the same right wing that calls those who don’t “support the troops” unpatriotic) will say about those who worked in and around Ground Zero. (again, without having even read their blog yet).

Ceasar Borja, despite his twenty years of NYPD service, despite being exposed to Ground Zero contaminants, despite having a respiratory disease like other Ground Zero workers are coming down with, and despite (like others) coming down with his ailment in the years and months after exposure at Ground Zero, did not deserve free medical treatment, would not deserve workers’ compensation (were he alive), and his family does not deserve increased pension benefits after his Ground Zero related death. In fact, we should do everything within our power to prevent him and those like him from being compensated in life and death, and for that matter from having provided medical treatment for his injuries.

However, Ceasar, had he lived, and Ceasar’s family in his death, does not deserve these things because the right wing tort “reformers” think it is a good idea, he and/or they deserve them because they are entitled to them by law.

They will also say that because he smoked until the mid 90’s (ten years ago), it was his smoking and not his exposure at Ground Zero that caused his illness. Today, although much less so in the past, many people know the risks of smoking and know (despite previous false representations by Big Tobacco) that it is addictive.

However, those who are “informed” smokers and started recently make a risk assessment (although many current smokers are still simply addicted from having started before there was as much public information on the health effects) based on the risks associated with smoking. Exposure at Ground Zero puts those who smoked at a higher risk of becoming ill with Ground Zeros illnesses, but those who smoked accepted the risk of smoking, not an interaction between smoking and exposure to the dust of the twin towers on the job. Ceasar Borja may have been more vulnerable to WTC contamination as a former smoker, but he was not supposed to have been exposed to contamination in the first place.

The point that we have driven home is that the challenges faced by Ground Zero workers and responders are emblematic of all those attempting to seek justice in the courts. If even these heroes face as much opposition and attack when asking for medical treatment and in the case of workers a maximum of 400 in workers compensation a week, imagine what you or I might face if injured in a less public manner and while having no access to the national media spotlight.

Predictably, as the claim to classic “hero-hood” of rushing to Ground Zero fades, so does protection from attack for all those less “heroic” persons with legitimate claims who may not have risen to the level of national heroes, but who responded or worked there nonetheless.

In fact, to the extent that the tort “reform” movement pounces on this one case of the 40,000 people who worked at or near Ground Zero (or the landfill used for Ground Zero debris), they further demonstrate what has been my underlying my point: the tort “reform” movement is out to reduce and question the right of all Americans to access the courts in whatever context, unless and only unless, their injuries are too politically dangerous to critique.

Then again, as Copland’s op-ed demonstrates, at times they are willing to slam the courthouse door in the face of people like Ceasar Borja the hero, even as he was previously described in the papers before the NY Times correction.

Ceasar Borja, may not have been “Ceasar Borja,” but countless others at Ground Zero were. Indeed, the larger point about Ground Zero is that all Americans, whether “heroes” “medium-heroes” “quasi-heroes,” or even just people doing their jobs deserve to be supported and compensated when the negligence or misconduct of others (in this case primarily the federal and NYC governments and their contractors) cause them bodily harm or death.

In the wake of this story, tort “reformers” will attempt to draw attention from the well documented negligence of misconduct of government agencies and businesses in failing to protect responders, workers, and residents from exposure in Manhattan, and place the focus on one of 40,000 workers and responders, and an unknown number of residents and office workers, because in this one case the amount and type of service at Ground Zero was not as well documented as it should have been.

What this NY Times story ultimately stands for is the fact that sometimes we make people who put themselves in harm’s way bigger than they actually are because as a nation we need heroes (for another example here’s coverage of the Former Mayor Rudolph Giuliani’s over glorified yet flawed 9/11 response)

In response to the story Senator Clinton’s office observed “[S]acrifices were made by so many whether it was in the hours, days, weeks, or months after the attacks…they all deserve our help.” Agreed.

Let’s not forget our heroes, our “less than hero” Ground Zero workers and responders, or for that matter, our everyday Americans when fight for access to the courts in America today.

The challenges faced by Ground Zero workers affect us all because many of us were Ground Zero workers, many of us will face avoidable health risks like those faced by Ground Zero workers in the future, and many of the residents of Manhattan and Brooklyn are contaminated right now and will become sick within the next 20-30 years.

It's just that we just don’t know it yet.

Cyrus Dugger: Author Bio | Other Posts
Posted at 12:28 PM, Feb 13, 2007 in
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Comments

Amazing. In law school, one learns that the elements of a cause of action for negligence are duty, breach, cause, and damages. Cyrus apparently was late to class and missed the first three parts of the lecture, and just wants to jump right to "damages."

This blog has been hyping for weeks the claim that Ceasar Borja is an example of ground zero workers who were killed by their work there. (Although that doesn't stop Cyrus from dishonestly claiming, despite at least ten blog posts on Borja on Tortdeform in just three weeks, that it's the tort reformers who "pounce on this one case.") The facts show that Borja never worked there, and unlike the Saturday Night Live character Emily Litella, Cyrus doesn't even have the sense of shame to say "Never mind." No, he still insists that Borja was killed by a "Ground Zero related illness."

(On the other hand, at least Cyrus is honest enough to admit that he's too lazy to read tort reformers' statements before criticizing them about what they're "going to" say.)


As for Copland's Op/Ed, it's not he, but the state legislature, who "slammed the courthouse door" on these sorts of claims.

Posted by: David Nieporent | February 13, 2007 5:11 PM

David,

Your response does not actually respond to the primary points made in the post.

Even the overlawyered site presently ( I’m they sure hated to do so) concedes that "Of course, evidence may yet arise linking Borja's death to his work near the site. The New York Police Department and doctors, however, have yet to do so.”

What you may not have noticed in the above post is that Borja not being close to the pile but still dying with Ground Zero related symptoms makes a stronger case for a link between exposure and illness than being on the pile, because it shows his lesser amount of exposure is still dangerous.

This blog has been commenting on the Ground Zero issue since the very first day it launched September 12, 2006. Indeed, this issue was the focus of the first week of posts.

Put differently, we've been commenting before the emergence of Ceasar Borja on this issue, and we will continue to do so until all affected person’s needs have been met. Borja was a concrete example of what we've been talking about for a long time, not what we were talking about - thus his story

When you say "borja never worked there" you mean "the pile" right? True, but instead he worker right next to it and still got sick. Borja's family might have gotten caught up in a whirlwind media sensation that began to take creative liberties with his story as he died, but that doesn't change the fact that he died of a type of illness linked to Ground Zero exposure.

Nobody is defending the exaggeration of his story in most mass media sources (I say I certainly didn’t personally have the resources to go into the street and personally investigate the version of his story in the papers), but I have to say to state that we were “hyping” something, when we’re really trying to help unnecessarily suffering people, is really an unfortunate way of seeing this issue, or the world for that matter.

Re: the op-ed at least one federal judge disagrees with you and Copland. Again, the issue is are we throwing out all the cases out of hand, or are we willing to look closely at the evidence before making that kind of decision?

Copland and you say no evidence, and Hellerstein says evidence. I agree with Hellerstein.

I might also suggest that you and those who share your tort "reform" views might better exert your efforts attempting to find some alternative manner in which to support these sick and dying people instead of sitting around attempting to find ways to undercut their claims.

It’s easy to be opposed to litigation in the abstract, my question to you and those who share your views is “what alternative solutions are you advancing that will deal with the suffering of those who have gotten sick?”

Or do you, like Bloomberg used to do, contest a link between Ground Zero exposure and the reported illnesses.

If not, what’s your solution to the problem? Bloomberg just took a big step today (see above new 9/11 post).

What about you?

Posted by: Cyrus Dugger | February 13, 2007 6:14 PM

Update: As stated in today's Daily News article "the only account given by Borja himself was provided by The Filipino Reporter, A New York weekly that quoted Borja - by then hospitalized at Mount Sinai Medical Center - as saying he worked at Ground Zero immediately following the attacks"

the article continues...

"This account was backed yesteraday by his brother and nephew, who also serve on the NYPD. They say they distinctly remeber him talking about going to Ground Zero in the first few days after 9/11"

That's the most recent update on the Borja story.

Posted by: Cyrus Dugger | February 14, 2007 11:50 AM

Cyrus,

It amazes me that you attack my column and position without even bothering to explicate your legal opinion, rather than merely critizing the result as unfair. As I spell out in my column, Hellerstein gets New York's good faith requirement wrong because he badly misreads the relevant precedents.

What exactly is your position? That a federal judge should ignore established state law, ignoring state court precedents, because he and you favor a different outcome? I would hope not. Perhaps you think that the cases support Hellerstein's reading. Assuming you're willing to spend the time reading them, you might also spend the time spelling out why, if you want to persuade anyone thoughtful.

I've excerpted the relevant portion of my column below. I could go into more detail about my reasoning if you'd like to engage me, though I doubt I'll spend too much more time commenting in such an unserious forum.

"The law does specify that, to be shielded, the government must be acting 'in good faith.' That's where Hellerstein veered off course - ruling that the city's good faith 'may not be inferred simply from the fact that, at the time of the allegedly negligent acts, [it was] acting in a manner responsive to a declaration of emergency.'

But that's wrong - according to the very legal cases that Hellerstein cited. The courts have previously reached precisely the opposite conclusion, focusing on an 'honesty of intention.' For example, in a blackout during World War II (following the last foreign attack on U.S. soil), an NYPD officer drove into a group of soldiers, killing one. The courts found that the city was immunized even from such clearly negligent acts by its agents.

How has Hellerstein managed to draw the reverse conclusion? His opinion points to a few cases where the courts rejected attempts to invoke Emergency Act protections. But those cases involved situations where there was no actual enemy attack or when the actions weren't in response to the emergency - as when an off-duty air-raid warden ran down someone during the World War II blackout while on a 'joy ride.'

No one is claiming that the city is immunized from suit for actions unrelated to the 9/11 recovery - say, an innocent civilian accidentally shot by a police officer in The Bronx. And only the looniest of the loony Left think that 9/11 wasn't an enemy attack."

Posted by: Jim Copland | February 14, 2007 1:02 PM

Firstly, it was poor reporting by the News. They never checked the facts. While there are at least some people who have health problems from the "event', his is not one of them. About one million people live south of 59th street. Should we pay for their lifetime healthcare too? Or should we have evacuated the entire city until "the air is clear"?
The officer was a liar, and his benefit is to the detriment of those who really were downtown that day.
As for those worked on "the pile": absolutely everyone was asked to wear special masks; this was enforced early on; there is no evidence to the contrary.
Last but not least: where is the cause and effect? He worked 5 days and this considred "cause" I was in the city every day after 9/11, working south of 59th street; so I can sue! wow, great, get a lawyer...

Posted by: Gman | February 14, 2007 2:15 PM


Jim,

I would be more than happy to engage in a formal online debate about your op-ed.

The issue may currently be mute given the Mayor's recent adoption of the World Trade Center Health Panel 's Recommendations, so it may not be worth either of our time right now.

If in the next few weeks Bloomberg is not bucketful in re-opening the fund, I'll contact you about having that online debate on our respective blogs

Posted by: cdugger@drummajorinstitute.org | February 14, 2007 3:44 PM

"absolutely everyone was asked to wear special masks; this was enforced early on; there is no evidence to the contrary."

No evidence to the contrary?

http://video.on.nytimes.com/ifr_main.jsp?nsid=b-4e4e0f97:110c1d5c9cd:-704&fr_story=e9159776cf674f266fff7169e3a257eb449af5e4&st=1171486090356&mp=FLV&cpf=false&fvn=8&fr=020607_021145_6a2e3adax1109855b651x318&rdm=974203.5544012442

Posted by: Cyrus Dugger | February 14, 2007 3:50 PM

Cyrus writes: What you may not have noticed in the above post is that Borja not being close to the pile but still dying with Ground Zero related symptoms makes a stronger case for a link between exposure and illness than being on the pile, because it shows his lesser amount of exposure is still dangerous.

Wow, I am impressed. Like Superman, you have powers and abilities far beyond those of mortal men. He was impervious to bullets and lasers, and you're impervious to facts and logic. If Caesar Borja worked on the site and then died, then according to you this proves that working on the site causes fatal illnesses, which shows that Ground Zero was dangerous. But if Caesar Borja didn't work on the site, and then died, then according to you this "shows" that Ground Zero was even MORE dangerous.

By that reasoning, the fact that my cousin, who lived in Maryland, died of cancer last year "proves" that Ground Zero is really really really dangerous. (After all, he was hundreds of miles away and he was killed.) In fact, I have it on good authority that since 9/11, millions of Americans have died, most of whom had virtually no exposure to Ground Zero; this proves that place is lethal!

Out of curiosity, is there any set of facts which would make you willing to conclude that Caesar Borja's family isn't actually entitled to loads of money from taxpayers? If he shot himself, would you claim it just proves that Ground Zero caused suicidal depression?


Cyrus asks: It’s easy to be opposed to litigation in the abstract, my question to you and those who share your views is “what alternative solutions are you advancing that will deal with the suffering of those who have gotten sick?”

Again with skipping over the whole duty/breach/cause elements. I don't propose any "solutions" to damages unless we first establish that it's someone's responsibility other than those who have gotten sick to deal with it. The mere fact that someone is "suffering" doesn't generate a duty for anybody else to provide a solution. "Suffering" is not a cause of action.

As for Hellerstein, he did not say "evidence." He said that the plaintiffs were entitled to go on a fishing expedition just in case they might find some evidence.

(Which, incidentally, is a perfect illustration of why most laws touted by anti-tort reformers as sufficient to protect defendants from meritless litigation are in fact ineffective. The state passes a law saying that the city is immune -- and a judge essentially licenses the plaintiffs to creatively litigate around the immunity, forcing the defendants to be dragged through years of expensive litigation just to get to the point where they can argue that they should be immune.)

It's true that Hellerstein is the judge, but he was already slapped down once by the Second Circuit for arbitrarily deciding to geographically and temporally narrow a law relating to the WTC cleanup -- exactly what he's doing again here. The law grants blanket immunity to acts undertaken by the city in response to an attack, but Hellerstein refuses to apply the law.

Posted by: David Nieporent | February 14, 2007 5:23 PM

David,

Your response is clever and catchy but is skipping over the main thrust of the post and subsequent comments.

I'm not defending shoddy reporting.

But I am saying that just because Borja was not tromping all over the pile itself and was just near it does not mean that his illnesses were not cause by Ground Zero contaminants near Ground Zero.

A quick glance at the recent World Trade Center Health Panel’s report might help make this point and the scope of the health impact more clear.

Have you read the report? Have you read any major report on the health impact of Ground Zero? If you have, I struggle to see how you can have this point of view of seeing Borja’s illness in this presumptively suspicious manner.

Even people as far away as Brooklyn were exposed and are still being exposed from the dust.

The evidence of rates of illness of 70% for Ground Zero workers makes it very likely. This percentage does not even include later onset conditions such as cancer.

Look, only God definiively knows whether or not Borja or anybody’s health was affected or worsened in some manner by Ground Zero. I’m not here to argue definitely that it was or was not. However, I am here to argue that there should be a presumption that those in the vicinity of Ground Zero who come down with symptoms or ailments listed by Mt Sinai were made sick by Groudn Zero contaminants.

Of course, the longer we medically monitor Ground Zero workers, the more strongly we can establish the link (past the current 70% in this case). However, as we do that, and as a necessary result of that period of waiting and observation, more people will die without medical attention.

I say that these persons should get the benefit of the doubt, especially when making a claim for medical care, or for that matter, a skimpy workers compensation payment putting them just above the poverty level.

I think if you carefully read the available reports detailing the strength of link you may modify your view.


Again with skipping over the whole duty/breach/cause elements. I don't propose any "solutions" to damages unless we first establish that it's someone's responsibility other than those who have gotten s

As you say "The mere fact that someone is "suffering" doesn't generate a duty for anybody else to provide a solution."

Nowhere did I say that it did. I said those (like yourself) who put so much energy to contesting the legal claims of Ground Zero workers should put just as much energy to divising an alternative solution to taking care of them - if not more. Had you spent your time appling yourself in that manner there may not have been many lawsuits in the first place because people would have nothing to sue about.

I’m sorry to hear about your cousin.

Posted by: Cyrus Dugger | February 14, 2007 7:26 PM