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48–352 PDF 2009

JAMES ZADROGA 9/11 HEALTH AND 

COMPENSATION ACT OF 2009 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

CITIZENSHIP, REFUGEES, BORDER SECURITY, 

AND INTERNATIONAL LAW 

AND THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 847 

MARCH 31, 2009 

Serial No. 111–12 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, 

BORDER SECURITY, AND INTERNATIONAL LAW

ZOE LOFGREN, California, Chairwoman 

HOWARD L. BERMAN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

LINDA T. SA ́ NCHEZ, California 

ANTHONY D. WEINER, New York 

CHARLES A. GONZALEZ, Texas 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE KING, Iowa 

GREGG HARPER, Mississippi 

ELTON GALLEGLY, California 

DANIEL E. LUNGREN, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

UR MENDOZA JADDOU, Chief Counsel 

GEORGE FISHMAN, Minority Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

BRAD SHERMAN, California 

SHEILA JACKSON LEE, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

TRENT FRANKS, Arizona 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

LOUIE GOHMERT, Texas 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(V) 

C O N T E N T S 

MARCH 31, 2009 

Page 

OPENING STATEMENTS 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Chairwoman, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 3 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 5 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 6 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 8 

WITNESSES 

Mr. Kenneth R. Feinberg, former Special Master, Victim Compensation Fund 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

Ms. Barbara Burnette, former Detective, New York City Police Department 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

Mr. James Melius, MD., Administrator, New York State Laborers’ Health 

and Safety Trust Fund 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

Ms. Christine LaSala, Chief Executive Officer, World Trade Center Captive 

Insurance Fund 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

Mr. Michael A. Cardozo, Corporation Counsel, City of New York 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 47 

Mr. Theodore H. Frank, American Enterprise Institute 

Oral Testimony ..................................................................................................... 50 

Prepared Statement ............................................................................................. 53 

Mr. Richard Wood, President, Plaza Construction Corporation 

Oral Testimony ..................................................................................................... 69 

Prepared Statement ............................................................................................. 72 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Christine C. Quinn, Speaker, New York City Council .. 91 

Prepared Statement of Associated Builders and Contractors (ABC) .................. 92 

H.R. 847, the ‘‘James Zadroga 9/11 Health and Compensation Act of 2009’’ ..... 95 

(1) 

JAMES ZADROGA 9/11 HEALTH AND 

COMPENSATION ACT OF 2009 

TUESDAY, MARCH 31, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION,

CITIZENSHIP, REFUGEES, BORDER

SECURITY, AND INTERNATIONAL LAW

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittees met, pursuant to notice, at 10:06 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee on the Constitution, Civil 

Rights and Civil Liberties) presiding. 

Present from the Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law: Representatives 

Lofgren, Jackson Lee, Waters, Weiner, King, Harper, Lungren, and 

Chaffetz. 

Present from the Subcommittee on the Constitution, Civil Rights 

and Civil Liberties: Representatives Nadler, Watt, Scott, Johnson, 

Conyers, Jackson Lee, Sensenbrenner, Rooney, and King. 

Also present: Representative Maloney. 

Staff present from Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law: David 

Shahoulian, Majority Counsel; Zachary Somers, Minority Counsel; 

and Andre ́s Jimenez, Majority Professional Staff Member. 

Staff present from Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties: David Lachmann, Subcommittee Majority Chief of Staff; Paul Taylor, Minority Counsel; and Matthew 

Morgan, Majority Staff Assistant. 

Mr. NADLER. [Presiding.] This joint hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties, and the Subcommittee on Immigration, Citizenship, Refugees, Border Security, 

and International Law will now come to order. 

We will begin the proceedings by recognizing the distinguished 

Chair of the Subcommittee on Immigration, Citizenship, Refugees, 

Border Security, and International Law for an opening statement. 

Ms. LOFGREN. Thank you, Mr. Nadler. 

Last year, the Immigration and Constitution Subcommittees held 

a joint hearing on the 9/11 Victims Compensation Fund, where we 

examined the need to reopen the funds for those who were injured 

2 

as a result of the 9/11 attacks but whose injuries did not become 

clear until after the VCF fund expired. 

That hearing was instrumental in leading us to the bill we are 

considering today. Congress created the VCF in the immediate 

aftermath of the 9/11 attacks. What we learned at the hearing is 

that the VCF was a stunningly successful program, at least as far 

as it went. 

A truly bipartisan effort quickly conceived days after 9/11, the 

program established a system to compensate injured 9/11 victims 

and the family members of the deceased. Over its short existence, 

the VCF distributed just over $7 billion, $6 billion of which was 

distributed to the surviving family members of 2,880 people who 

were killed in the attacks and $1 billion to the 2,680 people who 

were injured in the attacks during the rescue efforts conducted immediately after the attacks. The average award for families of the dead was about $2 million. The average award for injured victims was just under $400,000. As 

we learned in our last hearing, this was all done in 33 months, 

with overheads costs of less than 3 percent and with 97 percent of 

the families of deceased victims opting into the fund rather than 

pursuing tort relief in the court. 

As Special Master Ken Feinberg states in his written testimony 

before us today, ‘‘This was one of the most efficient, streamlined, 

and cost-effective programs in American history.’’ 

We now have a bill before us that would reopen the VCF and 

provide protection for those who, by no fault of their own, could not 

take advantage of the fund when it was available. This is as important as ever. 

Last year, we were dealing with some 10,000 lawsuits. We are 

now up to over 11,000. These suits have been filed by first responders, workers, and volunteers from around the country who rallied 

to help locate survivors recover the dead and clean up debris from 

the fallen towers. Most of these people are now suffering because 

of their exposure to the toxic dust that covered much of Lower 

Manhattan. 

These lawsuits, filed by people who were not eligible to be compensated under the VCF because they discovered their illnesses too 

late, didn’t even know they could even apply because they thought 

the fund was only for those who died or who worked on the site 

after the first 96 hours after attacks, taking far too long to decide. 

As noted last year, the doctors and scientists already agree: People are sick and will continue to get sick because of their exposure 

to World Trade Center dust. We must resolve this problem. 

The question is, how? Workers’ compensation has failed. Medical 

programs aren’t covering enough people. And the Captive Insurance Fund created by Congress to resolve claims has instead used 

the money to defend against each and every one of them. Five 

years and $270 million in administrative and legal costs later, the 

Captive Insurance Fund has settled less than 10 claims. 

Last year’s hearing led us to determine it was necessary to reopen the VCF for those who deserve our help. After months of hard 

work and difficult negotiations, Chairman Nadler, along with Representative Carolyn Maloney, Peter King, and Michael McMahon, 

arrived at the compromise we have before us today. 

3 

I believe this bill, while perhaps not perfect, goes a long way to 

establish a fair and just program to compensate those who continue 

to bear the deep scars from 9/11. Now, I look forward to hearing 

from the witnesses on this bill. Their thoughts and discussions we 

will have today will help us as we continue to work on these issues 

and move this bill through the legislative process. 

It is unusual to have a joint hearing of two Subcommittees. And 

although the Immigration Subcommittee is known for immigration, 

we do have assigned to us a responsibility for claims, which is why 

we are part of this hearing. And certainly the issue of due process 

is one that the Constitution Subcommittee plays a lead role in. 

And luckily for us, not only is the Chairman of that important 

Subcommittee here today; he also knows about this because the 

World Trade Center was in his district, and he is a New Yorker 

and a terrific lawyer and will run the rest of this hearing. 

And I thank the gentleman and yield back. 

Mr. NADLER. I thank the gentlelady. And I will now recognize 

myself for 5 minutes. 

Today, these two Subcommittees will investigate the status of 

compensation for the tens of thousands of people who are suffering 

because of the collapse of the World Trade Center after the terrorist attack on 9/11. 

Last year, we held a hearing that examined the possible mechanisms that could be used to compensate those suffering from 9/11- 

related health effects. And this year, we have a bill, H.R. 847, the 

‘‘James Zadroga 9/11 Health and Compensation Act of 2009,’’ which 

I believe provides the best avenue to making our first responders, 

area residents, workers, students and others whole. 

[The bill, H.R. 847, is availble in the Appendix.] 

Mr. NADLER. I want to first thank the Chair of the Immigration 

and Claims Subcommittee, Congresswoman Lofgren, not only for 

agreeing to hold this joint hearing, but for her support and outstanding work on this issue over the last couple of years. 

I would also like to thank my colleagues, Congresswoman Carolyn Maloney, Congressman Peter King, and Congressman Mike 

McMahon, with whom I have introduced the 9/11 Health and Compensation Act, which would both provide comprehensive medical 

treatment to any person whose health was affected and would reopen the Victims Compensation Fund so that people can be compensated for their economic losses. 

And I particularly want to mention Congresswoman Maloney, 

who has worked for, what, 6, 7 years now so heroically and on this 

problem. 

We came very close to passing this bill last year, and I am hopeful that, with the changes we have made to the bill this year and 

with the support of my colleagues on the Committee, we can finally 

pass it this year and provide relief to so many people who desperately need it. 

I also want to welcome our witnesses and thank them for their 

participation. We are fortunate to have an expert panel with us 

today to discuss this legislation. 

Finally, I would like to recognize those individuals who have 

traveled to Washington to attend this hearing. I thank you all for 

coming. 

4 

I want to specifically recognize Ms. Leona Hull, the sister of Leon 

Heyward. 

Many of you in the audience are among those who have been denied proper compensation thus far, and I hope we can examine 

today how this system has failed so many of you and how we can 

help with this legislation. 

After the collapse of the Twin Towers on 9/11, tens of thousands 

of first responders, residents, area workers, and students were exposed to a cocktail of toxic substances that was said to be worse 

than the Kuwaiti oil fires. They are now coming down with diseases like sarcoidosis, lymphoma, and rare blood cancers. 

In June 2007, then-Senator Clinton and I held companion hearings on the actions of the Environmental Protection Administration 

and other Federal agencies that clearly were a contributory factor 

to causing harm to the health of many people. 

At the House hearing, we heard the callous voice of former EPA 

Administrator Christine Todd Whitman trying to explain why she 

told New Yorkers that the air was safe to breathe, when in fact she 

had considerable evidence to the contrary. We reviewed the EPA 

inspector general’s report, which found that the EPA’s statements 

‘‘were falsely reassuring, lacked a scientific basis, and were politically motivated.’’ 

We heard about how the White House changed the EPA press releases ‘‘to add reassuring statements and delete precautionary 

ones.’’ 

After the hearing, I was more convinced than ever that the Federal Government not only failed to protect the first responders, 

workers, residents, and school children who were in the area, but 

that the Federal Government bore responsibility for not preventing 

many of their injuries, which it could well easily have done had it 

been honest in the first place. 

Obviously, none of these injuries would have occurred were it not 

for the terrorists, who are ultimately to blame, but many of the injuries we are seeing today would have been avoided if the Federal 

Government had not acted dishonestly. The Federal Government, 

therefore, has a moral and legal obligation to compensate the victims of 9/11, to provide for their health care, and to attempt to 

make them whole from their subsequent financial losses. 

In 2004, Congress appropriated $1 billion for what became the 

World Trade Center Captive Insurance Company in order to provide health care for people who sustained injuries and illnesses in 

the aftermath of 9/11. I am hopeful that, through this hearing, we 

can find a way to ensure that this billion dollars goes toward healing those affected by this tragedy, as Congress intended. 

I should note that there have been many hearings that examined 

the health issues and degree of people’s illnesses and in which we 

heard from many who are too sick to work. It is unfortunately very 

clear that many more people will become sick in the future. 

In a September 2006 peer-reviewed study conducted by the 

World Trade Center Medical Monitoring program, of 9,500 World 

Trade Center responders, almost 70 percent had a new or worsened 

respiratory symptom that developed during or after their time 

working at Ground Zero. 

5 

Furthermore, another study documented that, on average, a New 

York City firefighter who responded to the World Trade Center has 

experienced a loss of 12 years of lung capacity. 

Now, obviously in these kinds of cases, whether by radiation 

from a nuclear bomb blast or exposure to radiation or exposure to 

other toxic substances, it is impossible to establish individual causality to 100 percent certainty, but the statistics that show increases of 70 percent or 80 percent from expected rates of illnesses 

are damning. 

The pain and suffering of the living victims of 9/11 is real and 

cannot be ignored. We as a Nation must do more. John F. Kennedy 

once remarked that, ‘‘as we express our gratitude, we must never 

forget that the highest appreciation is not to utter words, but to 

live by them.’’ 

In the nearly 8 years after 9/11, we have done enough talking. 

Now it is time to pass H.R. 847, the 9/11 Health and Compensation 

Act. 

I yield back the balance of my time. 

And I now recognize the distinguished Ranking Member of the 

Constitution Subcommittee for an opening statement. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

First, I would like to thank all those first responders who risked 

their lives and health by doing whatever they could do to mitigate 

the horrors of the September 11th attack and all who supported 

them. 

Those public servants and other volunteers toiled ceaselessly for 

months under a toxic cloud that hung over and around the former 

site of the World Trade Center. They, too, suffered as a result of 

vicious attacks perpetrated by blood-thirsty terrorists whose driving mission was to cause the death and injury of as many innocent 

people as possible. We must never forget that. 

Along with the first responders and other volunteers, private contracting firms played an invaluable role in facilitating the recovery 

site of the attacks. These contracting firms were asked by the city 

of New York to immediately begin clean-up efforts, and they responded with the same drive to serve and protect that motivated 

other public servants. 

They did so even though they and the city of New York were unable to secure the liability insurance they would normally obtain 

before starting a recovery project. 

But while other major entities affected by the 9/11 attacks, including the airlines, the World Trade Center, and the Port Authority, were protected by Federal legislation from excessive and 

undeserved liability exposure, the private contractors and other 

private entities were left in the lurch. 

I regret to say that, when Congress passed the legislation addressing liability concerns in September of 2001, I warned my colleagues that failing to comprehensively address the unprecedented 

liability issues raised by the 9/11 attacks would inevitably lead us 

to where we are today. 

On the House floor of 2001, I said that, while the airlines would 

not face bankruptcy as a result of the liability limits in the 2001 

legislation, should the bill pass, the failure to limit others’ liability 

will mean that Congress will need to pass corrective legislation 

6 

again and again to protect American companies and their workers’ 

jobs because this bill didn’t do it right. 

Clearly, that bill didn’t do it right. But if we seek to correct one 

failing in the original legislation, we must be careful not to aggravate other failings. 

I also opposed the 2001 legislation because it created an entitlement program that set a dangerous precedent in the future. 

Again, on the House floor in 2001, I said, ‘‘No entitlement was 

created by Congress to compensate victims of the Oklahoma City 

bombing, earthquakes in California, hurricanes in Florida, and 

floods along the Mississippi River. If this entitlement is approved, 

does Congress really want to say no to victims of future tragedies, 

whether as a result of natural or manmade disasters?’’ 

‘‘If a disaster strikes in any of our hometowns, how can we explain voting for an entitlement in this bill, but not for our own constituents? Stop and think of the precedent this bill set when a future disaster strikes.’’ 

My concerns after 9/11 were confirmed by the findings of the 

nonpartisan Rand Institute for Civil Justice, which analyzed the 

September 11th Victims Compensation Fund in 2004 and concluded that, ‘‘pre-commitments by government programs reduced 

the ability of government and society more generally to allocate resources to meet the most pressing needs after an attack.’’ 

A 2005 study of four Federal compensation programs by the GAO 

also cautioned that, ‘‘Because these programs may expand significantly beyond the initial cost estimates, policymakers must carefully consider the cost and precedent-setting implications of establishing any new Federal compensation programs, particularly in 

light of the current Federal deficit.’’ 

That deficit was much lower—than what it is today. Today the 

current economic crisis should magnify such concerns exponentially. At the same time, we have seen too much costly and wasteful legislation pass this Congress without adequate time for 

thoughtful analysis. I hope the hearing today will help us avoid repeating recent practice. 

With that, I look forward to hearing from all of our witnesses 

and yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. I will now recognize the distinguished Ranking Member of the Immigration and Claims Subcommittee for an opening statement. 

Mr. KING. Thank you, Mr. Chairman. 

I want to thank the witnesses, also, in advance. 

On September 11, 2001, terrorists carried out mass murder of innocent Americans on our own soil. These attacks were carried out 

solely because some people hate our country and the freedoms it 

represents. 

This terrorist attack ripped away our security and devastated 

thousands of families. My heartfelt sympathy goes out to those who 

suffered in the wake of the attacks on 9/11. 

One of the groups that suffered in the aftermath of 9/11 is 

Ground Zero workers who worked heroically day and night for 

months in rescue, recovery and cleanup efforts at the World Trade 

Center site. 

7 

Many of these workers went in without contracts, insurance policies, or knowledge that there were toxins in the air. Some of these 

workers are having health problems as a result of their work at 

Ground Zero, as are residents in the area. 

Understandably, the Ground Zero workers have looked to the 

construction companies that hired them for compensation for their 

health problems. These companies, along with the city of New 

York, are now being sued by over 10,000 plaintiffs who allege that 

they were injured from the contaminants in the debris. The victims 

are being forced to sue because they do not qualify for relief under 

the 9/11 Victims Compensation Fund, and the companies in the 

city are being forced to vigorously defend against these lawsuits because of lack of adequate insurance coverage. 

In order to address compensation for the victims and to provide 

liability protection to the construction companies that came to the 

city’s aid after the towers fell, H.R. 847 proposes to use the 9/11 

Victims Compensation Fund as a blueprint. 

Now, if we are to follow the 9/11 fund as a blueprint, we also 

must make sure we do so responsibly. First, we must make sure 

that we provide adequate compensation to the victims without 

handing the keys to the U.S. Treasury or the trial lawyers. 

The 9/11 fund is essentially a no-fault administrative scheme 

that does not require proof of complex tort theories. Thus, if the 

fund is reopened, it should include provisions to maximize the victims’ recovery by limiting the contingency fees that personal injury 

lawyers may receive. 

In a letter to Congress regarding the original 9/11 fund, the Association of Trial Lawyers of America stated that 100 percent of the 

compensation funds from the fund should go directly to these families. 

Second, if we are going to reopen the 9/11 fund, we must do so 

in a manner that protects our taxpayers. To be careful stewards of 

the taxpayers’ money, we must require that victims be able to 

produce proof that they were in immediate proximity of Ground 

Zero during the cleanup period. We must also require them to 

medically document that their illnesses are a direct result of exposure to the air around the site. 

Additionally, to protect the taxpayers, we should consider limiting the compensation from the fund to objectively verifiable economic damages, such as past and future medical expenses and 

earnings. What is more, the fund should only be reopened for a reasonable, but limited period of time. H.R. 847 would reopen the 9/ 

11 fund for 22 years, and that will be 30 years beyond September 

11th. 

But as a former special master, Mr. Feinberg, has pointed out— 

and we will hear from you today—no latent claims need such an 

extended date. Moreover, if the reopened period proves to be too 

short, we can always revisit this issue in Congress. 

So, finally, to ensure that the taxpayers are protected if we decide to reopen the 9/11 fund, we need to follow pay-as-you-go rules 

for this legislation. And in following PAYGO, we need to pay for 

the reopening of the fund by offsetting government spending, not 

by increasing taxes. 

8 

In closing, let me just say that we owe it to the victims to at 

least try to provide them with a better path than the ineffective 

and expensive litigation they are currently pursuing. And we owe 

it to the contractors that rushed in to help the immediate aftermath of the attacks to limit their liability exposure. 

But as we look forward to compensating the victims and providing liability protection to contractors, we need to remember that 

we also owe it to the American taxpayers to act responsibly with 

their tax dollars. 

I can only think what it is like as a contractor having run to the 

sound of the guns, not in such a massive way as many of the contractors did in New York on 9/11, but still always deployed our 

manpower and our machinery at an instant’s notice without regard 

to the risk or the liability when people needed help, I want to see 

that scenario. That is the American way. Now, that is what we saw 

in New York and we saw around the country on September 11th. 

And whatever comes out of this legislation, I want to encourage 

that kind of response and not have the threat of litigation hanging 

over their heads. They did the American thing. They did the right 

thing. And we need to do the right thing by the contractors. 

Thank you, Mr. Chairman. And I would yield back. 

Mr. NADLER. I thank the gentleman. 

And I will now recognize the distinguished Chairman of the Judiciary Committee for an opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I want to welcome everybody here that has traveled to this hearing because I think this is a critical test of what the Congress believes, in terms of helping out these first responders and people 

who, through no fault of their own, have been put in this incredible 

health situation. 

For some, it is too late. But the rest of us are here can do something. 

And I was heartened by my colleague’s remarks here. Steve King 

and I are working on a number of issues. And he has muted his 

normal hostility toward lawyers in a very admirable way. I feel 

very good about this hearing. 

It is all in the Judiciary Committee. Don’t ask me why it is the 

lawyers that hate the lawyers groups more than anybody else in 

the Congress. So I am feeling much better about this. 

Carolyn Maloney has done a great job, as have Jerry Nadler, Zoe 

Lofgren, Peter King. 

Now, I am composing a letter to a Congressman that came to 

this Committee in 1981. His name is Chuck Schumer. And he did 

a brilliant job on this Committee. And I have watched him and all 

the work he has put in for his country ever since. 

He got a little too close to Wall Street for my two cents, but Wall 

Street was his district. It was in his state. So I forgave him for 

that. 

But now the letter I am going to send the distinguished senior 

senator from New York will deal with the need for us to close 

ranks, resolve these differences, and get this show on the road. 

Now, I am as sensitive to costs and budget overruns and deficits 

as the Chairman emeritus of this Committee. But for goodness’ 

sake, I mean, we talk about the war and terrorists and then get 

9 

it confused with natural occurrences and natural disasters, as bad 

as they are. But this is the war that we kept hearing about, these 

people that attacked us. 

And so I want to commend all of our leaders that have pulled together a new bill that makes more sense, that has spoken to some 

of the problems from before, but we have to move the other body. 

That is where the problem is. 

And I would welcome working with the Chairmen of these Subcommittees and others—— 

Mr. SENSENBRENNER. Will the gentleman yield? 

Mr. CONYERS. Of course. 

Mr. SENSENBRENNER. May I make a suggestion on how to get 

Senator Schumer’s attention? 

Mr. CONYERS. Please do. I am waiting with baited breath. 

Mr. SENSENBRENNER. Bring along a television camera or two. 

Mr. CONYERS. Could we instruct—wait a minute—could we instruct the stenographer to strike that phrase from the—— 

Mr. NADLER. Would the gentleman yield? 

Mr. CONYERS. Who seeks? Who wants—— 

Mr. NADLER. I do. 

Mr. CONYERS. Oh, yes. Of course, Mr. Nadler. 

Mr. NADLER. I would simply point out that the senior Senator 

from New York has been very much involved in the negotiations 

on this bill and in getting the appropriations that have helped with 

the medical care for the last several years. 

So all jesting aside, he has been involved, and we expect him to 

help with this effort in the Senate, as it still proceeds. 

And I yield back to the gentleman. 

Mr. CONYERS. I thank the Chairman. Then I am going to put his 

response to my letter in the record, just to confirm your unyielding 

confidence in the senior senator. And I thank you for allowing me 

to make these intemperate remarks. 

And I return my time. 

Mr. NADLER. I thank the gentleman. 

And I recognize for brief comment the distinguished Chair of the 

Immigration Subcommittee. 

Ms. LOFGREN. I just wanted to note that we have been joined 

here by one of the authors of the bill, Carolyn Maloney. It has been 

Ranking Member Lamar Smith’s policy not to grant unanimous 

consent to Members of the Committee to actually question witnesses, but we are glad that she is here joining us to listen. And 

I just wanted to note that for the record, and I thank you for yielding. 

Mr. NADLER. Thank you. And I join those comments and your observations. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I ask that other Members submit their statements 

for the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. Without objection, the Chair will be authorized to declare a recess of the hearing. 

We will now turn to our witnesses. As we ask questions of our 

witnesses, the Chair will recognize Members in the order of their 

10 

seniority on the Subcommittees, alternating between majority and 

minority, provided that the Member is present when his or her 

turn arrives. 

Members who are not present when their turns begin will be recognized after the other Members have had the opportunity to ask 

their questions. The Chair reserves the right to accommodate a 

Member who is unavoidably late or only able to be with us for a 

short time. 

Ken Feinberg served as the special master of the Federal September 11th Victims Compensation Fund estimated by Congress 

after the attacks of September 11th, 2001. He is currently the managing partner and founder of the Feinberg Group, LLP. 

Mr. Feinberg has taught at the Georgetown University Law Center, University of Pennsylvania Law School, New York University 

School of Law, University of Virginia Law School, and Columbia 

Law School. Mr. Feinberg received his J.D. from NYU School of 

Law. 

Barbara Burnette is a former New York City police detective. 

After 18 years of service, she retired from the NYPD due to injuries 

she sustained while working at the World Trade Center site. She 

lives in Arverne, New York, with her husband and three children. 

Christine LaSala has been the president and CEO of the World 

Trade Center Captive Insurance Company since its creation by 

Congress in 2004. In agreeing to serve as president of the Captive, 

Ms. LaSala came out of retirement after a lengthy career as the 

first female partner of Johnson & Higgins, the fourth-largest global 

insurance broker and employee benefits consultant. 

Her broad experience in the insurance industry includes 2 years 

as an underwriter and over 25 years as an insurance broker working with corporations and public institutions to design their riskmanagement program. She is a graduate of the College of New Rochelle and studied finance at Fordham University. 

Dr. James Melius is an occupational physician and epidemiologist. For the past 10 years, his work with the Laborers’ International Union of North America and currently as administrator of 

the New York State Laborers’ Health and Safety Trust Fund and 

director of research for the Laborers’ Health and Safety Fund of 

North America. 

He chairs the steering committee of the World Trade Center 

Medical Monitoring and Steering Committee, which overseas this 

program for World Trade Center responders. He received his M.D. 

from the University of Illinois in 1974 and a doctorate in epidemiology from the University of Illinois School of Public Health in 

1984. 

Michael Cardozo has served as the corporation counsel and chief 

legal official of New York City since January 2002. He serves as 

legal counsel to the mayor of New York, elected officials, the city 

and its agencies, and also heads the Election Modernization Task 

Force. 

Prior to becoming corporation counsel, Mr. Cardozo was a partner at Proskauer Rose, where he served as co-chair of the firm’s 

150-person litigation department. He is a graduate of Columbia 

Law School and served as a law clerk for the late Judge Edward 

11 

McLean in the United States district court for the southern district 

of New York. 

Ted Frank is the resident fellow and director of the American 

Enterprise Institute Legal Center for the Public Interest, where he 

manages the institute’s research and studies liability reform. His 

research areas include price liability, class actions and civil procedure, corporate regulation, antitrust and patent litigation, lifestyle 

litigation, medical malpractice, and judicial selection, a wide range. 

Previously, Mr. Frank was a litigator in private practice. His litigation experience includes defending the 2003 California gubernatorial recall election against an ACLU constitutional challenge, 

Vioxx, and automobile product liability cases, class-action defense, 

and antitrust and patent cases. 

Richard Wood, our final witness, is the president of Plaza Construction Corporation since 1997, where he has been involved in 

many of New York City’s most complex building projects, including 

299 Park Avenue, the St. Thomas Choir School, Random House 

World Headquarters, 200 Chambers Street, the residential tower at 

26th Astor Place, and 11 Times Square, among others. Plaza was 

among the contractors who worked at the World Trade Center site. 

I am pleased to welcome all of you. Your written statements in 

their entirety will be made part of the record. I would ask each of 

you to summarize your testimony in 5 minutes or less. To help you 

stay within that time, there is a timing light at your table. When 

1 minute remains, the light will switch from green to yellow and 

then to red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. If you would please stand and raise your right hand 

to take the oath. 

[Witnesses sworn.] 

Thank you. 

Let the record reflect that the witnesses answered in the affirmative. 

You may be seated. 

Mr. Feinberg will have to leave early. In order to accommodate 

the Members, I am going to ask him to testify and then allow 

Members the opportunity to question him before he has to depart. 

So, Mr. Feinberg, microphone please? 

TESTIMONY OF KENNETH R. FEINBERG, FORMER 

SPECIAL MASTER, VICTIM COMPENSATION FUND 

Mr. FEINBERG. Thank you, Mr. Chairman. 

Once again, I am honored to be here at your request. For me, it 

is sort of a reunion. I worked with closely Chairman Conyers and 

Congressman Lungren during the years when I was on the Senate 

Judiciary Committee. 

I want to thank the Committee for taking another look at whether or not the 9/11 fund should be reauthorized. I was appointed by 

the attorney general of the United States, John Ashcroft, to serve 

as the special master of the original 9/11 fund. It was a bipartisan 

effort. 

I had tremendous support throughout my 33-month tenure as the 

head of the 9/11 fund, not only from the people on this Committee, 

but from the American people, Republican, Democrat, liberal, conVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
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servative. Everybody was very, very supportive, particularly the 

Department of Defense and the city of New York. 

I note Michael Cardozo is here today. On Friday of this week, he 

becomes the longest-serving corporation counsel in the history of 

New York City. He either loves his job or he is a glutton for punishment, or maybe both, but he was enormously helpful to me in 

the administration of the 9/11 fund. 

The Chairwoman has pointed out the success of the 9/11 fund, 

if statistics are any indication. 

Should the fund be reauthorized, as it is in this legislation before 

you? I think it should, but it is a very close question. 

Congressman Sensenbrenner points out some of the philosophic 

difficulties in reauthorizing the 9/11 fund. There is no 9/11 fund for 

Katrina, for Oklahoma City, for the flood victims this week in 

North Dakota. There is no 9/11 fund. 

Yet, on the other hand, it should be pointed out a fundamental 

point about this legislation. Many of the people, rescue workers, 

who are now litigating in New York City, the only reason they are 

litigating is because the 9/11 fund compensated their brethren but 

could not compensate them before the fund statutorily expired on 

December 22, 2003. 

Had these people who are now litigating manifested a physical 

injury within the timeframe set by Congress to be compensated, 

they would have met all of the criteria, and they would have been 

compensated. 

We compensated over 2,000 rescue workers at a cost to the tax- payer of about $1 billion of the $7 billion that was spent. Had the 

sum of these very litigants today manifested respiratory illness before December 22, 2003, we would have readily under that statute 

compensated them. 

So the answer that Congress may find convincing is that elementary fairness says, if we compensated rescue workers prior to 2003, 

why not compensate these very same rescue workers post-2003? 

That is the dilemma here. It may be an answer to Congressman 

Sensenbrenner; it may not be. It is a close question. But I think 

one can make the argument that but for the termination of that 

statute and the fact that many of the thousands now litigating 

didn’t become eligible with a physical injury until after 2003, they 

would have been compensated. That is the argument for Congress 

to consider. 

Now, whether or not Congress wants to go beyond the 9/11 fund, 

with some of these other provisions, both in terms of contractor indemnity or caps, in terms of broadening the eligibility criteria as 

to who would be eligible if the fund is reauthorized by this legislation, I completely defer to Congress. 

I had enough problems determining eligibility and compensating 

5,300 people back in 2001. Whether or not a fund like this should 

be reopened and the eligibility criteria expanded to include additional types of injury, that is up to the Congress to decide. 

And whether or not you can expect a special master to serve pro 

bono for up to 20 years as opposed to 33 months is another question that I defer to Congress. 

But those are the arguments pro and con. It is really an interesting dilemma for the Congress to consider whether it is approVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
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priate to deal with the unfairness of not compensating some of 

these rescue workers pursuant to the original 9/11 criteria. And if 

it should, what other criteria will be made part of this legislation? 

The Chairman has asked me to summarize within 5 minutes. I 

have done so. Thank you very much. 

[The prepared statement of Mr. Feinberg follows:] 

PREPARED STATEMENT OF KENNETH R. FEINBERG

My name is Kenneth R. Feinberg and I am honored to once again be invited to 

testify before these two distinguished House Subcommittees. 

I served as the Special Master of the Federal September 11th Victim Compensation Fund of 2001. Appointed by the Attorney General of the United States, I was 

responsible for the design, implementation and administration of the 9/11 Fund. I 

served in that capacity for 33 months, until the Fund expired by statute on December 22, 2003. 

I believe it is worthwhile to once again highlight the success of the 9/11 Fund. 

If statistics are any barometer of success, the 9/11 Fund served its purposes in providing an efficient and effective administrative no-fault alternative to tort litigation 

against alleged domestic tortfeasors. Over $7 billion in public taxpayer funds was 

paid to 5,560 eligible claimants. Families of 2,880 victims received $5,996,261,002.08 

in compensation; in addition, 2,680 physical injury victims were paid 

$1,053,154,534.56 by the 9/11 Fund. Some 97% of all eligible families who lost a 

loved one on September 11 voluntarily agreed to enter the 9/11 Fund rather than 

litigate. The average award for a death claim was $2,082,035.07; the average award 

for a physical injury claim was $392,968.11. And all of this was accomplished with 

9/11 Fund administrative and overhead costs of less than 3%. I point with pride to 

the fact that this was one of the most efficient, streamlined and cost effective government programs in American history. 

It was also totally bipartisan. During the thirty-three months that I served as 

Special Master, I had the complete cooperation of the Department of Justice, Office 

of Management and Budget, the Administration, and the Congress. I also received 

unqualified support from various state and local governments, including, particularly, the City of New York and the Department of Defense. All government entities 

worked at my side to make sure that the 9/11 Fund was a success and that prompt 

payments were made to all eligible claimants. 

I also worked closely with Federal Judge Alvin K. Hellerstein, who continues to 

preside over all the federal 9/11 related cases in Manhattan. Judge Hellerstein 

worked tirelessly with me in coordinating the litigation and the 9/11 Fund claims 

in an effort to maximize the number of individuals who elected to enter the Fund 

rather than litigate. I am in his debt for his extraordinary work, then and now, in 

coming to the aid of families and victims in distress. 

When the Program expired, in December of 2003, only 94 lawsuits were filed by 

families of deceased victims who decided to litigate rather than enter the 9/11 Fund. 

It is my understanding that almost all of these wrongful death lawsuits have since 

been settled and that there are currently only a few remaining cases still being litigated in federal court in Manhattan some eight years after the 9/11 tragedy. 

The same cannot be said for the 9/11 physical injury victims, particularly the responders working after September 11 during rescue and clean-up operations at the 

World Trade Center. As already indicated, the 9/11 Fund paid over $1 billion to 

2,680 eligible physical injury claimants. The vast majority of these physical injury 

victims were responders suffering various respiratory ailments at the World Trade 

Center site in the days, weeks and months following the September 11 attacks. Almost all of these responders were compensated by the Fund for respiratory ailments 

rather than traumatic physical injuries. The 9/11 Fund eligibility criteria recognized 

that these respiratory ailments were often latent, that physical manifestations of injury often did not occur until months or years after first exposure to hazardous substances at the World Trade Center. That is why the 9/11 Fund modified its eligibility criteria to permit the valid filing of claims years after the terrorist attacks, 

when these physical manifestations first appeared and became apparent. 

However, as already indicated, the 9/11 Fund expired by statute on December 22, 

2003, before thousands of responders, and possibly other individuals exposed to the 

toxic air at the World Trade Center site, manifested any physical injury. This large 

group of individuals could not be paid from the 9/11 Fund since there was no longer 

any Fund to process and pay their claims. Accordingly, they have exercised the alternative option of litigating before Judge Hellerstein. It is my understanding that 

over 11,000 responders have filed lawsuits to date, and that as many as an addiVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
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tional 29,000 individuals may yet manifest physical injuries in the next few years. 

It is anticipated that these affected individuals might file suit as well when their 

physical injuries become apparent. 

I take no position on the merit of these lawsuits, which involve complex issues 

of liability, legal immunity of governmental entities, medical causation, and valuation of individual damage claims. But I do believe that these lawsuits should be 

resolved, that protracted and uncertain litigation is in nobody’s interest. That is why 

the 9/11 Victim Compensation Fund was established by Congress in the first place, 

a recognition that a prompt and efficient alternative to tort litigation constituted a 

better way. 

It is truly ironic that many of these very individuals who have filed lawsuits seeking compensation are the same type of individuals who received payments from the 

9/11 Fund; had these individuals manifested a physical injury before the 9/11 Fund 

expired, they, too, would have received compensation without litigating. It is perfectly understandable, therefore, why these individuals who would have been compensated by the 9/11 Fund now seek to be treated the same way and in the same 

manner as their brethren. It is my understanding that their decision to litigate is 

directly related to the fact that there is no longer a 9/11 Fund to process their physical injury claims. 

What should be done to resolve this problem, and the costly and uncertain litigation, and provide prompt compensation to eligible claimants physically injured in 

the aftermath of the September 11 attacks? I offer two proposals for your consideration, both of them controversial and challenging and neither easy to achieve. But 

I believe that either of my proposals is preferable to the existing uncertainty and 

expense associated with the ongoing litigation. 

I. RENEW AND EXTEND THE FEDERAL SEPTEMBER 11TH VICTIM COMPENSATION FUND

One option would be simply to reenact the law establishing the Federal September 11th Victim Compensation Fund for an additional period of years in order 

to provide the same public compensation to eligible physical injury claimants. This 

could be justified on grounds of basic fairness; Congress would simply declare that 

the same eligibility criteria and compensation should be made available to those 

currently suffering respiratory injuries who were not paid by the earlier 9/11 Fund 

solely because they did not manifest a physical injury until after the earlier Fund 

had expired. Congress could simply reopen the 9/11 Fund to encompass all such 

claims during a ‘‘window’’ of some period of time, during which time all September 

11 related respiratory physical injuries could be evaluated and processed. (Medical 

evidence would need to be considered by Congress in deciding how long this ‘‘window’’ would be open, permitting the filing of such physical injury claims.) 

But one should not underestimate the philosophical, political, and practical problems associated with reenactment and extension of the 9/11 Fund. 

First, any attempt to reenact and extend the 9/11 Fund should be initiated with 

the understanding that there would be no changes in the rules and regulations governing the original Fund, that the new law would simply be a ‘‘one line’’ reaffirmation of the law which established the original 9/11 Fund. This will not be easy. Various interested parties, while championing the reenactment of the 9/11 Fund, have 

called for additional statutory modifications and additions, e.g., indemnity protection 

for contractors at the World Trade Center site; new eligibility criteria for rescue 

workers and others who allegedly suffered respiratory injuries well beyond the geographical boundaries of the World Trade Center site; and revised eligibility filing 

deadlines for claimants who manifested a physical injury during the period of the 

original 9/11 Fund, but did not make a timely filing claiming they were unaware 

of 9/11 Fund filing deadlines. These and other well intentioned requests have all 

been asserted in connection with any attempt to reenact and extend the original 9/ 

11 Fund. But I suggest that any attempt to modify the statutory provisions and accompanying regulations of the original Fund will lead to the type of controversy and 

disagreement that will undercut political consensus and prevent reenactment of the 

Fund. 

Second, even a ‘‘one line’’ extension of the original 9/11 Fund poses fundamental 

philosophical and political questions of fairness. Why should Congress be reenacting 

the 9/11 Fund, providing millions in additional public compensation to the physical 

injury victims of the September 11 attacks, while no such Fund exists at all for the 

victims of the Oklahoma City bombing, the victims of the African Embassy bombing, 

the victims of the first World Trade Center attack in 1993 or, for that matter, the 

victims of the unprecedented disaster associated with Hurricane Katrina? Why 

should Congress, which has already enacted legislation authorizing over $7 billion 

in public compensation to the families of those who died on September 11, or who 

15 

were physically injured as a result of the attacks, now authorize additional millions 

or even billions in compensation for the remaining September 11 victims, while failing to do anything similar to the other victims of life’s misfortunes? It is a fundamental question posed to our elected officials in a free democratic society. Why some 

victims but not others? On what basis should such distinctions be made? Are some 

victims more ‘‘worthy’’ than others? 

I have maintained that the original 9/11 Fund was the correct response by the 

American people to the unprecedented terrorist attacks on September 11, 2001. It 

was sound public policy, reflecting national solidarity towards the victims and expressing a national sense of compassion not only to the victims, but to the rest of 

the world. The September 11 statute was an expression of the best in the American 

character. It could be justified, not from the perspective of the victims, but, rather, 

from the perspective of the Nation. But whether or not it should be reenacted instead of being considered a unique singular response to an unprecedented national 

tragedy is a fundamental question better left to the consideration of Congress. 

II. SETTLEMENT OF THE CURRENT AND FUTURE PHYSICAL INJURY LITIGATION

Even if Congress decides not to extend and reenact the 9/11 Fund, this does not 

mean that the current litigation should continue. Fortunately, there is a path open 

for the comprehensive resolution of the litigation, while protecting all defendants 

against the likelihood of similar future litigation. 

As I understand it, Congress created a September 11 related captive insurance 

company for the City of New York and its contractors in an amount approximating 

$1 billion. This money could be made available as part of an overall comprehensive 

settlement to resolve the physical injury claims currently pending in federal court 

against the City of New York, the contractors, and other defendant entities. Two 

problems have been raised, however, about the availability of these funds and the 

challenges posed in securing a comprehensive settlement of the litigation. 

First, is the obvious question as to whether or not the $1 billion is sufficient to 

resolve all of the pending claims? After all, it is noted, the 9/11 Fund paid over $1 

billion in resolving just 2,680 physical injury claims; how can $1 billion be sufficient 

to resolve some 11,000 current similar claims? A fair question. But there are answers. Nobody knows how many of the 11,000 pending claims are eligible for compensation, what the eligibility criteria might be, or what the compensation levels 

should be for valid physical injuries. In addition, how many of the existing plaintiffs 

are already receiving health related reimbursement? What role will collateral offsets 

play in any settlement negotiation? Most importantly, it is not clear to me that the 

$1 billion is the sole source of compensation in the event that a comprehensive settlement is sought. What about financial contributions over and above the $1 billion 

from other defendants and/or their insurers? If settlement negotiations do commence, to what extent is it possible and likely that all defendants, not just the City 

of New York and the captive insurer, will contribute settlement proceeds in an effort 

to secure ‘‘total peace’’ through a comprehensive resolution of the dispute? These are 

important questions that can only be answered in the context of meaningful settlement negotiations. 

Second, creative settlement terms and conditions can be negotiated which might 

provide additional financial security to eligible claimants over and above immediate 

compensation. For example, plaintiff attorneys involved in the litigation have been 

meeting with officials of the insurance industry to determine whether some type of 

individual insurance policy might be made available to each eligible plaintiff. Premiums would be paid from the captive insurance fund; in return, each eligible plaintiff would receive an insurance policy to be paid by the insurer if and when the individual plaintiff develops a future cancer or some other related illness. This approach, and other similar creative ideas, might be advanced during settlement negotiations to maximize financial protection for plaintiffs while taking advantage of relatively limited settlement dollars. 

Third, is the perplexing and legitimate problem of future physical manifestations 

resulting in additional litigation. I agree with the City of New York and other defendants that it makes little sense to settle all of the current cases only to find that 

additional lawsuits are filed by future plaintiffs who do not manifest a physical injury until years after a current settlement. But, again, there are answers to this 

vexing problem which should help ameliorate defendant concerns. For example, it 

might be possible to set aside a portion of all available settlement proceeds, to be 

used if and when additional individual physical injury claims are presented for payment. Alternatively, it might be possible for all current eligible plaintiffs to be paid 

in installments, with additional funds due and owing depending upon the filing rate 

of future claims; this is exactly what Federal Judge Jack B. Weinstein did in reorgaVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
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nizing the Manville Trust involving individual asbestos claims. A down payment 

was made, with future payments depending upon the filing rate of subsequent individual asbestos claims. Another idea is to provide some type of claims registry; an 

eligible individual exposed to toxic fumes at the World Trade Center, but not yet 

manifesting any physical injury on the date of the settlement, might receive a modest payment immediately and ‘‘register’’ for participation in the settlement. This potential future plaintiff would immediately receive the available insurance policy in 

addition to the modest down payment; in return, the individual would surrender all 

future rights to litigate. 

These are just some personal ideas which may be supplemented by other similar 

creative settlement terms and conditions. Some may work, others may not. What 

is important is that all interested parties come to the negotiation table with the 

flexibility, creativity, and determination to secure a comprehensive settlement. This 

approach is vastly preferable to the ongoing costly and uncertain litigation lottery. 

******

Mr. Chairman, I believe that either of the approaches which are the focus of my 

testimony today, are better alternatives than the existing litigation currently proceeding in federal court in New York City. Whether Congress decides to reenact the 

Federal September 11th Victim Compensation Fund, or whether it encourages all 

interested parties to commence intense negotiations designed to resolve all current 

and future September 11 related physical injury litigation, I am convinced that the 

courtroom is not the best place to resolve these disputes. I am prepared to assist 

the Congress and the parties in any manner requested, and to do so pro bono. What 

is important is that the litigation be brought to an end and that eligible claimants 

receive the compensation necessary to move on with their lives as best they can. 

We do not have the power to change history and prevent the September 11 terrorist 

attacks. But it is the responsibility of the Congress and the American people to try 

and bring some degree of financial security to the victims of September 11. I hope 

I have offered a blueprint and some food for thought to all interested parties. 

I thank you for the opportunity to testify here today. 

Mr. NADLER. I thank the gentleman. And as I said, we will have 

questions for Mr. Feinberg now, and then we will go to the other 

witnesses, since Mr. Feinberg has to leave. 

And I recognize myself to start the questioning. 

Mr. Feinberg, let me just ask you the following question. We 

have heard in some of the opening statements the problem that 

there are 11,000 tort claims pending against the city. We have 

heard concerns about paying too much to trial lawyers and so forth. 

If this bill were to be enacted—and you are familiar with the 

bill—if this bill were to be enacted, would it reduce the tort claims? 

Would it reduce the compensation or the amount of money spent 

on trial lawyers? Would it make sure that more of the money that 

is paid goes to victims? 

What do you think the effect would be in terms of two alternatives, adopting this or not adopting this? 

Mr. FEINBERG. Well, I think that, a fortiori, the legislation would 

vastly reduce the amount of litigation by encouraging those 11,000 

litigants to enter a newly enacted 9/11 fund. Now, how many of 

them would pick up on that option? 

Whether they would meet the 9/11 criteria, we would have to go 

through the 11,000 cases, but I suspect that, as with the 9/11 fund, 

a substantial number of those currently litigating would take advantage of the provisions of the fund to get prompt payment without the need to litigate any further. 

Mr. NADLER. Now, in the original 9/11 fund, 97 percent went to 

the fund—— 

Mr. FEINBERG. That is correct. 

Mr. NADLER [continuing]. Rather than litigate, correct? 

17 

Mr. FEINBERG. Correct. 

Mr. NADLER. And this might be 97 percent or it might be somewhat less, depending on different circumstances, but you would 

think it would be the overwhelming majority. 

Mr. FEINBERG. I would hope. I would hope. 

Mr. NADLER. Do you have any suspicion? 

Mr. FEINBERG. I have no idea. 

Mr. NADLER. Okay. I will yield back the balance of—well, actually, since we are only questioning one witness, we are all going to 

have our 5 minutes. I am sure it is a 5-minute thing now. 

But I yield to the distinguished gentleman from Wisconsin. 

Mr. SENSENBRENNER. Thank you very much. 

Mr. Feinberg, welcome back. 

Mr. FEINBERG. Thank you. 

Mr. SENSENBRENNER. Let me ask you a question, and it goes to 

the whole issue of attorneys’ fees. This bill proposes what is essentially a no-fault system. And it would be up to the plaintiff or the 

petitioner to prove up the damages that would be caused. 

Obviously, that requires a lot less lawyering than providing liability, particularly with a situation like this. Would you be in 

favor of having a statutory limit on attorneys’ fees, like the 10 percent that we put in private claims bills before they go to the House 

floor? 

Mr. FEINBERG. I don’t know if Congress has to actually formalize 

a cap on attorneys’ fees with this legislation. You will recall, Congressman, that when the 9/11 fund was enacted, the overwhelming 

number of claimants who filed with the fund using lawyers acquired those lawyers pro bono. 

The legal profession in the 9/11 fund stepped up. And about 

2,000 claimants were represented in which the lawyers voluntarily 

waived all rights to attorneys’ fees. 

As to those who required a fee, we had a recommendation in our 

regulations—not a formal regulation, but a recommendation—that 

attorneys’ fees remain at no more than 5 percent. To my knowledge, with rare exceptions, even in those cases where attorneys did 

receive a fee, it was a single digit fee. 

So in this fund, I don’t think it would be necessary to require 

that fees be capped, because I think the profession would step up 

and do it voluntarily, as they did with the 9/11 fund. 

Mr. SENSENBRENNER. You are a little more optimistic than I am, 

but then the claims in the original 9/11 fund were immediately in 

the aftermath of 9/11, when the memory of that horror was very 

vivid in the minds of the American people. 

Five-and-a-half years have gone by since the statute ran out on 

claims on the original 9/11 fund. And, unfortunately, I think that 

the American public’s memory has been dulled somewhat. 

We do have a 10 percent cap on private claims bills that are routinely reported out of this Committee and considered by the House 

of Representatives. And if jawboning is good enough, I guess we 

can leave it at that, but let me say that I think that is an open 

question. 

The other question that I have in my 5 minutes, Mr. Feinberg, 

is, do you believe that there should be kind of a standard compensation schedule like happens in workers’ comp claims for varVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
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ious types of injuries that are alleged by people who are petitioning 

out of the fund that is re-established in this bill? 

Mr. FEINBERG. Yes. You would need, for purposes of efficiency, 

a streamlined process. We had in the original 9/11 fund for purposes of physical injury compensation—I think it was three levels 

of compensation, depending and tied directly to the objective determination of physical disability, like workers comp. 

If somebody was 100 percent disabled, 60 percent disabled, 40 

percent disabled, and could confirm and corroborate objectively that 

degree of disability, we compensated them at those levels. 

Mr. SENSENBRENNER. But you wouldn’t be paying someone who 

is a highly compensated employee more than someone who was a 

far less compensated employee for the same injury? 

Mr. FEINBERG. Oh, yes, we would. Under the 9/11 fund, we were 

required by Congress to take into account the economic loss suffered as a result of the physical injury of the victim. 

Mr. SENSENBRENNER. Do you think that requirement should be 

maintained in this legislation? 

Mr. FEINBERG. If you are reauthorizing the 9/11 fund, it was essential, an essential feature of the 9/11 fund. 

Mr. SENSENBRENNER. Okay. But isn’t a life a life a life, and a 

broken arm a broken arm a broken arm? 

Mr. FEINBERG. Congressman, you won’t have to convince me of 

that. The Congress in the original legislation required that stock 

brokers or bankers get more than busboys, waiters, firemen, soldiers, or policemen. The law was the law. I had to follow it. 

I have written that that is a very difficult inequitable calculation 

to make, but it was one that was required by the Congress of the 

United States. 

Mr. SENSENBRENNER. Thank you. I think I have made my point, 

and I yield back the balance of my time. 

Mr. NADLER. Does anyone else wish to ask questions of this witness? 

The gentleman from Virginia—oh, I am sorry, the distinguished 

Chairperson of the Subcommittee. 

Ms. LOFGREN. Yes, just one question. When you appeared before 

us last time, you had a few concerns about the bill as drafted. Does 

this newly drafted bill address those concerns? 

Mr. FEINBERG. It addresses some of them; it doesn’t address others. It is a good-faith effort. 

Understand, this bill addresses some of the immediate cost concerns—— 

Ms. LOFGREN. Right. 

Mr. FEINBERG [continuing]. At the same time it broadens the eligibility requirements so that more people would be compensated 

under this fund, if it was re-enacted, than under the original 9/11 

fund. 

Ms. LOFGREN. Due to time, but not the nature of the illnesses—— 

Mr. FEINBERG. Oh, there is geographical expansion. There is geographical, that this fund would not only compensate people at the 

World Trade Center—— 

Ms. LOFGREN. Right. 

19 

Mr. FEINBERG [continuing]. It would compensate those claiming 

injury transporting material all the way out to Fresh Kills. 

Ms. LOFGREN. But the theory is that whether you were transporting the material, or you were in the pit, you were still responding to this disaster. 

Mr. FEINBERG. Correct. That is correct. 

Ms. LOFGREN. All right. 

Mr. FEINBERG. That is the goal, at least. 

Ms. LOFGREN. That is the goal. 

All right. I yield back, Mr. Chairman. Thank you. 

Mr. NADLER. I thank the gentlelady. 

I now recognize the gentleman from Iowa. 

Mr. KING. Thank you, Mr. Chairman. 

Thank you, Mr. Feinberg, for your testimony again. Would you 

be comfortable with a 5 percent cap on attorney fees? 

Mr. FEINBERG. Well, I was comfortable with it in the 9/11 fund. 

I would be comfortable with it now. It wasn’t a formal regulation. 

It was sort of an legislative history we recommended. And for all 

intents and purposes, it worked, so I would be comfortable with 

whatever is decided. 

Mr. KING. Thank you. And you have looked this bill over, I take 

by your testimony, so I would ask you if you have an opinion on 

as to whether the contractors might have liability for non-economic 

damages or punitive damages? 

Mr. FEINBERG. Congressman, when you say they might have liability, I think that is a fair comment. 

Mr. KING. And as you analyze the language that is in the bill, 

would there be any statutory protection from that to your knowledge? 

Mr. FEINBERG. Sure. As I read the bill, there is some protection 

for the contractors in this legislation, yes. Whether or not it would 

provide blanket immunity and protection, again, I am not sure of 

that. But, clearly, there is an attempt to do just that. 

Mr. KING. Okay. Let me just say that I think it is worth taking 

an extra look to ensure that there isn’t some punitive damages or 

non-economic damages, liability on the other side of this bill that 

might not be properly introduced into the language, so I want to 

protect the contractors on the other end of this. I am concerned 

about that. 

Mr. FEINBERG. I will look it over and respond directly to your 

staff. 

Mr. KING. I thank you very much. Now, another question would 

be, if an individual opts into the health care benefits in Title I, is 

there then a presumption of liability that might go along with that? 

Mr. FEINBERG. Oh, I don’t think. I will check. I think if an individual opts into Title I, they have made a decision to avoid any debate over liability, in terms of favoring a no-fault compensation system. 

Mr. KING. Do you think we know—— 

Mr. NADLER. Would the gentleman yield? 

Mr. KING. I would yield. 

Mr. NADLER. I think there is a bit of confusion here as to which 

is Title I and Title II. You might want to specify at both ends. 

20 

Mr. KING. On my side, Title I being the health care benefits component of this and Title II being the compensation beyond the 

health care. 

Mr. FEINBERG. I will have to go back and check as to that distinction. 

Mr. KING. Thanks for pointing that out, Mr. Chairman. And so 

I will just make this point that, if an individual opts into this bill 

in the package of the Victims Compensation Fund and the health 

care benefits, which are under Title I, I would think that treatment 

for health care may provide a presumption then that they could use 

to file suit against and opt out of the Title II component of this and 

file a suit against the contractors and the city and the Port Authority, et cetera. 

I am just concerned about that, that if they opt into the health 

care, they also opt in to the Victims Compensation Fund. That is 

my comment on it. 

And in the interest of time, if there is a response—— 

Mr. FEINBERG. No, no, again, I will check and give you my considered judgment reviewing the language of the bill. 

Mr. KING. Thank you, Mr. Feinberg. 

Mr. Chairman, I thank you, and I yield back. 

Thank you. 

Mr. NADLER. I thank the gentleman. 

The gentleman from Virginia is recognized. 

Mr. SCOTT. Thank you. 

If we extended the deadline, do you have a ballpark figure as to 

how many people might be eligible and how much the potential liability would be? 

Mr. FEINBERG. I have no idea. I don’t think anybody has any 

firm idea about that. 

Mr. SCOTT. On firefighters and police, why was workers’ compensation insufficient? 

Mr. FEINBERG. Under the original 9/11 fund? 

Mr. SCOTT. Right. 

Mr. FEINBERG. Congress trumped workers’ compensation by providing a blanket opportunity for workers and others, private citizens not working, not rescue workers, to file with the fund. 

Mr. SCOTT. Well, I mean, just for firefighters and police officers, 

they were eligible for workers’ comp. 

Mr. FEINBERG. That is correct. And because they were eligible, 

we had required by law collateral offsets so that, if they recovered 

workers’ compensation, pursuant to program one, we would deduct 

that compensation in netting their ultimate award. 

Mr. SCOTT. You indicated you compensated some who filed on 

time for injuries? 

Mr. FEINBERG. I am sorry. I didn’t hear the question. 

Mr. SCOTT. You compensated some for injuries. When you compensated them, did you require a release from future payments? Or 

did you allow sequential payments if their conditions got worse? 

Mr. FEINBERG. No, a total release. 

Mr. SCOTT. Would an open-ended situation be better? Because 

with these kinds of injuries, you don’t what the future may be, so 

you wouldn’t know when to settle for one check. 

21 

Mr. FEINBERG. That is a very good administrative law question. 

I would just respond by saying the goal of the original 9/11 fund 

was to compensate as of the date of injury, get a total release, close 

out the cases, and bring an end to the possibility of litigation. That 

was the goal, and that is why we required, under the statutory 

mandate, a total release. 

Mr. SCOTT. To be eligible, do you have to prove that you were 

injured as a proximate cause of 9/11 or do you presume the connection? Obviously, if you have to prove it, you have some that can’t 

prove it that should be eligible, if you have a presumption—— 

Mr. FEINBERG. We estimated under the 9/11 fund regulations 

presumptions of proximate cause as to geographical location and 

time to make it very, very simple to either satisfy or not satisfy 

proximate cause requirements. 

Mr. SCOTT. And the total compensation, what damages could 

someone recover if they filed a claim? I assume medical care, lost 

wages, pain and suffering? 

Mr. FEINBERG. All of that. There was no cap on the amount that 

could be compensated. As I recall it, for a physical injury, the least 

amount that we found eligible was $500 for a broken finger at the 

World Trade Center. 

And the most that we compensated anybody was a stock broker 

who came to see me with third-degree burns over 85 percent of her 

body. She received a little over $8 million. And in between was the 

range of all the physical injury payments. 

Mr. SCOTT. How would the damages differ from an ordinary negligence case? 

Mr. FEINBERG. The damages didn’t differ much from ordinary 

negligence, in terms of the gross calculation, economic loss plus 

pain and suffering. We were required by Congress, however, unlike 

tort law, to deduct collateral sources of income, like you mentioned, 

Congressman, so the net award might have been less. 

Mr. SCOTT. Thank you, Mr. Chairman. I yield back. Thank you. 

Mr. NADLER. Mr. Feinberg, how much time do you have left? 

Mr. FEINBERG. I am okay. 

Mr. NADLER. Okay. 

The gentleman from California, Mr. Lungren? 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

And it is good to see you, Mr. Feinberg. And thank you for your 

service as the special master. That was extraordinary work. 

You have indicated, I think, in your opening statement that the 

question of fairness is somewhat elusive in a situation like this. We 

are trying to do the best we can in a difficult circumstance, and you 

can’t have complete fairness, because, as you pointed out, you have 

other kinds of tragedies that strike just as heavily on the individual as this did. And Congress made a specific exception to the 

law in this circumstance, because this was viewed as an act of war, 

an attack on the American people. 

And so, as we try and figure out what we are going to do here, 

one of my greatest concerns is not just this question of fairness, but 

the principle or the precedent for the future that, if we have a disaster of this type, we don’t have people reluctant to respond, not 

just because of the obvious physical injuries, but when you bankrupt companies in the process, it is not an encouraging factor to get 

22 

them to respond in future events. And I think we ought to keep 

that in mind. 

But let me ask you very specifically about a quote of yours in a 

piece you wrote in The New York Times. And this is the quote directly. It says, ‘‘More than $1 billion in public funds is currently 

available for distribution as part of the initial Federal appropriation earmark for New York City’s 9/11 recovery. If you add financial contributions for those contractors and others involved in litigation, supplement that with funds from various city charities, a 

total of at least $500 million is available to settle the pending lawsuits, more than sufficient to pay all eligible claims, as well as lawyers’ fees and costs.’’ 

Is that your current position? Could you elaborate on that? And 

when you refer to financial contributions from contractors and others involved in the litigation, are you saying that that would be 

done to the extent of their insurance coverage or are you saying, 

whatever assets they had, which would, in my case, in my view, 

be detrimental to what we are talking about, that is, if they ended 

up being out of business, we would have that terrible precedent for 

the future. 

Mr. FEINBERG. Thank you. That quotation is accurate. It was in 

the context of my attempting to suggest that, if there is not going 

to be a 9/11 fund, if Congress does not reauthorize the 9/11 fund, 

surely there is a better way to resolve this litigation than continue 

to litigate ad infinitum in the courts in New York City. 

And what I was suggesting was—and I can just see Michael 

Cardozo starting to raise his hand—but what I was suggesting was 

that if you take the monies that were appropriated by Congress, 

perhaps voluntarily, supplement those funds with insurance proceeds from the contractors, you would, in my opinion, have a pot 

that would be ample to resolve the present litigation and set aside 

sufficient funds to protect against the possibility of future litigation 

arising out of latent physical manifestations. 

So I was using that as an example, option one, the 9/11 fund; option two, the settlement of the litigation voluntarily; option three, 

business as usual, which I don’t think anybody benefits from. 

Mr. LUNGREN. Just one other question, and that is, you have said 

regarding keeping the 9/11 fund open to the year 2031 that ‘‘no latent claims need such an extended date.’’ What do you think would 

be appropriate? 

Mr. FEINBERG. You would have to ask—and there are experts at 

this table—you would have to ask, what is the maximum time that 

any reasonable latent physical injury would manifest itself from 

the time of exposure to toxic products down in the World Trade 

Center or the Pentagon to the time when reasonable medical diagnosis would say, be it be a physical manifestation. 

And that period, it seems to me, would be an appropriate period—5 years, 6 years, 7 years more from 9/11—I think would probably be an appropriate period. But there are doctors who would answer that question. 

Mr. NADLER. Would the gentleman yield to me for a moment? 

Mr. LUNGREN. I would happily yield to the Chairman. 

Mr. NADLER. Thank you. I just want to clarify one point. 

23 

Mr. Feinberg’s quote that you quoted about the billion dollars, 

there is some dispute about that. There is $1 billion that was appropriated to the World Trade Center Captive, headed by Ms. 

LaSala. The Captive has interpreted that as money as for the defense of suits against the city and contractors. 

Some people think it was for payouts. It has not been available 

for payouts. This bill would make it available for payouts to people 

who do not opt into the VCF, and it would make that money, along 

with some other parts of insurance money, available for settling 

litigation of people who do not opt into the VCF. Right now, it is 

not being used for that. 

Mr. LUNGREN. Right. But you are talking—well, as we often find 

in this place, money can be fungible. And maybe using—— 

Mr. NADLER. Well, that is right. 

Mr. LUNGREN [continuing]. That for payouts rather than—— 

Mr. NADLER. I just wanted to clarify the status of that billion 

dollars. 

Mr. LUNGREN. I appreciate it. Thank you very much for your indulgence. 

Mr. NADLER. The gentleman from New York, Mr. Weiner, is recognized. 

Mr. WEINER. Thank you, Mr. Chairman. 

Mr. Feinberg and the panel, thank you all for being here. I think 

it bears recollecting that the Victims Compensation Fund was a remarkable success in the face of some extraordinary obstacles. You 

know, Mr. Feinberg had to quite literally put the value on people’s 

lives. 

And I think what we learned is that we had got the objectives 

that we wanted. We wanted to prevent the delays that went with 

lawsuits. We wanted to prevent the uncertainty that came with 

perhaps a generation of lawsuits against every entity under the 

sun, including the airlines, including everyone else, and that to a 

degree a lot of the very tough questions that have to be wrestled 

with now had to be wrestled with then, that now there are some 

questions that clearly have arisen, and some of them were just addressed by Mr. Lungren and Mr. Feinberg about how it is you define someone. And it is going to be a medical test. 

But I think that if we—the seminal question that we have to ask 

ourselves—and I think we have reached some consensus here—is 

that, if we knew in the period—when we passed the Victims Compensation Fund, that sitting out there in the audience or sitting out 

there beyond the TV cameras were a whole group of people that 

had a deadly seed that was born on September 11th within them, 

within their lungs, within their blood, there is no question that, in 

a bipartisan fashion, we would have included them in the bill. 

There really—I don’t think there are too many people that would 

say, oh, no, we would have not. This is simply a matter of additional information that is become clear, and that is the fact that 

many people are dying to this day. 

But we have to understand the imperative here. I am open, 

frankly—and Mr. King made some good points—I am open to the 

idea of always creating alternatives to the courthouse for people 

who want to, in an expeditious way, with money on the barrelhead, 

24 

say, in the case of a hurricane or in case of a natural disaster, figure out a way to make that system more expeditious. 

I am open to that idea. I am not wedded to the idea of people 

having to wait and slog through the justice system. 

And I think we have also learned that, unlike our tendency 

sometimes to try to constrict the outcomes when we put people who 

are well-meaning, smart, who are prepared to make some tough 

calls, like Mr. Feinberg in charge, we get the outcomes we want, 

that citizens vote with their feet and say, ‘‘I am willing to put my 

faith in a master’s hands.’’ 

So then the question only becomes how we define it. And I think 

that it is true—Mr. Feinberg makes a good point—there are people 

who are dying today even though they were not literally on top of 

the pile every moment. And I think we are going to have to ask, 

in my other Committee, in the Commerce Committee, how we define that. 

But there is no doubt that I think we have reached a consensus 

on this Committee and in this Congress that we want to make sure 

that contractors in the future, the same way firefighters and police 

officers in the future, go into these piles and help out. We want to 

make sure that we don’t have a situation where we are facing litigation for years and years, that it is the grandchildren of victims 

who are getting compensated and not the victims themselves. 

So I think that that is what Ms. Maloney and Mr. Nadler’s bill 

does. And I really do think that, when we look back—and now we 

have some benefit of time—when we look back at the work that 

Mr. Feinberg and the commission did in dealing with these very 

tough problems, I think we learned a valuable lesson, in that sometimes less is more. 

And I think that Mr. Nadler and Mrs. Maloney’s bill says, listen, 

let’s figure out a way to take that and replicate it. Maybe it isn’t 

22 years. Maybe it is 12 years. Maybe it is 10. 

But I think one of the lessons we did learn is, if we don’t leave 

a sufficiently wide window, and we try to do medicine from this 

side of the rostrum, we make a fundamental mistake. 

And I would also have to say that if these panelists—I know you 

will be leaving, Mr. Feinberg—but in addition to saying thank you, 

I have to once again point out the uncanny resemblance between 

you and Mr. Cardozo. I am sure—I don’t know if it is something 

about the legal profession or dealing with these issues long enough, 

you begin to take on—kind of like we in Congress take on the appearance of our pets or something like that. 

But I want to thank you for the service and patriotism you have 

showed and the wisdom that you have demonstrated in guiding 

this. A lot of the complaints and concerns were raised. You took the 

job anyway and did a remarkable job with it. And I haven’t heard 

you volunteer to be the master for the next 22 years, but the job 

is probably going to be available. 

Thank you, sir. 

Mr. FEINBERG. Thank you. 

Mr. NADLER. I thank the gentleman. 

And let me express the thanks to Mr. Feinberg, both for coming 

here and for his testimony, and for the tremendous job you did, 

which everybody acknowledges was a tremendous job as the special 

25 

master of the original bill. And if this bill passes, you may be drafted a second time. So thank you very much. 

Mr. FEINBERG. Thank you very much. 

Mr. NADLER. And let me thank the witnesses, the other witnesses for their patience while we question Mr. Feinberg, who has 

to leave early. Mr. Feinberg is excused, and now we will turn to 

the other witnesses. 

And I recognize for 5 minutes, Ms. Burnette. 

TESTIMONY OF BARBARA BURNETTE, FORMER DETECTIVE, 

NEW YORK CITY POLICE DEPARTMENT 

Ms. BURNETTE. Thank you, Chairman Nadler, Chairman 

Lofgren, Representatives Sensenbrenner and King, and Members of 

the Subcommittees for inviting me to appear before you today. 

My name is Barbara Burnette, and I live in Arverne, NY. I am 

45 years old, a wife and a mother of three children. With me today 

are my husband, Lebro, my son, Lebro, Jr., and my daughter, Tara. 

I am a former New York City police detective, retired from the 

force after 18 years of service. My career ended because of injuries 

I developed from over 3 weeks of service, about 23 days in total, 

at the World Trade Center Site. 

On September 11, 2001, I was assigned to the Gang Intelligence 

Division of the NYPD, working in Brooklyn, New York. That morning, when my fellow officers and I learned of the attacks, we 

rushed to Manhattan the fastest way we could: by taking boats. 

We arrived at the piers off the West Side Highway around the 

time the towers had collapsed. The air was thick and burning, 

choking dust and smoke. I had to put my hand over my nose and 

mouth to even breathe. 

I worked for about 12 hours in these difficult conditions, all day 

and into the night, evacuating people from around the World Trade 

Center site or directing them away. I frequently washed my eyes 

out with running water. 

I was not provided any respirator or any other protection for my 

lungs and throat. I had to literally wash dust and debris out of my 

eyes and mouth and throat throughout the day, picking up a hose 

and letting the dirty, muddy water run out of my mouth and onto 

the ground. 

At one point, EMS rinsed my eyes out. They were swollen and 

the color of dark red crayons. But none of the rescue workers could 

stop doing what we had to do. 

I left the site at around 10 p.m. the first day. Five hours later, 

I reported back, arriving for work at 4 in the morning on September 12. We were assigned directly to the debris pile on the second day. I worked until late afternoon, removing debris, by hand 

and using buckets and shovels, and at no time was I provided with 

respiratory protection. 

I spent my weeks at the World Trade Center site in this routine: 

shoveling; clearing away debris; searching for survivors; and, later, 

sifting for the body parts of the dead. 

Different construction companies hired by the city guided, as well 

as many other police officers and firefighters, to certain areas so 

we could search and remove debris. We did just that. We really 

26 

worked hand in hand and side by side with construction and iron 

workers. 

Air quality was never a concern for the city and its contractors, 

all of which allowed the work to continue 24/7. 

For their part, the city and construction firms never gave me a 

respirator. I live with the consequences of their failure today. I 

have been diagnosed with interstitial lung disease, more specifically, hypersensitivity pneumonitis, with fibrosis in my lungs. 

My lungs are scarred. I cannot move around my house without 

wheezing or gasping for breath. I take large doses of steroids that 

add to my weight. And I start each morning by connecting a 

nebulizer and inhaling multiple doses of medication. 

There is serious talk of me needing a lung transplant. I had no 

history of lung disease before the World Trade Center service. I 

never smoked. And, in fact, I had a physically demanding lifestyle 

and career. 

Allow me to explain. One of the highlights of my career was my 

assignment to plainclothes narcotics unit. During my years in narcotics, my assignment required me to walk up to 4 miles a day, 

standing ready to make arrests in buy-and-bust operations and 

search warrants. 

Making an arrest is tough, intense, and physical. I made over 

200 arrests. I was recognized numerous times by the department 

for excellent police duty. And I have several medals for meritorious 

police duty. 

I was born and raised in Brooklyn, NY. All my life, I have enjoyed being an active person, whether it was on the job or playing 

sports, especially on the basketball court. In my senior year at 

John Jay High School, I was named to the New York All-City Basketball Team. I then set off for college on a 4-year basketball scholarship, although my career was interrupted by an orthopedic injury. 

On July 11, 1988, a date I will never forget, I joined the NYPD. 

I earned my bachelor’s degree in criminal justice from St. John’s 

University, working full-time. As a detective, not only was I able 

to advance my career; I was able to enjoy the competition of organized basketball as a guard on the police league women’s team. 

Life is very different now. I cannot walk up a flight of stairs or 

down the street without gasping for breath, let alone arrest a drug 

dealer or do most police work. Walking, a basic life activity, is extremely difficult for me, because my illness has, at times, caused 

me to black out. 

In September 2004, while working full duty, I experienced a 

blackout at work. There really wasn’t any explanation for this. I 

underwent many medical tests and, in May 2005, having discovered inflammation in my bronchial passages, doctors at Mt. Sinai 

Center performed two bronchoscopies and an open-lung biopsy. 

Granulomas, abnormal tissue formations, were detected in my 

lungs, and I was placed on daily dosages of Prednisone to fight my 

inflammation. My condition worsened, and I began to realize I 

would never go back to work full duty as a detective. 

The police department agreed. And on August 11, 2006, its doctors determined that I was permanently disabled with an illness 

resulting from the World Trade Center site. 

27 

As you know, the Victim Compensation Fund closed to applicants 

in December 2003. There was no reason for me to have even considered filing a claim. I was not sick at the time the fund was open. 

You should know that my first concern is my health, and I will 

continue to do everything I can to get better. At the same time, I 

am seeking justice. 

Along with thousands of other rescue, recovery and construction 

workers, I have filed an individual lawsuit in the southern district 

of New York seeking redress for my respiratory injuries. 

Injured, years later, we now count the dead and dying among our 

ranks. My case is now in its fourth year. It has been a long road, 

and I can tell you that I can’t see an end. 

I respectfully ask you to do what you can to right this wrong. 

Thank you. [Applause.] 

[The prepared statement of Ms. Burnette follows:] 

PREPARED STATEMENT OF BARBARA BURNETTE

Thank you Chairman Nadler, Chairman Lofgren, Representatives Sensenbrenner 

and King, and members of the subcommittees for inviting me to appear before you 

today. My name is Barbara Burnette, and I live in Arverne, New York. I am 45 

years old, a wife, and mother of three children. With me today are my husband, 

Lebro, Sr., my son, Lebro, Jr., and my daughter, Tara. 

I am a former New York City Police Detective, retired from the force after 18.5 

years of service. My career ended because of injuries I developed from over three 

weeks of service, about 23 days in total, at the World Trade Center Site. 

On September 11, 2001, I was assigned to the Intelligence Division of the NYPD, 

working in Brooklyn, New York. That morning, when my fellow officers and I 

learned of the attacks, we rushed to Manhattan the fastest way we could, by taking 

boats. We arrived at the piers, off of the West Side Highway, around the time the 

towers had collapsed. 

The air was thick with burning, choking dust and smoke. I had to put my hand 

over my mouth and nose to even breathe. I worked for about twelve hours in these 

difficult conditions, all day and into the night, evacuating people from around the 

World Trade Center Site or directing them away. I frequently washed my eyes out 

with running water. I was not provided any respirator or other protection for my 

lungs and throat. I had to literally wash dust and debris out of my eyes, mouth and 

throat throughout the day, picking up a hose and letting the dirty, muddy water 

run out of my mouth onto the ground. At one point, EMS rinsed my eyes out. My 

eyes were swollen and the color of dark red crayons. But my fellow rescue workers 

and I could not stop doing what we had to do. I left the Site at around 10 pm that 

first day. 

Five hours later, I reported back, arriving for work at 4 in the morning on September 12th. We were assigned directly to the debris pile on the second day. I 

worked until late afternoon, removing debris, by hand and by using buckets and 

shovels. At no time was I provided with respiratory protection. Like the day before, 

I had to run water into my mouth and throat to wash away the dust, spitting it 

out. My eyes needed constant rinsing. If I wasn’t crying over what I was seeing in 

the ruins, tears streamed down my face from the burning, irritating dust. 

I spent my weeks at the World Trade Center Site in this routine: shoveling; clearing away debris; searching for survivors; and, later, sifting for the body parts of the 

dead. Different construction companies hired by the City guided me, as well as 

many other police officers and firefighters, to certain areas so we could search and 

remove debris. We did just that. We really worked hand in hand and side by side 

with the construction and iron workers. For all of us, no matter what our job, each 

day was pretty much the same as we made our way across all parts of the rectangleshaped field of debris, from north to south and east to west. 

People ask me now, in the legal proceedings, where exactly I was on the debris 

pile during those long weeks. Well, the answer is ‘‘all over it.’’ There were no landmarks or street signs there; nothing was the same as it had been. All I knew is 

that we were searching and removing the wreckage of the World Trade Center, and 

working right on top of the burning, smoking, hot rubble. 

Did conditions change down there during my time on the debris pile? No. The 

fires never stopped burning, and there was always dust and flying debris. Air qualVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
28 

ity was never a concern for the City and its contractors, all of which allowed the 

work to continue 24/7. From my view, the work was tough and dirty, choking and 

dangerous, but there was no way I would allow myself to stop and leave. 

I thought of the thousands of poor victims, including my fellow police officers, and 

thanked God that I was not one of them. 

For their part, the City and its construction firms never gave me a respirator. 

They sure relied on my work, though, and that of all of the other brave rescue and 

recovery personnel. We were a willing and courageous group. 

If our energy brought the debris removal and recovery efforts closer to completion, 

the City and construction companies should have taken the precautions necessary 

to protect all of us. We held up our end of the deal. The City and its contractors 

failed completely. 

I live with the consequences of their failure today. I have been diagnosed with 

interstitial lung disease, more specifically, hypersensitivity pneumonitis with fibrosis in my lungs. I fail the pulmonary function tests doctors give me. Inflammation 

in my lungs interferes with my breathing, and destroys the tissues that get oxygen 

to my blood. 

My lungs are scarred. I cannot move around my house without wheezing or gasping for breath. I take large doses of steroids that add to my weight. I start each 

morning by connecting to a nebulizer, and inhaling multiple doses of medications. 

There is serious talk of my needing a lung transplant. 

I had no history of lung disease before my World Trade Center Service. I never 

smoked. In fact, I had a physically demanding lifestyle and career. Allow me to explain. 

One of the highlights of my career was my assignment to two plainclothes Narcotics Units. During my five years in Narcotics, my assignments required me to 

walk up to 4 miles a day, standing ready to make arrests in buy and bust operations 

and search warrants. Making an arrest is tough, intense, and physical. I made over 

200 arrests. I was recognized numerous times by the Department for Excellent Police Duty. In addition, I received several medals for Meritorious Police Duty. 

I was born and raised in Brooklyn, New York. All my life I have enjoyed being 

an active person, whether it was on the job or playing sports, especially on the basketball court. In my senior year at John Jay High School, I was named to the New 

York All City Basketball Team. I then set off for college on a four year basketball 

scholarship, although my college career was interrupted by an orthopedic injury. On 

July 11, 1988, a date I will never forget, I joined the NYPD. I earned my Bachelor’s 

Degree in Criminal Justice from St. John’s University while working full time. The 

Police Department was my second home, and I miss it so much. As a detective, not 

only was I able to advance my career, I was able to enjoy the competition of organized basketball as a guard on the Police League women’s team. My squad competed 

across the United States and internationally, playing against Canada and Australia, 

and won four championships. 

Life is very different now. I cannot walk up a flight of stairs or down the street 

without gasping for breath, let alone arrest a drug dealer or do most police work. 

Walking, a basic life activity, is extremely difficult for me. Because my illness has, 

at times, caused me to black out, I avoid driving, and rely on my husband to get 

me where I need to go. 

In September 2004, while working full duty, I experienced a blackout at work. 

There wasn’t really any explanation for this episode. I underwent many, many medical tests. In May 2005, having discovered inflammation in my bronchial passages, 

doctors at Mt. Sinai Medical Center performed two bronchoscopies and an open lung 

biopsy. Granulomas, abnormal tissue formations, were detected in my lungs, and I 

was placed on daily dosages of Prednisone to fight the inflammation. My condition 

worsened, and I began to realize that I would never go back to full duty as a detective. 

The Police Department agreed, and on August 11, 2006 its doctors determined 

that I was permanently disabled with an illness resulting from exposure at the 

World Trade Center Site. 

As you know, the Victim Compensation Fund closed to applicants in December 

2003. There was no reason for me to have even considered filing a Fund claim. I 

was not sick at the time the Fund was open. 

You should know that my first concern is my health, and I will continue to do 

everything I can to get better. At the same time, I am seeking justice. 

Along with thousands of other rescue, recovery and construction workers, I have 

filed an individual lawsuit in the Southern District of New York, seeking redress 

for my respiratory injuries. In violation of New York’s municipal and labor laws, the 

City and its construction companies failed to provide the World Trade Center workers with protective respirators. Injured, years later, we now count the dead and 

29 

dying among our ranks. My case is now in its fourth year. It has been a long road, 

and I can’t tell you that I see an end. During that time period, I have been questioned under oath by the City. My attorneys have taken dozens of depositions, 

briefed two appeals, and exchanged written responses to literally hundreds of questions about my medical condition and World Trade Center Service. The legal work 

continues today. 

After losing an earlier attempt, back in 2006, to dismiss all of the cases, the City 

and its contractors recently filed papers to dismiss the claims of police officers and 

firefighters, claiming that New York laws to protect workers do not apply to uniformed service personnel. My attorneys are preparing to fight that argument. 

Apart from the constant efforts by the City and its contractors to deprive the 

workers of justice, what is very frustrating to me is this: In February 2003, Congress approved payment of $1 billion to the City to insure injury claims arising from 

World Trade Center debris removal. In announcing the passage of the legislation, 

Mayor Bloomberg explained, ‘‘This legislation is necessary for the City to expedite the 

payment of claims relating to this effort.’’ To date, the City has not made payment 

to any one of the approximately 10,000 World Trade Center respiratory claims. 

I respectfully ask you to do what you can to right this wrong. 

Mr. NADLER. Thank you very much. 

The audience will please refrain from expressing applause or condemnation or disapproval or approval. 

I now recognize Dr. Melius for 5 minutes. 

TESTIMONY OF JAMES MELIUS, MD., ADMINISTRATOR, NEW 

YORK STATE LABORERS’ HEALTH AND SAFETY TRUST FUND 

Dr. MELIUS. Thank you, Chairman Nadler, Chairwoman Lofgren, 

other Members of the Subcommittees. I greatly appreciate the opportunity to appear before you this morning. 

I am an occupational physician, epidemiologist. I have been involved with issues at the World Trade Center since shortly after 

September 11th. Many of our union members work there. I have 

been very involved with the medical programs that have been developed to provide medical services to the responders and others 

and, more recently, to the community members living near the 

World Trade Center. 

We know that the exposures following the World Trade Center 

terrorist attack involved over 50,000 emergency responders, recovery workers, many tens of thousands of people living and working 

in the area around the World Trade Center. 

As a result of these exposures, we know through the medical programs and through peer-reviewed scientific studies that hundreds 

of these people have developed serious lung diseases, post-traumatic stress disorder, and other serious illnesses. Many of them 

have become disabled. 

We have, through Federal funding, established what I consider 

to be excellent medical programs that provide medical monitoring, 

diagnosis of World Trade Center-related conditions, and, for the 

past few years, providing outstanding medical treatment to people 

who have developed these World Trade Center medical conditions. 

However, these medical programs alone are not sufficient to address all of the harm being suffered by these workers and the others exposed by 9/11. Because so many of them are disabled or becoming disabled and are no longer able to work, they are suffering 

a great deal of economic hardship because of their illnesses. 

We know in looking at the records being kept by the—through 

the various medical groups and the social agencies that are proVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
30 

viding assistance to these people, that there are hundreds of them 

who are disabled, unable to work, and are not able so far to receive 

any assistance from workers’ compensation, disability, retirement, 

or other similar programs. 

We know that many of them have lost their health insurance and 

coverage for their families. We know that many of them have had 

to move out of their homes because they can no longer afford their 

mortgage payments. These are for the most blue-collar workers 

that don’t have significant financial resources to fall back on. 

You have heard from Detective Burnette today about what happened to her. Another potential witness we talked to was a firefighter, fire officer who is not able to be here, because this weekend 

he underwent a lung transplant due to the serious lung disease 

that he suffered. 

I would like to talk about one other victim of 9/11. Leon Heyward 

was an inspector in the New York City Department of Consumer 

Affairs near the World Trade Center towers. September 11th, he 

helped to evacuate disabled co-workers from Ground Zero. He later 

developed respiratory disease, something called sarcoidosis, which 

we have found through scientific studies that is related to 9/11 exposures. 

His disease got worse. He had to stop working. He was denied 

workers’ compensation. He struggled to get by and needed to move 

to a smaller apartment. He later developed lymphoma and died 

last year. 

Even though he had been denied workers’ compensation, the 

New York City medical examiner, at the request of Mr. Heyward’s 

family, did an autopsy and reported a finding that his death was 

due to 9/11. Based on their findings at that autopsy, he was considered to be a homicide related to the 9/11 terrorist attack. 

So I think it is important to recognize that Mr. Heyward and 

many other people who are not receiving compensation are having 

a great deal of difficulty because of this. 

I would also add, by the way, that Mr. Heyward’s sister, Leona 

Hull, is here today with us and come from New York to attend this 

hearing and is very involved in assisting him through the struggles 

and can relate firsthand all of his difficulties. 

I would just like to emphasize that there are many more people 

like Mr. Heyward, like Ms. Burnette, who have suffered, who have 

become ill, and that we need a system in place to provide not only 

the medical programs we have, but also the assistance to them, 

economic assistance. 

The New York Times this morning has an article on how difficult 

the New York state workers’ compensation system is to navigate 

through, have long delays in that system. And I can tell you from 

some other work I have done with the Workers’ Compensation 

Board in New York, it is even worse for World Trade Center-related illnesses. 

The difficulties there are that these are complicated conditions. 

Our knowledge of them is evolving over time. We don’t know the 

prognosis for people. It is just more difficult to provide a proper assessment for that. 

I think of the time when the Captive Insurance Fund was set up. 

Many of us hoped that the Captive Insurance Fund would find— 

31 

would be able to help many of these people through this. For various reasons which I personally fail to understand, it is not. It has 

been used —mainly to fight the litigation against the city of New 

York and against the contractors. 

I think that the legislation being introduced now provides the 

right approach. I think the Victims Compensation Fund, combined 

with the medical programs, would provide the necessary economic 

assistance to people that have been injured, developed illnesses as 

a result of 9/11. 

I think that by linking the medical programs to the Victims Compensation Fund, we can ensure that we can provide a fair assessment of people’s eligibility for compensation, we can provide a fair 

and objective assessment of their medical conditions, and we can 

then, through the system that is the Victims Compensation Fund 

operated the first time, provide appropriate economic assistance to 

these people. 

It has been going on 8 years now after 9/11. Many people are 

continuing to suffer because of that, their illnesses as a result of 

that. And I think it really is time that we should be passing this 

legislation, getting what I think is excellent legislation in place 

that addresses these issues, and we will take care of these people 

for the future. 

Thank you. 

[The prepared statement of Dr. Melius follows:] 

PREPARED STATEMENT OF JAMES MELIUS

Honorable Chairmen Nadler and Lofgren and other members of the Committee. 

I greatly appreciate the opportunity to appear before you this morning. 

I am James Melius, an occupational health physician and epidemiologist, who currently works as Administrator for the New York State Laborers’ Health and Safety 

Trust Fund, a labor-management organization focusing on health and safety issues 

for union construction laborers in New York State. During my career, I spent over 

seven years working for the National Institute for Occupational Safety and Health 

(NIOSH) where I directed groups conducting epidemiological and medical studies. 

After that, I worked for several years for the New York State Department of Health 

where, among other duties, I directed the development of a network of occupational 

health clinics around the state. I currently serve on the federal Advisory Board on 

Radiation and Worker Health which oversees part of the federal compensation program for former Department of Energy nuclear weapons production workers. 

I have been involved in health issues for World Trade Center responders since 

shortly after September 11th. Over 3,000 of our union members were involved in 

response and clean-up activities at the site. One of my staff spent nearly every day 

at the site for the first few months helping to coordinate health and safety issues 

for our members who were working there. When the initial concerns were raised 

about potential health problems among responders at the site, I became involved in 

ensuring that our members participated in the various medical and mental health 

services that were being offered. For the past four years, I have served as the chair 

of the Steering Committee for the World Trade Center Medical Monitoring and 

Treatment Program. This committee includes representatives of responder groups 

and the participating medical programs (including the NYC Fire Department) who 

meet monthly to oversee the program and to ensure that the program is providing 

the necessary services to the many people in need of medical follow-up and treatment. I also serve as co-chair of the Labor Advisory Committee for the WTC Registry operated by the New York City Department of Health and as a member of the 

Community Advisory Committee for the WTC Environmental Health Center at 

Bellevue Hospital. These activities provide me with a good overview of the benefits 

of the current programs and the difficulties encountered by responders seeking to 

address their medical problems and other needs. 

32 

HEALTH CONSEQUENCES OF SEPTEMBER 11

In the period after September 11, over 50,000 emergency responders and recovery 

workers were exposed during the initial rescue work at the site and in the subsequent clean-up and recovery activities. Tens of thousands of people living, working, 

and going to school in the areas around the WTC were exposed immediately after 

the WTC buildings collapsed or in subsequent weeks or months in their apartments, 

work places, or schools. These responders, recovery workers, and other people were 

exposed to a myriad of toxic materials including pulverized concrete, asbestos, lead, 

and many highly toxic chemicals. As we know, the failure of the government to 

properly inform and protect these people from these exposures added substantially 

to their health risks. 

Due to the incomplete monitoring of these exposures at the time, we still do not 

know the full extent of their exposures. While we know much about the adverse 

health effects being experienced by this population, we remain very concerned about 

latent illnesses that may only become apparent many years after exposure, especially cancers. We do know that these exposures and the accompanying psychological trauma have caused adverse health effects in thousands of those exposed. 

These adverse health effects include lower respiratory disease (including asthma or 

asthma like conditions, pulmonary fibrosis, and significant loss of lung function); 

upper respiratory conditions including chronic sinusitis; gastrointestinal problems 

most commonly reflux disorder or GERD; and mental health problems including 

Post Traumatic Stress Disorder and depression. These medical problems have been 

documented in peer reviewed scientific publications based on research done by several independent research groups. Similar health problems have been documented 

among fire fighters, other responders and recovery workers, and WTC community 

residents, students, and workers. 

There is no doubt that these disorders and others not listed above are occurring 

at a much higher rate than would be expected in this population and that these 

health problems are due to the toxic exposures and psychological trauma related to 

9/11. These WTC related medical conditions are being diagnosed using standardized 

medical protocols by physicians at some of the leading medical institutions in the 

New York City metropolitan area. 

These are not rare isolated medical conditions found in a small number of those 

exposed. The proportion of those exposed who have become ill is quite alarming. In 

a recent Mount Sinai Medical Center study of responders and recovery workers, 

lower respiratory disease was found in 46% of those evaluated; upper respiratory 

health problems in 64%; and mental health problems in 32%. Similar results have 

been found in other studies of the exposed populations. New patients are continuing 

to come to the monitoring and treatment programs with these illnesses that were 

not evident before this time. Although many of these conditions do improve with 

medical treatment, the full scope and the ultimate medical outcome for the people 

currently being treated or who will become ill in the future is uncertain. Thousands 

are no longer able to work, and thousands more require lifelong medical monitoring 

and treatment. 

As you may know, the federally funded medical programs for responders and recovery workers started some time after September 11 have provided excellent medical care for thousands of these works. Initially, only medical monitoring was available. However, three years ago, Congress also provided funding for medical treatment programs for those with WTC-related medical conditions. In December 2007, 

Congress also provided funding for medical monitoring and treatment for community residents, workers, and students exposed after 9/11. These programs have been 

an immense help to those who have become ill from their exposures. Although it 

is difficult to document, I believe that without these program thousands more of 

these people would have developed much more serious health problems, and many 

more would have become permanently disabled. 

WHY MEDICAL PROGRAMS ARE NOT SUFFICIENT

However, the continuation of these medical programs alone is not sufficient to address all of the harm being suffered by these rescue and recovery workers and others exposed after 9/11. Many of these rescue and recovery workers are no longer 

able to work because of the progressive disability caused by their health conditions. 

We do not have an exact count of those who have become disabled, but I can provide 

some estimates. In the fire department, over 900 fire fighters have received disability pensions because of health problems related to their 9/11 exposures. This is 

100 more than when testified here a year ago. These are fire fighters whose illness 

is so severe that they are no longer capable of working as fire fighters. Among patients currently being treated at Mount Sinai Medical Center, over 1000 are curVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
33 

rently out of work. Among those, less than half were receiving financial assistance 

from Workers’ Compensation, Disability Retirement, or Social Security Disability. In 

other words, these ill police officers, construction workers, utility repair workers, 

and others are now without any personal income and having to rely on their 

spouses, families, or other financial resources. Most have lost all health insurance 

coverage for their families, and many can no longer afford their mortgage payments 

and have lost their homes. These are, for the most part, blue collar workers without 

significant financial resources to fall back on. 

You have already heard from Ms. Burnette. Let me mention a few other individuals. Daniel Arrigo is a 51 year old construction laborer who worked at Ground Zero 

from September 13, 2001 until January 2002. At one point, he became trapped in 

an elevator in one of the buildings adjacent to the site and was overcome by smoke 

and fumes. Over the next few years, he gradually developed severe pulmonary 

health problems requiring repeated hospitalizations. In early 2008, he had to stop 

working because of his breathing difficulties. Once he stopped working, he could no 

longer afford his mortgage and is currently living with his wife and three children 

in a basement apartment in his brother’s home. A few weeks ago, he thought that 

his workers compensation claim would finally be approved only to have the insurance company delay payments by filing yet another appeal. 

Leon Hayward was an inspector in the NYC Department of Consumer Affairs 

near the WTC towers. On September 11, he helped to evacuate co-workers from 

Ground Zero to their homes. This involved numerous trips during the time when 

exposures to the dust cloud were at their highest levels. About one year later, he 

developed respiratory symptoms that were eventually diagnosed as pulmonary sarcoidosis, an often progressive fibrotic disease of the lungs that has been found to 

be significantly increased in WTC rescue workers especially in the first year after 

9/11. His disease progressed, and he had to stop working in 2005. His workers compensation claim was contested by the NYC Department of Law and denied. He 

struggled to get by and had to move to a smaller apartment. His sarcoidosis was 

complicated by the development of a cancer, lymphoma (which could very well also 

be caused by his WTC exposures), and he died last year at the age of 45. At the 

request of Mr. Hayward’s family, the NYC medical examiner conducted an autopsy 

and reported the death as a homicide related to the terrorist attack on 9/11 based 

on the autopsy findings of sarcoidosis caused by WTC dust exposures. While the 

NYC Medical Examiner recognized Mr. Hayward’s illness as related to 9/11, the 

NYC Law Department had previously denied his worker’s compensation claim. As 

a result, Mr. Hayward struggled to get by with little income and facing severe medical problems. Mr. Hayward’s sister, who assisted him through his struggles, has 

come from New York City today to attend this hearing. 

These are just two of the many hundreds of WTC workers and community residents whose health has been seriously damaged by their WTC exposures, who have 

become disabled, and who now have to struggle to support themselves and their 

families. Many are not receiving any compensation from workers’ compensation or 

other workplace disability programs. Based on what we have experienced to date 

in the medical programs, I expect this number to continue to gradually increase over 

the next several years. 

WORKERS’ COMPENSATION

One source of assistance for people with WTC-related conditions is workers’ compensation insurance. Workers’ compensation is supposed to be a no fault insurance 

system to provide workers who are injured or become ill due to job-related factors 

with compensation for their wage loss as well as full coverage for the medical costs 

associated with the monitoring and treatment of their medical condition. 

The WTC program participants are covered by a variety of state, federal, and local 

programs with different eligibility requirements, benefits, and other provisions. 

Most private and city workers are covered under the New York State Workers’ Compensation system. New York City is self insured while most of the private employers 

obtain coverage through an outside insurance company. Uniformed services workers 

are, for the most part, not covered by the New York State Workers’ Compensation 

system but rather have a line of duty disability retirement system managed by New 

York City. A fire fighter, police officer, or other uniformed worker who can no longer 

perform their duties because of an injury or illness incurred while on duty can apply 

for a disability retirement which allows them to leave with significant retirement 

benefits. However, should a work-related illness first become apparent after retirement, no additional benefits (including medical care) are provided, and the medical 

benefits for even a recognized line of duty medical problem end when the person 

retires. Federal workers are covered under the compensation program for federal 

34 

workers. Coverage for workers who came from out of state will depend on their employment arrangements with their private employer or agency. However, volunteers 

from New York or from out of state are all covered under a special program established by the New York Workers Compensation Board after 9/11 and supported by 

federal funding. 

A major difficulty with these compensation systems is the long delays in obtaining 

coverage. For example, in the NYS Workers’ Compensation system, the insurer may 

challenge every step of the compensation process including even diagnostic medical 

testing. This challenge usually requires a hearing before a Workers’ Compensation 

Board (WCB) administrative judge to evaluate the case, and this hearing may often 

be delayed for months. Even once the case is established, the insurer can still challenge treatments recommended for that individual even for a medication that the 

individual may have been taking for many months for a chronic work-related condition. Thus, it may be many years before the case of a person with a WTC-related 

condition is fully recognized and adjudicated by the compensation system. The average time for just having a claim established for a WTC-related condition at the 

Mount Sinai clinic is over three years, and it may be many more months before reimbursement for medical costs or lost income is allowed. Meanwhile, the claimant 

may not be receiving any medical or compensation benefits or may have had their 

benefits disrupted many times. These bureaucratic systems are designed to address 

acute injuries. They are not flexible enough to provide the comprehensive medical 

support and income replacement needed for a WTC responder who has developed 

several medical problems requiring frequent medical visits and continual modifications in their treatment. 

There are many other difficulties in getting these claims accepted. Their medical 

circumstances are often quite complicated. Many are being treated for multiple 

WTC-related medical problems. Legal issues about causality, statutes of limitations 

for filing claims, and determination of disability are often raised in these cases and 

may take many months to adjudicate. Claimants are often confronted with a choice 

to accept lump sum payments or a limited weekly payment. The lump sum payment 

is often very appealing because of their backlog of unpaid bills and debt incurred 

while waiting for their claim to be processed. However, accepting the lump sum payment usually means giving up their options to reopen their claim to cover future 

medical costs should their condition worsen. 

In order to alleviate some of the problems for WTC claimants, three years ago 

New York State implemented some new programs that were deigned to improve coverage for WTC responders. These included an extension of the time to file a WTCrelated claim. New York is also in the midst of implementing major reforms in the 

overall workers’ compensation system that may also assist with WTC claims. Most 

of these changes are just now going into effect, and it will take time to assess their 

impact. 

For the past year, I have served on a committee looking at some of the problems 

in handling of WTC claims. For various reasons, WTC claims are contested and appealed much more often than other claims. This leads to many claims being rejected 

and many more claims being significantly delayed. Although most claims that are 

pursued are ultimately approved, a disabled worker will often have spent many 

months or years without any income while waiting for their claim to be approved. 

Our committee has made a number of recommendations to alleviate these problems. 

Some of these recommendations will require legislative changes and will, therefore, 

take time to address. 

In summary, the multiple workers’ compensation systems covering WTC rescue 

and recovery workers are unable to provide timely and appropriate medical benefits 

and compensation for economic losses for the WTC providers. Although some steps 

are being taken to address some of the problems with these programs, it is unlikely 

that this can be accomplished in time to provide significant relief for most WTC rescue and recovery workers. 

CAPTIVE INSURANCE

Another possible source of support for workers and community residents who have 

become ill as a result of their WTC-related exposures is the special captive insurance fund set up after the September 11. The World Trade Center Captive Insurance Company was formed in July of 2004 based on earlier Congressional legislation 

that allowed FEMA to provide up to $1 billion in coverage for the City and its contractors for claims arising from debris removal after the collapse of the World Trade 

Center buildings. In March of 2003, Mayor Bloomberg and Governor Pataki announced the introduction of state legislation to allow the implementation of the captive insurance arrangement. Mayor Bloomberg stated in his press release, ‘‘This legVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
35 

islation is necessary for the City to expedite the payment of claims relating to this 

effort.’’ 

For many people including myself who were becoming increasingly concerned 

about the growing number of responders and recovery workers who were becoming 

ill from their work at the WTC, it appeared as if this insurance entity would become 

the financial mechanism to assist these ill workers. However, as subsequently became very clear, the WTC Captive Insurance Company had little interest in ‘‘expediting claims payment’’. In fact, while spending millions of dollars in legal and consulting fees, the company has focused all of its efforts on attempting to fight the 

many thousands of WTC medical claims made against it. Almost five years after its 

formation, the fund has paid out less than ten actual claims, all reportedly for musculoskeletal injuries related to 9/11 work. Meanwhile, thousands of WTC rescue and 

recovery workers and community residents who have become ill as a result of their 

exposures after September 11 have had to struggle to pay the medical bills related 

to these illnesses until federal funding recently became available to defray these 

costs. Hundreds more who can no longer work because of their WTC-related illnesses have struggled to support their families while trying to obtain workers’ compensation or other disability benefits. 

I am not an expert on insurance and cannot speak directly to the legal issues involved. However, it seems obvious to me that the $1 billion could have been better 

used to help these thousands of men and women with medical bills and compensation for their inability to continue to work rather than invested in a long term legal 

battle in order to protect the City and its contractors. That was the intent of the 

federal government providing this funding as Mayor Bloomberg apparently understood in 2003. I believe that the current policy of the Captive to use all of its resources to challenge and fight claims is misguided and blatantly unfair to the many 

men and women who put their lives and health as risk to respond to the terrorist 

attack on our country on 9/11 and are now in need of assistance. While I understand 

that the City of New York and the construction contractors have legitimate concerns 

about their financial risks incurred in responding and recovering from a terrorist 

incident, denying (or at best delaying) medical benefits and compensation for the 

many rescue and recovery workers involved in this effort is a tragically misguided 

policy. 

Moreover, the Captive as currently funded does not appear to be adequate to 

cover all of the medical and economic losses for the rescue and recovery workers and 

community residents with WTC-related illnesses. Medical monitoring and treatment 

costs for the rescue and recovery workers alone are estimated to cost over $200 million per year. A more comprehensive solution is needed. 

WHAT NEEDS TO BE DONE

I believe that we must develop a comprehensive solution to address the medical 

care and economic losses of the thousands of rescue and recovery workers, community residents, and students whose health has been harmed by exposures related to 

9/11. HR 847 introduced by Representatives Maloney, Nadler, McMahon, and King 

provides a comprehensive legislative approach to accomplish that. In previous hearings, I have addressed the medical program outlined in that legislation. I will focus 

my recommendations on the aspects of the legislation related to compensation for 

economic losses. I would like to make several recommendations. 

First, reopening and the Victims Compensation Fund (VCF) is the best mechanism for addressing economic losses. I believe that the VCF would provide the flexibility to properly and expeditiously handle claims from workers and community residents with varying circumstances and degrees of economic loss. Relying on the many 

other compensation systems for disabled workers and community residents for economic compensation would lead to continued long delays and gross inequities among 

the ill claimants due to the specific processes used for compensation in each of these 

systems. I also believe that the VCF should develop a common mechanism for ensuring that all of the claims were for legitimate WTC-related illnesses. For the most 

part, this could be based on the designations and mechanisms for designating World 

Trade Center-related conditions included in the medical program sections of the legislation. A number of the changes made in HR 847 will help to ensure that sound 

diagnostic criteria will be used in the medical portion of the program and that the 

program will be carefully monitored. At the same time as the medical program will 

provide comprehensive, expert medical care for the responders and community residents, the VCF would provide an appropriate and equitable way of taking into account individual economic circumstances (including payments from other sources of 

compensation) similar to the approach taken when the VCF was administering the 

earlier 9/11 claims. 

36 

Secondly, the long term medical monitoring and treatment for World Trade Center related medical problems should be handled separately as outlined in the current legislation. I believe that medical care for these complex medical conditions 

would best be delivered in conjunction with the current Centers of Excellence. This 

approach would also reduce the problem of trying to take into account the potential 

costs of medical care for conditions that might develop in the future as part of the 

current economic compensation. 

I strongly urge you to pass HR 847 this year. It is over seven years since the 9/ 

11 terrorist attacks. The health of the rescue and recovery workers and community 

residents was damaged as a result of these attacks. We should not wait any longer 

to implement a comprehensive solution to address their medical and personal needs. 

Thank you again for allowing me to testify. I would be glad to answer any questions. 

Mr. NADLER. Thank you. 

I will now recognize Ms. LaSala for 5 minutes. 

TESTIMONY OF CHRISTINE LASALA, CHIEF EXECUTIVE 

OFFICER, WORLD TRADE CENTER CAPTIVE INSURANCE FUND 

Ms. LASALA. Chairman Nadler, Chairwoman Lofgren, Ranking 

Member Sensenbrenner and King, and Committee Members, my 

name is Christine LaSala, and I am the president and CEO of the 

WTC Captive Insurance Company. 

First, let me say that I fully support your effort in H.R. 847 to 

reopen the Victims Compensation Fund and to limit the liability of 

the city of New York and its 9/11 contractors. 

As a New Yorker who lived through 9/11, I share your concern 

for the heroic Ground Zero workers. 

I also share your concern for the other heroes here today, the city 

of New York, and the private contractors who took on the dangerous rescue, recovery and debris removal operation. These private contractors ranged in size from one-man operations to small 

family-run businesses to larger companies. 

Unfortunately, these heroes are now pitted against each other in 

litigation. More than 10,800 workers have sued the city and its 9/ 

11 contractors, claiming that they suffer respiratory and other ailments due to their work at Ground Zero. 

The city and the contractors have denied wrongdoing. For years, 

these lawsuits have proceeded, as they must, through the tort system. The tort system, however, is a costly, contentious, and timeconsuming way to resolve disputes of such national significance, 

disputes in which only the terrorists are to blame. 

If Congress wants to compensate the Ground Zero workers who 

are injured, while protecting the city and contractors from significant financial hardship, then an alternative approach is needed: reopening the Victim Compensation Fund and limiting the liability 

of the city and its contractors. 

The WTC Captive was formed to address a specific problem. 

After 9/11, the city and contractors could not purchase a sufficient 

amount of insurance for the massive debris removal operation. Fortunately, the Federal Government stepped in to fill this insurance 

gap. Congress appropriated $1 billion to establish a captive insurance company for claims arising from debris removal. That money 

in turn was used by FEMA to set up the WTC Captive, an insurance company with a duty to defend any lawsuits filed against the 

city and its contractors. 

37 

Recently, the Department of Homeland Security’s Office of Inspector General concluded that the WTC Captive is operating in 

full compliance with its congressional mandate and the FEMA 

grant. Without question, acting as an insurance company for the 

city of New York and more than 100 sued contractors has cost a 

significant amount of money. But in defending this massive litigation, the WTC Captive has consistently sought to preserve taxpayer 

funds. 

We have insisted that the city and contractors primarily work 

through one lead law firm instead of 100 or more. In addition, we 

have obtained a judgment against other insurance companies for 

more than $100 million. With this recent victory added to our current assets, the total would be more than the initial $1 billion. 

But we cannot prevent the inevitable. The cost of these lawsuits 

will increase if these cases remain in the tort system. That is why 

the WTC Captive supports the prompt and reasonable solution to 

legitimate claims by those injured, but any resolution must take account of the reason that the WTC Captive was created, to protect 

the city and contractors from uninsured liability. 

Thus, any resolution cannot exceed our current assets and must 

also ensure that the city and contractors are protected from future 

lawsuits. The tort system does not offer any way to resolve future 

lawsuits. The WTC Captive would act contrary to its mandate if it 

distributed a disproportionate amount of its assets to the current 

plaintiffs and left the city and contractors to fend for themselves 

against the future lawsuits. 

In addition, because many serious illnesses, including most cancers, take years to develop, the WTC Captive cannot pay out all of 

its funds only to those who have shown signs of injury and leave 

those with latent injuries without any form of recovery. 

The allegations here are of a mass tort, and this mass tort requires a mass solution. 

By re-opening the Victims Compensation Fund and limiting liability for the city and its 9/11 contractors, this Congress will ensure that, if there is another terrorist attack, all of America’s heroes will again respond, knowing that their Nation stands behind 

them as they rush into harm’s way. 

I thank you for your time this morning and welcome your questions. 

[The prepared statement of Ms. LaSala follows:] 

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PREPARED STATEMENT OF CHRISTINE LASALA


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Mr. NADLER. Thank you. 

I now recognize Mr. Cardozo for 5 minutes. 

TESTIMONY OF MICHAEL A. CARDOZO, 

CORPORATION COUNSEL, CITY OF NEW YORK 

Mr. CARDOZO. Thank you. 

Thank you, Mr. Chairman, Chairwoman Lofgren, Ranking Members Sensenbrenner and King, Members of the Committee. 

And I particularly want to thank the members of the New York 

delegation and their staffs who have long made the issue of the 

health of the responders and the area residents a top priority. 

About 71⁄2 years ago, over 90,000 people took part in the rescue 

and debris removal effort at Ground Zero, including workers and 

volunteers from all 50 states and the constituents of every Member 

of these Subcommittees and virtually every Member of the House. 

They were all responding to an attack on America. 

As I know you all know, nearly 11,000 of those heroic responders 

have sued the city and the contractors, asking for compensation for 

illnesses they say they incurred as a result of their efforts. 

And I want to emphasize that there is not going to be any winners in this litigation, which pits one set of heroes, the rescue 

workers, against another set of heroes, the city and the contractors 

who responded in a time of need without a written contract and 

without insurance. 

For the plaintiffs to prevail, they will have to prove not only that 

they are sick and that the sickness stems from the dust at Ground 

Zero, but also that the city or the contractors were somehow negligent and not entitled to their civil defense immunities. 

If the city and the contractors win these litigations, these people 

who became sick will receive nothing. And if the plaintiffs win, 

after what promises to be years and years of further litigation, 

many of the contractors may face huge liability and damages. 

The answer to this problem is before us. It is in this bill to reopen the Victims Compensation Fund, with the critical point that 

you don’t need to prove fault. 

And in answer to one of the prior questions as to how many people will opt in to the fund rather than litigation, well, of course, 

we have no guarantee, but the difference between the fund and the 

litigation is the fact that the plaintiffs will not have to prove fault. 

So in my judgment, an overwhelming number of would-be plaintiffs would, in fact, opt in to the fund. 

I also want to add that, in the fund as it existed before and as 

would exist now, there is an offset for the so-called collateral source 

that people might receive, such as pensions, workers’ compensation, and we also must remember that in New York City police and 

firemen do not receive workers’ compensation. 

And I correct my colleague, Mr. Feinberg, who apparently looks 

so much like me, but it is important to note that under New York 

City law, workers’ compensation is not available to police and firemen. 

But the critical point, as Mr. Feinberg pointed out—— 

Mr. SCOTT. Could you say that again? 

Mr. CARDOZO. Under New York law, policemen and firemen do 

not receive workers’ compensation. There is a separate law that 

47 

provides them with separate pension benefits. If they become injured, they get what is called accidental disability pension if they 

are out for life, but they are not covered by workers’ compensation. 

Other city workers, sanitation, law department, various other 

people, are covered. But firefighters and police are specifically not 

included. 

The VCF, as it existed, not only had a limitation with respect to 

having to file your claim before a certain period of time, but also 

that you had to be at Ground Zero within 4 days of the attack. And 

that means that, if you were at Ground Zero 5 or 6 days after, you 

were not eligible. 

Let me just add to what Ms. LaSala said and what has been said 

before, reopening the Victims Compensation Fund must have with 

it a cap on the liability, which is what this bill provides, so that 

those who do not go into the fund and continue the litigation, so 

that the contractors and others will know that their liability will 

be capped by available insurance. 

We hope that 9/11 never happens again, but we must assure the 

country that, if it does, people will respond and we must treat the 

people who were not eligible for the Victims Compensation Fund, 

for the limitations, we must allow those people to be fairly compensated and not continue the litigation as it exists today. 

Thank you very much. 

[The prepared statement of Mr. Cardozo follows:] 

PREPARED STATEMENT OF MICHAEL A. CARDOZO

Good morning, Chairman Nadler, Chairwoman Lofgren, ranking members Sensenbrenner and King, and committee members. I am Michael A. Cardozo, and I 

serve as the Corporation Counsel of the City of New York. I want to start off by 

thanking the members of the New York delegation and their staffs who have long 

made the issue of the health of the responders and the area residents with respect 

to the attack on the World Trade Center a top priority. I also want to thank you 

for holding this hearing on compensation for the responders and community members affected by the September 11 terrorist attack. 

The federal government contributed substantially to New York City’s economic 

and physical recovery from the 9/11 attack. Mayor Bloomberg and the people of New 

York City are grateful for the federal government’s strong support. 

The federal government has also provided some funding through annual appropriations for screening, monitoring and treatment of responders and community 

members and for that we are also grateful. But as Mayor Bloomberg has said for 

many years now, what is needed is long-term, stable funding for these health-care 

programs, as well as a method to address overall compensation for those potentially 

injured. Several Representatives—led by Congresswoman Carolyn Maloney and 

Congressmen Jerry Nadler, Mike McMahon and Pete King—have introduced H.R. 

847, the James Zadroga 9/11 Health and Compensation Act of 2009. That bill provides for reopening the Victim Compensation Fund and limiting liability, the provisions we are here today to discuss. The City of New York strongly supports those 

provisions. The bill also provides for a system of stable funding for the long-term 

health needs of those affected by the attacks of September 11. Those provisions are 

within the jurisdiction of the Energy and Commerce Committee. The City supports 

that effort, though we have concerns about the effect of that portion of the bill on 

the City’s finances and on our ability to ensure the effective use of City funds. We 

are confident that these issues can be addressed when Congress takes up the health 

care portion of the bill. 

But I am here today to testify in support of the provisions of the bill that address 

compensation for the victims of the 9/11 terrorist attacks on our country. First, the 

bill would re-open the Victim Compensation Fund, thereby providing a fast, fair, 

and efficient way to compensate the Ground Zero workers and area residents who 

demonstrate that they were injured as a result of the terrorist attack. Second, the 

bill would broaden the existing limitation on liability for damages arising from the 

response to the terrorist attack, thereby protecting the contractors that came to the 

48 

City’s aid from potentially ruinous liability and helping to ensure that the City and 

other municipalities can get the help they need from the private sector in the event 

of a future disaster, an occasion that we hope will never, but unfortunately may, occur. Approximately seven-and-a-half years ago, over ninety thousand people took part 

in the rescue, recovery and debris removal effort at Ground Zero—including workers 

and volunteers who came from all 50 states and are constituents of every member 

of these subcommittees, and indeed of virtually every member of the House. In addition, some residents, students and area workers were exposed to the dust and 

fumes. 

While many who were at or near the site and who reportedly fell ill have recovered, others continue to report a range of ailments. The most commonly reported 

are respiratory illnesses, such as asthma, and mental health conditions, such as 

Post-Traumatic Stress Disorder (PTSD) and depression. We do not yet know the extent to which these conditions will remain or will be successfully resolved with 

treatment. 

We also do not yet know whether late-emerging conditions, like cancer and pulmonary fibrosis, will arise in the future; but concern about these illnesses developing was raised time and again in discussions with responders and residents alike. 

We know that we must build the capacity to detect and respond to any conditions 

that may reveal themselves in the future. 

In addition to the health effects reported by these individuals, many report other 

losses. Some report they are unable to work, some have out-of-pocket medical expenses or other losses. Simply providing medical care, as important as that is, would 

not compensate them for these types of losses. 

Some of these people are City employees, particularly members of the FDNY and 

NYPD. Others worked for the contractors that the City retained in the rescue, recovery and clean-up efforts in response to this attack upon our country. Many of 

these contractors began work on September 11 itself. They came forward out of patriotism and a sense of civic duty without having a contract in hand or insurance 

to cover their liabilities. 

As you are aware, nearly 11,000 of those who worked on the rescue, recovery and 

clean-up efforts have sued the City and the contractors seeking compensation. Resolving these issues through the courts is not in anyone’s interest. It is especially 

not in the nation’s interest, if we want to assure that the next time—if God forbid 

there is a next time—people and companies will once again quickly and selflessly 

step forward. 

We have a model of how we can proceed in a way that will quickly, efficiently 

and fairly resolve these issues—the Victim Compensation Fund of 2001, which was 

enacted shortly after September 11. 

THE VCF WORKED WELL

In the aftermath of the terrorist attack on the World Trade Center, Congress established a Victim Compensation Fund (VCF). When Congress created the VCF in 

2001, it chose a no-fault compensation program—those injured were compensated 

without any need to establish negligence or fault. As ably administered by Kenneth 

Feinberg, the VCF worked exactly as Congress had intended. Determinations were 

made promptly and without the delays, litigation risks or rancor that lawsuits inevitably engender. Approximately 5,500 claimants opted to accept awards rather than 

to pursue a lawsuit. 

LIMITATIONS OF THE VCF

Unfortunately, the VCF had limitations that made it unavailable to most of the 

workers at Ground Zero. For example, to be eligible for the fund, a claimant had 

to have been present at Ground Zero within four days of the attack. And claims had 

to be filed by December 2003. 

Because of these limitations, there are now many rescue and recovery workers, 

not to mention those in the community, who report injuries, but have no option for 

compensation other than litigation. Almost 11,000 of those people have sued New 

York City and/or its contractors. Most of them say they did not develop symptoms 

of their injury until long after the filing period for the original VCF passed. Also, 

a number of them were not present at Ground Zero within four days of the attack 

and were therefore not eligible for compensation from the fund. These individuals, 

however, if in fact they were hurt as a result of their work in helping their country 

recover from a terrorist attack, or as a result of exposure to dust and fumes from 

the attack, deserve to be compensated by their country for their losses. There is no 

just reason for them to get nothing while many others, who were in essentially the 

49 

same position, but who met the strict eligibility requirements for compensation from 

the fund, were compensated. 

THE DOWNSIDES OF LITIGATION

Regrettably, these individuals have been relegated to the tort system to obtain 

compensation for their injuries. The many downsides of litigation are well known. 

First, the outcome is uncertain for all concerned. Each plaintiff, in order to prevail 

in the suits now pending in the federal court in New York, must prove, in addition 

to establishing that his or her illness stemmed from the dust at Ground Zero: 

1. that the City or its contractors are not entitled to the civil defense immunities and other defenses provided by law, and 

2. that the City or its contractors were negligent, a difficult standard for them 

to meet. 

Needless to say, we believe we are entitled to civil defense immunities and we do 

not believe that we or our contractors were negligent. 

Second, even today, some seven-and-a-half years after the attacks and since the 

first suits were filed, we may still be years away from an end to the litigation. To 

be prepared for trials on plaintiffs’ claims, which plaintiffs’ counsel say total billions 

of dollars, both sides must engage in extensive discovery, which is still in its early 

stages. Judge Alvin Hellerstein, who is presiding over these cases, has established 

an aggressive schedule for discovery during 2009 and for trial of thirty selected 

cases beginning in May 2010. However, even if those first thirty cases go to trial 

in 2010, as scheduled, the great majority of the cases will still need to be addressed. 

Finally, as with any litigation, if the plaintiffs are successful, much of the compensation awarded will not go to them, but to their lawyers. 

Even more regrettably, because the plaintiffs must legally prove that the City or 

its contractors were at fault, the lawsuit necessarily pits the City and the patriotic 

companies that rushed to the City’s aid without a written contract or an adequate 

amount of insurance against the heroic workers, who also rushed to the scene of 

the devastation. Holding the City or its contractors liable because of their response 

to an attack on our nation runs the risk that the next time there is a similar disaster, cities and contractors will hesitate to provide the needed help. 

In the wake of September 11, because of these lawsuits and the inability to obtain 

insurance, a number of the contractors have experienced business difficulties and, 

especially in these difficult economic times, continue to do so. The City and its contractors all faced very substantial potential monetary exposure. To try to alleviate 

this burden, Congress used a portion of the assistance provided to New York City 

after the attacks to create an insurance company for the City and the contractors. 

The $1 billion provided was used, as the legislation required, to set up a captive 

insurance company. As the Inspector General of DHS has confirmed in his June 

2008 report on the Captive, this is an insurance company set up under New York 

State law and regulated by the New York State Superintendent of Insurance to provide insurance to the City and its contractors for liabilities relating to the rescue, 

recovery, and debris-removal efforts following the September 11 attacks. It is not a 

victim compensation fund. 

Some have suggested that all that needs to be done is for this one billion dollars 

of insurance to be used to settle the claims brought by the nearly 11,000 plaintiffs. 

But this approach overlooks two critical factors. 

First, the plaintiffs’ attorneys have said in open court that the $1 billion, which 

would amount to about $60,000 per each of the plaintiffs when standard plaintiff’s 

legal fees and costs are factored in, will not be nearly enough to settle all of the 

current claims. So, according to the plaintiffs’ attorneys, the $1 billion held by the 

captive insurance company would be nothing more than a down payment on the 

claims. 

Second, even if the Captive were able to settle all of the current claims for $1 

billion, that would not protect against any claim that might be filed in the future. 

New cases are literally being filed every month; more than 1,000 new complaints 

have been filed in the last year. And there is concern that there are some potential 

diseases, like cancer, that could arise, but would not develop for years. Without the 

protection of a limitation on liability, which I will speak about shortly, even settling 

all of the cases currently pending will not solve the problems faced by the City and 

its contractors. 

REOPENING THE VICTIM COMPENSATION FUND

Fortunately, there is a better way: re-opening the Victim Compensation Fund. 

Compensation from the fund will be prompt and certain and there will be no need 

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to assign blame to anyone. In addition, there will be no need to marshal the services 

of hundreds of lawyers and experts in a pitched battle between the responders and 

the City and its contractors. And there will be no need to continue using the valuable and limited resources of the federal judiciary. 

Limiting Liability 

But simply re-opening the Victim Compensation Fund will not be enough. Under 

the original VCF, individuals could opt not to accept the award from the fund and 

instead pursue a claim through the court system. Some did so. Under the Zadroga 

Act, there would be a similar option and some will undoubtedly avail themselves 

of it. That means that the need for the captive insurance company, although diminished, will continue. As was said, the plaintiffs’ lawyers have estimated that their 

claims are worth billions of dollars. And they have asserted that there are many 

claims that have yet to manifest themselves, like cancer, and that may not develop 

until years in the future. Thus, the City and its contractors remain exposed to potential liability for their patriotic actions. 

The Zadroga Act would eliminate this highly undesirable outcome by limiting liability for any remaining claims for those who decide not to pursue a VCF award. 

Liability would be capped at the amount of available insurance, including the insurance provided by the WTC Captive, plus an additional $350 million to be paid, if 

necessary, by the City. 

We all hope and pray that 9/11 will remain a unique event in this nation’s history. But if it is not, and if we do not resolve these difficult issues fairly, the next 

time there is a major disaster, we are concerned that the response will not be as 

robust as it was after 9/11. Workers will be reluctant to pitch in because they won’t 

know if they will be taken care of if they are injured on the job. Companies will 

be slow to bring their resources to bear until they are satisfied that they are not 

sacrificing their very existence by helping out. Indeed, I understand that, because 

of the lessons the contractors learned from 9/11, some engineering firms were reluctant to participate in the recovery following Hurricane Katrina. 

The bill you are considering today will address everyone’s concerns. Re-opening 

the Victim Compensation Fund will provide fast, fair, and certain relief to the workers and area residents. And limiting the liability of the companies involved in the 

response to 9/11 will give them the peace of mind, and the protection against possible financial ruin, they deserve. We all know who was responsible for 9/11—nineteen terrorists who carried out the attacks. Responders, workers and residents 

should not have to try to prove that the City or the contractors are somehow responsible for their harms—which we think, and are obligated to prove, is not the case. 

This bill eliminates that burden, and ensures that those harmed by 9/11 get the 

compensation they are entitled to. 

I will be happy to answer any questions you may have. 

Mr. NADLER. Thank you. 

I now recognize Mr. Frank for 5 minutes. 

TESTIMONY OF THEODORE H. FRANK, 

AMERICAN ENTERPRISE INSTITUTE 

Mr. FRANK. Thank you, Mr. Chairman, Chairwoman Lofgren, 

and distinguished Members of the Subcommittee for your kind invitation to testify today. 

I serve as a resident fellow at the American Enterprise Institute, 

but I am not testifying here on its behalf, and the views that I am 

sharing here are my own. 

The September 11th Victim Compensation Fund, or VCF, was a 

short-term administrative program to compensate victims of the 

terrorist attacks while limiting litigation against innocent third 

parties who had also been victimized. 

Unfortunately, H.R. 847 fails to fully protect innocent third parties from unfair litigation, does not have many of the advantages 

that made the fund successful, and magnifies the disadvantages 

and fairness problems of the fund. 

The original fund used a non-adversarial structure to compensate 

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ventional claims. This structure will not work for a longer-term 

compensation scheme involving a substantially larger set of potential claimants with injuries with much more ambiguous causation. 

While H.R. 847 is a substantial improvement over the earlier 

version of the bill in the last Congress, it still has many problems. 

I discussed these problems in much more detail in my written testimony, but let me touch on a few of them briefly. 

First of all, the compensation program created by H.R. 847 is especially susceptible to error and fraud. The fund was not designed 

to resolve causation issues. Someone on the September 11th planes 

or killed or injured in the towers or Pentagon was plainly entitled 

to compensation from the fund. Thus, for the most part, determining eligibility for compensation was largely a ministerial function. 

The fund’s structure was not designed to vet recipients’ claims, 

but it is not the case that anyone with a pulmonary or cancerous 

ailment who worked at Ground Zero is an appropriate claimant. 

The fund is required by law to adjudicate claims within 120 days 

but has no provisions for independent medical review or testing of 

the claims made against it. 

This creates a ‘‘Field of Dreams’’ problem. If you build it, they 

will come. If Congress creates a system where geographic proximity 

and a diagnosis are the only prerequisites for a large government 

check and an attorney’s contingent fees, attorneys will have every 

incentive to manufacture such diagnoses. 

The law firm behind many of the thousands of pending 9/11 lawsuits of plaintiffs who will be eligible for reopened fund compensation have previously used questionable medical diagnoses to attain 

huge sums in the Fen-phen litigation. 

If the bill is passed in its current form, trial lawyers will steal 

billions from taxpayers. H.R. 847 fails to provide adequate protection to taxpayers that taxpayer money will be spent on compensation of victims rather than on attorneys’ fees. 

And to the extent that the bill is modified to protect the Federal 

Government against fraud, the program will be unlikely to end the 

third-party litigation unless the bill is also amended to make the 

fund the exclusive remedy for September 11th-related injuries. 

Two, the bill fails to correct the problem of the original stabilization act, which gave unbounded authority to the special master. 

Now, this was perhaps forgivable in the rush to provide compensation in September 2001. The bill was passed that very same month. 

But if a program is to be reopened for 2 more decades, Congress 

has the time to define more structure for it. 

For example, a 2-pack-a-day smoker working 1 day as a construction worker directing traffic at the debris removal site in August 

2002, long after the fires were out, may, if the special master’s regulations and adjudications are generous enough, receive fund compensation for pulmonary disease. 

And as Special Master Feinberg testified, the average—we are 

talking $1 billion for 2,000 claimants the last time around. That is 

$500,000 a person. 

Even the original fund failed to stay within its original estimates 

for expense, which were $4.8 billion in 2001, but ended up paying 

out $7 billion when it closed. 

52 

Three, the bill fails to fully protect the innocent subcontractors 

who are faced with tremendous liability simply for volunteering to 

help New York City in its hour of need, often without pay. 

Many of the lawsuits against contractors and subcontractors include claims for punitive damages, which is left out of the exemption in the bill, so plaintiffs’ attorneys will still have that leverage 

against those innocent parties. The exception just about swallows 

the rule. 

Four, the liability limitations provisions of the bill, by leaving insurers of these innocent parties on the hook, fails to solve the problem of future subcontractors being deterred from volunteering to 

help the government, raises insurance costs, and creates moral 

hazard problems. 

Five, Section 408(a)(5)’s proposal in the bill to create tranches of 

priority for claims payments through litigation presents additional 

problems of moral hazard and risks of collusion that could mean 

that unimpaired claimants receive government funding while leaving true victims entirely uncompensated by litigation. 

My time is just about up. There are many more issues that outstrip the time that I have, and I welcome your questions. 

[The prepared statement of Mr. Frank follows:] 

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PREPARED STATEMENT OF THEODORE H. FRANK


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Mr. NADLER. I thank the gentleman. 

And our final witness is Mr. Wood, who is recognized for 5 minutes. 

TESTIMONY OF RICHARD WOOD, PRESIDENT, 

PLAZA CONSTRUCTION CORPORATION 

Mr. WOOD. Madam Chairwoman, Mr. Chairman, distinguished 

Members, good morning. My name is Richard Wood, and I am 

president of Plaza Construction Corporation. 

My company is one of the five major contractors that responded 

immediately after our country was attacked by terrorists in New 

York City on September 11, 2001. 

I am here representing Plaza, but I am speaking on behalf of all 

the prime contractors—Bovis Lend Lease, LMB; Turner Construction; Tully Construction; AMEC Construction Management—in offering our full support and endorsement of H.R. 847, the bill before 

you today. 

Thanks to the steadfast work of Representatives Maloney, Peter 

King, and Nadler, as well as the tremendous efforts of Speaker 

Pelosi, you are considering this bipartisan bill. This bill comprehensively addresses the basic needs and concerns of those who immediately responded to the attack on our Nation and our great city. 

We urge your Committee, as well as the Energy and Commerce 

Committee, to act quickly to pass this desperately needed bill. We 

urge Speaker Pelosi, who has been extraordinarily sensitive to our 

plight, to schedule this bill for a vote as soon as possible. 

In my mind, our Federal Government has the responsibility to do 

so. The attacks on September 11th were attacks on our country. 

The companies and individuals who responded immediately did so 

because we were attacked and because our first concern was that 

of everyone, to save lives and to rescue people from the unprecedented and massive destruction caused by the foreign enemy attack. 

Thousands of people showed up to help as they could. Our companies showed up because we had access to the equipment, the 

trained manpower, and the expertise to best negotiate the rescue 

and then recovery efforts at the 14-story-high pile of burning 

wreckage where the Twin Towers once stood. 

I was one of those people who rushed out to help on September 

11th. I worked at the site, side by side with our city’s uniformed 

and emergency workers, construction workers, and all of the other 

volunteers, every day for the first month. 

I came home to eat, shower, and rest for a few hours when I was 

able to, and then I went right back. I believed this was my duty 

as an American. After this time, I was down at the site nearly 

every day for the next few months, and all of the contractors acted 

similarly and did so at the expense of running their companies and 

businesses. 

You have my written testimony, but I would like to talk to you 

about my personal experience. I was in a meeting at the Fisher 

Brothers offices, the parent company of Plaza Construction, when 

Arnold Fisher’s assistant whispered in his ear that a second plane 

had hit the buildings. He immediately canceled the meeting, and 

70 

we went in front of the TV to see the news coverage to find out 

what was happening. 

As we were there watching the towers burn, having seen a fire 

in an office building before, we knew that there was devastating 

damage occurring to those buildings, but nobody knew exactly what 

could happen to those buildings. 

I received a call from my office and was told to get right back 

to the office. I walked up Madison Avenue about a 10-block walk, 

and there were people from the first tower already streaming up 

Madison Avenue. We knew that something dramatic had happened, 

but I really didn’t know exactly what it was. 

I got back to my office. My reception area was filled with 100 

people, and they were very upset, and some of them were crying. 

I immediately said to them, ‘‘Everybody, go home to your families. 

Make sure they are safe. Take care of them, but get back to work 

tomorrow. Get on your buses and trains. Do not let whoever did 

this to us affect our lives.’’ 

As I was talking, somebody mentioned to me that I needed to get 

to my office right away to speak to Chris Mills. Chris Mills is a 

young man that worked for me. Chris had his head in his hands, 

saying, ‘‘What happened? What happened?’’ His girlfriend, soon-tobe-fiancee Danielle was in one of the towers on the 104th floor, and 

he was on the phone with her as the towers collapsed. 

At that moment, I asked Chris what he wanted to do. I said, 

‘‘Would you like to go down and look for her?’’ And he said, ‘‘Yes.’’ 

I went back into the reception area, and I told everybody in the 

reception area that we are a construction company. There is mass 

devastation downtown. They could use our expertise. I said, ‘‘Anybody who wants to go down there with me to try to help, please 

join me. And those of you that will remain behind, please call our 

subcontractors, the unions, and mobilize as many people and as 

much equipment as you possibly can.’’ 

Getting down to the site, you couldn’t imagine the devastation 

that was in front of you. TV and pictures could not describe the 

massive destruction and the smoke clouds and fires that existed 

downtown. 

We met up with other contractors and immediately formed a 

bond that we were going to work together not as competitors, but 

as one large unit to make sure that we mobilize this place and assist the emergency workers as much as we possibly can. 

The Department of Design and Construction, DDC, was the lead 

agency and ultimately was the group that hired us. We worked 

under their direction. We were directed to work with emergency 

personnel and were directed to different quadrants. Each one of us 

had a quadrant. 

There was a lead fire department person and police department 

person in each one of the quadrants. I recall seeing the bridge that 

led from the towers to the world financial center collapsed on top 

of two fire trucks that were completely obliterated and stood there 

as a fire captain watched those two fire trucks, wondering what 

happened to his people. 

While we are sitting there and as equipment is arriving and people are showing up and burning equipment is there, we are trying 

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nized in a way that wouldn’t damage people, were they still to be 

alive. 

Much to our dismay, there were not many people alive. But we 

worked together as a group. 

I recall the first meeting that we had. It was in a kindergarten 

class in a school just south of Stuyvesant High School. It was quite 

a scene to see the largest contractors in the city and some in the 

country sitting in kindergarten chairs, figuring out how to solve the 

problems that we had down there. 

After the first couple of days, I realized what a soldier feels like 

at war. My second day down there, I was walking past an area, 

and I saw what appeared to be the trunk of a body with the head 

still attached. A fireman standing next to me said, ‘‘She was a 

woman.’’ Immediately, I felt what happened to her family? What is 

her family going to think? What was this person’s life like? 

We were very committed. It was a very serious place. This was 

not something to be taken lightly. 

For months, we worked down there. And this was an emergency 

for months. The fires burned in the quadrant I was at for many 

months. We used steel from the center of the pile long after 9/11 

to keep our hands warm when it started getting cold later into the 

fall. 

This was never a cleanup. It was an emergency, and it was a recovery. The entire time we were there, I had FBI agents, CIA 

agents, and Secret Service agents standing by my side. The quadrant we were assigned to clean up was 7 World Trade; 7 World 

Trade had the offices of those groups in it. 

We responded to this attack. This was an attack on our country. 

This was an attack by foreign terrorists. We completely support 

this bill. And I appreciate the opportunity to address you today. 

In closing, let me say that support for this bill should be universal. There should be no divide along party lines. I submit to you 

that this bill protects Americans, both individuals and companies, 

who serve their country in a time of crisis. And this bill also protects America. 

In the event some future attack or disaster should occur, people 

and companies need to know that their country they are striving 

to protect will do the right thing and protect them in return. The 

injured need care and support, and the companies upon which people rely for their livelihoods and support for their families need to 

know that the next time they are needed, they can again respond 

without a moment’s hesitation. 

I ask all of you and all the Members of Congress to appreciate 

both the importance of this bill, as well as the need to move it 

quickly to passage. The situation of protracted litigation in which 

we now find ourselves is wasteful and protects no one. Our resources are better spent caring for the sick and protecting those 

who deserve our protection. 

Ladies and gentlemen, if this happens again, I assure you, as an 

individual, I will show up to the next disaster that occurs in this 

country, and I can assure you there will be many volunteers from 

my company. But I will have to think twice about dedicating the 

resources of my company and putting it at risk for fear of the litigation that may ensue. 

72 

I appreciate your time listening to us today, and thank you for 

your efforts. 

[The prepared statement of Mr. Wood follows:] 

PREPARED STATEMENT OF RICHARD WOOD

Madam Chairwoman, Mr. Chairman: Good morning. My name is Richard Wood, 

and I am the President of Plaza Construction Corporation. My company is one of 

the five major construction contractors that responded immediately after our country was attacked by Al-Qaida terrorists in New York City on September 11, 2001. 

I am here representing Plaza. But I am speaking on behalf of all of the prime 

contractors—Bovis Lend Lease, LMB, Turner Construction, Tully Construction, and 

AMEC Construction Management—in offering our full support and endorsement of 

H.R. 847, the bill before you today. 

Thanks to the steadfast work of Representatives Maloney, Peter King and Nadler—as well as the tremendous efforts of Speaker Pelosi—you are considering this 

bipartisan bill. This bill comprehensively addresses the basic needs and concerns of 

those who immediately responded to the attack on our nation and our great city. 

We urge your committee, as well as the Energy and Commerce Committee, to act 

quickly to pass this desperately needed bill. We urge Speaker Pelosi, who has been 

extraordinarily sensitive to our plight, to schedule this bill for a vote as soon as possible. In my mind, our federal government has the responsibility to do so. The attacks on September 11th were attacks on our country. The companies and individuals who responded immediately did so because we were attacked, and because 

their first concern was that of everyone: To save lives and to rescue people from the 

unprecedented and massive destruction caused by a foreign enemy attack. 

Thousands of people showed up to help in any way they could. Our companies 

showed up because we had access to the equipment, the trained manpower and the 

expertise to best negotiate the rescue and then recovery efforts at the 14-story high 

pile of burning wreckage where the twin towers once stood. 

I was one of those people who rushed down to help on September 11th. I worked 

at the site, side by side with our city’s uniformed and emergency workers, construction workers, and all of the other volunteers, every day for at least a month. I came 

home to eat, shower and rest for a few hours when I was able to, and then I went 

right back. I believe this was my duty as an American. After this time, I was down 

at the site just about every day for the next few months laboring and organizing 

the clean up efforts. All of the contractors—our executives, engineers, and workers— 

did so at the expense of running our companies’ businesses. 

On the morning of September 11th, I was in a meeting at the offices of Fisher 

Brothers on Park Avenue and 49th Street. As many of you know, the Fisher family 

lends tremendous support to our nation’s military and their families. At the time 

of the first strike, we all thought that a small plane had crashed into the side of 

one of the World Trade Center buildings. When we learned that the second tower 

had been hit, Mr. Arnold Fisher ended the meeting and we turned on the television 

to watch the coverage. We knew immediately that our country was under attack by 

terrorists. 

While construction is my business and I knew that the fires would have a dramatic impact on steel structure of the towers, I did not imagine that the towers 

were going to fall as they did. I received an urgent call from Plaza’s offices and I 

returned there immediately. When I arrived, I addressed a group of nearly 100 people gathered in our reception area, many of whom were crying. I told them to go 

home to their families and to make sure everyone is safe—and then to return here 

to work the next day. I told them that we could not and would not let those who 

attacked us win by allowing their actions to alter our lives. Someone came up to 

me and said ‘‘Go see Mills,’’ referring to Chris Mills, a colleague and a friend. 

Chris was sitting in my office with his head in his hands. ‘‘She’s gone,’’ he said. 

‘‘She’s gone.’’ He told me that he had been speaking on the phone with his 

girlfriend, Danielle, who was on the 104th floor of the North Tower, just before it 

collapsed. Chris said he didn’t know what to do. I went back out to the reception 

area and told people about Chris and Danielle. I told them that I was going downtown to help, and that anyone who wanted to should come with me. A number of 

us headed down to the site. I told those remaining at our offices to call the unions 

and tell them to mobilize and start sending people down. I knew we needed to assist 

in what was sure to be a massive rescue operation. 

I attended meetings downtown with the other prime contractors and the City’s 

Department of Design and Construction (DDC). The contractors assisted the DDC 

and emergency services personnel to get as close to the epicenter as possible to join 

73 

the rescue effort. We also met with city officials, including officials from the Mayor’s 

office. The contractors there—Bovis, Tully, AMEC, and the Turner and Plaza joint 

venture—were each assigned an area to organize at the direction of the DDC. We 

were working under the direction of the FDNY and NYPD and our focus was to rescue any survivors. 

I did not for a moment think of this tragedy, this attack on our country, as an 

opportunity to make money. We were there, as were the other contractors, because 

we were attacked and because there was work that needed to be done that we were 

in the best position to do. We were there because it was the right thing to do. 

I can best describe what we found as a war zone. I now believe I know how a 

soldier must feel who has witnessed death and must continue to go on. I saw 

maimed bodies. I saw the torso of what I was told was a woman’s body with no 

limbs. I saw a body with his or her face burnt off. I felt paralyzed that day. 

The next day was more of the same, though the horrors were no longer new to 

me. Every once in a while a horn would go off, signaling an emergency. We were 

all supposed to run up West Street when we heard it. Hordes of people would run, 

and then come back. There were rumors that there were terrorists ‘‘in the wire,’’ 

meaning inside the area and on ‘‘the pile.’’ We had no feeling of security. We believed we were still under attack. 

My company was operating under emergency conditions the entire time we were 

there. I worked alongside FBI, CIA and Secret Service agents. We were told that 

sensitive information may be in the pile and that it needed to be retrieved. Building 

#7 came down because of a massive internal fire. Steel that was cherry red from 

the heat was still being pulled from the pile long after September 11th. We would 

sometimes use it to keep ourselves, particularly our hands, warm. At one point in 

the fall, before our work was completed, we asked the city if we should start to work 

eight to twelve hour days. We were directed by the DDC to continue working 24 

hours a day. 

We felt like we were doing something for our country. I still know that we were, 

and that we stood tall at a time when our nation and the world were watching. We 

are proud of our accomplishments. We performed the work more safely and efficiently than anyone expected. In fact, there was not a single fatality at the site during the entire clean up—a tremendous accomplishment given the dangerous conditions at the site. And we did not do the work to make a profit. We were there because thousands of people needed to be organized and the city needed our companies 

and our expertise to help do that. We were there because the people of our city and 

our country needed us to be there. 

What happened on September 11th was unprecedented. The immediate mobilization of forces from both the public and private sectors in the aftermath, however, 

is something from which we need to learn. When our companies, our people, our 

equipment and our expertise were needed, we were there. Now, as we face thousands of lawsuits that could potentially bankrupt our businesses, we need and ask 

for your help and support today. We all want to be in a position to help our country 

again if called upon to do so. 

Litigation is simply not the solution to the position we all find ourselves in. The 

World Trade Center Captive Insurance Company, which was created by Congress, 

is defending our companies and the City of New York in the thousands of individual 

lawsuits that have been brought against us. Nonetheless, we have all been forced 

to hire lawyers and expend our corporate assets in these troubled economic times 

to defend ourselves, despite the fact that we dropped everything to answer the call 

for help. We came to the aid of our country, our city and its people immediately 

after we were attacked. And now we are being forced to defend ourselves and our 

companies’ very existences in court. 

Our companies believe that anyone who may have been injured as a result of 

their work on the pile—anyone who came to help others at the expense of their own 

health—deserves to be taken care of medically and to be fairly compensated for 

their injuries. These people should not be forced into the legal system to be treated 

fairly any more than our companies should be forced to litigate against them. Collectively, we were the ones who showed up on September 11th and beyond. Any injuries sustained were directly caused by the terrorists, and it would be an injustice 

to hold our companies responsible in their place. 

These are some of the reasons why we support the reopening of the Victim Compensation Fund in Title II of this Bill. The Victim Compensation Fund will provide, 

as it did for those killed or injured on September 11th, fair compensation for the 

injured without raising issues of fault and liability. We can and should all agree 

that the fault lies with the terrorists. We may offer some technical suggestions on 

the provision in Title II which limits the liability of the companies, but we believe 

74 

that it largely hits the mark. We want to ensure that the final language of the bill 

is fair and achieves the goal of fully protecting our companies as well as the injured. 

We also fully support the concept of a medical program in Title I of the bill for 

people who were injured at the site. Ironically, I may be one who might someday 

qualify for that program. 

I appreciate the opportunity to address you today. In closing, let me say that support for this bill should be universal. There should be no divide along party lines. 

I submit to you that this bill protects Americans, both individuals and companies, 

who served their country in a time of crisis. And this bill also protects America. In 

the event that some future attack or disaster should occur, people and companies 

need to know that their country, which they are striving to protect, will do the right 

thing and protect them in return. The injured need care and support, and the companies—upon which so many people rely for their livelihoods and support for their 

families—need to know that the next time they are needed they can again respond 

without a moment’s hesitation. 

I ask all of you, and all members of Congress, to appreciate both the substantive 

importance of this bill as well as the need to move it quickly to passage. The situation of protracted litigation in which we now find ourselves is wasteful and protects 

no one. Our resources are better spent caring for the sick and protecting those who 

deserve our protection. 

Thank you. 

Mr. NADLER. Thank you. 

I will now recognize myself for 5 minutes to begin the questioning. My first questions will be to everybody, and I would just 

ask for a yes-or-no answer. Does anyone think that the current situation is working well, with 11,000 lawsuits and victims not being 

compensated? 

[Witnesses jointly respond, ‘‘No.’’] 

Mr. NADLER. Does everyone agree that we need to do something 

different? 

[Witnesses jointly respond, ‘‘Yes.’’] 

Mr. NADLER. Does everyone agree that the current bill is an improvement to the current situation, that by reopening the VCF we 

can reduce the number of lawsuits and ensure a speedy payment 

to those in need? 

[Witnesses jointly respond, ‘‘Yes.’’] 

Mr. NADLER. No one disagrees with that? Maybe? 

Mr. FRANK. Maybe. 

Mr. NADLER. Mr. Frank says, ‘‘Maybe.’’ Okay. Does everyone 

agree the current bill is better than the previous bills? 

[Witnesses jointly respond, ‘‘Yes.’’] 

Mr. NADLER. And I think we can all acknowledge that the bill 

can stand to be improved, and that is what this hearing is about, 

and I want to hear your comments and suggestions on the bills, but 

now I have a number of specific questions. 

Dr. Melius, Mr. Frank said that it is not the case that anyone 

involved in debris removal with a pulmonary ailment is an appropriate claim, and lung disease is common without exposure to 

Ground Zero. And, in fact, he said we can’t tell who among those 

who present all the symptoms, the sarcoidosis or whatever, are victims of 9/11. 

Could you comment on that? And, therefore, it would be compensated. Could you comment on that, please? 

Dr. MELIUS. Yes, I can. First of all, I think—well, made one sort 

of misstatement, mischaracterization. The original VCF actually 

did compensate a significant number of people with illnesses. I 

75 

think Mr. Feinberg said that. I think it was about 2,500 people 

that were ill. 

Mr. NADLER. Thank you. 

Dr. MELIUS. I have evaluated what he has done, and it has been 

in some of the reports, and I think he did an excellent job taking 

the—— 

Mr. NADLER. Thank you. Could you answer about what Mr. 

Franks said about—— 

Dr. MELIUS. Frank, excuse me, yes. 

Mr. NADLER [continuing]. We don’t know who the—we don’t 

know who is a victim. 

Dr. MELIUS. Right. And I think that, with the current protocols 

that are in place, medical protocols, the current ways for 

ascertaining whether people were working there and were exposed, 

I think that there should not be a great deal of difficulty determining whether or not people’s health problems were related to 

their exposures at 9/11, as opposed to cigarette smoking or some 

other—— 

Mr. NADLER. It is not a great problem? 

Dr. MELIUS. It is not a great problem. 

Mr. NADLER. Thank you. 

Mr. Frank, you said a number of things which were interesting. 

H.R. 847 fails to fully protect the innocent subcontractors. The liability provisions leave some insurers of innocent parties on the 

hook, and fails to solve the problem of future subcontractors. The 

program is unlikely to end the third-party litigation. It fails to provide adequate protection to taxpayers that taxpayer money will be 

spent on compensation of victims, rather than attorneys’ fees. 

Wouldn’t you agree that, even though it doesn’t do enough or 

might not do enough, in each of these situations, it improves on the 

existing situation? 

Mr. FRANK. Not necessarily. It depends on the regulation that 

the special master passes. And that is a complete unknown, because they are not defined here. They will be promulgated by the 

special master, and the special master has tremendous discretion 

to do that. 

He could create a program that wastes tens of billions of dollars 

of taxpayer money, makes matter much worse, or you could create 

a very wise program—— 

Mr. NADLER. I will come back to my questioning of you in a moment. 

Ms. Lofgren has to leave, so let me recognize Ms. Lofgren. 

Ms. LOFGREN. Thank you for yielding, Mr. Chairman. 

I would just—— 

Mr. NADLER. I am not yielding. I am—well—— 

Ms. LOFGREN [continuing]. Take 30 seconds to thank this panel. 

Mr. Wood, your description actually brought me back to that scene 

so vividly. And I think all the testimony here has been enormously 

valuable and compelling. 

And I was supportive of this bill when I walked in. I now am 

more than supportive. I just want to thank the witnesses for an excellent job. 

And I thank you, Mr. Chairman, and yield back. 

76 

Mr. NADLER. Well, I thank you for all your work on this and for 

your support of this. Let me resume my questioning. 

Mr. Frank, you are saying that this might not necessarily be an 

improvement, even though the alternative is unlimited tort liability 

lawsuits, as we see now, by 10,000 people or 11,000 people? 

Mr. FRANK. It is entirely possible the southern district in New 

York gets it right and finds the city and the contractors—— 

Mr. NADLER. Okay. May I ask Mr. Wood, how would you respond 

to Mr. Frank’s argument that this bill is not good for the 9/11 contractors, that it doesn’t sufficiently protect you, that it wouldn’t 

help? 

Mr. WOOD. As I understand the bill, it would limit the liability 

to what is left in the Captive. And the Victims Compensation Fund 

would take a lot of the litigants away, leaving the Captive available 

for those who opted out, to continue with and pursue legal means, 

and therefore the Captive still in place would be what would defend us in the future. And we would be capped at the value left 

in the Captive. 

So, therefore, I do believe, from my understanding, that it would 

defend us. 

Mr. NADLER. Thank you very much. 

And I would like to make, before my time expires, just one comment, because I think that Mr. Frank didn’t quite understand one 

provision of the bill, perhaps. 

He says in his testimony Section 408 does not sufficiently change 

the dynamic of punishing the subcontractors by subjecting them to 

lawsuits. Trial lawyers will still be able to use the threat of decades of endless litigation against contractors and subcontractors. 

The liability limits will be illusory. The liability limits in the bill 

would be illusory. Once they are reached, contractors will face crippling legal expenses when insurers no longer have a duty to defend. 

Well, the fact is, in this bill, once the legal liability limits are 

reached, there is no further possibility of lawsuits. There is complete indemnity at that point. So this should put your mind at 

ease, sir. 

Mr. FRANK. Well, there is an exception in the bill for punitive 

damages. And most of—— 

Mr. NADLER. All right. Punitive damages for deliberate—or for 

deliberate tort, yes, but nobody is talking about that. No one is 

aware of that. 

Mr. FRANK. The bill doesn’t say—— 

Mr. NADLER. I see my time has expired. 

I now recognize the distinguished Ranking minority Member of 

the Immigration Subcommittee, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

And I think to start this out, I would like to turn to Mr. Frank 

and ask him, would you like to explain your concern about the 

gross negligence provisions in the bill? 

Mr. FRANK. Certainly. The Chair seems to think that the exception only applies to intentional torts, but the exception explicitly 

states that it includes acts of gross negligence. 

And as I discussed in my written testimony, New York state’s 

definition of gross negligence is relatively broad and could arguVerDate Aug 31 2005 12:42 Jun 30, 2009 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\033109\48352.000 HJUD1 PsN: DOUGA
77 

ably—and certainly the plaintiffs are claiming—includes what the 

contractors and subcontractors did on the site. 

Mr. KING. If I might follow up on that, Mr. Frank, also looking 

at language under the exception language you are referring to that 

accepts acts of gross negligence. And then here is an even broader 

one, ‘‘or other such acts to the extent to which punitive damages 

are awarded.’’ Could it be more broad? 

Mr. FRANK. Well, it could be more broad, but it is certainly an 

exception that comes close to swallowing the rule. There will be additional indemnity. It is an improvement. But because it is very 

likely that the limits of liability will be reached, and there will be 

likely thousands and thousands more claims as the years go on, the 

exception is enough that subcontractors and contractors still face 

danger of liability. 

Mr. KING. And that being my concern—and I think about this. 

Let’s just say there are 11,000 cases, and perhaps this legislation 

passes, and all but one of them would go into the fund and opt into 

the fund that is established under the bill. The other one might sue 

Mr. Wood. 

And might appear through the insurance protection that is there, 

under these open—under gross negligence or other such acts, to the 

extent to which punitive damages are awarded, then it would be 

such that one individual out of 11,000 could get grossly rich, to use 

a term, while the others opt for a far more modest compensation. 

Is that a possibility, to make it an extreme case so that we can 

talk about the—— 

Mr. FRANK. That is an extreme case, certainly. What is more 

likely is, because the bill is structured to incentivize people to go 

into the fund by giving them sort of a free bite at the fund—they 

can go into the fund. And if the fund denies their claim, they can 

reinstitute the litigation. And that is the most likely source of additional litigation. 

Mr. KING. And I hope to work with some of the protections that 

I think we need, because I am concerned about Mr. Wood. I am impressed by everybody’s testimony, and service here. I think Mr. 

Wood brought out what I see as the events and the emotion of the 

time. 

And having run to the sound of the guns as you did, as the other 

contractors did, and being faced with this, it is got to be a weight 

on you every day. And you know where I stand on wanting to protect the contractors in particular. 

And, Mr. Wood, I would ask you: Have you looked at this language that we are talking about that allows for punitive damages 

that could potentially still be your liability if this bill passes? 

Mr. WOOD. I have not looked at it. I have not read that particular provision, but I share with you the long-term concerns. It 

has been 71⁄2 years now that we have had this weighing on it, and, 

you know, we do want to see people who are sick taken care of, and 

we think that should be done right away. 

And we want to be able to respond in the future. And having this 

hang over our head, if there is a loophole in the bill, I would like 

to see it closed. 

78 

Mr. KING. Thank you. It looks to me like there is, and I don’t 

think it is intentional at all, and that is what happens around here, 

unintended consequences. 

But I think it will be a particular nightmare to go through 71⁄2

years of this liability hanging over your head, finally get a bill 

passed, breathe a sigh of relief, and find out the litigation is coming at you again. 

Mr. WOOD. We are very happy that we are finally having the 

chance to figure out how to protect people and protect ourselves. 

And we are here sitting very happy that we have a bill in front of 

you. And if it can be improved, great, but we are still very, very 

pleased that there is a bill out there. 

Mr. KING. And I thank you, Mr. Wood. 

And is there anyone in the panel that would object to capping attorney fees under the fund at 5 percent? 

Hearing no response, let the record reflect that no one volunteered to take up that issue. 

And so I would just conclude, there are some things that I am 

looking at. One of them is the gross negligence provision and the 

broader language that is part of the bill and then my concern that 

we don’t have protection that if one receives medical care until 

Title I of the bill that they—I would want them to automatically 

then opt into Title II of the bill, rather than be able to litigate. 

And the limit to economic damages would be another piece that 

I would want to stand, cap the attorney fees, and I have a couple 

other ideas, but that gives you a sense of what I pull out of here 

as I listen to the witnesses. 

If the Chairman is all right, I would be happy to recognize Mr. 

Cardozo for his response. 

Mr. CARDOZO. I just wanted to make one point. I think, if you 

study the bill carefully, the concern you expressed before, that if 

you opt into Title I that somehow you have, in effect, have admitted or not admitted in Title II, the standards in those sections are 

very different, so that if you have opt into Title I for health care 

purposes, I don’t think that has any effect at all, if you read the 

fine print of the bill, at least as I have read it. 

I don’t think that has an impact one way or the other. The standards are different. The presumptions are different. So I don’t think 

that that concern—I think, as drafted, that is not a problem. 

I would also like to point out to you that, in the regulations that 

Mr. Feinberg had—I don’t remember if it was in the bill or not— 

once you opted into the fund, before you knew what your award 

would be, you made an unequivocal choice. You could not say, ‘‘Oh, 

I only got $100. I am going to forget it and sue.’’ You cannot—as 

structured, once you went into the fund, you made an unequivocal 

choice. 

So I don’t think the other concern that—the concern you expressed in that regard is one that need concern you. 

Mr. KING. Thank you, Mr. Cardozo. 

And in response, I will say that I think the statutory construction on it, you are correct. I think there would still be a de facto 

presumption that may exist in the litigation. 

I thank you, Mr. Chairman, and I yield back. 

Mr. NADLER. I thank the gentleman. 

79 

Who is next? 

The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

Mr. Cardozo, you indicated that police officers and firemen were 

not covered by workers’ comp. They are, in fact, covered by another 

plan—— 

Mr. CARDOZO. Yes. 

Mr. SCOTT [continuing]. That is actually more generous than—— 

Mr. CARDOZO. Yes, that is what I was trying to intimate. 

Mr. SCOTT. So they are not—we don’t want to leave the impression that they are out in the cold. 

Mr. CARDOZO. No, I just wanted to suggest to you, because it was 

a collateral source offset issue that you had raised. 

Mr. SCOTT. But it was—it would be the same—it is workers’ 

comp-like. If they are on the job, injured on the job, they get coverage? 

Mr. CARDOZO. That is correct. 

Mr. SCOTT. Okay. 

Mr. Wood, you responded, your company responded and many 

employees responded to this situation. Would you have responded 

and sent your workers into the World Trade Center area if you had 

been told accurately of the danger rather than being told by Federal officials that it was okay for employees to be in that area? 

Mr. WOOD. I personally would have responded regardless. 

Mr. SCOTT. Would you have sent your employees knowing that 

it was a present danger to their health? 

Mr. WOOD. When we went down there, I requested volunteers. 

Mr. SCOTT. Would you have—— 

Mr. WOOD. I didn’t direct anybody to go down. 

Mr. SCOTT. Okay. Would you have better protected your employees had you known what the danger was? 

Mr. WOOD. I would have protected my employees with whatever 

means possible. There were 50,000 people down at the site, you 

know, and, you know, we were there responding to emergencies 

and making sure people were trying to be saved. 

Mr. SCOTT. Now, a lot of companies in your position are being 

sued. Have there been any plaintiffs’ verdicts against companies 

like yours? 

Mr. WOOD. No. 

Mr. SCOTT. Are these class actions or individual lawsuits? 

Mr. WOOD. I wouldn’t know how to classify, you know, whether 

it is a class action or not. We know there are over 10,000 litigants. 

Mr. SCOTT. Mr. Cardozo? 

Mr. CARDOZO. These are all individual cases, since it is a tort 

case and you have to analyze each person’s individual problems. 

Judge Hellerstein has ruled that it could not be brought as a class 

action, but they are all consolidated cases before him that are presently in—— 

Mr. SCOTT. Have they consolidated on the issue of liability? 

Mr. CARDOZO. Well, the liability issues, of course, will depend— 

and that is one of the basic problems we have—among the many 

issues are, when did someone work? When was he exposed? Was 

he or she given a mask? At what point in time? So to make general 

determinations about liability is simply not feasible. 

80 

Mr. SCOTT. Okay. Were all of those who were actually working 

that day covered by workers’ comp? 

Mr. CARDOZO. Well, the city—— 

Mr. SCOTT [continuing]. Collapse of the building something that 

arises out of or in the course of employment? 

Mr. CARDOZO. From the city—those who were city employees, if 

they had filed a workers’ comp claim within the statutory time limits and a statutory time limit was then subsequently extended, 

they would have been entitled to what is relatively modest benefits 

of the workers’ comp. 

Mr. SCOTT. But they would be covered by workers’ comp? Now, 

have any insurance companies been unable to pay because of the 

catastrophic nature of this event? 

Mr. CARDOZO. I am not familiar with that. 

Mr. SCOTT. I mean, everybody who worked with workers’ comp 

at least got those benefits? No? 

Mr. CARDOZO. Well, the workers’ comp—of course, people had to 

recognize that, in fact, they had been ill. And that was, of course, 

one of the problems that we have. 

There have been—I can get you the statistics in a moment— 

there have been workers’ comp claims that have been made and 

paid out that total in about $9 million in total. But there are severe 

statutory limitations as to how much each individual’s workers’ 

comp can be. 

Mr. SCOTT. Say again? I am sorry? 

I will yield to the gentleman from New York. 

Mr. NADLER. Thank you. I just wanted to suggest that Dr. Melius 

might want to answer the question about workers’ comp. 

Dr. MELIUS. Yes, sorry. I said in my testimony and the experience that there are literally thousands of people who have not been 

able to get their workers’ comp claims recognized in the system. 

There are various statutory issues. There are various issues with 

the private insurance companies, the city of New York contesting 

those claims. 

Mr. Hayward, who I talk about in my testimony, his claim was 

denied. I am not sure the exact reasons for that. But there are 

many that have been unable to get the workers’ compensation system to recognize their claim. 

There are also people within the police, fire and sanitation departments who have had difficulty with their line-of-duty disability 

pension claims being recognized. So it is an ongoing problem. It is 

complicated by some of the timing issues and complicated by the 

nature of these illnesses that don’t quite fit the normal system. 

Mr. SCOTT. Mr. Chairman, are you going to have another round? 

Mr. NADLER. No. Without objection, I will grant the gentleman 

an additional 2 minutes. 

Mr. SCOTT. Thank you. 

Doctor, as I understand the progression of the respiratory diseases, you start with non-symptomatic changes in your lungs and 

progress gradually into symptoms and more and more problems. 

Can you accurately predict who will progress from one stage to 

another? 

Dr. MELIUS. No. We cannot. Through the medical monitoring programs, we can carefully track people—— 

81 

Mr. SCOTT. Okay. 

Dr. MELIUS [continuing]. And follow what happens to them. But 

predicting who is going to go into a more serious decline in their 

pulmonary function is different. 

Mr. SCOTT. And for smokers subjected to asbestos, the problem 

may be that you are not compensating them for smoking, because 

asbestosis for a smoker does a lot more damage than the smoking 

would have done. Is that right? 

Dr. MELIUS. Correct. 

Mr. SCOTT. And one of the problems with dealing with this—because you can’t predict who is going to be who—is the requirement 

that somebody sign a release as a condition of getting any payment. I mean, that is a normal practice in most lawsuits, but it certainly creates a hardship on the plaintiff if you can’t calculate who 

is going to need the payments in the future. 

So, Mr. Cardozo, let me ask you. Would it be more desirable in 

this to allow partial payments as you go along, as the patients actually need it? 

Mr. CARDOZO. Well, I am not sure you are ending the constant 

litigation problem that you have. As Mr. Feinberg said, you—any, 

really, even in a tort case, you do try to make judgments as to what 

is going to happen down the road. 

Mr. SCOTT. But if you have 100 plaintiffs and some are going to 

get a lot sicker and some aren’t, how do you fairly compensate 

them without overcompensating everybody or undercompensating 

everybody? 

Mr. CARDOZO. I think you have to rely upon the best medical evidence that is available to you at the time. But it is another thing 

to keep in mind is the other part of this bill dealing with the whole 

health benefits. If, in fact, that part of the bill is enacted, that with 

an assurance of the ability for Congress and the city jointly to be 

funding the health part of this, there will also be an assurance 

that, to the extent that people need future health care, that that 

would be available. 

Mr. SCOTT. And that wouldn’t be part of the relief? 

Mr. CARDOZO. Pardon me? I don’t believe so, no. 

Mr. SCOTT. That would not be part of the relief? 

Thank you, Mr. Chairman. 

Mr. NADLER. Without objection, the gentleman’s extended 1 additional minute. Would the gentleman yield to me? 

Mr. SCOTT. I yield. 

Mr. NADLER. Thank you. 

Ms. LaSala, I have three quick questions for you. How much 

have you paid—has the Captive paid out in recoveries? 

Ms. LASALA. It has paid a modest amount, Congressman Nadler, 

about $350,000. 

Mr. NADLER. Three hundred and fifty thousand dollars. And is 

it correct you have spent in legal defense defending against claims 

about $260 million? 

Ms. LASALA. I think that is a slight—— 

Mr. NADLER. Over $200 million? 

Ms. LASALA. Nearly $200 million is the accurate number. 

Mr. NADLER. Okay. And would you agree that $200 million is 

more than 5 percent of $300,000? 

82 

Ms. LASALA. Whatever the math is, I would agree, yes. 

Mr. NADLER. Thank you very much. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Wood, as I suggested earlier in my question to Mr. Feinberg, 

there is no perfect solution here, but we want to see how we can 

compensate people in a reasonable manner, but at the same time 

due it in such a way that does not bankrupt companies that assisted, as your company did and as you did. 

So, Mr. Wood, could you actually give us some details about what 

the continuing threat of litigation truly means to you? There has 

been some discussion here about, have you been sued? Have there 

been plaintiffs claims against you, et cetera? 

But just in terms of somebody who wants to keep a company together, number one, and as I understand it, you represent other 

companies here, not just your own company—— 

Mr. WOOD. That is correct. 

Mr. LUNGREN, What is the reality of the situation that faces you 

now with respect to this continuing uncertainty with respect to litigation, both in terms of keeping the company together and other 

companies that you represent here, and also in terms of the ability 

to respond to emergency requests such as this? 

I hope we are not going to get in a situation where next time we 

have a disaster the first thing you do is call up your attorney, rather than calling your people together to try and respond. 

Mr. WOOD. Unfortunately, we may have to. You know, just the 

fact that I am here today, you know, takes away from our ability 

to do business. And this has been ongoing for 71⁄2 years. And all 

the contractors are living a similar fate. 

I know, right after Katrina, one of the contractors that I am 

speaking for today had a local office near New Orleans. And they 

had to question themselves about whether or not to go in to help 

in the aftermath of Katrina. They made a decision to take care of 

their own people and make sure that they properly got evacuated 

and didn’t run in to help after Katrina because of their experiences 

at 9/11. 

Many of the companies that are represented here are also national companies. And we have offices in other places in the country. And I am concerned that a mass mobilization of this kind, 

where tens of thousands of workers and hundreds or thousands of 

pieces of equipment showed up immediately, which was really 

the—us being the only resource that could properly provide that in 

a massive disaster, whether it be natural or another terrorist attack. I am concerned that it may not be there. 

I truly believe that every major contractor in the country is waiting to see what happens here today. And, you know, like I said to 

you, I will be there myself, and I know thousands will come as volunteers, but we are not going to dedicate the resources of our company until we know that the Federal Government is going to stand 

behind us. 

This was a massive attack by a foreign entity. It was an act of 

war. And we responded to an act of war. Looking to find blame at 

this point is really counter to what we did. I am very pleased for 

this opportunity for this bill is out there. 

Did I answer your question? 

83 

Mr. LUNGREN. I think you did. In another life, I did tort litigation, both plaintiff and defendant. And from the outside looking in, 

I think some people get the idea that the system is set up so that 

it is almost perfect, that somehow we can figure out exactly what 

an individual has suffered, what they are going to suffer in the future, what the loss of income is going to be, and somehow we come 

to this judgment. 

But having been a part of it, I realize that you have a plaintiff, 

you have a defendant, you have lawyers, you have juries, you have 

a judge. You do the best you can. Our system is set up to try and 

do rough justice, if you will, but it is an extremely difficult thing. 

Why do we say that somebody gets a bigger settlement or a bigger judgment because they happen to have a job that has a greater 

income than somebody else? Because we are trying to give people 

recompense for the lost earnings and we do the best job we can. 

Who knows? Maybe that person would have changed their job. 

Maybe they would have invented something. Maybe they would 

have made more—we don’t know those things, so we do the best 

we can. 

And here we have the same sort of situation, except it appears 

that everybody believes that extended litigation over a long period 

of time defeats the very purposes of what we are attempting to do. 

At least that is the way I see why we are here doing this. 

So I would like to ask the panelists this: Is there any concern 

any of you have that this bill, as we attempt to do that, gives too 

great a discretion to the special master? Or should we in Congress 

do more of a job of trying to fill in the detail? 

This is giving a special master tremendous leeway over an extended period of time. It is a tremendous power. And I just wonder 

if anybody would have any comments on that from the panel. 

Mr. CARDOZO. Well, we are going to give the discretion to somebody. And we have, I think, a very positive experience with Mr. 

Feinberg, who dealt in an extraordinarily difficult case and different situation. And as he pointed out, about 2,700 of the people 

who he made awards to were people who were injured at Ground 

Zero. 

Yes, he had enormous discretion. After he did promulgate regulations that had been preceded by some hearings, he did an extraordinary job. 

If we continue down this front, that is going to be up to Judge 

Hellerstein and the jury, assuming that they are—proving that 

someone did something wrong, is going to have to do exactly the 

same thing. They are going to have to, when the—under the limits 

of the tort system, make the same kind of judgment. 

So I think your question really is, yes, you could perhaps write 

in more safeguards in this legislation. I think we could be having 

a debate for years of each particular potential safeguard, which is 

why you have regulations. 

So, yes, there is going to be discretion to the special master, but 

I think it is an infinitely more preferable approach than what we 

have now. 

Dr. MELIUS. Can I just add that, from a medical perspective, 

given the uncertainties about what is going to happen in the future 

with the illnesses and how these illnesses may develop over time, 

84 

may get better, may get worse, and so forth, I think having this 

type of system is preferable to other, more static compensation systems. 

For this particular situation, it can work. And you need the discretion and the flexibility to be able to respond. 

Mr. FRANK. I would say that there is a happy medium between 

what Congress should be doing and what the regulators should be 

doing. And in particular, the special master here is outside many 

of the protections of the Administrative Procedure Act, so even as 

a regulator, there is unusual discretion being vested in the special 

master by the original stabilization act. 

And as I discuss in my written testimony, that is one thing when 

you are trying to quickly pass legislation, within a couple of weeks 

of 9/11, but we are talking here about a 22-year program. And Congress should take the time to get some of the details right. 

Mr. NADLER. The time of the gentleman has expired. 

I now recognize the gentlelady from Texas for 5 minutes. 

Ms. JACKSON LEE. Mr. Chairman, let me thank you very much 

for what I think is a very instructive hearing, and also Chairwoman Lofgren, as well, both Committees I serve as a Member on 

both Subcommittees 

Call me a soft sap, but I will stand alongside a suffering people 

any day against tall buildings and, if you will, corporate blockades. 

I do recall that this bill was sent in or introduced some years ago, 

and we look forward to the bipartisan assistance of our good 

friends on the other side of the aisle. 

But I recall the testimony of the special master that indicated 

that most of the early practitioners who helped did it pro bono. And 

he felt very comfortable in working through not only through his 

process, but I believe state law may, in fact, govern compensation. 

And I am understanding that New York state law in tort actions 

is not, if you will, a softie. 

So I would like to move on to the human suffering. Mr. Wood, 

I really believe that Mr. Scott’s question was not a fault question. 

It was simply a question saying or asking—and I had just wanted 

to make sure you understood it was not blame. 

It was that, if you had been notified, you might have stopped at 

the local hardware store or wherever you might stop, might have 

had a mask or otherwise, you would have gone because of your patriotism. 

But what we are asking is, if you had any notice—we are trying 

to suggest—or let me not put words in your mouth—that you are 

not to blame. You came down as a volunteer, and so did your workers, because you were called. If you had a big red sign or a SOS 

that said, ‘‘On the way down, get a mask, it is absolutely imperative,’’ you might have done that. Is that my understanding, sir? 

Mr. WOOD. I would have offered that to anybody else who was 

a volunteer. I would have kept going. It truly was an act of war, 

ma’am. 

Ms. JACKSON LEE. And I don’t take that away from you. Thank 

you so very much, sir. I just wanted to make sure that, if you had 

that notice, you would have provided for others, maybe not yourself. And we do appreciate it. 

85 

Let me ask—to just give me that number again so that I could 

hear it clearly. And then—I think it is Ms. LaSala? Ms. LaSala? 

Ms. LASALA. Yes, LaSala. 

Ms. JACKSON LEE. Yes. Could you give me—you paid how much, 

please? 

Ms. LASALA. In claims? 

Ms. JACKSON LEE. Yes. 

Ms. LASALA. We have paid approximately $350,000. 

Ms. JACKSON LEE. And then what did you utilize for defense fees 

or lawyers that were involved in the matter? 

Ms. LASALA. In the management of this company since its incep- tion, we have spent close to $200 million both in defense of the litigation, understanding the nature of the injuries, the management 

of the company, the preservation of the corpus that was entrusted 

to us. 

Ms. JACKSON LEE. And, Ms. LaSala, I never attempt to reproach 

anyone personally. I will not ask you any more questions. I will 

just editorialize as I ask Ms. Barbara Burnette questions about the 

human suffering. 

But right now, my stomach is churning. If I was not appropriate 

and respectful of my Chairman, I might run out of the room. My 

hair is on fire. And that would be very disastrous for this. I have 

indigestion. I can’t even speak. Three hundred thousand dollars? 

[Applause.] 

Three hundred thousand dollars and $200 million plus for defense and understanding someone’s pain and suffering is obscene. 

And so I am hoping we can work across the aisle on this legislation. 

Let me quickly go to Ms. Burnette, who played basketball, played 

on behalf of the New York City Police Department. When you went 

there, were you told or did you see other people wearing respirators, Ms. Burnette? And thank you for being here. 

Ms. BURNETTE. No, I didn’t. I was just concerned with rescue and 

recovery. 

Ms. JACKSON LEE. And you got right in the middle of it? 

Ms. BURNETTE. Yes. 

Ms. JACKSON LEE. And you are now—are you retired? Are you 

still working for the—— 

Ms. BURNETTE. Retired. 

Ms. JACKSON LEE. You are now retired. Would you have retired 

this early in life? Obviously, you look like a very young woman, 

but—— 

Ms. BURNETTE. No. 

Ms. JACKSON LEE. You would not have retired. Were you used to 

looking out the window at the crime or the criminal or were you 

used to tracking him down, running him down, and getting him? 

Ms. BURNETTE. Running him down and getting him. 

Ms. JACKSON LEE. And in terms of the impact on your family and 

the kind of medication that you are taking, do you see your life 

being changed, between night and day, pre-9/11, which I want you 

to get on the record that you would have, if 9/11 came again, God 

forbid, you were in that capacity as a detective, you would go down 

there again. I want that to be on the record. I don’t want to put 

words in your mouth. 

86 

Ms. BURNETTE. Yes, I would go down there. 

Ms. JACKSON LEE. You would go down again. But do you see a 

difference between your life pre-9/11, your physical condition, and 

where you are today? 

Ms. BURNETTE. Yes, I do. I can’t do anything I did pre-9/11. 

Ms. JACKSON LEE. Why don’t you tell us? 

Ms. BURNETTE. Pre-9/11, I still played basketball. I was able to 

play with my kids and my grandkids. Now, the most I do is cough. 

I am taking my medications. I don’t breathe well. I am suffering 

because I am still in denial that I am sick. I know that there is 

talk of me needing a double lung transplant, because I am 

scarred—three-quarters scarred on both lungs. 

Ms. JACKSON LEE. Your family is impacted? 

Ms. BURNETTE. Yes, they are. 

Ms. JACKSON LEE. And my last—you understand the bill that is 

before us? 

Ms. BURNETTE. Yes. 

Ms. JACKSON LEE. And would this legislation going through the 

Congress, signed by the President of the United States, would this, 

you believe, help you and your fellow victims who are now still in 

pain after 9/11? 

Ms. BURNETTE. Yes. 

Ms. JACKSON LEE. Mr. Chairman, let me indicate, as indicated, 

that I think Ms. Burnette and, obviously, Mr. Wood have spoken 

for thousands who cannot be here. 

But I would think, in the cost analysis that we in Congress have 

to do, to juxtapose going forward and helping victims versus a past 

history of $200 million for lawyers’ fees and only $300,000 for victims, I think we would be in good stead for any decision made on 

this particular legislation. 

And I want to offer my enthusiast support for H.R. 847. I yield 

back to the gentleman. 

Mr. NADLER. I thank the gentlelady for her support and for yielding back. 

The gentleman from New York, Mr. Weiner, is recognized. 

Mr. WEINER. Thank you, Mr. Chairman. 

And I think that the gentlelady from Texas I think launched a 

good way for us to wrap up this hearing, and that is by focusing 

on the victims. You know, we are going to have a chance to vet the 

legislation here, but, you know, when the financial markets had a 

heart attack, we responded in about 72 hours with about $700 billion of funds. 

We have a situation where thousands of our neighbors, 70 percent of the first responders, have some form of respiratory ailment. 

And we seem to want to delay and delay and delay. 

This is an acknowledgement—this hearing is an acknowledgement that the delay has to come to an end, that this is a question 

of whether or not we are going to help people who are being slowly, 

but surely killed by the events of September 11th. 

We have to make sure that, in the future, Mr. Wood and his colleagues are protected. There is no doubt about that. I would love 

to be in the room as we are making an emergency response plan 

that involves private contractors and see how many times someone 

asks, ‘‘Well, are we going to be covered if we do A, B and C?’’ 

87 

But there is also an imperative to take care of the victims today. 

And we have the benefit that we rarely have with legislation, in 

that we have a sample of model that worked. And I think we have 

to move quickly to replicate it. 

Detective Burnette, you, I think, are on this panel not just for 

yourself, but for hundreds, if not thousands of your fellow first responders, of people who did their job. 

Ms. BURNETTE. Yes. 

Mr. WEINER. You know, you expressed in your testimony, you 

know, having dirt come out of your lungs—well, not all of it came 

out, I think you are learning. I think a lot of it is still in there. 

You know, it takes scientists months to figure out what was in 

the dust at Ground Zero. Well, now they can go back and find thousands of firefighters, police officers, of contractors, of volunteers 

who were in that same situation. 

You were given on your best day, probably a paper mask, the 

kind of which they give out at Home Depot for when you are painting at home. We know that the Environmental Protection Agency 

didn’t protect citizens from the environment during those periods, 

in fact, went on television and said quite the opposite, ‘‘Everyone 

is safe. You can go ahead and go down there.’’ 

I think the fact is that we have let you down. I think there is 

no other way to say it, except that we have let you and the other 

victims down for too long. And while we stroke our beards and 

think about the legislation and make sure every word is right, I 

think the first imperative we have to take care of is to make sure 

that the victims are made whole to the best extent that we can. 

You are a hero, Detective Burnette. The many people who are 

here in this audience and those that you represent are heroes, the 

people that worked for the city and people that volunteered in their 

off-hours and people who worked for Mr. Wood. You are a hero. 

And we are not treating you that way right now. We are treating 

you like cogs in a legislative machine that turns ever so slowly, so 

slowly, so slowly. And I think that Congressman Nadler and Congresswoman Maloney, Congressman Fossella, who used to serve 

here, Congressman King, I think all of us—Mayor Bloomberg, Mr. 

Cardozo, all of us are at the point where we have to now push it 

into the end zone. 

We have been, in a football metaphor, playing in the red zone for 

the last 5 years. It is enough already. Let’s just get this bill out, 

get it to the floor. Let’s put smart people in charge. Let’s get people—you know, we can do oversight, I say to my colleagues, and 

I want to thank Congressman King and Congressman Lungren, 

who have expressed the right tone. 

We want to get this right, but let’s get it done already. And I 

yield back, Mr. Chairman. 

Mr. NADLER. I thank the gentleman for his questions and for his 

comments. 

I certainly want to express my hope—we have been working on 

this legislation and on this problem with the fact that so many of 

the heroes of 9/11 have gone through so much suffering unnecessarily and without the help that they are entitled to get from their 

government—— 

Ms. JACKSON LEE. Mr. Chairman? Mr. Chairman? 

88 

Mr. NADLER. Yes? 

Ms. JACKSON LEE. May I have unanimous consent to make an inquiry of you for clarification on the record, please, that I did 

not—— 

Mr. NADLER. Without objection. 

Ms. JACKSON LEE. I understand, on the Captive fund, there was an expenditure of $300,000—I am seeking a clarification—that the 

lawyers’ fees might have been utilized out of interest, which means 

there is still $1 billion left. Maybe I can have a clarification. This 

is a question that I posed that said there was $200 million in lawyers’ fees, but it almost seems to me that the fund is not barely 

touched. 

Can I have a clarification on that, Mr. Chairman, or—— 

Mr. NADLER. Well, for clarification for the record, Ms. LaSala, 

how much is left now? 

Ms. LASALA. There is approximately $940 million in the fund. 

Mr. NADLER. Of the original billion, there is $940 million left, 

minus the $200 million—minus the payouts and plus the interest? 

Ms. JACKSON LEE. And, Mr. Chairman, if I can further—— 

Ms. LASALA. And, Congressman Nadler, if I could just add one 

point, that we are the beneficiaries of a significant ruling in favor 

of the Captive of $100 million, a judgment from other insurance 

companies. That judgment is on appeal, but with it added to the 

current assets of the company, we will be in excess of the billion 

dollars we were initially entrusted with. 

Mr. NADLER. Thank you. 

Ms. JACKSON LEE. Mr. Chairman, further clarifying. That means that we have at least $1 billion still sitting? Is that right? 

Mr. NADLER. There is about $1 billion still sitting, $900 million 

or $1 billion, depending on the outcome of that litigation. In the 

legislation, it provides that that $1 billion, plus some other pots, 

would be used in an ordered way, without being the first, for compensation of the victims who do not go into the VCF, but elect to 

maintain litigation. 

Ms. JACKSON LEE. Well, I—— 

Mr. NADLER. And the liability of the contractors and the city is capped at the amount in those pots, the $1 billion, plus a few other 

pots. 

Ms. JACKSON LEE. Well, concluding and yielding back, I think 

what that notes is that the victims who are in this audience and 

these sponsors, yourselves, Ms. Maloney and I think Mr. King, 

are—— 

Mr. NADLER. You are talking about Peter King, not—— 

Ms. JACKSON LEE. He is standing here with a green tie on. 

Mr. NADLER. Oh. 

Ms. JACKSON LEE. But Mr. King—— 

Mr. NADLER. Let the record reflect that our colleague from New 

York, Representative Peter King, who is a sponsor of the legislation, is standing over there. 

[Applause.] 

Ms. JACKSON LEE. That you are also being responsible in the approach that is being taken through this legislation. I just wanted 

to make sure that was on the record—— 

Mr. NADLER. Thank you. 

89 

Ms. JACKSON LEE [continuing]. And wanted to clarify the amount 

of money that is still remaining that is available in certain instances. 

I thank you. And I yield back. Thank you, Mr. Chairman. 

Mr. NADLER. I thank the gentlelady. 

And, again, I would hope that this hearing has been productive 

and conducive to passing this legislation so that both the victims, 

the heroes of 9/11, and the contractors, who were also both heroes 

and victims, can be dealt with fairly and decently, as this society 

should. 

Without objection, all Members have 5 legislative days to submit 

to the Chair additional written questions for the witnesses, which 

we will forward, and ask the witnesses to respond as promptly as 

they can, so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

And with that—and, again, thanking our witnesses and thanking 

the people, the 9/11 workers and others who have come here to witness this hearing—this hearing is adjourned. 

[Whereupon, at 12:38 p.m., the Subcommittees were adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF PREPARED STATEMENT OF CHRISTINE C. QUINN, 

SPEAKER, NEW YORK CITY COUNCIL

I write today to express the City Council’s support for HR 847, the 9/11 Health 

and Compensation Act, and more specifically the portion of it that would reopen the 

9/11 Victims Compensation Fund. I first must applaud the tireless advocacy of the 

main sponsors of this bill, Congress Members Carolyn Maloney and Jerrold Nadler. 

This bill must pass for a variety of reasons. First and foremost, it is quite simply 

a moral imperative that our government takes care of those from around the country who risked their lives and have become ill as a result of their efforts to recover 

bodies and remains and to help put out the fires. 

Secondly, this bill must pass so that there may be a comprehensive revenue 

stream to provide for those who have been made sick as a result of their efforts on 

9/11 and the recovery and cleanup efforts that followed. Our members of Congress 

who advocate for such funding should not be required to come hat in hand every 

year to try to obtain funding for First Responders, construction workers, volunteers, 

and others who have become ill as a result of 9/11 and its aftermath. The bill that 

you are considering would recognize that there will be ongoing needs for funding 

for many years to come and will provide for those needs. 

Third, the bill provides for science to take priority in determining the best action 

to take. The events of 9/11 and the toxins released were unprecedented. There must 

be continuing research to deal with the scientific challenges that have occurred as 

a result of this event. 

Fourth, the re-opening of the 9/11 Victims Compensation fund is necessary. Presently, the City of New York is involved in litigating claims brought by First Responders and others who have become ill after 9/11. Re-opening the Victims Compensation Fund is necessary to put the adversarial nature of these proceedings to 

an end, and finally provide compensation for those who are becoming sick and will 

become sick in the future. 

Finally I must note that the issue of First Responders becoming ill as a result 

of 9/11 is not just a New York issue, but a national one. People from around the 

nation responded to this crisis by coming here to help and as a result, are now sick 

and are in need of our government’s assistance. In fact, enrollment in the WTC 

Health Registry spans all 50 states. 

I urge you to support the 9/11 Health and Compensation and pass it as quickly 

as possible. Thank you. 

f 

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Æ 


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