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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

 

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IN RE SEPTEMBER 11TH LITIGATION 

 

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21 MC 97 (AKH) 

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ALVIN K. HELLERSTEIN, U.S.D.J.: 

Opinion Supporting Order to Sever Issues of Damages and Liability in Selected Cases, and 

to Schedule Trial of Issues of Damages

In a few months, six years will have passed since the terrorist attacks of 

September 11, 2001. Forty-one cases on behalf of forty-two victims remain pending in this 

Court in the 21 MC 97 track, and there are other many other cases in other consolidated tracks 

arising out of the events of September 11. Yet the resolution of these forty-one cases is not close 

at hand. The complexity of these cases and the additional procedures required by the sensitive 

nature of the discovery sought have slowed and complicated this litigation considerably. I share 

the concerns of the families who, through their lawyers and in person, have expressed their 

frustration with the pace of the litigation. To address those frustrations, to the extent possible, I 

scheduled trials of damages, to precede trials of liability in selected cases. This opinion explains 

my decision to sever issues of damages and liability and to schedule damages trials in those 

selected cases as soon as practicable. 

Time heals, but time also works against us. Elderly parents who brought actions 

on behalf of their deceased children will not live forever. Grieving widows and friends waiting 

for these proceedings to bring them closure may wait too long. And the public, in measures both 

large and small, share the families’ concerns. Many would like to see Plaintiffs’ assertions tested 

in a trial and either found or rejected in a jury verdict. For such persons, long delays are a 

frustration and denial of the justice sought. Thus I scheduled damages trials. 
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I. The September 11th Victim Compensation Fund of 2001 

In the months following 9/11, Congress enacted legislation “to provide 

compensation to any individual (or relatives of a deceased individual) who was physically 

injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001.” Air 

Transportation Safety and System Stabilization Act of 2001 (“Stabilization Act”), § 403, Pub. L. 

107-42, 115 Stat. 230. The Stabilization Act established a Victim Compensation Fund with an 

expeditious, non-judicial proceeding to enable claimants to liquidate their claims promptly, and 

without assuming the risks and delays inherent in court proceedings. The Fund disbursed $5.99 

billion to 2,880 families of deceased victims of the September 11 attacks, KENNETH R. FEINBERG 

ET AL., FINAL REPORT OF THE SPECIAL MASTER FOR THE SEPTEMBER 11TH VICTIM 

COMPENSATION FUND OF 2001 at 52, United States Department of Justice, available at

http://www.usdoj.gov/final_report.pdf, and over $1 billion to 2,680 injured victims, id. at 56. 

The administration of the Fund was successful, and “97% of the families of the deceased victims 

who might have otherwise pursued lawsuits for years have received compensation through the 

Fund.” Id. at 1. 

Those who applied to the Victim Compensation Fund gave up their right to bring 

claims in this Court. See Stabilization Act § 405(c)(3)(B)(i); Virgilio v. City of New York, 407 

F.3d 105 (2d Cir. 2005). But the Stabilization Act gave people a choice, and for reasons good 

and sufficient to them, some people elected to resort to the traditional method in our legal 

system, a lawsuit. Ninety-five such persons filed and maintained suits in this Court, as the 

exclusive judicial forum for their claims under the Stabilization Act. By random assignment and 

the rules of the Southern District of New York, I preside over all of them. 
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II. Status of the Lawsuits Pending in this Court 

As of this writing, forty-one plaintiffs, representing forty-two victims, have filed 

the following claims: 

Fourteen plaintiffs (for fifteen injured) have claims arising out of the crash of 

American Airlines Flight 77 on behalf of seven passengers, four ground victims who died, and 

four ground victims who suffered personal injuries. Ten plaintiffs have claims arising out of the 

crash of United Airlines Flight 175 on behalf of eight passengers, one crew member, and one 

ground victim who suffered personal injuries. Eight plaintiffs have claims arising out the crash 

of United Airlines Flight 93 on behalf of eight passengers on board that flight. Five plaintiffs 

have claims arising out the crash of American Airlines Flight 11 on behalf of two passengers, 

one crew member, one ground victim who died, and one ground victim who suffered personal 

injuries. Four plaintiffs have claims for personal injuries sustained at the World Trade Center 

site on September 11, 2001 that are not directly attributed to the crash of any one flight. 

III. The Prospects for the Remaining Suits 

At a point when ongoing settlement discussions seemed to reach an impasse, I 

invited several of the parties to conduct settlement negotiations in my courtroom. Counsel had 

suggested such a meeting with the thought that their clients could better understand the risks and 

delays inherent in a trial, and enter into a reasonable compromise. With permission from the 

parties and counsel, I met with a selected few of the surviving relatives of those who had been 

killed on September 11, 2001. Although many of them expressed a desire to obtain answers, 

truth, justice, closure, and vindication of their claims, others expressed a willingness to settle. 

Settlement is personal, and I respect each plaintiff’s decision to settle, or not. As 

the various plaintiffs make their respective decisions, the prospects for settlement are likely to 

dim, as positions harden and disparity of perception becomes entrenched. But while I recognize 
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that some families wish to honor important values through the trial process, and will not settle on 

any terms, I believe that others have been unable to settle because of disparity in perceived 

values between plaintiffs and defendants. This latter group, in particular, will benefit from 

damages trials that will suggest a range of values that a jury is likely to award in similar cases, 

enabling the parties to bridge their differences of valuation. 

IV. Issues of Damages are Discrete 

Rule 42(b) permits separate trials “when separate trials will be conducive to 

expedition and economy.” Fed. R. Civ. P. 42(b); see also Fed. R. Civ. P. 1 (“[The Federal Rules] 

shall be construed and administered to secure the just, speedy, and inexpensive determination of 

every action.”). The decision to hold separate trials on liability and damages “is ordinarily 

firmly within the discretion of the trial court under Fed. R. Civ. P. 42(b).” In re Master Key 

Antitrust Litigation, 528 F.2d 5, 14 (2d Cir. 1975). The ultimate question is whether the issue 

contemplated for separate trial, i.e. liability and damages, is sufficiently “distinct and separable 

from the others that a trial of it alone may be had without injustice.” Gasoline Prods. Co. v. 

Champlin Ref. Co., 283 U.S. 494, 500 (1931). 

I find that issues of damages are distinct and separable from issues of liability, 

and thus a separate trial of each may be had without prejudice to either side. The allegedly 

negligent acts committed by the airlines and their security contractors have no relation to the 

amount of compensatory damages that Plaintiffs would recover. Because Plaintiffs sue for 

wrongful death, and their deaths were sudden and final, caused, they allege, by discrete acts over 

a limited period of time, the jury does not need to consider the extent to which Defendants’ 

allegedly negligent acts caused decedents’ deaths. If liable, Defendants caused all of the victims’ 

wrongful deaths or personal injuries, if not liable, Defendants caused no part of the victims’ 

deaths or injuries. Defendants do not have counterclaims against Plaintiffs, or contributory