Who pays the damages for Sept. 11?
Lawyers grapple with one of history's most complex liability cases
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The US State Department could quickly open the doors to additional suits by adding Afghanistan or other countries implicated to the list of states sponsoring terrorism, says attorney Stuart H. Newberger, who represents the American victims of the 1999 bombings of the US Embassy in Nairobi, Kenya.Skip to next paragraph
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American assets of 27 terrorist organizations, individuals, and companies frozen Monday by President Bush could also be used for compensation, Newberger says.
Victims will also probably sue airport operators, contractors that provide security, and the federal government for inadequate security, says Charles Slepian, an attorney and airport security consultant. Any recovery from those responsible for airport security may be more complicated for the estimated 10,000 dead and injured victims on the ground.
Slepian says it's not clear how the courts will weigh in on whether security providers owed people on the ground the same duty of care they owe passengers boarding planes. "This is a whole new area," Slepian says.
Other potential targets: Florida flight schools where some of the hijackers trained, the World Trade Center's architects, and the World Trade Center building managers who told evacuees to return to their offices after the planes hit.
And insurance companies, which may owe tens of billions of dollars in claims, could face suits if they invoke "act of war" exclusions to avoid paying benefits. As of now though, no insurers have opted to use such clauses.
So far, trial lawyers have trodden carefully, fearful of taking the focus away from the victims' suffering or the manhunt for suspects. "We're not starting any lawsuits in the near future. It's unseemly," says Lee Kreindler, lead attorney in the 1988 Pan Am bombing suit.
Still, Mr. Kreinick and other attorneys are laying the groundwork for future suits by investigating victims' lost income.
"Beyond the sorrow and the grief and the sense of loss is the utter destruction of the family unit and the economic loss that is completely devastating," says Chicago attorney Donald Nolan, who has been approached by a dozen families of victims on all four hijacked planes. "That needs to be addressed to help these people heal."
Delay may actually benefit lawyers in complicated cases such as this one, in which all the parties responsible are not yet identified, says Geoffrey Hazard Jr, a professor at the University of Pennsylvania Law School. "As the dust settles, you'll have a clearer idea and begin to have suits," Dr. Hazard says.
When suits do commence, lawyers say they sometimes dig up valuable information or witnesses that law enforcement agencies miss during a criminal investigation. Kreindler says the civil case in the Pan Am bombings discovered a crucial airport witness who was able to help investigators piece together how the explosives got onto the plane.
Whatever their value, the attorneys say they may find it prudent to limit their fees.
In the WTC case, Fensterstock says attorneys limited their fees to 6 percent, instead of the 33 percent that is the norm. Or, as in the case of medical malpractice, legislators may enact laws limiting attorney fees.