Our country may be founded on the proposition that all men are created equal, but their lives aren’t worth the same to Kenneth Feinberg, the special master of the Victim Compensation Fund created by Congress to compensate those injured or killed in the September 11 attacks. The above are estimates of how much Feinberg’s fund is preparing to pay the families of victims who died, based on rules his office released last week that included a jarring chart showing the “presumed” award for people with different incomes and family circumstances.
“Having an economic scale is a disgrace,” says Patrick Cartier, a retired electrician, whose 26-year-old son James, an apprentice electrician, died at the World Trade Center. “It’s un-American to give rich stockbrokers more than someone else,” he complains, pounding a fist onto his dining-room table in the three-bedroom Queens home where he and his wife raised seven children. “They should just give everyone the same slice of cheese.”
“You may get the money quicker this way than going to court,” says one of Cartier’s sons, John, also an electrician. “But… you don’t want to be insulted by your own government telling you that because your brother is an electrician and not a big guy he’s worth less.”
Across the East River on Park Avenue, Lee Kreindler has the same take on Feinberg’s handiwork, but from the opposite side. “This is awful,” says Kreindler, a top plaintiff’s lawyer specializing in air crashes. “He has taken people like my client… and is forcing a change in their lifestyle, which is exactly what the law is supposed to prevent… It’s nonsense.” Kreindler represents many of those big guys’ families, the kind for whom he often wins $10 million or $20 million. They’re the widows and kids of young brokers or bankers who in a real court could demonstrate millions in future earnings that now won’t be there, but who will bump against a ceiling in Feinberg’s rules, which state that “awards in excess of $3 million, tax free, will rarely be appropriate.” Similarly, the highest possible payout seems to be about $4.3 million on Feinberg’s chart, though he concedes that “in some rare handful of cases that don’t fit on the charts we might go as high as $6 million.” But even that may be illusory; under the law establishing the fund, if such heavy hitters had large life-insurance policies (as is likely) they’ll get little or nothing, since life-insurance payouts will be deducted from whatever Feinberg rules a victim is entitled to.
Who’s right, the electrician or the Park Avenue lawyer? They both are. And they’re both wrong.
Everything about any chart that purports to value human life is unfair. But so far, despite howls of protest when Feinberg released his rules, just about everything about the victim’s compensation law and the way Feinberg is trying to implement it is as fair as possible–which is surprising given that the law was passed in a frenzy of midnight drafting just after the attacks.
The fund was an add-on to an emergency bill intended to bail out the airlines in the aftermath of the attacks. Airlines typically have insurance of $1.5 billion per air crash, which would cover most situations, even with planes carrying 200 or 300 passengers. But in the September 11 crashes, the victims were not only the passengers but also the thousands of people on the ground or in the Trade Center or the Pentagon, plus the owners of the Twin Towers, the businesses in and around the towers and anyone else damaged that day–a stadium’s worth of plaintiffs whose claims could easily exceed $100 billion. On top of that, the airlines were crippled by the decline in business following the attacks.
So late on the night of Sept. 21, Congress not only appropriated $15 billion in direct aid and loans to the airlines to keep them in business, but also legislated a cap on each airline’s liability that was limited to its insurance coverage. This meant that although thousands of people and businesses might sue the airlines, the pot from which they could collect would be limited to the insurers’ $1.5 billion per crash, or $6 billion in all.
Knowing that similar liability caps to protect the owners of the Trade Center and other possible defendants might soon be passed, and reasoning also that the transcending “fault” lay with terrorists warring on America rather than with these prospective defendants, Congress established the fund. Taxpayers would pay victims for their losses much the way a court would, only faster and with no arguments about fault–as long as they agreed to stay out of court. In late November, Attorney General John Ashcroft named Feinberg, a 56-year-old Washington lawyer and Democrat with a reputation as an effective mediator of mass tort cases, as special master, giving him almost unfettered discretion in handing out what will probably end up being $5 billion to $7 billion in taxpayer money.
Feinberg’s rules, which he completed under what for Washington bureaucrats was a preposterous deadline of four weeks, suggest that this could be one case where the shock of September 11 may have jolted the powers that be into making tough decisions rather than ducking them–and making them quickly and on the merits. The rules dispense with all kinds of complicated issues crisply and sensibly, while smartly refusing to wade into the quicksand of deciding whether one victim suffered more or less than another as he died; all get $250,000 plus $50,000 per dependent for pain and suffering as part of the overall package outlined on Feinberg’s chart. He also has a mechanism for every claimant to get an initial $50,000 “in a matter of days,” he says, with the rest of each award coming within 120 days of filing.
As much as Patrick Cartier resents those charts, Feinberg has made the gaps between the lowest and highest awards far more egalitarian than they would be in any court. The real-world courtroom spread in New York is closer to zero to $30 million, not the $500,000 floor and the $3 million to $6 million upper reaches that his rules envision. And in court Cartier might well be one of those at the bottom of the scale. Under New York law, a father, like Cartier, of a deceased victim is entitled to zero damages unless he can show that he relied on his son for financial support, which Patrick Cartier did not. Yet Feinberg’s chart seems to give Cartier about $670,000 for his son. Told about that possible award, Cartier (who says he plans to divide any monies among his six children), says, “To me it’s really like a bribe not to go to court. But maybe I’ll take it.”
Feinberg seems also to have given the “big guys” just enough so that they, too, won’t risk suing to get more. As he puts it, bluntly: “If people want to take a chance on going to court and somehow getting $10 or $15 million out of a pot where the liability has been limited by Congress and you have all those businesses suing to get at the same pot, and where you have to prove fault and you have to spend five or 10 years litigating and surviving appeals, and then you have to give the lawyers a third, rather than take the million or two you might get from the fund where you don’t have to pay lawyers those fees, they can. But I don’t think many will.”
In short, assuming the fund can survive a likely–and plausible–constitutional challenge from someone like Kreindler that in capping the airlines’ liability after September 11 Congress took away rights that the victims already had to sue for unlimited damages, Feinberg’s setup will probably work. It’s likely to reward people in a way that is fair and that keeps most from going to court. (The only likely exceptions will be the families of young, high-earners who have large life-insurance benefits. Those payments will reduce their awards from Feinberg to little or nothing, whereas life insurance is not deducted in a lawsuit.)
Nonetheless, Cartier and anyone else who thinks about it has to hate those charts. Every wrongful-death case values human life, but these happen one by one, courtroom by courtroom; there are no summary charts that broadcast the comparisons. As one experienced judge puts it, Feinberg’s chart is “staggering, shocking–because it acknowledges the reality of what the law really does, and we never want to confront that.”
September 11 has forced us to confront many of these realities, these choices that we have to make in ranking values and allocating resources. Indeed, Cartier’s six surviving children have formed a group of civilian victims, called Give Your Voice, who resent the fact that more attention has been paid to the police and firefighters who died than to the civilians who perished there. Their activism is part of a simmering, painful-to-watch tension between various victims’ factions–the product of the intrinsic impossibility that anything about September 11 could be “fair.”
Is it fair that fallen New York City cops may get more in charitable contributions than firefighters simply because only 23 police families have to split the money given to their charity whereas 343 firefighter families split the money designated for them? What about the Oklahoma City terrorism victims, most of whom received nothing from their government and nothing from lawsuits? What about the father, who, like Cartier, has a 26-year-old son killed in a tragedy, but who, unlike Cartier, may get nothing because the tragedy was a street crime?
You get the idea. It’s an old one. Life–and paying for lost life–is unfair. And among the many agonies of September 11, starting now and continuing through the last award the Feinberg fund makes, is the fact that we’ve been forced to gather these decisions about the value of life into one place, on one chart. It’s a sad but necessary chart.
One of the classic treatises on torts law is a small, powerful book called “Tragic Choices.” These are choices, the authors say, that can’t be avoided but which “society finds intolerable.”
Feinberg didn’t avoid the choices, and so far he’s done as well as could be expected in making them.
