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Experts: Judge's demand in WTC case tests limits

U.S. District Judge Alvin Hellerstein's call for a drastic expansion and reshaping of the World Trade Center responders' proposed $575-million settlement drew praise from police and firefighters seeking compensation, but legal experts said the judge's approach may test the limits of judicial activism.

They compared it to the forceful role played 25 years ago by U.S. District Judge Jack B. Weinstein in Brooklyn to forge a $180-million settlement fund for Vietnam vets who claimed to have been harmed by the herbicide Agent Orange but faced significant legal and scientific obstacles. The case paved the way for a generation of sprawling mass tort and class-action cases.

"Judge Weinstein couldn't accept that the people who had served the country and were heroes should receive nothing because of the vagaries of the law," said Anthony Sebok, a Cardozo Law School professor. "So he strong-armed the parties."

Controversial roles

Weinstein's role in that case still is controversial, and Hellerstein's push - to squeeze the legal fees of victims' lawyers, and squeeze hundreds of millions more out of the city and its federally funded insurer - is likely to be, too. The move short-circuits trials to determine any link between work at Ground Zero and health effects.

"There is tremendous goodwill here. No one wants bad things to happen for this group," said Richard Nagareda, a Vanderbilt University professor whose specialty is mass tort cases. "But it's also dangerous when judges take it upon themselves to implement their own genuine, sincere concept of fairness where the law is uncertain."

The settlement worked out among lawyers representing the 10,000-plus police officers, firefighters and other Ground Zero workers, and the city's insurer, the World Trade Center Captive Insurance Co., was to give workers $575 million to $657 million.

At least 95 percent of the victims had to agree to the settlement for it to go forward. Individual awards were to be made by an independent monitor and be based on the type and severity of the injury - from respiratory difficulties to cancer - along with age and other factors.

Clinton appointee

Hellerstein, 76, nominated in 1998 by President Bill Clinton, has handled the Ground Zero cases for eight years. He is insisting on changes to win his approval for the settlement. But even his authority is in question. While federal judges must approve the "fairness" of a class-action settlement, the Ground Zero litigation is not a class action - it is 10,000 separate cases.

Other trial judges have claimed the same power in what are called "quasi class actions," but it's a new and untested concept.

"I don't understand the authority for a federal judge to intervene and second-guess the agreement between the parties," said Sebok.

That's only one issue. In addition to cutting the victims' lawyers' fees, Hellerstein on Friday said he wanted to make the city's insurer pay the fees. That's also untested - usually a judge can only order one side to pay another's fees when it loses, not in the case of a settlement.

"As a formal matter, he does not have authority to do fee-shifting here," said Nagareda.

Another problem: The settlement would have left the insurer with $500 million to pay off any verdicts of people who don't settle and so-called future claims from people whose health harms haven't emerged yet. Hellerstein said he wants to use that money for existing claimants and "put a ceiling on the future."

But it's not clear how such a "ceiling" could be imposed, because the courts have ruled that - even in a class action - a court can't bar future claims from unknown people.

"It would be a real stretch to say that there could be a disposition made of cases that have not been filed," said Nagareda.

Pushing boundaries

Despite those formidable hurdles, Sebok said, there's a case to be made for a judge pushing the limits to achieve justice - if he's sure he's achieving justice.

"If he is really convinced that he has figured out the causation for some of these health problems and we don't need a trial, strong-arming a settlement may be good for the country," said Sebok. "But I don't know where he's getting that confidence."

Hellerstein offered an answer, of a sort, on Friday.

In an emotional soliloquy, he acknowledged that he hadn't even begun hearing evidence on whether certain cancers and other illnesses were likely to have been caused by working at Ground Zero.

"Who can really say how a cancer is caused?" he mused.

It was, the judge concluded, as much a matter of ethics, of doing unto others as they do for you, as of science.

"The people who went in to 9/11 did not make calculations on cancers and whether they would get or wouldn't get cancer," he said. ". . . They responded. And I think since we are talking about settlements, there is a certain degree of morality that goes with it."

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