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Texas Lawyers Work Pro Bono to Help 9/11 Victims

By Mark Donald
Texas Lawyer
May 31, 2004

With the deadline looming for the victims of Sept. 11 to file claims against the September 11th Victim Compensation Fund of 2001, Trial Lawyers Care (TLC) a nonprofit corporation set up to provide free legal help to those victims was getting slammed with last-minute filers. The U.S. Department of Justice, which administers the fund, wasn't allowing any wiggle room.

"The deadline to file a claim . . . is midnight, Monday, December 22 [2003]," announced a DOJ press release only days before. "The congressionally-passed law does not permit extensions for any reason."

The deluge of new cases was more than TLC could handle, says Leo Boyle, a principal in Boston's Meehan, Boyle, Black & Fitzgerald who was instrumental in founding TLC. To meet the demand, the Association of Trial Lawyers of America (ATLA) sent a distress signal to trial lawyers across the country.

Answering the call was Dallas attorney Marc Stanley, who pledged at an October 2003 board meeting of ATLA that the Dallas Trial Lawyers Association would take 30 new cases more than any other organization at the meeting.

"When 9/11 happened, I just stared at those horrific images on TV, and felt helpless," says Stanley, a partner in Dallas' Stanley, Mandel & Iola and the past president of DTLA. "I figured that representing someone who lived through it might at least make me feel like I was doing something."

Stanley et al. would join the estimated 1,200 trial lawyers across the country including several Texas attorneys who were already representing claimants in what Boyle describes as "the largest pro bono project in our nation's history."

Many of these new clients had been hesitant about filing, stuck in the grieving process, riddled with survivor's guilt, uncertain about whether the fund, set up in part as a government bailout for the airlines, would fairly compensate them for their losses.

The Air Transportation Safety and System Stabilization Act (Title IV of Public Law 107-42), the fund's enacting legislation, required victims who opted to file claims under the fund to waive their rights to sue the airlines, the terrorists, and anyone whose alleged negligence might have contributed to the attacks. Civil litigation appeared a less attractive remedy, particularly because Congress had put a cap on airline liability, and it might take years of litigation to obtain little.

According to the New York Law Journal, a Texas Lawyer affiliate, in December 2003 alone, the number of applications filed on behalf of families whose loved ones died in the terrorist attacks increased by one-third, to 98 percent of the 2,976 people killed. The number of personal-injury claims filed by those who alleged they were injured in the Sept. 11 attacks doubled to 4,185.

"Nobody understood the magnitude of the devastation of these families," Boyle says. "It took years before many came to terms with legal decisions. It was all they could do to cling to their loved ones and put their lives back together."

Boyle recounts how, as the president of ATLA in 2001, he was among those trial lawyers who, within eight days of the attacks, lobbied Congress to enact legislation to set up the fund. "We were pushing against the airlines [American and United] who were already lobbying Congress and wanting complete financial immunity for all the victims except the passengers," Boyle says. "Our pitch was that you can't bailout an industry without helping out the families. The fund became part of the relief the airlines got."

Boyle has no qualms with those victims who choose to pursue their claims in civil court. "It's the only way to find out what really happened." But he cautions that the chance of success against the airlines is minimal because Congress has limited each carrier's exposure to the amount of their liability insurance coverage on Sept. 11, 2001. "That's about $3.2 billion for each," Boyle says. "The property damage alone was more than $50 billion."

There also may have been a less altruistic motive behind the creation of the fund. With tort reform on the legislative front burner, Stanley says candidly, "The last thing we wanted to see were TV ads hawking legal services to 9/11 victims. We didn't want to look like we were exploiting a national tragedy."

Instead, TLC offered to represent victims pro bono. "It was the perfect outlet for a tremendous amount of energy within the trial bar," Boyle says. "It was something our lawyers knew how to do better than anyone."

To handle these cases, Stanley only approached attorneys within the Dallas Trial Lawyers Association who met TLC's criteria for
representation: five years in practice, malpractice insurance, and experience trying or settling at least 15 personal-injury or wrongful-death suits.

Because of the approaching deadline and the fact that the fund was scheduled to cease operations altogether by June 15, 2004, these lawyers had to work fast. Although the process seemed almost formulaic and the statute eliminated the need to prove fault or causation, there was still a lot of lawyering to do. For example, a claimant had to prove that he or she suffered physical harm directly resulting from the Sept. 11 attacks or was a family member of a loved one who died in the attacks. Damages would be awarded based on economic loss and non-economic loss (such as pain and suffering).

"The skillful lawyer makes every family unique and paints a complete picture of what the economic realities would have been had that person not died," Boyle says. "You can't do that with a formula."

At least initially, the East Coast media reported many complaints about the fund: The awards were too stingy, the eligibility requirements too stringent, the fund's special master, Kenneth Feinberg, managing partner of the Feinberg Group, too cold. But for the Dallas TLC attorneys who handled these cases, none of that deterred them from signing on.

"I would have paid money just for the chance to help out," Stanley says.

Thomas W. Kelly, Firefighter

It's not often that lawyers can cherry-pick their clients, but the tragic irony of one particular case caused Stanley to keep it for
himself: At age 51, Thomas W. Kelly, a 17-year veteran with the New York City Fire Department, was among the first rescue workers to arrive at the scene of the terrorist attack on the World Trade Center. While attempting the rescue of a dozen civilians trapped on the 40th floor of the south tower (also called Tower No. 2), he became stuck in an immobilized elevator. Minutes later, he was among the many killed as the tower collapsed into a massive heap of toxic debris. It was the second tower hit and the first to fall.

It seemed as though Kelly's life had come full circle. Before joining the fire department, he was a steamfitter who, in 1970, worked on the construction of the World Trade Center. He was among those workers responsible for providing insulation on the 40th floor of the south tower. After he finished the job, he chiseled his initials into the stairwell. A year later, while on a date with his future bride Kitty, he took her to the same 40th floor to impress her with his handiwork.

Two days after Stanley took the case, he contacted Kitty Kelly, who was surprised to have a Texas lawyer representing her. "I was worried I would have to meet him in Dallas," she recalls. "Ever since 9/11, I have a terrible fear of flying, and I didn't think I could get on a plane."

So Stanley flew to New York and was immediately struck by the emotional resolve of his client. "My sons [Frank and Thomas] and I are blessed with a large, supportive family, but it still took time to get through the grieving process," Kitty says. "I knew about the fund, but there were so many decisions to make, I opted to wait. "

Stanley's job was made easier by the heartrending facts surrounding Thomas Kelly's death. Stanley had no problem proving that Kitty was an "eligible claimant," who, under 28 CFR §104, is defined as an individual or the personal representative of an individual who was on a crashed plane or "present" at the World Trade Center, the Pentagon, or the Pennsylvania crash site during the attacks or in their "immediate aftermath."

Mary Alice McLarty, president of the Dallas Trial Lawyers Association and a partner in Dallas' (McLarty & Roper & Pope, had a tougher time proving eligibility for one of the two rescue workers she represented. Firefighter Roy Campbell was initially ruled ineligible because he failed to prove he had been present at the World Trade Center. The regulations required a letter from his supervisor, whom it took months to find.

In addition to the pulmonary illness that Campbell developed as a result of searching through toxic rubble, he fell through the debris, McLarty says, and injured his knee and neck. Although the current regulations are more liberal, at the time, they required that rescue workers must have sought medical treatment within 72 hours of their injuries to be eligible to present a claim.

"My client didn't seek medical help until Sept. 21," McLarty says. "He worked at ground zero for four days after 9/11. He didn't even go home." To deny him compensation for these injuries because he didn't go to the hospital in a timely fashion, argued McLarty at Cambell's March eligibility hearing, would be to penalize him for his dedication to duty. "The hearing officer ruled Cambell eligible for compensation on all his injuries," McLarty says. "As far as I'm concerned, we hit a home run. "

Stanley also had no problem satisfying the fund regulation, which authorizes payment only for losses resulting in "physical harm or death." However, John Sherwood, founder of Dallas' Law Offices of John Sherwood, was frustrated by this issue.

His client, Stephen Leslie, and Leslie's wife were unfortunate enough to arrive at the train station underneath the World Trade Center within minutes of the attacks. Moving above ground, they saw what they thought was falling debris, Sherwood says. They later realized what they actually saw were people leaping to their deaths.

Forced to flee Manhattan Leslie felt "flush and faint," Sherwood says, his hypertension soaring out of control. Although he timely sought medical attention, his condition deteriorated. Three weeks later, he went to the emergency room, where he suffered a brain embolism "that killed half his brain," Sherwood says. "The guy spent the next 10 months in the hospital, but the fund denied him anyway." And Sherwood is at a loss to understand why.

It appeared as though Leslie met the physical presence requirement: The fund denies compensation to claimants whose injuries didn't occur within a carefully delineated zone in and around the World Trade Center. But one doctor called Leslie's injuries post-traumatic stress disorder, Sherwood says, and the fund does not compensate for psychological injury that does not result from physical harm. "This was pure hypertension," Sherwood argues. "A pre-existing condition exacerbated by 9/11." Sherwood was so "flabbergasted," he emailed Feinberg, the fund's special master and asked him to overturn the April decision denying his client's claim. But Feinberg has yet to respond.

Tape of Doom

As Stanley prepared for Kitty Kelly's May 7 evaluation hearing before Feinberg, it was Stanley's job to gather enough character evidence to humanize Thomas Kelly and enough financial evidence to maximize the damage his family had suffered as the result of his loss.

From Kitty Kelly, Stanley had obtained a dramatic piece of evidence that would bring her husband to life and reveal his heroism in the moments before his death.

Several weeks after Sept. 11, a radio transmission was discovered among the rubble of World Trade Center 5, a building slightly northeast of the south tower. Captured on audiotape were the voices of firefighters trapped inside the south tower. Some of them had reached the 78th floor but were frustrated in their rescue attempt by the raging fire. Among the company of firefighters on the 40th floor was "Tommy" Kelly, whose calm voice could be heard as he spoke with his lieutenant 38 floors above him:

Kelly: "I got an engine company on 40. Do you want them up there?"

Lt. Joseph G. Leavey: ". . . Tommy, listen carefully. I'm sending all the injured down to you on 40. You're going to have to get them down the elevator. There are 10-15 people coming down to you. . . . "

Kelly: "Got that, I'm on 40 right now. "

Leavey: "All right Tommy, when you take people down to the lobby, try to get an EMS crew back."

Kelly: "Definitely. "

Noise and static interfered with the transmission but the voice of the lieutenant could be heard radioing Kelly again at 9:50 a.m.:

Leavey: "Tommy, have you made it back to the lobby yet? "

Kelly: "The elevator is screwed up. "

Leavey: "You can't move it? "

Kelly: "I don't want to get stuck in the shaft. "

But that didn't stop him, which became obvious from the 9:58 a.m.
transmission:

Kelly: "I'm stuck in the elevator. In the elevator shaft. You're going to have to get a different elevator. We're chopping through the wall to get out. "

But they never did get out.

The tower collapsed minutes later.

When Stanley offered the tape at the hearing, he says that Feinberg didn't want to hear it, thinking it might upset Thomas Kelly's widow. But Kitty asked that the tape be played.

"There is something soothing about hearing my husband's voice and knowing he was just doing his job," she says.

Whether the tape influenced the compensation award did not seem as important to Kitty Kelly as making her husband's last moments part of the historical record, Stanley says.

What was certain to affect the award was the economist's report, which had set the total economic and non-economic loss in the case at more than $2.6 million. Stanley requested more than a million dollars over that amount, contesting the economist's estimate of lost income and services, which he determined by calculating Kelly's retirement at age 62. Stanley argued that Kelly had every intention of working at least until 70, retiring from the fire department in 2004, but then returning to his former life as a steamfitter and working beside his youngest son, who had followed in his father's footsteps.

If the success of other TLC attorneys is any indication, Kitty Kelly should be satisfied with the award, the determination of which is expected within days.

"TLC lawyers are averaging $2.15 million on death cases," says Boyle, who helped found TLC. "Claimants not represented by our lawyers are averaging $1.81 million. Our lawyers are getting about $340,000 more per case, and we don't charge a fee."

Of course, no sum of money will bring Kitty Kelly closure, but she says she remains grateful for Stanley's hard work; he says he has logged more than 100 hours on her case. His rate for paying clients is $500 an hour. To show her appreciation, Kitty Kelly has agreed to speak at a July 3 tribute in Boston honoring Feinberg and all the attorneys who volunteered to assist TLC and the victims of Sept. 11.

"What elevated this work above other professional experiences you might have as a lawyer," Boyle adds, "is that by becoming part of the lives of one of these families, you become a part of history."