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Excerpts

From After: How America Confronted The September 12 Era

Like McCabe, Ken Feinberg was too busy to spend the day at memorial services. A week ago he had announced another eighteen awards, bringing the total to fifty-two. There were now 709 applicants on file out of what he estimated were about 3,000 potential claimants. His average award after deductions for offsets such as life insurance was now $1,570,000. With only thirteen lawsuits filed (meaning only thirteen suits had disavowed his fund), he knew that everyone else was waiting to see how he was going to rule not only on more of those claims that had already been filed, but on the test runs he had done with key plaintiffs lawyers like Kreindler, who said he had 300 clients.

Feinberg spent much of the day preparing for two more test run sessions. One scheduled for tomorrow was with Michael Barasch, the personal injury lawyer whom Feinberg had met over his Christmas vacation in Jamaica. Barasch had claimed to have 1,000 firemen clients, whose respiratory systems had been damaged by the air at Ground Zero during the cleanup. Feinberg was surprised to find that the documentation on many of the sample cases that Barasch planned to go over with him looked pretty good. This did look like a large number of legitimate extra claims that he would have to deal with.

The paperwork for the second test run, scheduled for Friday, was more disturbing. This was the case of Juan Cruz-Santiago, a supervising accountant who had been working in the outer ring of the Pentagon a year ago when American Airlines Flight 77 crashed a few feet away from his office. According to an article by Jim Oliphant in Legal Times, "Cruz-Santiago was burned over 70% of his body. His eyelids were literally seared off. He would endure 30 surgeries and spend twelve weeks in the hospital. His fingers would be amputated....He will never work again. At 52, he will require decades of medical treatment from a team of specialists."

Cruz-Santiago was still in excruciating pain, and had to wear a mask and gloves. His lawyer had submitted a chart showing dollar amounts awarded for pain and suffering in various burn cases almost equivalent to Cruz-Santiago's that ranged from $3 million to $10 million.

The problem for Feinberg with those comparisons with conventional tort cases was the usual one, only it was harder because of this man's obvious suffering and need for money. The sad reality was that unlike the cases the lawyer cited, Cruz-Santiago had little hope of using the tort system as an alternative to the fund. Who was he going to sue? From whom could he expect to recover damages? Then again, Cruz-Santiago's plight seemed to be the saddest, most horrifying among all the cases Feinberg had seen. This wasn't a widow and a family negotiating over how much they would need to maintain or exceed their previous lifestyle. This was a survivor with a lifetime of medical bills and pain ahead of him. That assessment would, if anything, become more certain on Friday, when Feinberg would find himself sitting across a table from Cruz-Santiago and his wife, unable to bear looking at him, let alone think about any number that could compensate him.

In the afternoon, Feinberg appeared on a live telecast of a "town meeting" with NBC's Tom Brokaw that was held across the street from Ground Zero. He was, in his words, "mauled by angry victims" who also participated in the show. As he was about to leave, Brokaw whispered to him, off camera, "You deserve a medal."

Copyright © 2003 by Steven Brill