AP Impact: Credibility key in 9/11 health trials
By Associated Press Feb 7, 2010, 1:20pm MST
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NEW YORK — As the first cases in a massive battle over illnesses linked to 9/11 near trial, an Associated Press investigation has found that several of the initial 30 suits contain inconsistent or exaggerated claims about how the workers got sick or how much time they spent at ground zero.
One demolition worker who said he developed health problems after toiling for six months in the toxic ruins of the World Trade Center has actually been severely ill since the 1990s. In a previous medical malpractice case, he said he was so sick between 2000 and 2003 that he couldn't work regularly. He never mentioned 9/11 during his testimony in that lawsuit.
Lawyers for a police officer from northern New Jersey who died in 2006 claimed in a court filing that he spent nearly 300 days handling debris at ground zero, but his work records indicate that his actual time and duties related to 9/11 were far more limited. During the months the lawyers said the man worked at ground zero, he was recording full-time shifts in Cresskill, N.J.
Another police officer who was listed by her lawyers as having lung cancer, doesn't have cancer at all. Her actual illness involves something akin to chronic asthma. She insists her lawyers were mistaken.
The three cases are among the 30 plaintiffs whose suits are being considered for May trials over the city's culpability for chronic illnesses caused by exposure to contaminated dust in the months after the Sept. 11, 2001 terrorist attacks.
Those cases are among the thousands filed over the health of ground zero workers, but they have an outsized importance.
Of the more than 9,000 legal claims filed against New York City, about 60 have gotten close scrutiny by the court. Of those, 30 are now being considered as candidates for trials in May. U.S. District Judge Alvin Hellerstein, who is overseeing the case, says that group will ultimately be reduced to 12, for the first set of trials.
Hellerstein has said he hopes those initial trials will serve as a road map to settlements for the many other claims by rescue and recovery workers who say they got sick after the city failed to protect them from poisonous trade center ash. More than $1 billion in damages is at stake.
Lawyers for the workers whose cases were examined by the AP declined to discuss them, but said the trials will show unequivocally that workers exposed to the dust weren't given proper equipment, and as a result are now sick.
"These are cops and firemen and construction workers who were there for the city," said attorney David Worby, who would not answer specific questions about the cases uncovered by AP. "There is no question anymore about whether they were sick, and how sick they are. There are tens of thousands of people who are sick. Not all are severely ill, but many of them are."
Evaluating the merits of even the few cases selected for trial is difficult, due to medical privacy rules, a lack of detail in public court filings and a refusal by both legal teams to discuss details of the suits.
Yet, a few stand out.
Take the case of Vincent Briganti: In the lawsuit he filed against the city in 2005, the 50-year-old said he put in 75 days supervising demolition crews at ground zero, then developed ailments including shortness of breath, vocal cord problems, skin problems and acid reflux disease. He blamed all of those problems on the trade center dust.
But records obtained by the AP show that this isn't the first time Briganti has sued over his poor health.
In August, 2001 — one month before the terrorist attacks — he filed a medical malpractice lawsuit in which he claimed to be so ill with complications of Crohn's disease, an incurable gastrointestinal disorder, that he couldn't work regularly.
Briganti testified that improper treatment of the illness had left him in such pain that he had trouble pushing a vacuum, carrying bags of laundry, or even spending time with his daughter.
"I am just not up to it. I feel nauseous, I get sick. I am weak," he told the jury in that case.
He needed repeat surgeries for fistulas and an abdominal abscess beginning in the mid-1990s. And, his lawyers in the medical malpractice case wrote that for weeks in early 2002, he was too ill even to leave his Staten Island home.
When questioned about his health and employment during a 2003 trial, which he lost, Briganti didn't say anything about having worked at ground zero. But he did reveal that he was taking a powerful medication with side effects that can include shortness of breath, respiratory infections and skin problems.
There also are contradictions in the court filings submitted on behalf of Sgt. Michael O'Loughlin, a police officer in Cresskill, N.J., who was diagnosed with advanced stage colon cancer in early 2003 and died in 2006. There is no question that in the years after 9/11, O'Loughlin frequently raised money for trade center victims' groups, but other parts of his timeline are in doubt.
Lawyers for O'Loughlin's family initially claimed that he put in 293 days as "a debris remover and decontaminator" at ground zero. The papers listed him as working an average of 12 hours per day between Sept. 12, 2001 and July 7, 2002. They also said he worked hundreds of days at Fresh Kills, the Staten Island landfill where the rubble was sifted for human remains.
But O'Loughlin's work records at the Cresskill Police Department show him working regular shifts there, day after day, through all of those months.
While he was indeed assigned duties related to 9/11 on 11 days in September and October of 2001, his official responsibilities on at least five of those days was to give a motorcycle escort to a funeral procession, not sift rubble, the records show.
On Sept. 11, he guarded the George Washington Bridge. On another occasion, his duty was listed as escorting an ambulance. Another entry had his responsibility listed as "escort," without further explanation.
Cresskill's records are incomplete and don't say what O'Loughlin was doing on a few of his workdays or his days off. So it is possible that he did volunteer in the "Bucket Brigade" that sifted rubble at the site.
But based on the records, it appears very unlikely — impossible — for him to have worked so diligently at both jobs during the same weeks and months.
O'Loughlin's widow didn't respond to phone calls, an e-mail or a letter, but former Newark Police Lt. Jim O'Connor, who employed O'Loughlin at his private investigation firm, told the AP in an e-mail that he was sure his friend was there.
"He told me he had worked ground zero," O'Connor said. "He described the same horrific scenes that only a person who was there would remember ... Many officers responded and worked the pile and it was never documented."
In a third case examined by the AP, New York Police Sgt. Dawn Sorrento, 43, said she was healthy her entire life before her service at ground zero, but now carries an inhaler to treat episodes of wheezing and shortness of breath that flare up when she has to exert herself, or when it is cold outside.
"I'm having trouble breathing on a daily basis," she told the AP in a phone interview. "If I have to run after a perp, I'm going to need an oxygen tent."
Yet even in Sorrento's case, there have been irregularities.
In her initial legal complaint, she described her illness accurately. But her lawyers claimed in a subsequent court filing that she also suffered from lung cancer.
"I noticed that was written on one of the papers they sent me and I made corrections. I'm like 'This is incorrect. I don't have lung cancer,'" Sorrento explained during a recent deposition contained in the court file.
"I got a package of papers that said I had lung cancer. I was like, 'Whoa, that's news for me, hold on.' And I corrected it and I sent it back."
Sorrento, who said the correct information has been provided to the court, is confident that if her case goes to trial, jurors will see the truth and do the right thing.
"I might not be in the hospital as much as other people. I know there are people who have come out of this in a box," she said. "But I never smoked, I've never done drugs, I've been physically active my whole life, and all of a sudden, I now can't breathe... I shouldn't have to live like that."
The lead counsel for the plaintiffs, Paul Napoli, did not respond to several requests for information about Briganti, O'Loughlin, Sorrento or the others with health claims against the city.
Some plaintiffs have turned reluctant as the cases have moved forward. For example, one of the 30 asked out of the case completely, for unspecified personal reasons.
Also, New York Police Sgt. James Cantore listed his only exposure as taking place in July of 2002, when he worked six days at the Fresh Kills landfill. The only illness listed in his case are chronic headaches that began in 2006. Though his wife, Cantore declined to be interviewed by the AP. He has also been reluctant to appear for depositions, finally sitting down with lawyers for the city in late January only after the judge threatened to have him arrested.
Clearly, some of the plaintiffs are gravely ill — or worse.
Firefighter Raymond Hauber died of esophageal cancer at age 47 after putting in at least 90 days on the smoking rubble pile.
Fire Lt. Martin Fullam needed a lung transplant after doctors diagnosed him with polymyositis, an autoimmune disease that led to pulmonary fibrosis.
Others claim a variety of illnesses, but a majority describe symptoms similar to asthma, with recurrent wheezing, shortness of breath and sinus problems.
There is growing scientific evidence that some people, maybe even thousands, were harmed by the air at ground zero.
Studies have shown elevated levels of sinus and lung problems among rescue and recovery workers. Of the people exposed to the dust, 1 in 10 developed asthma within six years of the attacks, about triple the national rate. Firefighters have experienced unusual levels of sarcoidosis, an inflammatory disease that affects the lungs.
Research has also shown that trade center responders suffer from high rates of post-traumatic stress disorder and doctors have been investigating elevated levels of acid reflux disease.
Some lawmakers have proposed legislation that would reopen the federal 9/11 victim compensation fund to cover people with health claims. They have asked for as much as $12 billion for the sick.
The legal team representing New York City and the contractors who carried out the debris removal effort have argued that many claims contain incorrect or exaggerated information.
Another defendant, the Port Authority of New York and New Jersey, said in a court filing that many plaintiffs, in addition to detailing claims of dust-related ailments, also have listed everything wrong with their health, regardless of whether there is any link to 9/11 exposure.
The detailed medical and work records needed to confirm victim illness were largely unavailable to the court last year when it selected the 30 candidates for early trial consideration.
Instead, it chose plaintiffs based on their responses to a 360-question survey about their health and work history, the results of which were compiled in a database and ranked by illness severity. Of the 30, a third were selected by the court, a third by the defense team and a third by the plaintiffs. The cases of Briganti, O'Loughlin and Sorrento were selected by the judge.
It is unclear which cases will make the cut when the pool is narrowed to 12.
Hellerstein has commented in his rulings on the difficulty of managing the case, which he noted involved plaintiffs with 387 diseases "ranging from the most life threatening to the merely irritating." He said on Jan. 21 that he would likely order all trial plaintiffs to undergo an independent medical evaluation.
Even having trials for only the most severely ill could mean hundreds of trials, but the judge rejected lumping them together as a class action because the plaintiffs were each exposed to different toxins under different circumstances.
Hellerstein also has pushed hard for a settlement that would avoid trials altogether. At a hearing Jan. 21 he said the two sides had been in intensive talks, although he noted that the negotiations had been complicated.