October 18, 2007
By Brendan Kearney
On the morning of Tuesday, Sept. 18, Desmond T. Barry Jr. and Joseph F. Wayland took the train from New York to Baltimore.
Barry and Wayland, partners at their respective midtown Manhattan law firms, had a scheduled meeting that afternoon with Keith S. Franz and Judson H. Lipowitz at the Towson office of Azrael, Gann & Franz LLP.
Franz and Lipowitz represented the families of four Maryland residents killed at the Pentagon and the mother of a New York woman killed in the World Trade Center when American Airlines flights 77 and 11, hijacked by terrorists, crashed into the buildings on Sept. 11, 2001 – six years and one week earlier.
After years of discovery, depositions, mediation, and settlement discussions, Barry, representing American Airlines, and Wayland, representing Argenbright Security, had come to parley.
“The level of confidence was unpredictable,” Lipowitz said later. “But the fact that they agreed to come to our offices encouraged us.” The foursome had lunch and then got down to brass tacks in the firm’s purple-walled, pink-columned fifth-floor conference room.
By dinnertime, they had hashed out a settlement agreement that compensated the families of the victims and dismissed all the remaining parties to the litigation – including Boeing and the Metropolitan Washington Airports Authority – on behalf of whom Barry and Wayland had been negotiating.
The defense lawyers did not return calls for comment for this story. American Airlines spokesman Tim Wagner declined to comment on that arrangement or the settlement, citing pending litigation involving other plaintiffs.
“It’s bittersweet – there’s no true satisfaction in a tragedy,” said Lipowitz. “It’s a chapter of their lives that they can close and be proud of. Many felt that they did exactly what their loved ones wanted them to do, which was to inquire and learn about what happened and stand up for their rights.”
Opting to sue
The resolution of the civil litigation for the Towson firm’s clients had been a long time coming.
They had filed suit on behalf of 11 clients in 2003 after the judge, Alvin K. Hellerstein of U.S. District Court for the Southern District of New York, rejected a motion on behalf of the airlines, security companies and port authorities to dismiss all such claims.
By the February 2004 deadline for application to the federal September 11 Victim Compensation Fund of 2001, six of their clients had filed with the fund. More than 98 percent of all claimants took that route, according to the U.S. Department of Justice’s final report on the fund.
“It was a guaranteed payment, it did not involve litigation, it was paid early and quickly, and some of the clients had very personal explanations for why they made the decision, and we honored our clients’ wishes,” said Lipowitz.
The five remaining clients pressed on with their civil legal claims.
“At that point, there was no negotiating whatsoever,” said Lipowitz. “The purpose of the litigation was to get answers and find out what happened … The core question was if anyone besides the terrorists contributed to the event?”
Key to those answers would be the defendants’ release of documents, such as the airlines’ security training manuals and evaluations of those prescribed protocols. But before that discovery could happen, in 2003, Hellerstein established a protocol of his own.
“Judge Hellerstein had to serve as the referee and deal with competing interests over the right of the litigants in the civil justice system to have him review the situation and the very important need to protect national security,” Lipowitz said. “The defendants needed to have that information to give their clients the defense that they were entitled to and for us, more importantly, we needed the information to prove what happened on that tragic day.”
Year of depositions
For the next three years, reams of paper passed from the airlines and security companies to the U.S. Department of Justice, where they were redacted before finally being forwarded to the plaintiffs and their lawyers, who are prohibited from discussing what they have learned in the process. The haggling over documents continued until a year ago.
“It was quite a journey, because it was not until Sept. 12 of 2006 that we were able to take our first deposition of a witness,” said Lipowitz. “The first witness was a supervisor of a checkpoint at Boston Logan [International Airport…from which [American Airlines] Flight 11 originated.”
Lipowitz said that, as of his firm’s settlement announcement two weeks ago, the plaintiffs’ litigation team, which has included New York-based Kreindler & Kreindler LLP and South Carolina-based Motley Rice LLC, had taken approximately 80 depositions.
“From top to bottom: from the security screeners to their trainers to their higher-ups,” he said. “We took depositions of the owner of one of the security companies [and] one of the vice presidents of American Airlines.”
Beginning in 2004, settlement talks ran parallel to discovery, Lipowitz said. The first round, without a mediator, was “totally unproductive,” he said. Last year and continuing through May, a New York mediator sat in on some discussions. Non-mediated discussions continued throughout, some initiated by the plaintiffs, some by the defendants, said Lipowitz. He would not say what the obstacles to settlement were, just that there were “a variety…most of which were not about the money.”
In early September, Lipowitz said, his firm settled the case of 41-year-old Sigrid Wiswe, whose floor in the north tower of the World Trade Center was hit by American Airlines Flight 11, with the airlines and security companies. Wiswe’s (pronounced Viz-vuh) claims against the so-called ground defendants – architects and contractors of the building – have not yet been resolved.
Lipowitz said comments and a ruling by Hellerstein at the six- year anniversary of the attacks gave the Marylanders’ cases the final shove toward resolution.
“The judge on September 11 of this year in open court encouraged the parties to get beyond the impasse and he very compassionately recommended that the victims of 9/11 choose life,” Lipowitz recounted.
The next day, Hellerstein ruled a jury would be allowed to hear a few minutes of the cockpit recording from United Airlines Flight 93, which crashed in a field outside Shanksville, Pa. That ruling led to the airline settling 14 of the remaining 17 suits against it and had a similar effect on Lipowitz’s cases against American.
“The issue for us was the videotape that was taken of the [Washington] Dulles [International Airport] checkpoint showing the 9/ 11 hijackers passing through security even though they were setting off the magnetometer,” he said. “And that showed some of the failures of the checkpoint screeners to follow their own procedures.”
Lipowitz said “there had been some earlier battles over the video,” but the issue would not be judged until one of the American Airlines Flight 77 cases reached the top of the trial docket.
Of the 95 suits filed, 53 settled in mediation, he said. Lipowitz said Hellerstein docketed six of the remaining open cases for trial, two of which were Azrael, Gann & Franz clients.
First trial Nov. 5
The settlement of the 14 suits against United Airlines left 21 open cases – 22 if you count Wiswe’s partial settlement – and made the new first trial date Nov. 5, Lipowitz said. An American Airlines Flight 77 case is scheduled for trial that day, he said. Wiswe’s claim is the next scheduled for a trial on damages.
This confluence of recent and upcoming events gave his cases momentum, Lipowitz said.
“At that point we had reached a critical mass in our presentation of the case,” he said. “The defendants, recognizing that, reached out to us…and they accepted our framework.”
The details of the breakthrough meeting concerning the Maryland plaintiffs and the resulting settlement are confidential, said Lipowitz. “The only way we’re actually going to get a…view of what happened here is having one of these cases go to trial,” said Perry Binder, legal studies professor at the Georgia State University Robinson College of Business, who has followed the Sept. 11 litigation closely. “Is anybody actually going to take this to trial? I think maybe.” Lipowitz said even if all the cases settle before trial, his firm and Motley Rice “will actively and strongly advocate for a full disclosure of the information that became available to the litigants.”
Originally published by Brendan Kearney.
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