'Very special cases': attorneys seek remedies for victims of terrorism.
Other events had signaled the end of complacency: the 1988 explosion of a Pan Am plane over Lockerbie, Scotland; the 1993 bombing of the World Trade Center in New York City. But after the Oklahoma City bombing, where the alleged terrorist is a U.S. citizen, security experts are saying that terrorism is a part of American life. Attorneys realize they have to learn how to represent victims of terrorism.
What's so different about a case involving terrorist acts? How are normal safeguards like workers' compensation programs and insurance benefits affected? What strategies should be pursued against a terrorism defense? Can limits on damages be overcome?
"These are very special cases," said Bob Burke, an Oklahoma City attorney representing injured employees. "Some of my clients who have been injured before tell me that this is different. Emotionally, they can't grasp why something like this happened to them, and that's why they have such tremendous psychological overlay."
Most of the people injured or killed in Oklahoma City were federal employees whose medical care and compensation claims are being handled by the Office of Workers' Compensation, U.S. Labor Department. Others are pursuing state workers' compensation claims.
Compensable injuries ordinarily must arise "out of and in the course of employment." However, a reasonable legal argument can be made that the Oklahoma bombing did not arise out of employment but was an unforeseen criminal act.
"Some insurance attorneys initially made that argument," said Burke. "But the companies quickly realized that denying coverage to anyone in that building would be a public relations disaster. So they agreed among themselves to accept compensability, and nobody has raised that defense." In a less spectacular case with fewer casualties, Burke said, insurance companies might be less flexible.
Although insurers accepted workers' claims for physical injuries in Oklahoma City, they refused to recognize psychological damages. Under the state program, a worker who suffers a physical injury that results in emotional problems or "psychological overlay" is entitled to permanent disability for the psychological damage. Compensation is calculated at a maximum of $1,000 for each 1 percent of impairment to the body as a whole.
Some of Burke's clients staffed a state-chartered credit union. Of the 28 people who were working that day, 18 died. One client was the last person to be discovered alive, 36 hours after the explosion. Another was buried alive for 8 hours before rescue workers cut off part of her foot while digging her out of the rubble.
"One of the big differences in terrorist cases is the need for psychological counseling," said Burke, who chairs the workers' compensation section of the Oklahoma Trial Lawyers Association. "People who survive this kind of experience are going to have psychological problems."
The courts tend to agree. In cases that have gone to trial in Oklahoma, judges have awarded plaintiffs about three times what was offered by insurance companies and have ordered the companies to provide for psychological counseling. (Shaw v. Federal Employees Credit Union & CUMIS Insurance Society, Inc., No. 9605878X (Okra. Workers' Comp. Ct. Aug. 22, 1996).)
On July 27, 1996, as vacationers at the Olympic games listened to a concert in an Atlanta park, an exploding pipe bomb sent metal fragments ripping through the crowd.
Don Keenan, en Atlanta attorney representing about 15 people injured in the blast, says terrorist cases are less like medical negligence or products liability cases than they are like premises cases involving inadequate security. "They are more like the hotel rape or the robbery at the ATM machine," he said.
"The actual perpetrator is judgment-proof, with no assets to make the injured party whole, and remedies must be sought at a second level of liability where it is necessary to prove foreseeability," said Keenan. "The terrorist becomes an empty chair in the courtroom, someone who is there only in spirit but about whom the [Olympic] Security Committee can say, `Hey, we didn't hurt anyone. We didn't explode the bomb. He did."'
In Atlanta, 22 minutes before the bomb exploded, an anonymous caller to the 911 alert line told police where the bomb was located, what it looked like, and when it would detonate. Also, one minute before the warning telephone call was received, a security guard in the park had discovered the suspicious knapsack.
"Did the city of Atlanta and the Olympic security patrol, having that information, act reasonably to prevent injuries?" asked Keenan. "Our answer is 'No.' If they had discharged their responsibilities in a timely manner, they would have been able to get that bomb to a place where it could have gone off without hurting anyone."
Security during the Olympic games was a multilayered activity involving federal law enforcement agencies, state police, the Atlanta police force, and private security agencies. All these disparate forces were under the titular leadership of the Olympic Security Committee.
Most of the lawsuits by injured people are being directed against the city of Atlanta's 911 system and the security committee. As in Oklahoma, insurers moved quickly to set up a claims procedure to settle minor claims. "However, the major cases-those involving disfigurement, loss of limbs, and so on-are being handled outside that system," said Keenan.
Additional defendants may be named later. These may include companies that sold over-the-counter products that could only reasonably be used in bomb devices. Until the FBI arrests a suspect, however, the agency is not releasing detailed information about bomb components.
"Lawyers are going to get into trouble if they take the position that anytime there is a terrorist act, it could have been prevented," said Keenan. "I don's think jurors will accept that as a commonsense position. However, when parties have a reasonable expectation that something is going to happen and they don't take adequate safeguards, then they are responsible."
Airplanes that explode
Ten days before the pipe bomb exploded in Atlanta, a TWA plane, en route from New York to Paris, exploded in midair off the coast of Long Island, killing all 230 people aboard. Many assumed that the crash was caused by terrorists, but months of painstaking examination failed to turn up evidence confirming the existence of a bomb.
Donald Nolan of Chicago was one of the lawyers who filed suit before the National Transportation Safety Board (NTSB) completed its investigation. (Houk v. Trans World Airlines, Inc., No. 96C7527 (N.D. Ill. filed Nov. 18, 1996).) Defendants include TWA; The Boeing Co.; and Hydroaire, which manufactures fuel pumps used on the aircraft.
Nolan says that whether a mechanical failure caused fumes to explode in the central fuel tank or whether a bomb was carried aboard, the airline and plane manufacturer may be at fault.
"If it were a bomb," he said, "we would be looking at comparative security afforded passengers boarding in this country or in Europe. These standards very, with U.S. passengers receiving a lesser degree of protection." To the point that U.S. passengers have been less willing to surrender their freedoms for greater security, Nolan said, "The airlines owe the public the duty of highest care. The question is not what we expect but what their duty is."
The suit points out that in 1974 the Federal Aviation Administration recommended that all commercial aircraft be equipped with an explosion prevention system that was not used on the Boeing aircraft. The recommended system would inject an inert substance like nitrogen into the fuel tank to dispel flammable or explosive vapors or make the environment incapable of supporting a fire or explosion.
Whether or not a bomb is involved, airplane crash cases are complex. Damages caps established by the Warsaw Convention would apply, for example, to claims against TWA but not to claims against Boeing or component manufacturers. Foreign laws must be reviewed as they apply to foreign passengers.
Rules that apply to some air disasters do not always apply to others. For example, in the Pan Am explosion over Lockerbie, lead attorney Mitch Baumeister of New York and others were able to overcome a $75,000 damages cap by proving that the airline's inadequate luggage handling system was the result of willful misconduct. (In re Air Disaster at Lockerbie, Scotland, No. MDL-799TCP (E.D.N.Y. July 10,1992).)
In another example, the U.S. Supreme Court recently let stand a lower court ruling that allows surviving relatives to receive damages for the pain and suffering of people killed in the 1983 downing of a Korean airliner. Pain and suffering damages, excluded by treaty, were allowed because the airline engaged in willful misconduct. (Forman v. KAL, 84 F.3d 446 (D.C. Cir. 1996), cert. denied, 1996 WL 605173 (Dec.9, 1996).)
Lawsuits stemming from the TWA crash are certain to be combined in multidistrict litigation. Boeing has requested that it be located in the Eastern District of New York.
In April 1996, police arrested a 54-year-old former mathematics professor named Ted Kaczynski, whom they believe to be the Unabomber, a self-styled terrorist who sent deadly mail bombs to victims for nearly 17 years. The Unabomber planted at least 16 bombs that killed 3 people and wounded 23 in a weird antitechnology campaign expounded in a "manifesto" published by the New York Times and the Washington Post in 1995.
A civil suit has already been filed by attorney Eugene Treaster of Sacramento, California, on behalf of survivors of Gilbert Murray, the president of the California Forestry Association who was killed when a package exploded in his office. (Murray v. Kaczynski, No.96CV1574-GEB-JFM (E.D. Cal. filed Apr.24, 1996).) Judge Garland Burrell, however, ordered the suit halted pending resolution of criminal charges against Kaczynski.
Other bombers and arsonists have been blurring the distinction between hate crimes and terrorism by attacking targets that range from African American churches to corporate headquarters. Traditionally, terrorists have been defined by a motivating political agenda, but the Oklahoma City bombing--coming on the second anniversary of the federal assault on the Branch Davidian headquarters near Waco, Texas, at a site that housed a Bureau of Alcohol, Tobacco, and Firearms office--suggests pure revenge.
With the possible exception of the TWA litigation, all these cases seem to echo the warning of security experts: Terrorism may now be a predictable part of American life. If so, what else should change?
Is new legislation needed to assist victims? The Antiterrorism and Effective Death Penalty Act, signed April 24, 1996, toughened sentences and created a new U.S. Alien Terrorist Removal Court to deport terrorists, but it did little to help injured people. (Pub. L. No. 104-32 (1996).)
Should a proposed National Victims' Constitutional Amendment be expanded to include assistance for victims of terrorism? An amendment proposed by Sens. Dianne Feinstein (D-Cal.) and Jon Kyl (R-Ariz.), expected to be debated during this session of Congress, now focuses on domestic violence and sex crimes.
Without a social safety net for the injured, how else can attorneys win compensation for victims except by pursuing claims against parties who failed to foresee and prevent injuries?
Lacking mercy, society recognizes only justice won by combative advocates. Meanwhile, trial attorneys must act with the tools at hand to represent injured people.