'Very special cases': attorneys seek remedies for victims of terrorism.On the morning of April 19, 1995, shortly after employees reported to their workstations inside the Alfred P. Murrah federal building The Alfred P. Murrah Federal Building was a United States Federal Government complex located at 200 N.W. 5th Street in downtown Oklahoma City, Oklahoma. The Murrah building was the target of the Oklahoma City bombing on April 19 1995. in Oklahoma City Oklahoma City (1990 pop. 444,719), state capital, and seat of Oklahoma co., central Okla., on the North Canadian River; inc. 1890. The state's largest city, it is an important livestock market, a wholesale, distribution, industrial, and financial center, and a farm , a massive truck bomb exploded an American myth. As 167 people died--including 19 children in a second-floor day care center-and hundreds more were maimed maim
tr.v. maimed, maim·ing, maims
1. To disable or disfigure, usually by depriving of the use of a limb or other part of the body. See Synonyms at batter1.
2. or psychologically damaged, U.S. citizens suddenly realized they were not immune to the grisly plague 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 New York City: see New York, city.
New York City
City (pop., 2000: 8,008,278), southeastern New York, at the mouth of the Hudson River. The largest city in the U.S. . But after the Oklahoma City bombing See Terrorism "The Oklahoma City Bombing" (Sidebar); Venue "Venue and the Oklahoma City Bombing Case" (Sidebar). , 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 workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work. 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 The Department of Labor (DOL) administers federal labor laws for the Executive Branch of the federal government. Its mission is "to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working . Others are pursuing state workers' compensation claims.
Being such as to entitle or warrant compensation: compensable injuries.
Adj. 1. 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 public relations, activities and policies used to create public interest in a person, idea, product, institution, or business establishment. By its nature, public relations is devoted to serving particular interests by presenting them to the public in the most 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 CUMIS Cambridge University Moving Image Studio (UK) Insurance Society, Inc., No. 9605878X (Okra. Workers' Comp. Ct. Aug. 22, 1996).)
On July 27, 1996, as vacationers at the Olympic games Olympic games, premier athletic meeting of ancient Greece, and, in modern times, series of international sports contests. The Olympics of Ancient Greece
Although records cannot verify games earlier than 776 B.C. 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 A term commonly used by law enforcement officers to designate a person who actually commits a crime. 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 det·o·nate
intr. & tr.v. det·o·nat·ed, det·o·nat·ing, det·o·nates
To explode or cause to explode.
[Latin d . 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 A law enforcement agency (LEA) is a term used to describe any agency which enforces the law. This may be a local or state police, federal agencies such as the Federal Bureau of Investigation (FBI) or the Drug Enforcement Administration (DEA). , state police, the Atlanta police force, and private security agencies. All these disparate forces were under the titular tit·u·lar
1. Relating to, having the nature of, or constituting a title.
a. Existing in name only; nominal: the titular head of the family.
b. 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 dis·fig·ure
tr.v. dis·fig·ured, dis·fig·ur·ing, dis·fig·ures
To mar or spoil the appearance or shape of; deform.
[Middle English disfiguren, from Old French desfigurer , 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 TWA Time-weighted average, see there plane, en route from New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of 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 NTSB
National Transportation Safety Board ) completed its investigation. (Houk v. Trans World Airlines Trans World Airlines, commonly known as TWA, was a major American airline company that was acquired by American Airlines in April 2001. For many years it was headquartered at the Kansas City Downtown Airport, as well as midtown Manhattan in New York City. , 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 fumes
odorous gases and other volatile materials; inhalation of irritating fumes causes coughing and, if sufficiently severe, irreversible pulmonary edema. 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 Federal Aviation Administration (FAA), component of the U.S. Department of Transportation that sets standards for the air-worthiness of all civilian aircraft, inspects and licenses them, and regulates civilian and military air traffic through its air traffic control 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 (1) (Transmission Control Protocol) The reliable transport protocol within the TCP/IP protocol suite. TCP ensures that all data arrive accurately and 100% intact at the other end. (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 A procedure provided by federal statute (28 U.S.C.A. § 1407) that permits civil lawsuits with at least one common (and often intricate) Question of Fact that have been pending in different federal district courts to be transferred and consolidated for pretrial proceedings . 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 African American Multiculture A person having origins in any of the black racial groups of Africa. See Race. 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 An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called 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 an·ti·ter·ror·ist
Intended to prevent or counteract terrorism; counterterror: antiterrorist measures.
an and Effective Death Penalty Act, signed April 24, 1996, toughened sentences and created a new U.S. Alien Terrorist Removal Court to deport de·port
tr.v. de·port·ed, de·port·ing, de·ports
1. To expel from a country. See Synonyms at banish.
2. To behave or conduct (oneself) in a given manner; comport. 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.