November 2006

Litigation Landslide Tests Organization, Creativity

“The terrorist attacks of September 11, 2001, inflicted a gaping wound on the structure and spirit of New York,” Judge Alvin K. Hellerstein (S.D. NY) wrote in In Re World Trade Center Disaster Site Litigation.

Now cases involving claims arising out of, resulting from, or relating to the terrorist-related aircraft crashes of September 11, 2001, are being filed in federal court. The plaintiffs—alleging wrongful death, personal or respiratory injury, or property damage—may have lived near or worked on the site, and include city governments, the Port Authority of New York and New Jersey, private contractors and thousands of firemen, policemen, paramedics and construction workers. It is anticipated that 6,000 cases—all related to September 11, 2001—will be filed in the Southern District of New York, for an estimated 60 percent jump in the district’s civil caseload. As the influx of cases begins, the creativity and organizational abilities of the entire court, beginning with the clerk’s office, are being tested.

Out of the boxes and boxes of cases—all initiating documents in civil cases are filed in both hard copy and electronic form (PDF)—court staff must still manually check the civil cover sheets for accuracy and for the proper signatures, and collect the filing fee.

“Fortunately,” said Clerk of Court J. Michael McMahon, “to save some work steps, our court’s systems staff developed an automated system that can assign case numbers in batches of 200. This has saved a significant amount of work for the court’s docketing staff.”

To reduce the amount of time that would be spent entering data from those thousands of cases into the Case Management/Electronic Case Files system, Information Technology staff at the court and the Administrative Office automated another part of the process. First, cases are grouped according to common defendants. For each of these groups, court staff prepare a spreadsheet with the required data fields. Computer script developed by the AO automatically finds and strips out the data from the spreadsheets, and opens each case in CM/ECF. The script also uploads and marries the original PDF case file with the data generated from the spreadsheet. The script can only be used for the grouped cases.

“We’re not sure of the final number of cases that will be filed,” added McMahon. “More are still coming in. But once each case becomes an electronic file, all cases will be accessible on PACER.”

All of these cases are ultimately the responsibility of Judge Hellerstein, a native New Yorker and eight-year veteran of the federal bench. He and his two law clerks “use a lot of self-organization,” he said, to deal with the mass of litigation. All Hellerstein’s orders, announcements of conferences, and directions to counsel on the filing of correspondence are posted to the court’s website, at www.nysd.uscourts.gov/Sept11Litigation.htm. He has assigned most of the litigation to tracks and subtracks, separating the cases into, for example, a property damage track, with a subtrack that includes Building 7 claims, and another subtrack with claims among insurance companies. He also holds frequent status conferences on the cases consolidated into wrongful death airline cases, respiratory injury cases, insurance coverage cases and property damage cases, “with the goal of keeping on track and moving the cases along.” Meanwhile, discovery goes forward on a group of wrongful death cases.

But even Hellerstein feels that special handling may not be enough. Many of the wrongful death cases are being mediated with the help of a mediator specially appointed by Hellerstein upon the joint recommendation of plaintiffs and defendants. The more than 3,000 cases— with the potential of growing to 7,500—that allege respiratory injury, “are likely to become unmanageable,” he wrote, and he will be recommending to the parties the appointment of a special master. “The number and complexity of these cases, and the public interest in their speedy resolution, requires a greater urgency in progression, and a closer supervision of proceedings, than heretofore has been possible. The involvement of a Special Master has become necessary.”

Hellerstein’s idea is to have the Special Master work with the parties to develop a matrix of key facts that will enable the parties to place values on categories of cases that can, in turn, lead to groups of settlements.

He is especially concerned that the cases alleging wrongful deaths and personal injuries move forward. “They deserve to go first,” Hellerstein said, “because they involve the immediate victims who died in the airplanes that the terrorists hijacked, or in the infernos this produced.” Many of those cases are currently in mediation, an option Hellerstein encourages.

Considering the number of plaintiffs and claims, it’s overly optimistic, to look for a speedy resolution of all 6,000 cases—but the 73-year old Hellerstein is an optimistic man. “Article III judges,” he said, “have to be optimistic. I have the cases and I’m trying to handle them. But I want to see an end of this in a few years—in my lifetime and not my children’s.”