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But it may not be fair to compare Sept. 11 with a street crime or even Oklahoma City. After all, these recent attacks involved an orchestrated, simultaneous security breach on four airplanes, carried out by 19 men who had been living and training on our soil. A better comparison might be past international terrorist attacks and plane crashes. Those that have been resolved and that's a major distinction do show higher payouts than the average amount likely to come out of the Sept. 11 federal fund.
In 25 major aviation accidents between 1970 and 1984, the average compensation for victims who went to trial was $1 million in current dollars, according to a Rand Corp. analysis. Average compensation for cases settled without a lawsuit was $415,000. The biggest aviation payout in history followed the crash of Pan Am Flight 103 over Lockerbie, Scotland, in 1988. Settlements ranged all over the spectrum, with a couple dozen exceeding $10 million, according to Manhattan attorney Lee Kreindler, who acted as lead counsel. Dividing the total $500 million payout over the 270 victims yields an average award of $1.85 million. However, the families had to hand about a third of their awards to their lawyers, and they waited seven to eight years to see any money. And the families of the six people killed in the 1993 World Trade Center bombing are still waiting for their day in civil court.
In the end, most families will probably choose the fund over litigation. The Lockerbie millions are simply not a realistic possibility. It is always extremely difficult to sue the government. And the liability for the Sept. 11 attacks was capped by Congress at about $1.5 billion per plane. So while the families of those killed in the Pennsylvania and Pentagon crashes may have enough to go around, there are far too many victims in New York. "The court model works perfectly when you don't have $50 billion in damages or 3,000 deaths," says Leo Boyle, a Boston lawyer and president of the Association of Trial Lawyers of America, which supports the fund option and has lined up more than 2,000 attorneys to offer free help navigating its rules. Even without the caps, Boyle insists, victims could not have extracted more money by putting United and American Airlines through bankruptcy. So far, only a handful of suits have been filed.
In any event, there was no talking Congress out of the liability caps when it drafted the airline-bailout package 10 days after the attacks. The airlines could not fly without insurance, and their coverage was far short of what it would take to pay the damages. Federal Reserve Chairman Alan Greenspan privately told congressional leaders that getting the planes up again was the single biggest "multiplier" that could revive the economy on every level. So the Democrats, who usually balk at limiting the ability to sue, accepted the idea of an airline bailout as long as it came with a mechanism to compensate victims. Oklahoma Senator Don Nickles, the No. 2 Republican in the Senate and a longtime proponent of tort reform, pushed hard to limit how much the victims' families could claim, but he did not prevail.
But once the interim rules were drawn up by Feinberg's office in conjunction with the Department of Justice and the Office of Management and Budget there were some surprises. In particular, the figures for pain and suffering astonished some who had backed the fund. "The numbers are low by any measure," says Boyle. Feinberg says he chose the $250,000 figure because that's how much beneficiaries receive from the Federal Government when fire fighters and police die on the job. The additional $50,000 for the spouse and each child is, he admits, "just some rough approximation of what I thought was fair." He calls the fund "rough justice."
The American Tort Reform Association, backed mostly by Republicans, has been lobbying since 1986 to limit noneconomic damages in some suits to $250,000. John Ashcroft, head of the Justice Department, pushed for such a cap on punitive damages when he was a Senator. But Feinberg, a Democrat, insists he was not pressured by the Administration to keep the numbers low.
No matter how many times tearful widows accuse him of protecting the airlines, Feinberg does not blush. A lawyer with decades of experience in the messy art of compromise (Feinberg was special master for the $180 million distributed to veterans exposed to Agent Orange), he is accustomed to rage. "On Tuesday I get whacked for this or that in New Jersey. The next day it's New York. It goes with the job." But he rejects the theory that greed is a factor. "People have had a loved one wrenched from them suddenly, without warning, and we are only five months beyond that disaster. It was nearly yesterday. And they are desperately seeking, from what I've seen, to place as much of a value on that lost loved one as they can. So here is where they seek to amplify the value of that memory. They do it by saying we want more, as a validation of the loss. That's not greed. That's human nature."