Kenneth Feinberg wants to congratulate personal injury lawyers for not filing suit.
Feinberg served as special master for distribution of the federally funded 9/11 Fund for victims of the 2001 terrorist attacks. He came to the Virginia Trial Lawyers Association annual meeting at The Homestead on March 28 because he said he takes every opportunity to thank trial lawyers for helping to make the 9/11 Fund work.
Past VTLA presidents Charles Zauzig, Gerald Schwartz and Jeffrey Breit were among the Virginia lawyers who provided pro bono representation to 9/11 families, according to Zauzig.
Feinberg sketched the outlines of the 9/11 Fund, a voluntary, no-fault compensation scheme set up by Congress just days after the terrorist attacks.
Under the plan, parties who accepted compensation had to waive their right to litigate. If they chose to sue, they had to litigate in federal court in Manhattan, and airline liability was capped at $6 billion in coverage, Feinberg said.
The 9/11 Fund worked, if the statistics are any indication, according to Feinberg. “Ninety-seven percent of all eligible claimants entered the Fund.”
Only 94 people opted out of Fund, he said. As of March 28, 89 of those families have settled their suits. Feinberg said his biggest disappointment as Fund administrator, was that 11 people neither sued nor sought compensation from the Fund.
“They were too paralyzed by grief” to take any action, he said, despite his offers to help them complete the necessary paperwork for Fund compensation.
Of Fund claimants, 2,000 people were deemed ineligible, as no compensation was available for persons who claimed mental suffering without physical injury.
But 5,300 people were eligible for awards that ranged from $500 for a broken finger at the Pentagon, to $8.1 million for a woman who suffered third-degree burns over most of her body. Five families who received monies under the Fund, including two in Virginia, are still litigating apportionment of their Fund payment.
Another reason the 9/11 Fund worked was Feinberg’s willingness to personally bear witness to the pain and sorrow suffered by Fund claimants, the chance he gave them to tell their stories.
“Every family who wanted could come and see me in confidence, on the record. There were no more harrowing or chilling experiences. …People wanted to memorialize their loved ones.”
“A law education helped for setting up the Fund, but to administer it, I needed divinity school or a philosophy degree,” Feinberg said.
He concluded the Fund was “the right thing to do as an expression of solidarity by the American people on behalf of these victims. You can’t justify the Fund on the basis of who the victims were,” since victims of terrorism at Oklahoma City, in the first World Trade Center attack, and on the USS Cole received no compensation from the 9/11 Fund.
“I doubt very much it will ever be replicated,” Feinberg said. “The 9/11 Fund was a unique response to an unprecedented historical event.”
Feinberg’s experience as the special master who administered the 9/11 Fund made him uniquely suited to help distribute private funds raised by Virginia Tech’s Hokie Spirit Memorial Fund as compensation to victims of the April 16 shootings last year by a disturbed student.
The Hokie Spirit Memorial Fund raised over $8 million in private funds. The Hokie Fund provided the same amount of money for every death claim, and provided compensation for physical and mental injuries, based on the number of days spent in the hospital. There is no expiration date for applying for Hokie Fund compensation, and claimants were not required to waive their right to sue.
Separate offers of compensation from the Commonwealth of Virginia reportedly are pending, and those offers are contingent on execution of a release of liability. Feinberg told the audience that, based on his experience with both the 9/11 Fund and the Hokie Fund, he would recommend that the families of Virginia Tech shooting victims accept the state’s offer.
If they sue, “I don’t think you’ll win the case, and there’s a cap, plus 40 percent to lawyers,” he told the VTLA members.