Cases Seen as Guide To 9/11 Fund Payouts

Newsday
August 4, 2002
Cases Seen as Guide To 9/11 Fund Payouts
Stephanie Saul, Staff Writer

What is a life worth?

For the families of those killed and injured on Sept. 11, a starkly pragmatic answer to that age-old question will come soon, as Kenneth Feinberg, the special master of the federal victim's compensation fund, releases his first round of payment calculations.

Lawyers advising victims and their families on whether to apply for the fund are watching the decisions closely. Those who participate in the program lose their right to sue. The outcomes will provide a window into how generously Feinberg is interpreting the fund's complex formula, which allows him considerable discretion.

Will the payment to Richard Conte, a city firefighter from Rockland County who is suffering from lung damage, compensate him for the reduced pension he will receive because he can't work overtime? The answer may determine whether hundreds of other firefighters apply for the program or sue the city, said Tony Gentile, the Manhattan lawyer representing Conte.

Will the fund give special treatment to the two boys left behind by Matthew Diaz? The Brooklyn carpenter died at the World Trade Center as his wife was in the final stages of metastatic breast cancer. Karen Diaz died in January, leaving the children with their only surviving grandparent.

Will Lenore Santoro of Manhattan, whose husband Mario Santoro was one of the first emergency medical workers at the scene, be paid for the chores her husband performed around the home in addition to his expected lifetime earnings? His "lost services" are calculated to be worth $250,000 alone, according to Lenore Santoro's lawyer, Paul Scrudato.

Feinberg's answers in the cases of Conte, Diaz and Santoro, as well as about a dozen other test cases, will help determine how many others ultimately apply for the fund or litigate their claims. So far, only 600 of the thousands of victims and their families have applied.

The cases were selected by Feinberg and Trial Lawyers Care, the group of plaintiff's lawyers who are giving free legal assistance to many victims and their families.

"Generally, we tried to pick cases in which the issues would have broad application for a number of cases that come along," said Larry Stewart, a Florida attorney who serves as president of Trial Lawyers Care, which was established after Sept. 11 by the American Trial Lawyers Association.

In the months following Feinberg's appointment to lead the compensation fund, which is expected to pay an average award of about $1.5 million, the Justice Department published a set of rules for determining how the payments will be calculated.

Families will be paid for the anticipated lifetime earnings of a victim, plus a flat payment for "pain and suffering" of at least $250,000. The plan also will deduct taxes, the part of their salaries victims would have spent on themselves, and will subtract insurance payments and other death benefits.

Feinberg, a Washington, D.C., lawyer known for mediating large class action cases, also published a schedule of anticipated payouts, depending on a victim's age and number of dependents.

Still, like a law that has not yet endured a court challenge, the rules are subject to interpretation. Feinberg has told attorneys that the compensation rulings will "case-by-case, build a common law of victim's compensation," according to Dan Kramer, a Paramus, N.J., lawyer who is representing the parents of Edwin Zambrana Jr., a Staten Island man who worked in a recycling project at the World Trade Center. Zambrana earned $7 an hour, but also was a caregiver for his mother, Lillian, who suffers from lupus.

According to Feinberg's tables, the estate of carpenter Matthew Diaz, who earned $100,000 and had two children, would be entitled to about $2.9 million before deductions for life insurance and other death benefits.

Yet John Bonina, the Brooklyn lawyer representing the Diaz family, is arguing that his boys, Christopher, 4, and Michael, 7, are entitled to more compensation.

The children knew that their mother, who was in the final stages of metastatic breast cancer, was going to heaven, Bonina said. "The children had been told that daddy was always going to be there for you," Bonina said.