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Bar News - December 16, 2005 Book Review - What Is Life Worth? By: Jennifer A. Lemire
By Kenneth Feinberg There is a coffee shop in Market Square in Portsmouth where people from all walks of life stop to watch passersby, to meet new and interesting people, and to spend time catching up with old friends. For several years, a retired married couple rode their bicycles to this shop each Sunday to treat themselves to a pastry. Their favorite bench out front now bears a plaque, “In Loving Memory of…” The plaque was placed there following their tragic deaths on September 11, 2001. On that day this couple lost their lives when United Airlines Flight #175 crashed into the south tower of the World Trade Center. I never had the good fortune to meet the couple, but I came to learn much about them after their passing, when I assisted their daughters to file claims with the September 11th Victim Compensation Fund. Kenneth Feinberg was appointed by the Attorney General to administer that Fund by a piece of legislation that just eleven days after the attacks passed both the Senate and the House and was signed by the President. In What Is Life Worth? The Unprecedented Effort to Compensate the Victims of 9/11, Feinberg, who has been involved in some of the most complex mass tort legal disputes in the last three decades, speaks of some of the cases which led to his appointment: Agent Orange, asbestos, breast implants, DES, and the Dalkon Shield, to name a few. After being appointed special master to aid the parties of the Agent Orange class action to reach settlement, Feinberg worked “with the two sides seven days a week, threatening, cajoling, explaining, enticing, promising. The trial was coming up and both sides were uncertain about their prospects – that was key.” Ultimately, just one day before the jury impaneling was scheduled to begin, the parties settled for $180 million. Add the interest accrued over a ten-year payout, and the initial settlement sum approached $300 million. This settlement changed Feinberg’s life overnight. He became, in his own words, “a settlement guru.” His mediation skills, together with his political and legal connections, landed him the job of Special Master of the 9/11 Victim Compensation Fund. Over a period of three years, he met with the family members of thousands of victims and compensated 5,300 of them with more than $7 billion of taxpayer money. The average death claim was approximately $2 million, in tax-free dollars. There were few guidelines on how to determine how much each claimant should receive, and there was no cap on the amount Feinberg could distribute. Those who applied to the Fund had to waive their right to sue anyone but the terrorists, and had to submit a lengthy application with piles of documentation. Ultimately, it was up to Feinberg to use this information to determine the worth of each victim’s life. As one might imagine, the result was not always met with favor. Why would the family of a firefighter who lost his life saving others receive less than the survivors of a single stockbroker? Why would the wife of a young thirty-something who happened to be a high wage earner receive more than a poor waiter’s family? In a sense, Feinberg was asked to play Solomon. He writes: “I wished I had a more satisfying answer to offer the unhappy families who questioned me about this. I sought an explanation in the congressional debates and legislative history underlying the new law. I searched in vain for a rationale that justified providing favored treatment to some but not others.” What he did was to use the vast discretion he had been afforded by Congress to apply what he describes as “two overarching principles.” First, he decided that the fund “should be compassionate and generous but not profligate, dispensing taxpayers’ money by the fistful.” Second, he used his discretion “as Congress intended, as a safety valve against runaway awards and low-end payments.” In What Is Life Worth? Feinberg lends insight into how he approached and tackled this awesome task. Not everyone was pleased with his methods, but in the end and undoubtedly through his efforts, 97 percent of all eligible families applied to the Fund. In Feinberg’s view, this meant the Fund was a success. I had occasion to meet Feinberg twice. The first time was to hear him speak in a hotel in New York during a training program for Trial Lawyers Care, Inc., the largest pro bono legal services program in history; it ultimately provided free representation to more than 1,700 families. In February 2002 while attending an Association of Trial Lawyers of America convention in Miami, I signed up for the program. Shortly thereafter, I received the call that connected me with the daughters of the husband and wife mentioned above. One of the daughters resided in New Hampshire and her parents had just built their dream retirement home there. The second meeting with Feinberg took place in a glass and steel high-rise in Manhattan. The goal of my appearance before him was not only to provide the information Feinberg would need to calculate economic and non-economic loss, but to put a “face on the case.” I had prepared the daughters to testify and had retained an expert from New Jersey to prepare an appraisal of economic loss and also testify at the hearing. My clients were nervous. They were nervous about coming to New York where their parents had perished, and they were nervous about testifying. They were also hoping that this hearing and the conclusion of the claims process would provide some sense of closure for them. We traveled through a horrible snowstorm. I flew from Boston. My clients drove. My expert took the train. My flight was delayed. I was afraid my clients would not make it in time—and in a cab on my way to the hearing on Third Street, I learned that Feinberg wanted to move the hearing up and start earlier. I was afraid one or all of us would not be able to make it. We all did make it in time, though. All of us, that is, except Feinberg. He left us waiting in an empty, unwelcoming conference room with steel folding tables and chairs. When he finally arrived, he appeared to be in a hurry and rushed us through introductions and opening statements. He appeared to be cold, disinterested, and uncaring. This bothered my clients, who fought back tears while struggling to speak of the tremendous loss they had suffered. The stenographer, who later stated she had sat through some 600 such hearings — each of them equally heart-rending — took down every word. Feinberg bantered casually with my expert with whom he had apparently worked on several other 9/11 cases, but cut my clients short when they tried to help him understand who their parents were. There were points I knew they wanted to make, if only to say them out loud for someone to hear, whether they would have been considered or not. But Feinberg told them, “It’s not necessary.” They clearly felt uncomfortable during the hearing, and not at all as if they were speaking to someone who had any compassion. We quietly left the Manhattan high-rise and abruptly found ourselves in a sea of celebration. It was St. Patrick’s Day, and the usual parade was in full swing. It was surreal, to say the least, to exit from such a solemn place filled with pain and grief to an outdoors full of music and celebration. When we were able to duck out of the crowds and find a quiet deli for lunch, my clients told me how they had been so disappointed by Feinberg. Feinberg speaks of his detachment and how it might have affected others: “Not surprisingly,” he reflects, “the communication style I’d developed over the years proved less than ideal for this new challenge…. I should have realized that this kind of neutral authoritative, purely factual presentation would strike the 9/11 families as brusque and callous.” I explained to my clients that perhaps, having had to consider thousands of claims, and having had to conduct hundreds of these hearings himself (sometimes as many as thirteen in one day) might have desensitized Feinberg to the point where he just could not show any emotion. Perhaps that was the only way he could do his job. In the preface to What Is Life Worth? Feinberg explains that the book “is not a diary of my experiences in relating to the 9/11 families, although personal stories are interspersed throughout the text. Instead, this book focuses on how my administration of the 9/11 Fund changed me, the public policy implications of the story, and, perhaps most important, the lessons that the families can teach us about life, death, and coping with grief.” So how exactly did administering the Fund change Feinberg? He says that when strangers ask him how he was affected, he gives what he calls a standard answer: “We all change; we wouldn’t be human if we failed to respond to life’s highs and lows.” In truth, he says, he runs away from such questions in an effort to avoid self-doubt and second-guessing. In the end, he concludes that he was changed both professionally and personally. His career path has changed dramatically as a result of his role in the Fund. He has apparently “radically downsized” his law firm, and devotes more time to “educating the next generation of lawyers” as opposed to mediating disputes between Fortune 500 companies. When he does mediate, he says he now chooses cases that are more “interesting and meaningful,” such as those involving sexual abuse accusations in the Roman Catholic Church, or racial discrimination class action suits. He says he now picks and chooses cases “in a desire to do some good for both the litigants and the broader society in which I live.” On a personal level, he says he is now “more fatalistic about life and death.” He no longer plans ahead; he believes he is more compassionate, and says he tries hard “to be more caring in my day-to-day living.” In What Is Life Worth? he tries to make sense of his experience with the 9/11 Fund, as he tells the story of how a Jewish lawyer from Brockton, Massachusetts found himself playing Solomon. Jennifer A. Lemire is an attorney with Wiggin & Nourie in Portsmouth, NH. What Is Life Worth? is published by Public Affairs Books, New York, NY. Phone: 212-397-6666. |
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