Support 911Blogger


9/11 Workers Refute City's Allegation of Discovery Abuse and Malingering

9/11 Workers Refute City's Allegation of Discovery Abuse and Malingering
//www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/07-03-2008/0004843608&EDATE=
NEW YORK, July 3 /PRNewswire/ -- Attorneys representing more than ten
thousand ground zero workers including Police, Firefighters and other
rescue, recovery and debris clean-up personnel who became ill after working
in the "toxic soup" at the World Trade Center site following the collapse
of the World Trade Center Towers One and Two on 9/11 have informed the
federal judge responsible for the litigation of those cases that the great
majority of their clients are getting sicker as time goes by.

According to an in-depth analysis of the medical records reviewed thus
far by the Plaintiffs' attorneys, the ground zero workers suffer from
numerous ailments. A typical rescue and recovery worker, on average,
suffers from three different diseases. The analysis demonstrates that 38.8%
of the workers suffer from asthma; 67% and 57.21% have upper and/or lower
respiratory ailments, respectively; 19.88% suffer from sleep apnea; 45.89%
have GERD; 5.9% experience interstitial lung disease; and 37.5% have
cardiac conditions.

Responding to the defendants' claim that production of the plaintiffs'
medical records has been wanting, Plaintiffs' Co-Liaison Counsel, WORBY
GRONER EDELMAN & NAPOLI BERN, LLP reported that since discovery of medical
records commenced, the plaintiffs have delivered to Defendants' Liaison
Counsel 26,331 medical records, cumulatively amounting to more than 821,564
pages of records. At the May 29,2008 Court conference, the City claimed
that most plaintiffs had not produced all of their medical records,
notwithstanding the fact that they had already received more than 800,000
pages at that time. Since that conference, the plaintiffs have exchanged an
additional 58,451 pages comprising 1,548 individual records. As a result,
the Plaintiffs' counsel wrote, "[a]t this writing we have now provided
defendants' counsel with nearly a million pages of documents pursuant to
this Court's orders."

The plaintiffs' attorneys further demonstrated the fallacy of the
City's argument by indicating that the defendants themselves were at all
times in possession and control of thousands of the plaintiffs' own records
because:

"About half of the plaintiff population are from uniformed services
(New York City Police Officers, Firefighters and Port Authority Police) ...
firefighters and police officers are required to pass physical exams and to
be found physically fit before being allowed to join the Police or Fire
departments. For this reason, most of the plaintiffs had very little if any
treatment for any disorder before 9/11. These were New York's "finest" and
"bravest" and accordingly, the fittest. The extent of many of these
workers' pre 9/11 medical records are the physicals conducted by the FDNY
and NYPD which records are in the possession of the defendants. In fact, as
we have previously informed this Court in numerous writings and
on-the-record discussions during conferences, plaintiffs and plaintiffs'
counsel have no access to these medical records until defendants' counsel
complies with this Court's order to exchange this information."

The plaintiffs also noted that in making their allegations of
incomplete medical records disclosure in open court on May 29, 2008, the
City's attorneys were in direct violation of the Court's Case Management
Order ("CMO") no. 7. That order required the defendants to first serve a
letter advising the plaintiffs' attorneys of the claimed shortcomings in
their production before taking their concerns to the Court, which the
defendants failed to do. The first such deficiency letter sent by the
defendants' counsel came almost three weeks after the May 29, 2008
conference.

"CMO 7 and its prohibition of allegations of discovery abuse without
service of the deficiency letter and an opportunity for producing counsel
to refute or cure the deficiency, was negotiated and agreed to by the
parties. Despite this fact, and despite the fact that Mr. Tyrrell had
provided no writing to any plaintiffs' counsel prior to May 29, his
accusations and complaints of insufficient discovery compliance on the
record on May 29, 2008 violated this Court's order in an apparent attempt
to harass and embarrass plaintiffs and their counsel when no violation of
any order had occurred. These repeated outbursts in open court by
defendants' liaison counsel have not gone unheard by the media or the
public," the plaintiffs' attorneys told the Court, referring specifically
to a recent NEW YORK TIMES article that reported, without foundation, that
the plaintiffs were largely uninjured and had few, if any, medical records
to support their claims in the litigation.

Asked about the recent Times article and the medical records analyzed
in their report to Judge Alvin K. Hellerstein, attorney Marc Jay Bern said
"as if it was not enough that these brave men and women have put their
health and their families' financial well being on the line to answer their
city's call to duty in the weeks following September 11, 2001, they are now
asked to bear the indignity of being labeled malingerers in open court and
in the press by the City and its attorneys."

For further information, call Marc Jay Bern at (516) 361-4909 or David
Worby at (914) 220-2083.

This release was issued through WebWire(R). For more information visit
http://www.webwire.com.

Press Release Contact Information:
David Worby
Partner
Worby Groner Edelman & Napoli Bern, LLP
(914) 220-2083
dedisonw@aol.com