May 2, 2010
Empathetic Judge in 9/11 Suits Seen by Some as Interfering
By MIREYA NAVARRO

Over nearly three decades as a litigator at a downtown law firm, Alvin K. Hellerstein shared a view of the World Trade Center towers with dozens of other colleagues in an office building on Maiden Lane.

Yet as a United States District Court judge in Manhattan, he has had a singular perspective on the towers — specifically, the suffering that has lingered long after the terrorist attacks that leveled them in 2001.

As the federal judge who has overseen the wrongful death, property damage and personal injury lawsuits arising from 9/11, Judge Hellerstein, 76, has developed a visible empathy for both the families of the victims and for the workers who fell ill after the rescue and cleanup efforts.

“He had my clients in his chambers for over one hour to listen to them,” said Norman Siegel, a lawyer for families seeking to recover human remains from the debris that was carted off to the Fresh Kills landfill on Staten Island. “He, more than anyone, understands deeply the pain.”

Yet in eight years of 9/11 oversight, many who have appeared before him say that Judge Hellerstein has also grown determined to put his own stamp on financial settlements reached between a plaintiff and defendant. And recently the city and lawyers have been smarting over his clout.

On March 19, the judge stunned lawyers on both sides by rejecting a $657.5 million settlement reached in individual suits brought against New York City by more than 10,000 rescue and cleanup workers who say their health was damaged at ground zero.

Saluting the workers as “heroes,” he said that the compensation was inadequate, the terms were poorly understood by the plaintiffs and lawyers should not expect to extract their fees from the $657.5 million payout. He would also reduce those fees.

While some plaintiffs cheered, their lawyers and those for the city were dismayed to see a settlement that was two years in the making fall apart.

What is more, Judge Hellerstein had waded into untested legal waters: such intervention is not the norm in cases that are not a class action, legal experts say. Last month the city filed an appeal challenging his authority, even as it returned to the table to negotiate new terms.

The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years.

Judge Hellerstein declined repeated requests for an interview. Still, his decisions and remarks on the bench appear to shed some light on his philosophy.

A Bronx native and Columbia Law School graduate who was appointed to the bench by President Bill Clinton in 1998, Judge Hellerstein has shown independence and a strong adherence to the First Amendment and to transparency, for example. He ordered the government to release videos and photos from the Abu Ghraib prison in Iraq after the American Civil Liberties Union sued under the Freedom of Information Act. In a 1999 decision against the New York Police Department that was later overturned, he ruled that members of the Ku Klux Klan could wear their traditional masks at demonstrations.

Charles G. Moerdler, a friend and former co-partner at the firm Stroock & Stroock & Lavan, said that Judge Hellerstein, an Orthodox Jew who has been active on the board of several Jewish organizations, was motivated by “a very high standard of morality and decency.”

As a litigator representing banks and large corporations, he said, the judge was willing to tell a bank client being sued by an investor over money losses to reconsider its position. “He’d say, I can litigate this, and I can fight this, but in fairness, this person was injured,” Mr. Moerdler said.

Judge Hellerstein lost several former clients in the collapse of the twin towers on 9/11. But legal experts suggest that he has a bigger motivation for championing the ground zero victims: he may see his handling of the 9/11 cases as his legacy.

“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”

At the March hearing, Judge Hellerstein called the ground zero cases he had handled his “greatest challenge.”

“This is different,” he told the lawyers in spurning the settlement terms. “This is 9/11.”

But lawyers who have sparred with Judge Hellerstein suggest that his moral compass and commitment to doing what he thinks is right have sometimes led him to overreach.

Just as he rejected the settlement in the workers’ case for giving too little, he has spurned settlements of individual suits filed by survivors of the airline passengers killed on 9/11 for giving too much in comparison with similar cases, some noted.

Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”

Mr. Migliori said he did not appeal Judge Hellerstein’s stance because his clients wanted to put the litigation behind them.

But lawyers for New York City are more determined. They went to the Second Circuit Court of Appeals to try to challenge Judge Hellerstein’s authority for blocking the settlement.

They argue that the judge has no legal basis to try to approve, reject or modify a private, hard-won deal that took about two years to broker and that both sides consider fair.

The city was particularly alarmed that Judge Hellerstein was trying to get the city’s insurer to pay the contingency fees for the plaintiffs’ lawyers, which would sharply raise the ultimate cost of the settlement by tens of millions of dollars.

And the lawyers for the plaintiffs now face a tougher time trying to sell the settlement to their clients, 95 percent of whom must approve the agreement if it is to take effect.

“We have extracted every penny from the city that we can get,” said Marc J. Bern, one of the lawyers.

But now both sides are trying to hammer out modifications to the settlement to try to satisfy the judge and ensure that it will be accepted by most plaintiffs. In advocating for more money, Judge Hellerstein has emerged as their chief protector, some of the 9/11 workers say.

“He’s keeping it fair,” said one plaintiff, Ernest Vallebuona, 45, a retired police detective who developed lymphoma after 9/11.

Some plaintiffs disagree with the judge.

Joe Greco, 41, a retired police detective who said he needed to use a breathing machine up to five times a day for his asthma, said that he appreciated Judge Hellerstein’s effort to look after his interests but that he wished the judge had not interfered.

People struggling with serious illness need to ensure their families’ financial well-being, he explained. They “want this thing settled,” he said. “We’re on borrowed time right now.”

But John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.

“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”