9/11 Trial

The following letter submitted by Larry Silverstein's attorneys, FZWZ, to Judge Hellerstein this month contains information which the general public should be aware of, especially as pertains to airline liability, the 9/11 wrongful death case of Mark Bavis and holding Judge Hellerstein's feet to the fire to provide for the trial the 9/11 plaintiffs have long awaited so as to allow for information pertinent to the 9/11 attacks to be dealt with in open court.

September 17, 2010
By E-Mail
Hon. Alvin K. Hellerstein
United States District Court Southern District of New York United States Courthouse 500 Pearl Street, Room 1050 New York, New York 10007-1312
Re: In Re September 11 Litigation, 21 MC 101 (AKH)
World Trade Center Properties LLC, et at.
v. United Airlines, et aL 08 CIV 3719
World Trade Center Properties LLC, et al.
v. American Airlines, et al.. 08 CIV 3722

Dear Judge Hellerstein:

The WTCP Plaintiffs join the request of the family of Mark Bavis for a trial date. Our clients respectfully request that the Court schedule a joint June 2011 trial for all 9111 plaintiffs in the 21 MC 101 docket who, more than nine years after the tragic and devastating events ofthat day, are still waiting for their cases to be heard and resolved.

WTCP remains totally committed to a full rebuilding of the World Trade Center. In recent years, the engineering, design, legal and political complexities of the project have been fully resolved. Design for the entire project which includes 13 separate buildings or projects is complete.

Construction is in full swing, with thousands of construction workers at the site daily. New Yorkers have taken note of the significant progress, as the Memorial races toward its planned completion a year from now, and two office towers have become visible from outside the site. There has been an upsurge of tenant interest in the new high tech, green office buildings being built at the site.

And yet, the plan being advanced by the stakeholders in no way will accomplish the full rebuilding of the site. Due to a shortage of available funds, the plan developed by the Port Authority and WTCP, with support and participation of the Governors of New York and New Jersey and Mayor Bloomberg, would only accomplish the rebuilding of as little as 4.4 million square feet of office space -or at most 6.6 million square feet, out of the 10 million square feet destroyed on 9/11 (a figure which does not include another roughly five million square feet of office space destroyed outside the World Trade Center site). In a city where the economic downturn has led to a dramatic drop-off in construction activity, the roughly 5,000 additional construction workers who would be put to work in a full rebuilding scenario, and the businesses who would supply the materials are standing ready to see the project to completion. But it is possible that, due to the shortage of funds, two out of the four office/retail building sites on the World Trade Center site will remain indefinitely in an unbuilt or half-built condition. In the meantime, billions of dollars of insurance money desperately needed to fund that effort remains in the pockets of the insurers of the airlines, security companies, Boeing and others who ignored government warnings about terrorist threats, failed in their duty to keep the terrorist hijackers offplanes, and manufactured planes that allowed the terrorists to get past cockpit doors and take control of the flights.

In the wake of 9/11, Congress elected to protect the aviation companies from financial ruin by limiting their liability to the amount of their insurance. But surely Congress never envisioned a decade-long fight by the insurers to walk away with most of that insurance money still untouched and earning returns in insurance company bank accounts while victims -and New Yorkers –wait and wait to be made whole both economically and through full physical restoration of the World Trade Center site.

The tenth anniversary of 9111 -which will attract worldwide attention -is now looming on the horizon. The public needs to be given some assurance that our judicial system is capable ofresolving even difficult, high profile cases in a reasonable period of time. Scheduling and conducting the long-delayed trial on the issue ofthe Aviation Defendants’ liability and obligations is the only way that can be accomplished.

The WTCP Plaintiffs, along with other property damage plaintiffs, were asked to wait for their day in court behind many wrongful death plaintiffs who wanted to settle out ofcourt. WTCP agreed to do so. Then, like the relatives of Mark Bavis, the WTCP Plaintiffs were forced to wait in line behind insurance companies who themselves did not suffer any direct damages as a result of9/11, but who were merely suing for reimbursement of claims they paid.

More than a year ago, at a conference held on July 28,2009, this Court stated “I’m here to try cases …. If they want to have a trial I am going to give it to them.” Shortly thereafter, on August 19, 2009, the Court notified the parties that a liability trial including property damage plaintiffs would be held in June 2010 and directed the parties to submit a joint case management order. A proposed plan agreed to by all parties was submitted to the Court last September establishing a timetable for the completion ofall pre-trial tasks and a June 2010 trial date. Under that agreed plan, trial of these cases would now have been completed. However, the Court never acted on the agreed plan. The reason -to allow the Aviation Defendants to focus on efforts to settle with certain other plaintiffs -no longer exists. Those other plaintiffs settled with the Aviation Defendants earlier this year and the Court approved their settlement, despite the objections of WTCP.

The relatives of Mark Bavis have made plain their determination to go to trial to prove that the terrorist attacks and their devastating effects could have been avoided if the Aviation Defendants had done their jobs and thus thwarted the hijackers. They are entitled to a public trial ofthose liability issues before ajury. The WTCP Plaintiffs are ready to participate in that trial on the schedule proposed by the Bavis family.

A single trial is clearly warranted. There is no reason to try these important liability issues more than once, as the Second Circuit explicitly recognized in Canada Life Assurance Co. v. Converium Ruckversicherung (Deutschland) AG, 335 F.3d 52,5859 (2d Cir. 2003) (“[r]equiring a single forum for ‘all actions brought for any claim … resulting from or related to’ the events of September 11 must have as its goal the avoidance ofthe undesirable effects that litigation of September 11 claims in the various state and federal courts would inevitably produce. These effects might include: inconsistent or varying adjudications ofactions based on the same sets of facts….”).

The proposed trial plan that the Aviation Defendants agreed to last year contemplated a nine-month period for all parties to make final trial preparations. Accordingly, there is no reason why a trial of all remaining claims cannot be completed before the tenth anniversary ofthe events of 9/11. Public confidence in our judicial system demands it.

We enclose a version of the proposed case management order submitted by the Bavis family’s attorneys, modified to include all remaining plaintiffs in a final trial schedule.

Richard A. Williamson