Family and United Airlines Settle Last 9/11 Wrongful-Death Lawsuit


By BENJAMIN WEISER Published: September 19, 2011


The last remaining wrongful-death lawsuit stemming from the Sept. 11, 2001, attacks has been resolved, according to a lawyer for the victim’s family and court papers filed on Monday. The settlement brings to an end a wrenching legal battle in Federal District Court in Manhattan, where lawsuits had been filed on behalf of 85 people who were killed in the attacks and an additional 11 who were injured, court records show. All of those lawsuits had since been resolved, except one: a suit involving the death of Mark Bavis, a 31-year-old hockey scout who was aboard United Airlines Flight 175, the second plane to hit the World Trade Center.

Family members had long resisted a settlement in the case, which was filed in 2002, saying they wanted to hold the defendants publicly accountable at trial for what the family and its lawyers contended was gross negligence that allowed five terrorists to board Flight 175.

But that public accountability was largely achieved on Friday, said a lawyer for the family, Donald A. Migliori, when the lawyers were able to file a detailed compendium of their evidence in response to a defense motion to dismiss the lawsuit. The filing, which included 127 exhibits and many details not previously made public, showed “the essence of the story that we would have told over a trial that we would have expected to take six weeks,” Mr. Migliori said.

The defendants were United and Huntleigh USA, a security company that ran the checkpoint at Logan International Airport in Boston where Mr. Bavis boarded the flight. A trial was scheduled in November before Judge Alvin K. Hellerstein, who has overseen the wrongful-death suits as well as other Sept. 11 actions, including thousands of health-related claims by ground zero workers. As with previous settlements in the Sept. 11 litigation, the damages will remain confidential, Mr. Migliori said.

A United spokeswoman, Megan McCarthy, said, “The tragic events of 9/11 impacted all of us, and we are pleased to resolve this case.” Jonathan J. Ross, a lawyer for Huntleigh, said that it was also pleased with the resolution. “We have always taken the approach of trying to resolve the 9/11 cases for the families who lost their loved ones,” he said. Michael Bavis, 41, the victim’s twin brother, said the recent public filing “tells an important story as to why this happened.” “We hope it’s information that will make a difference,” Mr. Bavis said. But he added that the “only reason” the case had come to an end was “because of recent rulings and manipulation of the law by the judge.” He criticized, in particular, a Sept. 7 ruling that he said would have severely affected the family’s ability to tell its story at trial.

The lawyer, Mr. Migliori, said the ruling had shifted the burden of proof. “Instead of the Bavis family telling its story,” he said, “this ruling turned the trial into the defendants telling why they did nothing wrong that day.” United and Huntleigh, in seeking dismissal of the case, had argued that they could not be held liable “for not stopping an attack that the entire federal government was unable to predict, plan against or prevent.”

The security system that United had in place, they contended, had been put into effect at the government’s direction and was “neither intended to stop, nor capable of stopping, what happened that day.” The Bavis family’s lawyers sharply disputed that contention in their filing on Friday.

They charged that United had a history of security failures and of not heeding warnings from one of its executives that it should improve staffing and training. They also described the Logan checkpoint as being staffed on Sept. 11 by screeners who in some cases could not speak English and did not know what Al Qaeda and Mace were. “One of the screeners was still unable to identify Mace when handed the Mace canister,” the document said. Mace was used by the terrorists, along with knives and the threat of a bomb, to take control of the flight, passengers and crew members said in calls to the ground before the plane crashed, according to the Sept. 11 commission report.

The wrongful-death and injury suits represented only a small fraction of the total number of victims. Thousands of other victims and families received relatively quick and uncontested settlements, totaling more than $7 billion, through a special compensation fund created by Congress. Although the individual legal settlements are secret, a court document filed in 2009, when all but three suits had been resolved, said that about $500 million had been paid out to resolve the claims.

A version of this article appeared in print on September 20, 2011, on page A28 of the New York edition with the headline: Family and United Airlines Settle Last 9/11 Wrongful-Death Lawsuit.

Family of Kings scout Mark Bavis issues statement

Family of Kings scout Mark Bavis issues statement on 9/11 settlement
September 21, 2011 | 1:28 pm
Los Angeles Times

The family of Mark Bavis, one of two Kings scouts killed when United Flight 175 was hijacked and crashed into the World Trade Center on Sept. 11, 2001, issued a statement Wednesday on its decision to accept a settlement and agree to end its lawsuit against United and the airline's security contractor.

Bavis, 31, was traveling to Los Angeles with fellow scout Ace Bailey to attend the Kings' training camp when the planes were hijacked during the day's terrorist attacks.

Mike Bavis, Mark's twin, had been adamant about pursuing the suit and it was the last remaining 9/11 wrongful death suit. His public letter explains why the family changed course.

"After ten long years, our family has had a change in position regarding the litigation on behalf of our son and brother, Mark. Mark was a passenger aboard United Airlines Flight 175 when it crashed into the World Trade Center. This change is the result of a recent ruling by the Honorable Judge Alvin Hellerstein. With the stroke of his pen, Judge Hellerstein very cleverly changed this lawsuit.
"The lawsuit was about wrongful death, gross negligence and a complete lack of appreciation for the value of human life. He instead made it a case about a federal regulation. He ignored 100 years of aviation law and relied on an environmental case to apply federal preemption. He essentially gutted the case so that the truth about what led to the events of Sept. 11, 2001, would never be told at trial.

"To the families of the 9/11 victims: We can honestly say that our family envisioned a day when you could hear all the evidence, evidence that would provide an important step in moving beyond the events of that day. This process has taken a toll on us that only you could understand.

"We fought this long for two reasons, because we valued Mark's life in the time spent together, the shared experiences and the expectation of what life would continue to be. Secondly, the truth as to why this happened so easily should be important. Mark did not have to endure the tragedy that ended his life and neither did your loved ones.

"Due to our family’s refusal to settle before this time, our attorneys at Motley Rice LLC have been able to conduct the most comprehensive investigation to date regarding how the airlines and airport security companies failed so miserably on 9/11 and in the days, weeks and months leading up to 9/11. Motley Rice’s attorneys have recovered ten times more information than the 9/11 Commission in regards to the failure of the aviation industry.

"Why? Because we, and other 9/11 families, wanted answers. We want that information to be available to whoever cares to read it. It is important to us that some change comes out of the information held in those briefs. The system is clearly broken when an industry like aviation has enough power to keep a federal agency such as the FAA from implementing more stringent security measures, especially during a heightened terrorism threat level. The tail is wagging the dog, and someone in Washington needs to stand up and start holding people accountable.

"It is not out of the question that our country could endure a similar event in the future. Such a tragedy, however, should never again be the result of lack of oversight or preparation or because lobbyists have so much influence and power in Washington, D.C., that American lives are at risk. Our government’s job is to protect the people -- from foreign armies, terrorists and even our own American corporations. It is time that our elected officials take responsibility for the authority we have given them.

"All of the events of September 11, 2001, are open to opinion and discussion, but we believe the easiest way to have prevented the kind of horror and tragedy of 9/11 would have been to have an airline industry that made a reasonable effort to provide security for its passengers. The evidence shows that they most certainly did not.

"Lastly, we are thankful to have had a law firm like Motley Rice that was willing to stand by us and fight for the truth. Without them, we would have never learned so much about why this happened. In particular, we want to thank Don Migliori, Mary Schiavo and their entire team."

Bavis Family

--Helene Elliott