In Re World Trade Center Disaster Site Litigation

598 F. Supp. 2d 498 (2009)

In re WORLD TRADE CENTER DISASTER SITE LITIGATION.

No. 21 MC 100(AKH).

United States District Court, S.D. New York.

February 19, 2009.

OPINION DISCUSSING METHODOLOGY FOR DISCOVERY AND TRIALS OF SAMPLE CASES

ALVIN K. HELLERSTEIN, District Judge.

In the months following September 11, 2001, thousands of workers participated in New York City's effort to clean up the vast destruction caused by terrorists. The airplane crashes and explosions at the World Trade Center left acres of twisted metal and crumbled concrete. Noxious dust blanketed the rubble and hung in the air for weeks, producing an acrid smell throughout downtown Manhattan. Those who helped in the search and rescue operations, and in the effort to clear the mountains of debris, had to breathe this air as they worked. According to the allegations, protective masks, when worn, filtered this air in varying degrees.

Overlapping government agencies managed the workers, as did private contractors engaged by the City's Department of Design and Construction. Nine thousand and ninety of these workers have filed suits in this court claiming various respiratory injuries and cancers resulting from their exposures to worksite contaminants.^[1] They claim inadequate safety procedures and supervision.

I. Procedural History

Most of the cases were initiated in the New York Supreme Court and then removed to this court. They were assigned to me as related to docket 21 MC 97, which contained September 11th wrongful death actions that I had grouped into one coordinated proceeding. I denied class status because of the variety of illnesses alleged by the plaintiffs, the varying severity of their illnesses, the transient nature of the worksites, the varying levels of supervision governing plaintiffs' work, the variety of defendants, and the complexity of determining and evaluating pre-existing medical conditions. See Transcript of Status Conference at 31-34 (Oct. 28, 2004).

I organized the cases into their own master docket, 21 MC 100, and considered the issue of jurisdiction. The aggregate demands of the lawsuits—those already filed and the hundreds more that were expected—promised far to exceed the maximum liability set by the Air Transportation Safety and System Stabilization Act ("ATSSSA"), 49 U.S.C. § 40101. ATSSSA capped liability at $350 million or the City's insurance protection, whichever was larger. The latter, at the time, seemed not to exist.

I ruled, in an extensive opinion, that claims arising from the search and rescue operations, extending for two weeks after September 11th, arose from the terroristrelated aircraft crashes and were subject to the district court's exclusive jurisdiction. However, claims arising from work and exposures thereafter were much more akin to the activities and risks of construction worksites and to issues addressed by the New York Labor Law, on which the New York Supreme Court had developed a century of expertise. Accordingly, I remanded these later claims to that court. Hickey v. City of New York, 270 F. Supp. 2d 357 (S.D.N.Y.2003).^[2] An appeal followed and, after lengthy consideration, the Court of Appeals ruled that all the cases were to be considered subject to the district court's exclusive jurisdiction. McNally v. Port Auth., 414 F.3d 352 (2d Cir.2005). See Robin J. Effron, Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation, 81 S. Cal. L.Rev. 199 (2008).

Following remand of the cases to me, I turned to their organization. I appointed Liaison Counsel for plaintiffs and for defendants. Case Management Order No. 2 (Feb. 7, 2005). At plaintiffs' request, I ordered master pleadings to be filed that alleged the issues common to all plaintiffs. Case Management Order No. 4 (May 12, 2005); see Master Complaint (Sept. 16, 2005). And, I ordered the parties to file short form complaints. Case Management Order No. 4 (May 12, 2005). These complaints were intended to set out where, when, and for which contractors plaintiffs worked, as well as the causes of their injuries and the defendants' alleged faults.

At the same time, defendants sought to advance their defense that the City and the contractors enjoyed immunity arising from federal and New York State laws. Both sides considered that the prospective substantial litigation expense made it important to clarify the reach and efficacy of this defense at an early time. I ordered discovery on limited issues relevant to the defense. The same discovery also would be relevant to defining the relationships between plaintiffs and the scores of defendant contractors, between defendant contractors and the City, and among the City, the State, and federal agencies that were active at the World Trade Center worksite.

The parties pursued discovery to satisfy both objectives with mixed success. The pleadings were conclusory in their allegations and impossible to understand in relation to essential facts and issues. Remonstrations at conferences and rulings on motions did not seem to advance matters. See, e.g., Transcript of Status Conference at 31-32 (May 13, 2005); Order Regulating Limited Discovery (June 15, 2005). As happens with discovery confined to limited issues, it proved difficult to define boundaries. Finally, however, defendants made their motions, and I denied the motions in a lengthy opinion, ruling that the issue of immunity hinged on controverted facts. Opinion Denying and Granting Motions for Judgment on the Pleadings and for Summary Judgment, 456 F. Supp. 2d 520 (S.D.N.Y.2006). I denied defendants' motion that my order was eligible for immediate review or, alternatively, for certification for interlocutory review, Opinion and Order Denying Motion for Interlocutory Appeal and Asserting Continuing Jurisdiction (Jan. 8, 2007), but the Court of Appeals ruled that the appeal could nevertheless be pursued because rulings on immunity sufficiently satisfied an exception for final decisions on severable issues. 469 F. Supp. 2d 134 (S.D.N.Y.2007), rev'd, McCue v. City of New York, 503 F.3d 167 (2d Cir.2007). The Court of Appeals also granted a stay of all proceedings on March 9, 2007, causing a complete standstill until March 26, 2008, when the stay was dissolved. The Court of Appeals then affirmed my decision. McCue v. City of New York, 521 F.3d 169 (2d Cir.2008).

II. The Litigation's Complexities

During the lengthy stay, I considered how these cases should progress were they to be remanded. There `were few precedents, perhaps none. These are not typical mass tort claims in which a single product or event injures the victims in a relatively similar way. Here, the victims were injured over a protracted period of time—days, weeks, and months, varying with the hours and dates particular plaintiffs worked in the widespread area (sixteen acres) constituting the World Trade Center site. Case Management Order No. 3 (Feb. 7, 2005) (defining World Trade Center site). The exposure to the environment had different medical effects on different individuals. The environment itself varied from one worksite area to another depending on which toxic materials prevailed at which place and time. In aggregate, plaintiffs allege hundreds of different diseases from working among the debris, each of different severity and effects.

The complexity in sorting the plaintiffs' claims is matched by the complex interplay of defendants. Many governmental agencies and scores of contractors were responsible for the World Trade Center work, in varying degrees and with varying overlap. The contractor defendants were engaged in different ways, by different prime contractors, tractors, and were supervised and guided by different layers of government agencies. Nor is responsibility clear, for some defendants may be covered by various immunities under federal or state laws and, if found liable, may enjoy a congressional liability cap. Because of such a cap, I would have to carefully administer all settlements and judgments since each plaintiffs recovery would diminish the next plaintiffs potential recovery.

The insurance coverage issues provide additional complexities. Related proceedings clarified the City's insurance coverage and were beginning to disclose the coverage of private contractors. My early concern, that ATSSSA's $350 million liability cap would mean partial and inadequate satisfaction for vast numbers of claimants, had become academic. § 408(a)(3), 49 U.S.C. § 40101. New York City, in fact, is covered by several layers of private coverage, amounting to approximately $75 million, in excess of the costs of defense, and one billion dollars of coverage through a captive insurance company funded by the Federal Emergency Management Agency. See WTC Captive Ins., Inc. v. Liberty Mutual Fire Ins. Co., 549 F. Supp. 2d 555, 557-58 (S.D.N.Y.2008), appeal docketed, No. 08-2787 (2d Cir. June 5, 2008). And, beyond that, the private contractors have their own insurance to an extent not yet known.

It would be difficult, perhaps impossible, to obtain and sort all this insurance information in conventional discovery proceedings relating to more than 9,000 cases. While all might have a claim, of possible and varying merit, against the City, it would be necessary to match specific claims of plaintiffs against specific contractors, and to evaluate such claims in relation to different and varying layers of primary, excess, and reinsurance agreements and exclusions.

Finally, all that I and the parties do must be done with an eye towards public accountability. The September 11th litigation stems from an unprecedented national tragedy that impacted New York City, the State, and the Nation in long-lasting ways. The resolutions of these cases must depend on careful and individual evaluations of personal injury and merits in a manner that allows the public to view and understand the results.

III. Court-Ordered Discovery and Special Masters

The inability of counsel to style useful pleadings, or to proceed with discovery relevant to the immunity defenses without excessive and wasteful disputes, made it necessary to develop an alternative manner of proceeding. See, e.g., Transcript of Status Conference at 23-26 (Nov. 3, 2006). Normal discovery to advance 9,090 cases against more than 200 defendants is not possible. But neither is it tolerable to neglect these cases, nor to postpone recoveries for years, nor to allow attorneys motivated in part by their own economics to dictate which cases advance and how. There must be criteria developed to select cases meriting early treatment and capable of serving as models for the rest. Case Management Order No. 8, as amended, sets out a protocol that reflects such criteria. It provides a procedure for selecting appropriate cases for intensive pretrial discovery, motions, and trials on specific dates. I now set out the efforts leading to this order.

I believed that the parties and I needed core discovery to provide the fundamental facts of the cases, the varying responsibilities of government agencies and contractors, and the complex layers of insurance coverage. I required Special Masters, skilled and impartial, to help me devise such discovery, and to develop computer systems to collect the information and make it accessible.

Following the return of the case to my jurisdiction, after the Court of Appeals dissolved its stay, and after vetting the issue with the lawyers, I appointed Professors James A. Henderson, Jr. of Cornell Law School and Aaron D. Twerski of Brooklyn Law School as Special Masters. Memorandum and Order Appointing Special Masters, 2006 WL 3627760 (Dec. 12, 2006). Professors Henderson and Twerski are distinguished scholars, neutral in relation to the issues of the litigation.^[3] Given the assistance of computer experts engaged through competitive bidding, they have the experience and capability to structure and oversee the required exchange of information between the parties and the collection of that information in an efficient and accessible database.

Working with the lawyers, the Special Masters have developed the structure for creating a large database for the litigation. The parties will be required to answer under oath approximately 360 narrowly-tailored questions seeking case-crucial data for each plaintiff: pedigree information, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, and any worker's compensation filings and recoveries. Each plaintiff and each defendant will have to detail the hours plaintiffs worked and for which employers, in addition to the safety warnings given, the safety training provided, and the safety precautions taken. Each defendant will disclose his insurance and indemnity protection.^[4] The database should promote success because it requires greater detail and specificity than prior efforts at core discovery, operates in a more sophisticated medium, and limits the responses to certain key questions to a list of permissible answers (called a "pick list").^[5]See Transcript of Status Conference at 5 (Sept. 16, 2008).

A. Traditional Discovery and Trials as Enforcement Mechanisms

The database should provide an enormous amount of relevant discovery information in a functional format. But the information, to be provided by each party, could be self-serving, and needs to be tested for integrity and reliability. While conventional discovery and trials are a court's traditional tools in this regard, there were too many cases to proceed in a traditional manner. Select cases would have to be chosen for discovery and trial.

Deciding which cases adequately represent the field would be difficult. How could information from hundreds of doctors' reports and thousands of examinations be studied for prior conditions and severity of current illnesses? How could one sort the conditions of scores of workplaces and intersecting levels of supervision? Solving such problems—indeed, even enumerating all possible issues— threatened to overwhelm progress. It was critical to establish a set of priorities, and allow those priorities to determine how to proceed.

The first priority was to tend to the most severely injured plaintiffs. Their cases deserved to be tried first, for if they were to prevail, they had the greatest need for a monetary recovery. The second priority was to create a methodology for sampling in relation to the general run of cases, severe, mild, and everything between, in order that rulings on liability, damages, and responsibility might be extended from the particular case in which rulings are made to the rest of the cases. Every case had to be considered as important, for each plaintiff and each defendant deserved rulings on particular merit s.

B. Determining the Most Severely Injured

Determining who are the most severely injured is not a straightforward task. The 9,090 plaintiffs, in the aggregate, claim approximately 387 diseases ranging from the most life-threatening to the merely irritating. Some plaintiffs have very mild cases of serious diseases while others have very severe cases of less serious diseases. Even permitting trials of only the most severe cases of each disease could mean hundreds of trials, still too many to administer in a reasonable period of time.

To proceed, the Special Masters, in cooperation with Liason Counsel, looked to a diagnostic system established by the American Medical Association and the American Thoracic Society. The system ranks the severity of an individual's illness among the population suffering from that illness by grading that person's condition from 0 (least severe) through 4 (most severe). The rank corresponds to recorded outcomes of standard medical tests taken by the plaintiff, typically measuring the degree of dysfunction associated with the disease. In consultation with Liason Counsel, the Special Masters selected six major disease categories that subsumed the generality of illnesses.^[6] Although the rankings are specific to each disease category, and severity cannot easily be evaluated across the different categories, the medical criteria do allow a neutral observer to identify a set of the most severely ill in each of the six disease categories.^[7] Final selections from this set can be made after considering additional limited criteria considered relevant, for example, plaintiff's length of exposure to hazardous worksite conditions or plaintiff's pre-existing medical conditions.

IV. The Resulting Order

The court proposed and approved Case Management Order No. 8 with modifications suggested by the parties. The amended Order, issued today and attached herein, implements these criteria.

1. The 9,090 cases are to be divided into five groups of 2,000 cases, according to their filing sequence.^[8] Every forty days, one such group of plaintiffs is to populate a subset of the data fields, specifically fields eliciting each plaintiffs disease rankings, the duration of exposure at the World Trade Center, and any preexisting disorders.

2. The Special Masters, within ten days following, will identify 200 cases categorized as severe. From these 200, plaintiffs and defendants will each choose two cases.

3. The Special Masters also will select twenty-five additional cases for diseases not necessarily included in the severity chart.

4. From this pool of 225 cases, I (with the assistance of the Special Masters) will select two cases, additional to the four selected by plaintiffs and defendants.

5. The six cases thus identified, from the field of 2,000, will proceed through full pre-trial discovery, to be completed within a set period of time (ranging from 270 days for some of the cases in the first field of 2,000 to 190 days for cases in the fifth field), followed by motions, followed by trial (if dismissal motions are not successful).

6. Thirty cases will be set for trial, six from each field of 2,000. Despite the sequential process in which these cases will be selected, all trials will begin on a fixed date—May 17, 2010. If one case is resolved, later-filed cases will be tried instead. If more than one case for trial remains, other judges may be asked to preside over them, or they may be reached in sequence.

7. Thus, a resolution is in sight for the most severe cases and for representative cases. And one can expect that many of these cases, and many others, will settle either in anticipation of firm trial dates or aided by values gleaned from trials or settlements.^[9]

The procedures outlined above were intended swiftly to identify a representative few cases for discovery of all issues and early trials. But the entire field of 2,000 could not be neglected. It was necessary to develop information relevant to all the cases, for otherwise the parties could not share key knowledge about the field of cases, or intelligently discuss the degree to which the cases identified for discovery and trial were representative. Two additional procedures provided for the full field:

8. The parties are required to populate the entire database for each of the 2,000 cases in the group, according to a fixed schedule. Forty days after the Special Masters choose the 225 cases, the parties are to populate the entire database for these cases. On the same day they select the 225 cases, the Special Masters will identify 400 additional cases (chosen at random) from that group of 2,000. The parties must fully populate the database for these 400 cases 120 days later. Every forty days, this process is repeated for the next group of 2,000 cases. By November 27, 2009, the parties will have fully populated the entire database for 3,125 cases, taken from all five groups (5 multiplied by 625). Finally, the parties will populate the database for each of the 1,375 cases in every group that were not selected as part of the 225-case subgroup or the 400-case subgroup. By January 1, 2011, the entire database for each filed case will be populated.

9. From each group of 400 randomly selected cases, each party will choose two cases, and I (with the Special Masters' assistance) will select an additional two. These cases will proceed with pre-trial discovery along with the selected "severe" cases. However, trial dates will not be set for these cases, at least not until we know the outcome of the schedule for the "severe" cases.

I recognize that the methodology of Case Management Order No. 8 is extraordinarily complex. It needed to be so because of the number and variety of cases, and to create a consensual agreement for going forward. I recognize also that complexity creates an artificial rigidity that needs adjustment. As further orders may be necessary, they will be made. But the trial and motion schedules will remain firm.^[10]

V. Rationale of Case Management Order No. 8

The plan involves three stratagems to bring the thousands of cases before me to resolution. First, since the claims of those most gravely injured commend themselves to highest priority, the plan provides a procedure to identify these cases, a methodology to select a representative sample for full discovery and early trial, and a firm and intensive schedule to begin trials. Full discovery on all issues will assure the integrity of each side's disclosures in the database and a thorough testing of all claims and defenses. A basis for settlement, or valuation by trial, should promote prompt resolution of all such severe cases.

Second, the full population of the database of all remaining cases, first by sample and then in full, enables values to be negotiated for all cases.

Third, the combination of court-established interrogatories for the database and traditional, broad discovery in selected cases will allow the parties vigorously to test their opponents' claims, assuring the integrity and reliability of the parties' disclosures and establishing a procedure that can promote broad resolutions of cases in a fair, efficient, and just manner.

VI. Conclusion

No general plan for over 9,000 cases can be so wise as to be immutable, or so clever as to foresee all possibilities. However, Case Management Order No. 8 was forged with the experience of earlier failures and frustrations, and with full and intensive cooperation of Special Masters and plaintiffs' and defendants' counsel. It establishes a flexible, fair, and efficient plan to move these cases through discovery and to trial in reasonable time. It remains for the parties to act consistently with its provisions to bring about just such results.

SO ORDERED.

ATTACHMENT 1

ATTACHMENT 2

ORDER AMENDING CASE MANAGEMENT ORDER NO. 8

Negotiations have concluded between the parties and Special Masters regarding the form and substance of the Discovery Database, and I approve the resulting final version. I issue this order amending Case Management Order No. 8 to reflect certain modifications and to order into effect this most recent version of the Database.^[*]

I have heard and considered recommendations, including those presented at the December 10, 2008 Status Conference, from the parties and the Special Masters regarding the case management plan in this matter. I order that the protocol outlined below, and illustrated in the attached schedule (Attachment 1), shall regulate the onward progression of these cases towards final resolution.

1. Divide the aggregate number of plaintiffs into five groups.

A. Group A: Cases with case index numbers 1-2000

B. Group B: Cases with case index numbers XXXX-XXXX

C. Group C: Cases with case index numbers XXXX-XXXX

D. Group D: Cases with case index numbers XXXX-XXXX

E. Group E: Cases with case index numbers 8001-(highest index # )

2. Forty days after the onset of this process which began on January 1, 2009, the parties must deliver to the Special Masters responses, under oaths of plaintiffs and defendants, for Group A, in index number sequence, fully and truthfully answering the following set of 35 data entry points ("Severity and Other Fields" or "SOF") from the attached Discovery Database ("Database").

A. Case profile information (data entry points 2-6)

B. Duration of exposure at World Trade Center site (data entry points 72-81)

C. Plaintiffs pre-existing disorders (data entry points 111-117)

D. Severity of claimed illnesses (data entry points 206-217)

E. Conditions, injuries, and diseases for which plaintiff seeks recovery (data entry point 134)

3. Ten days later (the 50th day), the Special Masters shall identify:

A. Group A1: 200 cases selected as most severe from Group A

B. Group A2: 25 cases selected^[†] from the remainder of Group A

C. Group A3: 400 additional cases selected randomly^[‡] from the remainder of Group A

D. Group A4: All remaining cases within Group A

4. Forty days later (the 90th day), the parties shall populate the entire Database for Groups Al and A2, fully and truthfully answering all data entry points, under oaths of plaintiffs and responding defendants.

5. Five days later (the 95th day), plaintiffs' Liason Counsel and defendants' Liason Counsel shall each have identified two Group Al cases for discovery and trial.

A. The parties may make their selection(s) any time after Group A1 is designated.

B. Once a case has been selected, discovery will commence promptly and will be permitted on all issues relevant for discovery and trial, including information disclosed in response to database queries.

C. The discovery completion date, the final date for filing motions, the date upon which parties will argue motions, and the trial date are fixed in the attached schedule.

6. Five days later (the 100th day), the Court will select two additional Group Al or Group A2 cases for discovery and trial. These two cases will also proceed through discovery and trial as set out in "Step 5 A-E."

7. Eighty days after database completion is required for Groups Al and A2 (the 170th day), entire Database completion is due for Group A3.

8. Five days later (the 175th day), plaintiffs' Liason Counsel and defendants' Liason Counsel shall each have identified two Group A3 cases for discovery only.

9. Five days later (the 180th day), the Court will select two additional A3 cases for discovery only.

10. The protocol in Steps 2 through 9 shall be repeated for Groups B through E. Each Group will begin this process 40 days after the previous Group begins.

11. The entire Database will be completed for Groups A4, B4, C4, D4, and E4 on or before January 1, 2011.

12. The onset date ("Day 1" for purposes of the attached schedule) is January 1, 2009. Weekends and legal holidays are included even when set time periods are brief.

13. If a case chosen for discovery settles significantly prior to the date upon which discovery must conclude, plaintiffs or defendants may ask the Court to substitute another case from the same subgroup.

14. Database Fields 313-328 (relating to insurance information) will be populated by defendants' Liaison Counsel, fully and truthfully, under oaths by February 27, 2009.

SO ORDERED.

Date: February 18, 2009 New York, New York /s/Alvin K. Hellerstein ALVIN K. HELLERSTEIN United States District Judge

ATTACHMENT 3

ATTACHMENT 5

Introduction to Severity Charts

Chart One ranks the relative severities of current physical impairments of WTC plaintiffs who claim to suffer from certain enumerated diseases. It ranks severities only within each enumerated disease category, and does not compare or rank severities across the disease categories for which rankings are provided. Thus, for example, while a rank-four emphysema impairment claim is more severe than a rank-three emphysema claim, it may or may not be more severe—measured by negative impacts on the plaintiff—than a rank-three asthma claim. Comparisons across disease categories are left to a later date. Chart One relies on clearly stated criteria that do not make cross-disease comparisons.

Chart One does not purport to test the factual accuracy of plaintiffs' assertions that they suffer from particular diseases or, for that matter, that those diseases were caused or aggravated by exposures to WTC conditions. For example, Chart One does not require, as do the relevant AMA guidelines, plaintiffs to show they have been examined and diagnosed by a qualified physician. This information will be included in the database. To succeed with a claim for which Chart One provides relative rankings of severity of current impairment, a plaintiff will be required to satisfy proof requirements on all elements of traditional tort claims.

Chart One does not purport, even within the enumerated disease categories, to measure the relative monetary values of claims. To be sure, relative severity of impairment is a relevant consideration to monetary value; but so also are other considerations not included in the chart. Indeed, claims that do not qualify for an impairment ranking in Chart One may have significant monetary value. It also follows that the "Zero" column on Chart One does not necessarily connote claims that have no value, but rather refers to claims that currently do not satisfy the criteria for an impairment ranking of "One" or higher.

Chart Two deals with claims that do not currently satisfy the criteria applied in Chart One for ranking impairment. When impairments that satisfied Chart One criteria are alleged to have existed previously but have subsequently been completely resolved, the previous impairment will be ranked according to the criteria in Chart One even though such impairment is not current within the terms employed in Chart One. Thus, a plaintiff who previously suffered from a relatively severe impairment that has been completely resolved and thereby eliminated (by medication, or otherwise), may have a valuable tort claim even though the plaintiffs claim does not belong on Chart One. For example, a patient suffering from GERD who underwent anatomy-altering surgery leaving no residual impairment may be entitled to damages reflecting that reality. In cases involving partial resolutions of previous, higher-level impairments, any residual, post-resolution impairment will be treated as a separate claim for impairment under Chart One.

Chart Three asserts that claims for impairments based on diseases enumerated in Chart One for which the tests referred to in Chart one have not been performed will not be ranked for severity.

CHART TWO: CLAIMS FOR IMPAIRMENTS REFERRED TO IN CHART ONE THAT OCCURRED PREVIOUSLY, BUT HAVE BEEN RESOLVED

I. Previous impairments under Chart One that have been resolved completely will be ranked by impairment severity levels under Chart One reached before resolution.

II. Regarding previous impairments under Chart One that have been resolved partially, leaving current residual impairments under Chart One:

A. Previous impairments will be ranked by impairment severity levels under Chart One reached before partial resolution.

B. Current residual impairments will be ranked by impairment severity levels under Chart One.

CHART THREE: CLAIMS FOR IPAIRMENTS REFERRED TO IN CHART ONE THAT HAVE NOT YET BEEN DEMONSTRATED BY TESTS DESCRIBED IN CHART ONE

Claimed impairments referred to in Chart One for which the tests for impairment described in Chart One have not been performed, whether or not otherwise valid for recovery purposes, will not be ranked for severity.

NOTES

[1] The number, 9,090, reflects the current count, eliminating duplication and transfers to other dockets. The larger number previously represented was approximately 10,500.

[2] I had held previously that traditional workplace injuries similarly were to be remanded. Graybill v. City of New York, 247 F. Supp. 2d 345 (S.D.N.Y.2002); Spagnuolo v. Port Auth. of New York, 245 F. Supp. 2d 518 (S.D.N.Y. 2002).

[3] Professors Henderson and Twerski are the co-authors of the leading treatise Products Liability: Problems and Process (4th ed. 2000) and co-reporters for the RESTATEMENT OF THE LAW (THIRD) TORTS: PRODUCTS LIABILITY. Professor Henderson, Cornell Law School's Frank B. Ingersoll Professor of Law, and Professor Twerski, Brooklyn Law School's Irwin and Jill Cohen Professor of Law, have also together and individually published articles in the nations leading law journals, including the Yale Law Journal and Columbia Law Review.

[4] A previous effort did not succeed. I had ordered each plaintiff to provide details of when and where the plaintiff worked, the injuries the plaintiff claimed, and other basic information. Each defendant was required to supply particulars of its insurance coverage, describe the work it performed, and name subcontractors and employees it engaged. See Case Management Order No. 4 (May 12, 2005). However, conclusory answers and numerous objections frustrated the effort.

[5] I have attached a print-out of the database (Attachment 1).

[6] The AMA uses additional criteria when determining diagnoses, but these tests compose much of the objective component used in diagnosing. For two diseases the parties agreed on objective criteria partially derived from AMA ratings and other sources. See Attachment 5 (Severity Chart for Interstitial Lung Disease and Upper Digestive Tract Diseases, e.g., Gastroesophageal reflux disease, Barrett's Esophagus, Gastritis, Esophagitis, and GI stricture).

[7] The database allows for those who have not yet taken the required test, but those plaintiffs will not be eligible to be selected as one of the 200 cases ranked most severe.

[8] The fifth group will contain the remainder of the cases, beyond 8,000, including any after-filed cases. Plaintiffs may file cases within three years of the time plaintiff discovers, or reasonably should have discovered, the injury, whichever is earlier, even though their cause of action accrues upon ingestion or aspiration of the polluting substance. N.Y. C.P.L.R. § 214-c(2) (McKinney 2000).

[9] This was the experience in the wrongful death actions brought by passengers and crew in the four hijacked airplanes. Setting fixed trial dates for issues of damages and reserving liability issues for a later time resulted in a large number of settlements, without the need of any trials. At present, ninety-three of the original ninety-six claimants have settled, leaving but three for completion of discovery and trial. I ordered the master docket, 21 MC 97, closed and transferred the remaining cases to 21 MC 101, the collection of property damage cases against the aviation defendants. See In re September 11 Litig., 567 F. Supp. 2d 611, 616-17 (S.D.N.Y.2008).

[10] I have attached to this decision the amended Case Management Order No. 8 (Attachment 2), its accompanying schedule (Attachment 3), the Severity Chart which parties must complete prior to responding to certain database fields (Attachment 4), and the Severity Chart's introductory language which was agreed upon by the parties (Attachment 5).

[*] I have attached a print-out of the Database (Attachment 2), along with the "pick lists" that appear within certain response fields of the Database, reflecting all acceptable responses to the relevant query (Attachment 3). For the sake of efficiency, I have not included the very lengthy "pick list" used for Database questions 137, 174, 204, and 221 which lists all plaintiffs' doctors. I have also included the Severity Chart (Attachment 4) which parties must complete prior to responding to particular Database fields, as well as the Severity Chart's introductory language (Attachment 5).

[†] There are no specific criteria for this selection. The rationale is to enable various types of cases to be chosen for discovery and trial.

[‡] A computer program will perform the random selection.