Second Circuit Rejects City And Contractors’ Immunity Arguments In World Trade Center Disaster Site Litigation

New York, New York, March 26, 2008: The United States Court of Appeals for the Second Circuit today released its 58-page decision holding that the City of New York and its contractors are not immune from suit in the World Trade Center Disaster Site litigation. In the decision, In re: World Trade Center Disaster Site Litigation, Second Circuit Docket Number 06-5324, the Second Circuit dismissed the defendants’ immunity claims arising from New York State Law, holding that it had no jurisdiction over these state-law issues, and held that insofar as the City contended it should not be forced to take part in the litigation at all, those claims of immunity from suit were meritless. The Second Circuit thus affirmed the District Court’s denial of the defendants’ motions for summary judgment on immunity grounds.

In its decision, the Court said that “what Defendants seek is an unprecedented extension of derivative discretionary immunity as a matter of law – an extension that, as a policy matter, would not only insulate them from liability but also bar Plaintiffs from seeking compensation for injuries they received while working at the World Trade Center disaster site and at the Fresh Kills Landfill.” Responding to the Contractors’ arguments that a finding in favor of the plaintiffs would make contractors less likely in the event of future disasters, to respond to the government’s needs, the Court wrote: “we observe that private contractors, unlike volunteers or conscripts, are paid for their services and able to pass along the cost of liability protection to the government, either by including the cost of liability insurance in their contract or by seeking indemnification from the government.” The Court cited with approval the District Court’s finding that “we must strike a ‘delicate balance’ between the needs of Defendants, who insist that immunity is necessary to encourage companies to volunteer their efforts, and Plaintiffs, who were ‘the very individuals who, without thought of self, rushed to the aid of the City and their fallen comrades.’”

Asked about today’s decision, Plaintiffs’ Co-Liaison Counsel Paul Napoli said: “Obviously, we are elated about today’s decision that soundly upholds the District Court’s denial of the defendants’ claims of immunity from suit. We hope that this strong message from the Court of Appeals will convince the City of New York and its Contractors that the time for foot-dragging and excuses has ended and the time to step up to the plate and offer these heroic Ground Zero workers some relief has begun.” Continuing, Mr. Napoli said “we hope that the defendants will forego further attempts to avoid their obligations and will swiftly move forward with us to a fair and equitable resolution of these claims.”

Thousands of men and women who worked in the clean up and recovery efforts at the site of the World Trade Center in the weeks following the 9/11 attacks have become seriously ill, and many have died of those illnesses, as a result of their exposure to toxic smoke, dust, particulate matter and chemicals at the worksite. Plaintiffs contend that the City and the Contractors failed to provide adequate protective equipment in the form of respirators and hazardous material coveralls, as well as failed to provide adequate safety training and supervision at and around the work site. Initial reports of a so-called “World Trade Center cough” and other respiratory problems have given way to life-threatening illnesses such as pulmonary fibrosis, severe asthma, leukemia and other cancers in a large percentage of the people who worked at and around the site.
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Paul J. Napoli

Senior Partner

Worby Groner Edelman & Napoli Bern, LLP

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