A unanimous decision by a federal appeals court in New York gives 211 WTC cleanup workers another opportunity to seek compensation for illnesses related to toxic dust exposure following the 9/11 terrorist attacks.
The 211 claims were filed by cleanup workers hired by downtown Manhattan buildings that were destroyed as a result of 9/11, including Verizon Communications Inc and Brookfield Properties. In August 2012, U.S. District Judge Alvin Hellerstein dismissed the claims because the workers had answered “none” when asked if they had been “diagnosed” with ailments, injuries or diseases.
On Thursday, the 2nd U.S. Circuit Court of Appeals said that it disagreed with the previous decision, and reversed the dismissal. Circuit Judge Denny Chin wrote on behalf of a three-judge 2nd Circuit panel, “The fact that plaintiffs answered ‘none’ to the interrogatory was an insufficient basis, by itself, for a blanket conclusion that all 211 plaintiffs could not establish their claims against defendants as a matter of law,”
Hellerstein, who oversees much of the September 11th litigation, should have considered whether the injuries warranted compensation on an individual basis, even if they were not officially diagnosed or the diease manifested later on, the appeals court ruled. “While we appreciate that the sheer number of cases before the district court made its task of managing this mass tort litigation extraordinarily difficult, the district court was obligated to individually consider each plaintiff’s answer of ‘none’ in the context of any other evidence of injury,” Chin stated. Cases of workers without diagnosed symtoms were also cited, but the appeals court stated that they deserved a chance to present their claims regardless.
Chin cited the case of one man who suffered from “among other things, chest tightness, cough, eye-irritation, fatigue, and shortness of breath,” His symptoms led to him to go to the hospital several times, where a physician allegedly linked two of his injuries to Ground Zero exposure. In another cited case, a man suffered from “respiratory problems”, “dizziness, fatigue, and shortness of breath,” but was not formally diagnosed.
Chin also called the dismissal “premature” and pointed out that a number of workers may have experienced symtoms of an illness that did not fully manifest until after the questionnaire was answered. “The use of the word ‘diagnosed’ in the interrogatory created some ambiguity,” Judge Chin wrote. “It was possible that a plaintiff manifested symptoms of a condition, illness, or disease that had not yet been diagnosed when he answered the interrogatory. Indeed, claims arising from exposure to toxic or harmful substances often present nuanced and fact-specific questions as to whether and when a legally cognizable injury exists.”