Mike Barasch, the lawyer who’s secured more awards from deaths caused by 9/11 illnesses than any other advocate, is crusading to help what he estimates are thousands of victims’ families to beat a looming deadline that could mean pocketing, or missing out on, awards from hundreds of thousands to million of dollars.
Barasch is talking about the children and spouses of loved ones who perished in the years since the attack from the 68 cancers linked to the toxins unleashed by the jetfuel fires and collapse of the Twin Towers, such as lymphoma, and pancreatic and brain cancer.
For many years, the 9/11 Victim Compensation Fund (VCF) would only pay claims to those who filed within two years of the death of their husband, wife or parent. But starting on September 11, 2019, the VCF opened a window that temporarily erased the 2-year limit, and now allows families to collect on any fatal malady caused by the attack or the cleanup, with no time limitation. For years, the family of an electrician who died of lung cancer in 2006 was barred from compensation. Now, they’re eligible. The rub: There’s a limitation on the suspension of the limitation. The grace period extends for only six more months, until July 29, 2021.
The tragedy, Barasch tells Fortune, “Is that most of those families aren’t the survivors of investment bankers, but of secretaries, construction workers, and teachers. And over 90% aren’t applying, because they don’t even know they’re eligible––even most of the investment bankers and partners at major law firms don’t seem to know their rights. We’re talking about the survivors of 5000 to 6000 victims of fatal illnesses who haven’t registered claims. That’s far more than died in the attack on September 11, 2001.”
Barasch, whose firm Barasch & McGarry is renowned for running TV and print adds to spread the word, notes that the police and fire fighters’ unions are rallying the families’ of first responders felled by 9/11 illnesses to file with the VCF, with great success. “Of the people who’ve registered, 80% are the families of first responders,” says Barasch. “But the officers and firefighters were only one-fifth of what I call the 9/11 community, which encompasses all the people who worked and lived in the area, including office staff, teachers, students and residents. Less than 10% of that much larger group has applied. I fear that they’ll miss the deadline.”
The fall of the twin towers struck hardest at the the two groups Barasch then specialized in representing, firefighters and police officers. “My practice centered on firemen and cops who were injured in the line of duty,” he recalls. “My offices were at 11 Park Place, two-and-a-half blocks from Ground Zero. I ran north in a plume of smoke, while my clients were heading towards the disaster with sirens blazing. So many of my clients and witnesses in my cases died that day that I just got thrust into this.” The original 9/11 Victim Fund was headed by “Special Master” Ken Feinberg, who’d served as administrator for the the British Petroleum oil spill settlements and who had overseen a fund for the victims of the Boston Marathon. The first VCF ran until just 2004. It paid a total of around $7 billion to the families of the nearly 3000 who lost their lives in the World Trade Center and Pentagon attacks, and the Shanksville crash. “Ninety-nine percent of the families applied for and received awards,” says Barasch, “It’s so different from today’s situation. The other 1% were so enraged they sued the airlines and security companies instead. Those cases were settled many years later.”
It was a chance encounter that helped Barasch win awards for that second group originally excluded from the maiden VCF: people suffering from illnesses brought on by the attack and its aftermath. In December of 2001, Barasch was watching a football game in a bar while on vacation in Montego Bay. “We’re drinking beers and I’m rooting for the Giants, and these cocky college kids are cracking wise and cheering for the Redskins. Then when they learned what I did, they said, ‘Maybe you’d like to meet our dad, Ken Feinberg?'”
Many of Barasch’s police and firefighter clients had been suffering from breathing, sinus and digestive problems. But since the fund didn’t cover health issues for those who failed to seek medical attention within the first four days, he’d filed claims against the City of New York for not offering adequate protection. “These were people who were digging in the weeks after the attack for the remains of their brothers and the citizens who’d perished. They weren’t going to stop to see a doctor for a cough,” he says. “It’s so hot they’re walking around in shorts and tee-shirts. Yet the City and the EPA are saying the air’s fine to breathe.”
Over breakfast on Christmas morning at the Ritz in Montego Bay, and later in the Special Master’s Manhattan office, Barasch told Feinberg that dozens of his clients were suffering from asthma and severe indigestion, caused by inhaling concrete dust, so that they could no longer be exposed to the smoke in burning buildings or chase a perp up the stairs. Those 9/11 maladies, he said, made them incapable of working. “The idea at the time was that attacks had caused thousands of deaths, but not illnesses or injuries. Rudy Giuliani said you either lived or died. Few people went to the hospital,” says Barasch. “And even fewer registered a claim with the VCF.” He adds that many of his clients labored or lived in buildings surrounding rubble that burned on for ninety-nine days following the World Trade Center’s fall, and the cleanup took more than eight months while toxic dust floated through the canyon of heroes.
When Barasch visited the ‘Special Master’s’ office, he brought along cops and firefighters who were coughing heavily, as well as the pulmonologist treating many of his clients. “Feinberg was stunned,” says Barasch. “He said that if we’d drop the claims against the City, he’d take the workers who’d suffered from respiratory illnesses into the fund.” Barasch scuttled his pending cases, and over the next three years won awards for over 1000 clients, typically $65,000 for respiratory ailments, and $125,000 for disabling maladies, and those who could no longer work we entitled to significant future compensation for their loss of future income. Many of those awards exceeded $1 million.
Feinberg told Fortune that Barasch was instrumental in “our making a priority of respiratory injuries in the original 9/11 fund. “We recognized traumatic injuries such as broken bones and burns from the very beginning, but Barasch brought reparatory illnesses to our attention for the first time. We also developed a formula to calculate damages, and again Barasch was very helpful.”
After the first VCF shuttered in June of 2004, as Barasch puts it, “There was no fund to provide compensation.” The only recourse for people suffering from respiratory illnesses and the families maintaining that their fathers or mothers had died from a 9/11 sickness was to sue New York City or the contractors heading the cleanup. It was a laborious process requiring medical histories and testimony from physicians. Meanwhile, Barasch, police and firefighter unions, and celebrities including comedian and Tribeca resident Jon Stewart, were lobbying for a new 9/11 fund that would cover the asthma and other illnesses hobbling so many of those who’d unknowingly been inhaling that toxic air.
One of Barasch’s clients would become a legend in the campaign, NYDP detective James Zadroga. “He spent over 200 hours searching the site for evidence and keeping the public away from the solemn rescue and recovery effort. He was one of many officers assigned to ensure that the site didn’t become a tourist attraction,” says Barasch. “He developed severe pulmonary fibrosis, or black lung disease, and died at age 34 in 2006. When the medical examiner performed his autopsy, he found ground glass, chromium and asbestos in his lungs. I’ll never forget the day Zadroga’s in my office, and he’s too weak to change his oxygen tank. His four-year old daughter did it for him.” Barasch and other activists highlighted the Zadroga tragedy to garner support for their crusade.
In late 2010, Congress passed the James Zadroga 9/11 Health and Compensation Act that earmarked $2.3 billion for awards, and medical treatment, for a roster of illnesses recognized as linked to World Trade Center toxins. The law also provided that new illnesses could be added in the future. “It was all about respiratory problems,” says Barasch. “But more and more people were coming to me with cancer.” Indeed, in 2012 the branch of the National Institute of Health (NIH) that runs the World Trade Center Health Program, began to add cancers that it recognized as cause by the toxins to the illnesses covered by the Victim Compensation Fund. Because it was now paying for a new and more costly range of diseases, “It became clear by 2014 or 2015 that the VCF was rapidly running out of money,” says Barasch.
The VCF was paying 10% of the settlement amounts immediately, with 90% due on its planned closure in October of 2016. But over time, the VCF kept lowering the estimates on what it could pay to only half the promised awards. Once again, Barasch and other advocates, including unions and Stewart, John Feal, head of the Fealgood Foundation, and dozens of disabled responders, lobbied hard for Congress to add far more cash, and extend the program for years to come. In 2016, Congress extended the Zadroga Act for another five years through October of 2020. The new measure permanently funded the health plan, and added $5 billion to the fund for settlements, bringing the total to well over $7 billion. That boost enabled the VCF to pay all the awards in full that had already been decided.
But once again, the VCF ran short of money because so many people continued to get sick and die. At the start of 2019, Rupa Bhapttacharyya, the third Special Master, announced that the fund was paying so many cancer settlements that those with pending claims would receive only 50% as much as the VCF had previously been paying, and future claimants would only receive 30% of prior awards, a haircut that could give the previous awards of $90,000 a significant haircut. “That provoked absolute outrage in in the 9/11 community, and brought another galvanizing moment,” recalls Barasch. “Stewart came back to our rescue, testifying before Congress.” On July 29, 2019, Congress in the latest version of the Zadroga Act, extended the VCF until 2090, or virtually forever. It also added a record $10 billion to the fund, and this time pledged to keep providing all the extra cash that might be needed in the future, backed by a tax on foreign corporations.
Previously, the deadline for filing for both cancer and death claims had been October of 2020. The health plan has no time constraints. But that’s not the case for the death claims, hence the urgency of Barasch’s campaign. Since 2011 when the VCF started paying settlements to families of those who died of illnesses, the legislation has imposed that strict, two-year timeframe: families must file no more than two years after their father, mother, or spouse’s death from cancer, say, to get an award. Missing the deadline means getting zero.
The big problem was that until the Special Master extended the deadline, if a loved one had died anytime before July of 2017, the family was time barred from ever getting compensation. The VFC unveiled a major shift by authorizing claims for anyone who’d died of a 9/11 illness anytime in the past––but once again, only until July 29 of this year. The window is open for only six more months.
Fortunately, the requirements for winning those claims are much more straightforward than prevailing in a lawsuit. No doctors need testify. The NIH deems that if the deceased died of lymphoma, leukemia or any of the more than 60 other forms of cancer, as shown by their death certificate, it’s presumed that the disease resulted from their 9/11 exposure to toxins. The families must also show that the victim’s illness conforms to the right “latency period” for cancer––for example, those who died of prostate or breast cancer must have contracted those illnesses after September 11, 2005. Lawyers must also show that the victims spent the required number of hours in the area between 9/11 and May of 2002, depending on their category. For office workers, it’s usually 80 hours, while any first responder qualifies who’d spent four hours near the site in the first four days, or 24 hours in the month of September.
“The total ‘9/11 community,’ numbered approximately 500,000,” says Barasch. “Of those, only 100,000 were first responders. The other 400,000 lived, worked or went to school in the area.” He says that 230 FDNY firefighters and and even more NYPD cops have perished from illnesses. Add sanitation and construction workers who removed debris, and the total of responder deaths comes to around 1000. “But since there were four times as many of what we call “non-responders,” encompassing Wall Street and other office personnel, shop owners, restaurant workers, teachers and students, and residents, I feel very strongly that over 4000 non-responders have died as well,” says Barasch.
Barasch reckons that at least 5,000 people in the 9/11 community have died from their WTC illnesses. Nearly all responders’ families have made claims, he says. “But sadly only 7% on the non-responder families know about and have registered for the awards they’re entitled to.” The biggest group are the 300,000 office workers who rode buses and subways to the names that made Wall Street famous, among them Goldman Sachs, J.P. Morgan, Bank of America, as well big law firms like Milbank, Tweed and Sullivan & Cromwell. He says that 80% of those who have died are the non-responders––because they made up 80% of the population. Barasch says his main mission is to rally the non-responders to take advantage of the new window and apply. As of the end of 2020, the VCF has paid 1715 awards on death claims. Barasch estimates that well over 3500 heirs of the victims have the right to file claims, and haven’t done so. The vast majority of those are non-responders.
Barasch says that he’s now representing 1200 families in making death claims. Of those, a full 600 would have been time-barred if the look-back provision hadn’t been granted. “They’re mostly families of office workers,” he says. “If they’d heard about the program at all, it’s because they thought, ‘This is only for the firefighters and cops.'”
How much can the victims’ families expect to collect? “Most of these people weren’t making $1 million a year,” says Barasch. “They were executive assistants or store keepers, clerks, cafeteria workers making $100,000 or less.” Spouses would receive a fixed award of $350,000, and each dependent child would receive $100,000. But the biggest money comes from lost income. “If someone was making $100,000 and died at 30, they’d be getting the equivalent of 35 years of lost pay. That could bring their total to $2 million or more.” Spouses who died get credit for the years of lost household chores, or “household replacement services.” “Those are things like cooking, cleaning and raking the leaves,” says Barasch. “That can amount to an extra $100,000” to the surviving spouse.
Wall Street has a reputation for greed. But the awards made possible by this new open window are all about fairness, mainly for families of modest means.
This story was originally featured on Fortune.com
