Lawyer David Worby champions the cause of Ground Zero responders - with the potential of earning big fees.

Carpenter James Nolan rushed to help on 9/11. Now he struggles to breathe and is among thousands who have been compelled to figh in court for compensation.

Within weeks of 9/11, it was already clear to New York officials that Ground Zero rescue and recovery workers were serving under such hazardous conditions that the city and its cleanup contractors were likely to face more than $2 billion in damage claims.

As 40,000 firefighters, cops, construction workers and others labored amid the caustic dust and carcinogens released by the World Trade Center collapse, consultants retained by the Law Department predicted that responders would wind up seeking compensation for injuries stemming from exposure to toxins, including asbestos.

The forecast, which surfaced recently in court papers, has proven tragically accurate. As is by now well-known, thousands of the men and women who helped bring New York back from tragedy were sickened. The toxic cloud that shrouded The Pile seared their airways and scarred their lungs, bringing debilitation and, in the worst cases, death.

They are owed.

And many are being victimized yet again.

Demanding compensation from the city and the major construction companies called in to dismantle the rubble, more than 8,000 people have enlisted to join a mass lawsuit that is mushrooming into a monumental legal ripoff that could extend for decades.

At issue is who, if anyone, should be entitled to a share of $1 billion in federal money that was set aside by Congress to insulate the city and the contractors against liability. But the warring in court is so intense and tangled that high-priced lawyers could siphon up to $400 million away from the forgotten victims of 9/11 in legal fees.

That math is obscene: All those responders get a shot - someday, long in the future - at dividing, maybe, $600 million, while a couple dozen attorneys reap an amount that's almost as large. Correction, the math is not obscene; it's sinful.

As a matter of justice, those who were sickened at Ground Zero should not have to fight this hard for compensation, nor should they have to wait years for payment. They deserve the overwhelming share of the available monies; the trial lawyers on both sides of the table don't.

There's a better way. The process of apportioning financial restitution should be removed from court, ideally through no-fault payments. Proof of an injury stemming from Ground Zero service should trigger the issuance of a check, with the amount governed by clear guidelines.

The 9/11 Victim Compensation Fund, administered by lawyer Kenneth Feinberg, used such a system with great success to distribute $6 billion to the survivors of 2,880 people killed in the terror attack and $1billion to 2,680 people who were injured. Sens. Chuck Schumer and Hillary Clinton, the New York congressional delegation, Gov. Pataki and Mayor Bloomberg must now join forces to push Congress to reauthorize the fund in order to take care of people who were left out only because their illnesses emerged too late for them to file claims.

A Feinberg-like compensation fund is the surest way to efficiently provide reasonable payment to people who were hurt because they acted with valor, as they were asked to. Among that legion are James Nolan and Michael Valentin.

Nolan, 41, a Local 608 carpenter, rushed to Ground Zero on the night of 9/11 with shovels, picks and seven cases of bottled water. In the thick of the toxic cloud, he searched for bodies and he "burned steel" to perform demolition. He was there for almost two weeks straight and then shifted to carpentry work at the site for the better part of a year.

Two months in, Nolan developed what's now known as World Trade Center cough and the acid reflux that's common among responders. Then came asthma, and the skin that peels from his hands, and an oversize liver, and gasping for air. He weeps when recounting his experience. "I get up in the morning and I feel like I am 80 years old," said Nolan, who struggles to work because without a job he has no health insurance.

Valentin, an NYPD detective, got to Ground Zero on the afternoon of 9/11. "It looked like winter out, like dust devils all over the place," he said. He also recalled "seeing fluorescent green smoke, the most beautiful green you could see. It was really eerie."

Every day for two months, Valentin, now 41, worked a bucket brigade that searched for body parts, checked nearby properties for human remains and performed perimeter security. His only respiratory protection was an American flag bandanna purchased by his wife.

After a few months, Valentin began coughing up blood, got acid reflux, had numbing in his hands and suffered night sweats. His lung capacity began to drop, he developed a mass the size of a lemon outside his lungs and the lining of his lungs began to thicken. He breathes with pain, depends on 10 medications and uses a nebulizer every three or four hours.

Michael Valentin is owed.

James Nolan is owed.

Many thousands more are owed.

Congress and President Bush must be made to understand the terrible and growing toll that was inflicted by the attack on America, and they must be shown the gross inequities in how responders have been treated. Through the 9/11 fund, Feinberg wrote checks to almost 2,700 Ground Zero workers who came down with respiratory conditions like those that now afflict thousands. But he went out of business before the scope of the epidemic began to emerge.

Quite likely, Washington will not be immediately receptive to a new compensation fund. There would have to be an open-ended commitment to help responders if and when it's proven that Ground Zero exposures are producing diseases like cancers, as many medical experts predict will happen in the coming decades. And Congress would have to cap the liability of the major builders, such as Bovis Lend Lease and Tully Construction, that threw themselves into the cleanup out of patriotism, not out of profit. The long-term purpose for protecting these companies is simple: American businesses will be a lot less likely to respond with similar vigor to another terror disaster if bankruptcy will be the reward.

Should Congress refuse to create a compensation fund, Bloomberg and Corporation Counsel Michael Cardozo will have to act independently to remove the claims of the forgotten victims of 9/11 from the courts. No less an authority than Feinberg supports this approach.

"The city has over a billion dollars sitting in the bank, just sitting there," Feinberg said. "Why not replicate the 9/11 fund on a local basis to compensate these 8,000 people? Isn't the answer to design a system cooperatively that compensates eligible victims, denies those who can't meet the minimum requirements and puts some money aside for future illnesses as they arise?"

Legally, this may be easier said than done, because Congress placed the money in the WTC Captive Insurance Co., a special entity that is supposed to defend the city and 140 companies from liability. And there is no guarantee that $1 billion would cover all claims that may arise. Still, compensating people with proven Ground Zero-related illnesses through arbitration would be a lot more efficient and dignified - and a lot less costly - than waging, literally, 8,000 individual lawsuits in a war without end.

In one battlefield trench, trial lawyers David Worby and Paul Napoli represent the mass of people who allege they suffered respiratory ailments from inhaling the toxic cloud of 9/11, are afraid they are going to become ill, or believe they contracted cancers, such as leukemia and malignancies of the brain and kidney, at Ground Zero. Worby and Napoli argue that the city and contractors should be held liable because the workers were placed in unsafe conditions in violation of labor laws.

Worby recognized the emerging Ground Zero health crisis early on, beginning with a chance encounter in 2003 with NYPD Detectives John Walcott and Richard Volpe, partners who had searched for survivors at Ground Zero. Walcott was suffering with leukemia and Volpe with kidney disease, sicknesses they attributed to toxic exposure.

The face and voice of the suit, Worby mixes zeal for winning treatment for the ill, including Nolan and Valentin, with assertions that an unprecedented combination of carcinogens, cancer accelerants and immunosuppressants has caused malignancies to develop far faster than medicine has ever seen before. There is no scientific proof for such a theory, and it is dismissed out of hand by many experts.

If Worby is the mouth of the court action, Napoli is the muscle. His firm invests millions of dollars waging mass suits against the likes of, say, a major drug company, essentially gambling on winning big. After a loss, he gets nothing. After a win, he stands to collect up to a third of any settlement.

With $1 billion up for grabs, Worby and Napoli are eying a cut of as much as $333 million - enough, Worby said, "to make some people think about buying a Gulfstream" private jet. For his part, Napoli said that after paying expenses, such as lawyers' salaries and office overhead, the typical profit margin in a mass-tort suit is about 25%. In this case, that would be more than $80 million. Neither would discuss specific arrangements with clients.

In the opposite trench are Cardozo, the city's chief lawyer, and the hired guns who represent the Captive Insurance Co. They have asked Manhattan Federal Judge Alvin Hellerstein to dismiss the suit on the grounds that the city and its agents are, by law, immune from liability because they were responding to an emergency.

Hellerstein and appeals courts will decide the matter - but whatever the outcome, the forgotten victims of 9/11 will be the losers. On the one hand, the judges could throw the case out of court, leaving the responders at the mercy of Congress. On the other hand, the judges could let all or some of the suits proceed - draining ever more of the available monies into the lawyers' bank accounts.

Just getting this far, the insurance company has spent more than $28 million on attorney fees, and it is perfectly plausible that the costs could eventually rise to $100 million. In fact, Ernst & Young, the accounting and consulting company, projected in 2001 that the bills could hit $267 million.

There, again, is that sinful math: As much as a third of a billion dollars to the responders' legal teams, at least $100 million and perhaps much more to the city's battery - and a prayer for one eight-thousandth of whatever is left to each responder in the suit. And that leaves out others who have not joined the case or who may become sick in the future.

Now, as the lawyers like to say, let's stipulate: Every one of the attorneys is representing clients honorably and with passion, and each of their positions has powerful merit. But the perverse result is Pyrrhic combat among parties - the workers, the city, the companies - who rushed nobly into action five years ago. And the forgotten victims of 9/11 are again bearing the brunt, this time in a fleecing of epic proportions. It must be stopped.

They must be protected.

They are owed.

Widow Whose Lawyer Won Her Award of $6.7m
Now Says His One-third Fee Was Greedy and Excessive

By Alfonso A. Castillo. Staff Writer
Newsday
September 1, 2006
 

After losing her husband in the World Trade Center attacks, Laura Balemian turned to a Huntington lawyer to help her assure financial security for her children.

The lawyer, Thomas Troiano, 62, helped her get that security with an award of $6.7 million. But in the end, Troiano collected the highest legal fee of any attorney representing a 9/11 family trying to collect from a federal compensation fund, officials say. In fact, at $2.2 million, he received more than most of 7,300 victims' families collected themselves.

Now, years after agreeing to pay the fee, Balemian wants her money back.

"I don't think anybody charged half that," said Kenneth Feinberg, the federally appointed special master who oversaw the fund. He called Troiano's fee "shocking and unconscionable."

However, Troiano points out that the award he won for Balemian, 44, was among the highest. He has filed a federal lawsuit against the widow, accusing her of behaving "greedily" in trying to have his fee overturned in Suffolk Surrogate Court. His suit seeks to prevent his fee from being taken away from him.

"We didn't sue him. So talk about 'greedy,'" said Balemian's lawyer, Kevin Simmons of Syosset, who called Troiano's fee "swollen and exorbitant."

The government's September 11 Victim Compensation Fund set a non-binding guideline for attorneys' fees of no more than 5 percent of any award. Feinberg said more than 3,000 families were represented for free or for "single-digit" percentages. The fund used a formula that included presumed loss of future earnings, as well as compensation for pain and suffering.

Feinberg agreed that Balemian's award was among the highest paid, but said it was "far from" the single highest of $8.6 million, given to Deborah Mardenfeld of Manhattan, who survived with severe burns over much of her body, several broken bones and other injuries. Her attorney, Guy Smiley of Manhattan, did not collect a fee. Suggesting that high awards were a direct result of legal representation "greatly overstates the role of the lawyer," Feinberg said.

Balemian, of Lloyd Harbor, and Troiano both declined to be interviewed for this story.

Balemian's husband, Edward Mardovich, 41, was the president of Eurobrokers Inc.'s securities division, Maxcor Financial Inc. - on the 84th floor of the World Trade Center's south tower - when he was killed. Soon after, Balemian, who remarried seven months after his death, went to Troiano for help for herself and her four children, who range in age from 13 to 19. Troiano had her sign a retainer that included his one-third contingency fee.

After first considering possible lawsuits to compensate Balemian, Troiano said in court documents that he filed a claim with the fund in 2003. The fund's initial offer to Balemian was about $1.1 million. Troiano's attorney, Michael Rakower of Manhattan, said Troiano then went "far above the call of duty" in trying to get her more money - hiring an economist to figure Mardovich's future earning potential and presenting witnesses at a hearing to contest the award. Later that year, Balemian was awarded $6,656,151.

Rakower said Balemian "happily" paid Troiano his "well-earned" $2.2 million in 2004. "It's apparent that she was both thrilled with his efforts and pleased with the terms of her agreement," Rakower said.

But as part of a Surrogate Court review of Mardovich's estate that started last year, Balemian has challenged the fee as excessive. Troiano responded with his suit.

In one court filing, Troiano stated that Balemian "ought to be happily praising his extraordinary efforts" rather than "greedily seeking" her money back.

A federal judge ruled last month that it was up to the Surrogate Court to rule on the propriety of Troiano's fee.

"To charge a third I felt was wrong," said Feinberg, who gave an affidavit in support of Balemian. He said the biggest problem with charging a contingency fee in this case was that it wasn't "contingent" on anything. Fund claimants were guaranteed a monetary reward, so attorneys were never at risk of working for nothing.

While Rakower said his client hopes for an amicable resolution and "is open to compromise," he said Troiano's two-year dedication to Balemian's case was "far in excess of the norm" from other attorneys handling the case.

But Douglas Good of Uniondale, president of the Nassau Bar Association, said that as with many things, with legal services one gets what one pays for. Some families may have preferred the level of service they would receive with a standard retainer. And there was nothing necessarily wrong with an attorney charging that, Good said.

Fund payouts

The September 11th Victim Compensation Fund offered federal compensation as an alternative to litigation.

More than 7,300 claims were processed in the fund, including 2,880 out of 2,973 possible death claims.

More than 98 percent of eligible families participated in the fund.

The average award for families of deceased victims was $2,082,128.

The fund paid out about $7 billion.