Read this article in the New York Times.
CINCINNATI - In recent weeks, rescue and cleanup workers who sued the city over health damages they attribute to environmental hazards at the former World Trade Center site have been receiving letters explaining how much compensation they would receive under a recent settlement of their claims.
The Garretson Resolution Group, with offices in Cincinnati and Charlotte, N.C., is administering the claims, which involve more than 10,000 plaintiffs. (Ninety-five percent of the plaintiffs must approve the settlement by Sept. 8 for it to take effect.) We talked with Matt Garretson, the company’s president and chief executive, about the ins and outs of 9/11 claims administration and calculating the individual settlement amounts. Following are our questions and his responses, edited for clarity and brevity.
Q. You were chosen to administer the settlement between the city and ground zero workers because of your experience as a claims administrator. How did you get into this line of work?
Matt Garretson
A. We started the [group] in 1998. All of our settlements involve some type of personal or physical injury to a group of individuals. Our job is to figure out and evaluate the level of harm. I have a background in economics and went to law school, and right out of law school I had an opportunity to begin to work on some settlement-related matters and I just developed an interest in it.
Q. You will be deciding what each injury is worth and how much each plaintiff should be paid. How do you go about putting a value on an injury like asthma or laryngitis?
A. The actual value was negotiated by the parties prior to my involvement. They are based on the severity of illness as identified by medically accepted guidelines as well as the strength of the plaintiffs’ legal claims. The strength of the legal claim gets to the ability to establish with medical evidence a true cause-and-effect relationship between exposure at the W.T.C. and the type of claims being made.
Q. Who pays your [group] in this case?
A. We’re being paid by the W.T.C. Captive Insurance Company (the city’s insurer). They agreed to pay up to $3.5 million of our expenses.
Q. Under the settlement, the plaintiffs do not have to prove that their injuries were caused by the dust and fumes at ground zero, as they would in a trial. But you’re saying that their awards are still affected by the likelihood that their health problems resulted from that exposure?
A. The parties looked at all the information related to causation. It went into the parties’ determination of the values that I will be applying. Our job is to fairly, objectively and transparently take those predetermined set of factors negotiated by the parties and evaluate medical records and work history records and apply those to determine the final settlement amount.
The settlement awards range fairly drastically, from some who will receive a few thousand dollars to some who will receive over a million dollars. The reason they range so widely is that the parties have factored in causation and severity.
Q. I’ve heard that cancer may be worth less than respiratory illness. Why would that be?
A. Plaintiffs who allege cancer face a very difficult burden of proving causation in court, and the settlement reflects that.
Q. So, A., linking the health damages to exposure at ground zero, and B., how sick or impaired the plaintiff is, are the two chief factors?
A. Those factors do establish the relative settlement amount that the various injuries will receive. For certain injury categories or “tiers,” each plaintiff will receive the same fast, fixed payment. For the highest-level injury category, rather than everyone receiving the same fixed payment, each plaintiff will be awarded a base amount which we will further fine-tune based upon additional adjustment criteria. The initial base amounts assigned to these injuries were also established by the parties based upon causation and severity.
Q. I see that there are four tiers, with Tier 4 encompassing the most serious injuries. How does the point value system work for Tier 4 injuries?
A. We verify the injury and then we make certain adjustments up or down based upon additional adjustment criteria such as age, smoking history, duration of exposure, the timing of diagnosis, the location at which they were exposed and the like.
For example, interstitial lung disease with an impairment level of 2 (out of 5 levels) is assigned 60,000 points at its base. The points are given dollar values. Someone who was 55 years old on 9/11 and had no offsetting factors except for age would ultimately receive an award range of about $400,000 to $500,000. The range depends on how much each point will be worth, something that won’t be known precisely until we complete our review of all the claims. But the estimated range is $7.52 to $9.19 per point.
Q. You mean to say that someone older would get less?
A. There’s a 1 percent downward adjustment for every year older than age 45 the individual was on the date of 9/11. That’s not to say that older people are less valuable, obviously, than younger individuals. It’s simply that the younger person would live with the impediment for a longer period of time.
But if, say, the same 55-year-old plaintiff suffers a permanent disability as a result of the injury or underwent a surgery such as a lung transplant, his award would go up.
Q. Will you compensate cancers that may develop in the future?
A. The cancers that are included in the settlement program are limited to those that the parties negotiated. With respect to cancers in the future, in this settlement there’s a very unique cancer insurance policy that I’ve never seen before in a settlement program. It would cover certain types of cancers that plaintiffs may be diagnosed with in the future. So there’s a benefit for those who have fear of cancer.
Q. You have handled many types of settlements, like one between a police department and citizens claiming civil rights violations and another between a Roman Catholic archdiocese and parishioners claiming sexual abuse. How difficult is it proving to be to administer the 9/11 cases, relatively speaking?
A. I’d say that it’s emotionally demanding and it’s difficult given the amount of information you have to identify and go through to be able to match correctly a plaintiff’s medical history and work history to the settlement criteria and values. We’re dealing with real people and they have profound injuries, and we’re trying to bring them closure.
On this matter in particular, it’s not lost on our [group] that these people are heroes and did a great deal to put the country back on track after the attacks, so it puts a real sense of “I want to do this absolutely correct, I want to do it efficient and these people deserve nothing but our best.”
Q. How many employees from your [group] will be devoted to this settlement?
A. At least 125 individuals in our [group] and dozens of medical professionals — the medical panels, nurses and specialists for each individual category we’ll be consulting with.
Q. You need medical consultants?
A. Where things can get complex and why we need so many medical professionals is many things are black and white in medical records but some are not, and you have to dig a little deeper and consult with professionals to see if the diagnosis was affirmatively made. If the program says it’s going to pay chronic diseases, we need to make sure that the records and the history demonstrate that it’s chronic and not acute, for instance. That is where the challenge lies.
For example, chronic rhinosinusitis is different from a diagnosis of rhinosinusitis. Or chronic obstructive pulmonary disease. We need to make sure a diagnosis was affirmatively made, and if there’s any subjectivity or any gray area in the diagnosis, we’ll utilize our medical staff to make a determination and ask the plaintiff for additional information.
Q. Are you going to visit any of the plaintiffs?
A. We don’t have personal interactions with the claimants. It’s going to be 100 percent supported by the medical records and the work history records. Once we produce our findings, it’s up to the lawyers and their clients to ensure that we have, in fact, interpreted the records correctly and apply the point system correctly.
From there, they have a chance to ask us to reconsider our findings and present supplemental information to us. After that, if they still believe an error has been made or that we have abused our discretion, that’s the purpose of the appeal to Mr. Feinberg.
Q. Right. Kenneth Feinberg, a star mediator chosen by President Obama to oversee claims related to the gulf oil spill, will be looking over your shoulder as the final reviewer of appeals from plaintiffs. How nervous does that make you?
A. I think it’s fabulous that he’s available. We’re not nervous. It’s very objective and very transparent. Everyone knows on the front end what we’re going to be doing and applying. We’ve worked with him several times before.
He’s been involved as a special master in settlement programs we’ve administered. We’ve interacted with him and his staff many times. He’s an incredible human being and he’s truly dedicated to this cause.
Q. Have you ever been sued by a dissatisfied claimant?
A. It’s very uncommon. We’ve had cases before where somebody sued everyone involved in the program, including their attorneys. But those were dismissed.
The golden rule in any mass tort settlement program is that you have to treat similarly situated people the same. The best way to do that is to develop a set of objective criteria that people can fully understand before they agree to enter into a settlement program. They’re going to know what their number is and they’re going to know how other types of people are going to be treated under this program and how they relate in terms of value to those other participants.
Q. How easy is it going to be to get 95 percent of plaintiffs to agree to participate in the settlement?
A. Every program that we’ve ever administered has an opt-in threshold. And those thresholds are in fact met.
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