dojW000591.xml

dojW000591.xml

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2001-11-26

Monday, November 26, 2001 2:24 PM
Comments on September 11th Victim Compensation Fund of 2001




M E M O R A N D U M




TO: Department of Justice


DATE: November 26, 2001


RE: Comments on the Air Transportation Safety And System Stabilization Act (the "Act") from the Massachusetts Bar Association's Presidential Task Force on the Preservation of Rights, Liberties, and Access to Justice.


Please find attached the above-mentioned comments which are being submitted by the Massachusetts Bar Association and are due to the Department of Justice by today, November 26, 2001. We are also faxing a copy to you today at 301-519-5956.


If you have any questions concerning these comments, please do not hesitate to contact me at .


Attachment 1:
TO: Department of Justice
FROM: The Massachusetts Bar Association's Presidential Task Force on the Preservation of Rights, Liberties, and Access to Justice
DATE: November 26, 2001
RE: Comments on Air Transportation Safety And System Stabilization Act (the "Act")



The following are comments from the Massachusetts Bar Association, which were endorsed at the House of Delegates meeting on November 26, 2001 to be submitted to the Department of Justice on November 26, 2001.




The September 11th Victim Compensation Fund was established to provide for the expeditious and fair compensation to the victims of our nation's tragedy. It is imperative that the Fund be administered in a just manner consistent with traditional tort damage principles, so as to foster support for the Fund. Because the participants in the Fund will waive their rights to file any other action related to the tragedy of September 11th, we must ensure that their participation as claimants in the Fund is both fair and consistent with the longstanding principles of our civil justice system.


Section 405 (b) (1) (B) (ii) of the Act provides that the Special Master shall review a claim submitted and, with respect to a claimant determined to be an eligible individual, award:


...the amount of compensation to which the claimant is entitled
based on the harm to the claimant, the facts of the claim, and
the individual circumstances of the claimant.


Consequently, the Act dictates that participants in the Fund be treated as individuals and not as a class. Additionally, each claimant should be afforded his or her due process rights as provided by Section 405 of the legislation and each claim should be adjudged on its own merits.


The MBA rejects and opposes the suggestion made by the ABA Task Force that the Fund should be administered with a view toward "horizontal equity". We also oppose the ABA's assertion that "predictability" will require that "appropriate ranges of recovery" be fixed in advance of adjudication. The MBA explicitly opposes the institution of a matrix system in order to administer the Fund, whereby individual claims would be categorized and processed by arbitrary class systems, and the MBA rejects any attempt to introduce structure and rigidity into awards, to set ranges of awards, and to cap damages.


The MBA further believes that the administration of the Fund should adhere to traditional collateral source rule principles. Specifically, we oppose the inclusion of charitable gifts in the calculation of collateral sources. Voluntary payments to the various charitable funds that have been established, to the extent payments in turn are made to claimants, should not be counted against whatever is otherwise payable from the Fund. First, such inclusion would represent an unprecedented digression from traditional tort damage principles and create a dangerous precedent for the future. Second, inclusion of charitable gifts may have a severe and enduring chilling effect upon charitable giving in the future. Third, administering the Fund in this way may create a disincentive to participate in the Fund.


The MBA agrees substantially with the proposal submitted by Senators Daschle and Leahy and Congressmen Gephardt and Conyers on October 25, 2001. Specifically, the MBA urges the Department of Justice to include the following in the regulations it promulgates:


1. A definition of collateral source which mirrors the language of Section 402 (4) of the Act, but also specifically states:


It shall (collateral source) not include any grants or gifts given, or expected to be given, to the claimant as a result of the terrorist-related aircraft crashes on September 11, 2001, from any non-profit, religious, or other charitable 501 (c) (3) organization.


Also, the reduction of the award should only include collateral source compensation the claimant has received, and is reasonably certain to receive in the future.


2. The Special Master should appoint the Hearing Officers rather than the Attorney General, since the Act clearly places such authority on the Special Master.


3. Given the complexity of damages, the uniqueness of the procedure, and the finality of the decision, use of a lawyer in the claims process is strongly encouraged.


4. Any form promulgated for presentment of a claim must contain the following information in clear-unambiguous language:


a. The claimant has the right to be represented by a lawyer.


b. In presenting this claim, the claimant is forever waiving his/her right to file a civil suit, and to have a jury determine the economic and non-economic damages sustained as a result of the catastrophe on September 11, 2001.


c. The availability and location of pro-bono lawyers offering assistance to those presenting claims.


d. There is no right of appeal from the decision of the Special Master.


5. Since a claim is not deemed filed upon submission, but rather upon the determination that it is complete, the regulation must provide an extension mechanism for claims submitted on or near the two-year deadline.


6. The amount of compensation sought should not be stated on the form completed. Claimants proceeding without the benefit of counsel may be placed in a disadvantageous position if this amount is included. Although under some proposals the award may exceed the amount sought, by requesting a specific amount, the claimant may be limiting his/her recovery because a hearing officer is not likely to award an amount vastly greater than that requested.


7. Since the Act clearly provides claimants with the right to present evidence, including the presentation of witnesses and documents {Section 405 (b) (4)}, claimants must be afforded the opportunity to present their claims to hearing officers. An appeal or review to the Special Master provides a necessary safety net.


8. The hearing officer shall award economic and non-economic damages in accordance with the elements of those damages specified under Section 402, subsections (5) and (7). Of particular importance in making these awards is the intent of Congress that non-economic damages not be limited by any unique state law provisions.


9. The deduction of collateral source payments from any award must be stated specifically, and the award must address the right of subrogation for certain collateral source payments. Additionally, the collateral source deductions shall only be made from the award to the beneficiary receiving the collateral source.


10. Life insurance, pension funds, and death benefit programs shall be defined to exclude the present value of amounts contributed by the claimant or the decedent to any such funds, programs, or benefits.


In conclusion, the MBA supports the efforts of Congress in establishing the September 11th Victim Compensation Fund of 2001. We hope that the Fund will be administered in a fair manner, so that compensation will occur swiftly and justly for the many affected families. In order to meet these goals, the administration of the Fund must preserve the due process rights of all claimants, and allow for full compensation as provided by the legislation. We urge the Department of Justice to adopt the principles set forth above, so as to administer the Fund in a just and compassionate manner.




Comment By:
The Massachusetts Bar Association's Presidential Task Force on the Preservation of Rights, Liberties, and Access to Justice

2001-11-26