dojN002259.xml

dojN002259.xml

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2002-01-13

January 13, 2002

Mr. Kenneth Feinberg, Special Master of the September 11th VictimCompensation
Fund of 2001
In Care of Mr. Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Re: Comments on the Interim Rule of the September 11th Victim
Compensation Fund of 2001


Dear Mr. Feinberg:


My husband died September 11, 2001 in the Pentagon terrorist attack. He was 40 years old. To the Department of Defense, was a risingstar, a Senior Budget Analyst
with an Ivy-League education and an MBA. To me and our two children, (age 10) and (age 7) was the center of our vibrant family life. Because and I valued our family life, I was a stay-at-home mom. On September 11th I not only lost my husband,
my best friend, my soul mate, and the loving the father of my children, but also the sole income
source for our family. The intensity of the pain that we have been experiencing cannot be put into
words. We are devastated and uncertain about our future.

On top of the emotional anguish we are enduring, we are also faced with the reality of
trying to figure out our financial future, including participation in the September 11th Victim
Compensation Fund of 2001. In theory, the Fund's goal of providing streamlined compensation to
victims without the delay and burden of a lawsuit is appealing. In reality, however, two
inequities in the Department of Justice's Interim Final Rule implementing the Fund create a
scenario where there is no incentive for me to join. I project that my children and I literally will
receive no compensation from the Fund because (1) the projected economic and non-economic
loss figures are unrealistically low; and (2) the Fund deducts any money my family receives from
a "collateral source."

I am writing to ask for your help to correct these two inequities in the Department of
Justice's Interim Final Rule for the September 11th Victim Compensation Fund of 2001.

When Congress passed the Air Transportation Safety and System Stabilization Act on
September 22, 2001, it severely restricted September 11 victims' right to sue the airlines, which
bear ultimate responsibility for the tragedy because of lax security procedures. In exchange for
denying victims the right to sue, Congress provided the September 11th Victim Compensation
Fund of 2001. The Fund is supposed to compensate the victim's families for the types of losses
that would have been recoverable in a lawsuit, but without the burden and delay of litigation.

The Interim Rule/Regulation also describes the intention of the law:

"The Fund is designed to provided a no-fault alternative to tort litigation for
individuals who were physically injured or killed as a result of the aircraft
hijackings and crashes on September 11, 2001" {Interim Rule/Regulation,
Summary Paragraph A.1.}.

"The attached regulations have two objectives: (1) To provide fair,
predictable and consistent compensation to the victims of September 11
and their families throughout the life of the program; and (2) to do so in an
expedited, efficient manner without unnecessary bureaucracy and needless
demands on the victims." {Interim Rule/Regulation, Supplementary
Information.}.

The Interim Final Rule fails to meet the intent of Congress, however, because many
victim's families will net nothing after collateral source funds are subtracted from the already
undervalued economic and non-economic loss projections.

The Interim Final Rule Understates economic loss by underestimating the lifetime
earning
potential of victims at all income levels. Noted economists at the National Association of
Forensic Economists showed that the Interim Final Rule uses outdated statistics and
inappropriate methods to arrive at low estimates of our loved one's future earnings. An analysis
done by one of these economists showed that the actual earnings growth for firefighters is 27%
higher than the DOJ estimates, the actual earnings growth of all college educated workers is 30%
higher than the DOJ indicates, and actual earnings growth for financial professional is more than
100% higher than the DOJ estimate.

In my case, future earnings would be more than double the amount the DOJ has
set forth in its projections. My husband had an Ivy League education with an MBA and had
recently been accepted into the Defense Leadership and Management Program, a program to
groom the Defense Department's top executives. He was only 40 years old so was certainly
expected to receive many future promotions.

The Interim Final Rule also falls short of Congress's goal for non-economic loss. The
figure for presumed non-economic loss compensation of $250,000 plus an additional $50,000 for
the spouse and each dependent is rationalized as being roughly equivalent to the amounts
received by public safety officers who were killed while on duty, or members of the military who
are killed in the line of duty while serving our nation. With all due respect to such public safety
officers and military personnel, they chose to go into harm's way and their loss is not the result
of corporate negligence. On the other hand, the September 11 victims are victims of negligent
airline security. Perhaps more realistic guidance as to the value of non-economic loss can be
found in other air crash disaster awards. For example, I understand that non-economic losses
recovered in other air crash and terrorism cases commonly result in awards of between $2
million and $5 million. While I am not suggesting these amounts for non-economic loss values
for the Victim Compensation Fund, a more reasonable amount somewhere between the current
proposal and the litigation result is warranted.

The Interim Final Rule reduces any compensation awards by the amount of funds
received from collateral sources, including life insurance. I understand that the Interim Final
Rule does this because Congress included such a provision in the Air Transportation Safety and
System Stabilization Act. That does not make it fair; that does not make it right. In many states,
including my state of Virginia, the law on "the collateral source rule" has been well settled for
over one hundred years. Under that rule, damages recoverable for personal injury or death,
caused by the negligence of another, cannot be reduced because of compensation received by
proceeds of an insurance policy. This is because the wrongdoer owes full compensation for the
injuries inflicted by them and any payment by a collateral source in no way relieves the
wrongdoer of their obligation. In this instance, the airlines and others at fault owe full
compensation for the injuries resulting from their negligence. Any payment by a collateral
source in no way relieves the airlines and others at fault of their obligation. This collateral
source rule, which has been a fundamental part of tort victim compensation for over a hundred
years, needs to be incorporated into the September 11 Victim Compensation Fund. Otherwise,
merely because my husband was prudent and had life insurance, the loss suffered by my family
will not be compensated.

The Interim Final Rule needs to be adjusted to provide fair, balanced and acceptable
economic and non-economic loss projections. The economic loss charts need to be increased
and expanded depending upon the deceased's job field. The non-economic loss amounts also
need to be increased into a range that accounts for the tragic way in which these innocent victims
died and the shattered lives they left behind. Collateral source recoveries need to be excluded
from consideration by the Fund. Without these changes, the intent of Congress will not be
fulfilled because there will be no reason for many of the September 11 victim families to
participate in the Fund. Without these changes, it will be better for many victim families to take a
chance at litigation rather than sign on to a Fund through which they will receive nothing but a
waiver of their right to sue.

To compound the unfairness, my family would have little real opportunity to appeal the
determination of the Fund Master. A family's award may be increased above the "presumptive"
award only by showing "extraordinary circumstances" beyond those suffered by other victims or
victims' families. This makes the hearing or appeal to the Special Master extremely arbitrary,
unclear and unfair.

Please rectify these inequities. Give other similarly situated families and me a reason to
participate in this Fund. Please adjust the Interim Final Rule to provide economic and non-
economic amounts at fair, balanced and acceptable levels. Please do not offset Fund awards by
collateral sources recoveries. Please establish a fair appeal process. Finally, please include the
specific calculation formulas, statistics and assumptions within the rule or the explanatory
materials.

I would gladly give up all compensation to have my loved one back. However, since that
is not possible, I ask only for fairness so that I may piece together the shattered lives of my
children and myself. I am not trying to become wealthy; all I want is for the Victim
Compensation Fund to provided me with fair compensation so I can continue to be at home with
my children. Given the tragic circumstances, my children need me now more than ever.


Individual Comment
Manassas, VA

2002-01-13