dojW000746.xml

dojW000746.xml

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2001-11-26

MEMORANDUM

DATE: November 26, 2001

RE: Comments on the Air Transportation Safety And Systems 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

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

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 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) (46:11 PM 11/27/01)}, 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 benefits 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.

Comments by:

Massachusetts Bar Association

2001-11-26