Sandbags Full of Money: Victim Compensation after 9/11
Culhane, John G.
THE FALLOUT from the horrific events of September 11, 2001, continues to be in dramatic and pervasive evidence. Although the search for weapons of mass destruction in Iraq has lately...
...The serious work of discussing these disparities remains to be done...
...Resort to the tort system is permitted only after proceedings under the Act have resulted in an outcome the parent or guardian finds unsatisfactory...
...Once a "major disaster" has been declared, federal assistance in the form of housing assistance and cash grants is payable only for those needs that can't be met through other sources, including private insurance...
...It thus seems that the insurance offset is substantially mitigating the income-based disparities in awards that would otherwise exist...
...One candidate for such a definition would be "acts of violence committed by groups, or individuals found to represent such groups, in order to force a government into granting demands, or taking certain action...
...Death and injury from terrorism are social DISSENT / Fall 2003 n 43 VICTIM COMPENSATION risks, too...
...The clearest example of such a risk is communicable disease, where the health of the individual and that of the population at large are inextricably linked...
...On the other hand, unmarried intimates (both same sex and opposite sex) of those killed on September 11 are eligible for recovery only if named in a will...
...He is alleged to be "playing a cat and mouse" game with wage earners at the highest income levels—in particular, the well-paid bond traders who worked at Cantor Fitzgerald...
...The VCF looks to state law in determining who is entitled to recover...
...The embarrassing and serious intelligence failures that have recently come to light are only the best-known examples of such carelessness...
...VICTIM COMPENSATION Recognizing Social Risks The only fair and consistent approach to compensating victims of personal misfortune is plain, but unlikely to be implemented: government should pay all of the victims within the widening circles drawn above, but only to the extent of providing a basic safety net...
...So those who can afford more insurance should receive less from the Fund...
...First, allow basic disaster relief for those truly in need...
...I want to start that conversation here...
...This was not a case like the 1976 collapse of the Teton Dam in Idaho, which resulted in the loss of eleven lives and the homelessness of several thousand...
...Under the Act, the government has created a fund to make payouts to injured children or to the parents of children who have died, according to a table of vaccine-related injuries—if the injury is on that table, the vaccination is presumed to have caused it...
...Vaccinating children against illnesses that once ran unchecked through the population has been one of the most successful public health initiatives of the twentieth century...
...More than once, he has mentioned the valid criticisms leveled at the Fund by other victims of misfortune...
...In fact, such reductions do seem to be occurring...
...The federal approach to natural disaster relief may provide the answer...
...The biggest awards have indeed gone to the wealthiest claimants...
...This recovery, in turn, was substantially equivalent to, or greater than, that of several of the claimants in the "over $220,001" category...
...Although the effects of terrorism are now broadly felt, far more of us— virtually everyone past childhood—could recite a direct connection with someone stricken with a debilitating or fatal illness or disease...
...It's clear that Feinberg hasn't been following a pure economic loss calculation for those on the top shelf...
...What is surprising about the tables, though, is that they provide no such estimates where the recovery could be expected to be the greatest—young victims with high salaries...
...Using September 11 as a starting point, think of victims of misfortune as held within concentric circles, radiating out from a common center to increasingly large diameters, with similarly situated—but unequally treated—pairs of cases within each circle...
...Besides, no amount of compensation would have seemed sufficient at the time...
...Two similar lawsuits followed...
...otherwise, the legal next of kin will be the personal representative, and the "virtual spouse" may get nothing...
...At a June conference of law professors in New York, he had this to say when asked how he would change the Fund: "Give everyone the same...
...There is no justification for compensating the victims of September 11 while ignoring those affected by the bombings in Nairobi, Dar es Salaam, and Oklahoma City...
...46 n DISSENT / Fall 2003 The statement is cryptic, probably deliberately...
...Depending on the nature of the tragedy, payment might go beyond food and basic housing and take in such categories as relocation expenses, job training (for those too seriously injured to continue in a former occupation), and ongoing medical treatment...
...Terrorist attacks might cause an overdue expansion of our idea of what counts as necessary...
...Enough for the basic necessities...
...The government's goody bag delivered fifteen billion dollars in cash payments and federal loans to the carriers, as well as a significant limitation on airline liability: exposure was capped at the amount of insurance the carriers held on the four aircraft downed in the attacks, a total somewhere around six billion dollars...
...The VCF is not as bad as it could have been...
...But let's not continue to confuse the tort system and the inspiriting charitable impulses that infuse both private and public compensation initiatives...
...Although the death of Kathleen Treanor's 42 n DISSENT / Fall 2003 in-laws forced her to liquidate all her assets to save her home, victims of September 11 have routinely met with acts of charity that seek to ensure that their lives will not be further disrupted...
...Victims of other disasters— including medical misfortune, if we want to be consistent—should receive the government's helping hand, if they need it...
...But, as Judge Hellerstein noted in his opinion dismissing the suits, the statute does give Feinberg unusually broad discretion, allowing him to consider "the individual circumstances of the claimant...
...So when the government sets out to cover all of the very real economic losses incurred by a horror such as the attacks on September 11, it perpetuates the distributional inequalities among its citizens, and inappropriately tries to replicate the tort system's goal of achieving corrective justice between two parties to a private dispute, where one has wronged the other...
...Tort law is indifferent to the financial circumstances of the parties before the injury, in the sense that a poor defendant must pay a successful rich plaintiff, even though doing so increases the wealth disparity between them...
...On the other hand, one victim in the $40,001-$60,000 range received $2,057,068...
...As a practical matter, this usually means that a surviving spouse is the victim's personal representative, and principal claimant, whether or not the deceased had a will...
...A Better Approach The VCF ends up undercutting the very rationale that drove its enactment—the events of September 11 were an attack not on any one American, but on all...
...The recovery tables provide incomplete evidence, because no information is given about any particular claimant, including whether the deceased had a spouse or dependents...
...A separate list provides a few examples, edited to preserve anonymity, of actual cases...
...In a statement and preamble to the final rule, he had this to say about those victims who had resided in the top 2 percent of income earners: "[C]ompensation above that level would rarely be necessary to ensure that the financial needs of a claimant are met...
...One possible distinction has already been mentioned: survivors of September 11 have reduced recourse to tort law, and such limitation—at least as to the airline industry—was (arguably) necessary to the national interest...
...With the benefit of some distance from the event, critics have begun, sometimes apologetically, to question whether our unequal treatment of victims of terrorism can be justified...
...Feinberg counters that Congress vested him with enormous discretion in making payment decisions, and that he is striving for a more democratic apportionment of the taxpayer money that funds this compensation initiative...
...These awards, grouped in annual income brackets of $20,000, reveal wide disparities...
...In New York, to cite the most relevant example, spouses of decedents qualify for recovery (as do children and parents), but those named in a will— even as sole beneficiary—do not, unless they stand in one of the specified relationships to the decedent...
...While we are on the subject of governmental largesse, is there any way to avoid discussing other personal misfortunes, such as catastrophic illness...
...Those fortunate enough to enjoy prosperity should bear the sacrifice in proportion to their wealth, and, hard as it might be, see that sacrifice as fair...
...O'Hara's position is simple and seemingly hard to dispute: "Whatever life opportunities existed before the planes hit, we as a community have an obligation to provide afterwards...
...What about those who suffer from disease or illness...
...Perhaps the government was attempting to deflect attention from its own negligence in failing to respond more seriously to the threat of terrorism...
...Another disparity within this innermost circle involves differences in treatment of different kinds of injuries incurred by surviving victims: The VCF pays only for harm caused by direct physical impact at any of the disaster sites—the World Trade Center, the Pentagon, the crash site in Pennsylvania—within twelve (or, in the case of rescue workers, DISSENT / Fall 2003 n 4 VICTIM COMPENSATION ninety-six) hours after the crashes...
...But government should not be multiplying the inequalities that private charity creates...
...The law zipped through Congress within less than two weeks of September 11 and was primarily designed to bail out the airlines...
...It may in the end be the one that spurs a national dialogue on how we decide who gets a "helping hand" from the government...
...if not, the contrary presumption applies...
...The child rescued from the well will always capture the popular imagination more than the seamstress inhaling toxic fumes all day...
...Given the unclear motivation of many acts of fundamentalist terrorists (what, exactly, did the September 11 terrorists hope to gain...
...Feinberg's own interpretation of the statute, and his powers under it, impose another substantial obstacle to "virtual tort" recovery— except in the unlikely event that the lawsuit against him changes matters...
...The best response to this conflict between the individual and the state would be for government to require universal vaccinations and then to compensate those injured...
...In terms of real outcome, then, the survivors of September 11 are simply in the "better" position—not least because of private charitable contributions, the value of which the VCF doesn't count against any recovery otherwise available...
...When government compensation provides only the necessities, there's little danger that those with assets to insure won't do so, even if private insurance counts against recovery...
...Private insurance coverage and tort law compensation both mirror distributional inequalities...
...The Act was forged by an uneasy coalition of parents with injured children and the pharmaceutical industry...
...To put the matter unpleasantly: the family of a wealthy bond trader killed on September 11 stands to receive millions in tax-free, taxpayer-funded relief, while a low-wage earner stricken by cancer may have to go without life44 n DISSENT / Fall 2003 saving treatment and without the wages needed to sustain his or her family...
...If so, the better response would have been to work with private charity and to pay victims only for basic needs...
...Is there a justification for maintaining the somewhat ad hoc status quo...
...Complicating the picture is the possibility that vaccinations may, very rarely, cause serious and potentially fatal side effects, such as anaphylactic shock and acute and chronic encephalopathy...
...Do we, though...
...Those killed or injured by the attacks in Oklahoma City or Nairobi challenge the inconsistency in their treatment, compared to that of the September 11 victims...
...And the VCF is in fact more victim-friendly than the tort-law rules, under which any potential beneficiaries would otherwise have to proceed...
...Feinberg has publicly stated that, although there is no cap on awards under the VCF, payouts of more than six million dollars will be rare...
...Domestically, September 11 has sparked debate about the permissible extent of civil rights abridgements in times of national peril...
...Given the roaring rivers of private money that flowed after September 11, such an initiative would have cost the treasury little...
...Multiplying the apparent unfairness of this difference, the rescue worker might also be less likely than the tourist to recover in tort, because respiratory illness or other long-term effects are not likely to manifest themselves for years—by which time the insurance liability limits built into the Act will probably have been reached...
...Under the Disaster Relief and Emergency Act, federal assistance in various forms—including housing assistance and cash grants—is available to those affected by natural disasters, but only if the governor of the affected state requests, and the president approves, a declaration of disaster...
...Here, the public health imperative spurred governmental involvement that might otherwise not have happened...
...In late May, the federal trial judge dismissed all of the suits, but at least one plaintiff has filed a notice of appeal...
...Nonetheless, our representatives probably felt some responsibility for the events of September 11, however indistinctly...
...But if those affected by terrorism—or, in principle, by any social risk—are compensated to the full extent of their economic loss, why would they continue to obtain private insurance, especially when government compensation is reduced by the amount of insurance recovery...
...Tort claims in all terror cases have high hurdles to clear, including the difficulty of proving that someone (besides the terrorists) should be liable for negligence...
...More damaging facts might surface during litigation against the United States itself (although any such cases would face difficult governmental immunity issues), or even in the course of pretrial discovery in cases against other defendants...
...Restructuring or increased regulation of the industry might be overdue...
...New York Senator Charles Schumer was right to propose that the family of a teenager killed in 1994 when a Lebanese native opened fire on a van carrying Hasidic Jews should also be eligible for compensation...
...First, in most states parents can exempt their children from vaccinations for religious or "philosophical" reasons...
...Indeed, the Fund is a "fund" in name only, because its payments do not come from a dedicated source, but from general revenues...
...Pleas on behalf of those injured or killed in the bombing of the Kenyan embassy in 1998 have similarly stalled...
...From an understandably selfish perspective, these objections make sense: Because the disease has mostly been wiped out, parents ask, Why should my child bear any risk of infection...
...But how much should we pay for those injured or killed by the realization of social risk...
...This inequity could be addressed by further legislation, but that seems unlikely...
...In India, polio has been pushed from the edge of eradication and is now resurgent in population pockets where distrust of government has led many to refuse to let their children take the painless oral vaccine...
...O'Hara has been working through several charitable agencies— including the Children's Fund, the Children's Aid Society of New York City, the World Trade Center Miracle Foundation, and the Twin Towers Orphan Fund—to fund private high school education for kids whose surviving parents would otherwise not have been able to afford it, post–September 11...
...Private relief doesn't distribute its bounty equally...
...This safety net seems especially threadbare by comparison to the VCF, but the contrast highlights the unfairness of the VCF itself, not of the disaster relief program...
...So a tourist who was injured by a piece of crumbling stone might be eligible for compensation, while a rescue worker who showed up to help more than four days after the World Trade towers were struck would have no claim—whether for serious long-term health effects of breathing the toxic air or for falling into a hole at the site of the former buildings...
...A fuller exploration of the arguments advanced in this article will appear this winter in the Rutgers Law Review...
...If non-contagious illnesses were seen as having similarly broad consequences, the debate over guaranteed health care would long ago have ended in favor of providing it...
...Then, indemnify the airlines (but probably not other defendants) for any tort damages they might have to pay, but only to the extent absolutely necessary to the national interest...
...The statute creating the VCF was at least half-right in counting private insurance and certain sources of government funding, such as state-paid death benefits, against recovery—it should also have explicitly factored in charitable contributions in calculating the amount dispersed...
...one who understands the fairness issues that creating such a generous compensation scheme raises...
...The immunization case is easy, because the health of one is the health of all...
...If we can do so, we will have defined illness as a social risk that we all share, and that we should all be made responsible for...
...Why are those who lose homes and family through flood and fire not entitled to substantial compensation from the government...
...This lack of clarity is one basis for the "cat and mouse game" allegation...
...When the VCF was created, of course, there was no such critical distance from the horror of the event...
...To those might be added the willingness to leave airport security to airlines (which responded by hiring low-wage workers from private agencies) and the failure to take effective steps to protect the World Trade towers after the bombing of their underground garages in 1993...
...These distinctions are not unique to the VCF...
...This distributional choice should be rejected, and, according to the CNN poll mentioned earlier, it has been...
...And government would not likely be held accountable for its own negligence, even if proven...
...The alternative, unique to the VCF, is that taxpayers, including those of modest means, end up subsidizing the rich...
...As a nation, we sometimes have trouble recognizing social risks, even when they most clearly affect everyone...
...If so, why was there not a similar obligation to the victims of these other terrorist attacks—or, for that matter, to those killed or sickened by the anthrax bio-attack that followed the events of September 11...
...Except for those suing on behalf of the passengers of the doomed flights, the plaintiffs will have to convince a court that the defendants should have anticipated something like the attack on the WTC, and that they could have done something to prevent it...
...When the Fund was created, as part of the Air Transportation Safety and System Stabilization Act, few critics could be heard...
...The Act is funded by a surcharge on the cost of vaccines...
...Feinberg's method of calculating compensation has resulted in tables that provide an estimate of what survivors can expect to recover, based on such facts as the victim's age, income, and number of dependents...
...The recovery tables already discussed similarly stop at "over $220,001...
...the law consistently treats married people differently from unmarried...
...Outbreaks of measles throughout the 1990s have directly followed decreases in the percentage of inoculated children...
...We didn't know what else to do...
...As stated earlier, it counts private insurance against recovery...
...With the benefit of time for reflection, it has become clear that there is something just plain wrong about lavishing recovery on some while others go with inadequate compensation or none at all...
...By midJuly, of all awards to survivors of those killed on September 11, the highest was just over that amount...
...When terrorism is the trigger, the number of victims should be as irrelevant as whether the terrorist was acting alone or as part of a larger group...
...Despite the boost her effort received from the enactment of the VCF, its best chance for legislative success may have passed last year...
...The basal unfairness of such a compensation scheme becomes even more apparent in light of the recent $350 billion tax giveaway (likely to amount to three times that much), mostly to our richest citizens...
...On occasion, he has been explicit about his philosophy...
...Where outright grants are awarded, the payouts are modest...
...Perhaps all that's needed is the imagination to picture ourselves or those we care about forced to bear such misfortune without financial resources...
...Doing so would reflect recognition that vaccine-related injuries are the social price we all pay for immunizing the population against once dangerous illnesses...
...The Department of Justice's Web site provides information on compensation awards that have been paid out, and presumed award amounts for applications still in process...
...This circle includes those injured by terrorist attacks and by other disasters—hurricanes, fires, and floods, for example—and invites us to ask, first, whether compensation in all cases of human suffering should become routine, rather than episodic, as is now the case...
...The decision to compensate some survivors, but not others, for the tragedy of September 11 itself would lie within the first, innermost circle...
...In both its provisions and its interpretation by the special master, it reflects some ambivalence about the propriety of government's doing the job of tort law, which is to restore an imbalance that has been created between a wrongful actor (the defendant) and an injured party (the plaintiff...
...The possible unfairness of the VCF has only recently become a proper topic of conVICTIM COMPENSATION versation...
...It obviously can't mean that, either, because no one, including Feinberg, thinks this statute is just for emergency, baselevel compensation...
...Rich people carry more insurance than poor ones—not only because they can afford to, but, more to the point, because they have more to insure...
...Imagine, also, that the circles become less distinct as they become larger, much as clarity is lost as photos are progressively blown up...
...At that moment, the need to do something was strongly felt, and it's possible to be overly critical of congressional action in extremis...
...Taxpayers would end up paying insurance premiums for even the very rich, thereby feeding and fattening existing inequities...
...Because of our unassuageable grief, the victims of September 11 will likely continue to be better cared for by the private sector than victims of other tragedies...
...The better approach would be for government to pay the surcharge directly in all cases, thereby passing a negligible cost on to taxpayers...
...The suit charges that by declining to provide the plaintiffs with full financial compensation for their loss, Feinberg is misreading the VCF and thereby defying the will of Congress...
...One person in the $100,001-$120,000 range had a "net presumed award amount" of only $250,000— the minimum, given the presumed $250,000 for non-economic loss per victim...
...the definition would have to be interpreted broadly...
...Safety Nets, Incentives, and the Displacement of Tort Law Once social risks are defined with appropriate breadth, the VCF's misguided approach emerges even more clearly...
...Visualization of the problem might be helpful...
...But "we" are also attacked by natural disasters, illness, and disease...
...The events of September 11 have the potential to expand our definition of social risk...
...But the Act isn't fully consistent with a social risk model...
...This position may not offer complete protection—it's hard to see the failure of different agencies to communicate with one another as discretionary—but furnishes a sturdy enough shield that the government probably would have had little to worry about by leaving those killed and injured on September 11 to their common-law remedies...
...September 11 could come to stand for the beginning of a new, retrogressive tax...
...The risk of terrorism is a social, or shared, risk for which everyone should have to pay...
...the surcharge is paid only by those who purchase vaccines— parents, insurers, or, if no other funding source is available, the government itself...
...Enough to replicate their pre–September 11 lifestyle...
...But those disparities can't be entirely eliminated...
...In fact, policy has been less tidy, reflecting an incomplete appreciation of the risk of disease outbreaks...
...The federal approach to compensation for natural disasters, perhaps coupled with insurance regulation, provides the best model: pay those most in need, but only to the extent necessary to assist them in obtaining the necessities...
...But this distinction is probably more apparent than real...
...First, the government is likely to succeed in invoking national security arguments to prevent the publication of at least some sensitive informaVICTIM COMPENSATION tion...
...JOHN G. CULHANE is a professor of law at Widener University School of Law in Wilmington, Delaware, and lecturer at Yale University School of Public Health...
...As the above example suggests, a statute compensating victims of terrorism generally would require a definition of terrorism to deal with the difficult cases...
...So it must mean an unspecified something in-between...
...The rhetoric that followed September 11 recognized as much: "We" were attacked...
...as the government states on its Web site, "the average grant tends to be in the $2,000 to $4,000 range...
...Although the charity doesn't come from the government, its greater availability to the survivors of September 11 highlights the disparity...
...What does Feinberg mean by claimant's "financial needs...
...But unlimited payments to those at the peak of the economic pyramid would total twenty million dollars or more in some cases...
...Circles of Unfairness As a first principle, if government is going to get involved in the business of compensation at all, it should treat similar cases alike...
...rather, it should be working to reduce them...
...But government should be sensitive to the distributional effects of any payments that come from the public treasury...
...But this risk of adverse individual outcomes pales next to the social risk of doing away with vaccinations altogether...
...But identifying similar cases is difficult...
...Reminders appear whenever vaccination rates drop...
...Deflecting Responsibility for Error...
...it's too late to substantially amend the Act, in part because it is already paying out...
...Another handout to the industry of nearly three billion dollars was enacted in late April of this year, but might be similarly ineffective...
...To begin with an obvious example, the victims of other terrorist attacks, for whom there is no similar compensation system, can only look on with bitterness...
...As the specter of fatal and crippling disease receded, a small, vocal group of parents began to resist the inoculation of their children, in part because some of the vaccines themselves cause a tiny but predictable percentage of those inoculated to become infected with the very disease being protected against...
...The government could argue that it made decisions about how to respond to the threat of terrorism that are beyond the jurisdiction of courts to secondguess...
...But compensation for attacks by terrorists should not attempt to repliVICTIM COMPENSATION cate full private insurance, much less possible tort recovery, and not just because of the staggering cost to the treasury of doing so...
...The author can be reached at johnculhane@earthlink.net . DISSENT / Fall 2003 n 47...
...It can't mean that, or there would be no limits...
...Should eligibility for compensation in disaster cases become routine, or should we move in the other direction and refuse to compensate those affected by natural disasters—and terrorism, for that matter—in all cases...
...Having narrowed the avenues of legal redress, Congress understandably felt some obligation to put something in their place...
...As of late July, the nine largest awards had all been made to those earning at least $200,000 annually, with seven of those going to those going to those in the "over $220,000" category...
...Although the search for weapons of mass destruction in Iraq has lately received obsessive attention, the purported presence of such weapons was just one of a kaleidoscope of reasons used to justify the war...
...But—incredibly—it's now two years since that horrible day, and our collective mental health has depended on our ability to gain some distance from the confusion, sorrow, and desperation that followed the events of September 11...
...Looking at the possible insurance incentives of September 11-style payouts emphasizes the inequality point...
...Polio, measles, mumps, rubella, and whooping cough, to name a few, have almost disappeared...
...And it's not clear that our interest lies in preventing airline bankruptcy...
...But the victim received nothing for economic loss, probably because insurance took care of the economic loss that the Fund would otherwise have paid...
...There, the negligence of the Bureau of Reclamation in building a dam on fractured volcanic material was clear, and the federal government paid out some two hundred million dollars in compensation...
...Further, even if a will names the surviving unmarried partner as sole beneficiary, he or she will not be eligible for the presumed hundred thousand dollars in non-economic loss that goes to spouses and dependents...
...And the impulse that activates his approach is commendable and apparently close to universal...
...With some reflection, many of those who supported equal payments to the victims of September 11 payouts might vote to extend this equality principle beyond that event, and even beyond terrorism...
...in one CNN poll, 86 percent of respondents shared Feinberg's view that all victims of September 11 should receive equal compensation...
...the personal representative of the estate files the claim on behalf of the estate...
...Unfortunately, when it comes to the VCF, what is done can't be undone...
...These motivations for creating the Fund may be real, but should not be overstated...
...Earlier, a supposed connection between the Iraqi leadership and al-Qaeda (or, sometimes, "al-Qaeda `type'") terrorists was the justification that shifted most often into view...
...And we shouldn't stop there...
...But it would be a great mistake to duplicate the error...
...These long-legged stories made it easy to miss this item: in late January, surviving family members of Cantor Fitzgerald employees who were killed on September 11 brought a lawsuit against Kenneth Feinberg, the special master charged with administering the government's 9/ 11 compensation program, known as the Victim Compensation Fund (VCF...
...Jeffrey O'Hara, a partner in the Roseland, New Jersey, firm of Connell Foley, is just one of thousands of Good Samaritans to those affected by September 11...
...This exercise can provide a useful vehicle for moving from the specific incident to general policy, and a way of thinking about choices we now make uncritically and inconsistently...
...Kathleen Treanor lost her young daughter and her in-laws in the 1995 Oklahoma City bombing, and has become an unofficial spokeswoman for survivors seeking government compensation for the surviving family members...
...It should be expanded to achieve greater consistency among all of the circles of cases discussed earlier...
...The next wider circle was introduced earlier: the more generally unequal treatment of victims of different terrorist attacks...
...Instead of limiting the right to sue and creating, in its stead, a Frankensteinian compensation system, Congress would have done better with a different kind of one-two punch...
...And the tort-like payments under the VCF also stand in glaring contrast to our national failure to ensure that basic health needs of all citizens are met...
...Second, the federal Vaccine Injury Compensation Act does compensate those injured, but does so clumsily...
...But where the primary fault lies elsewhere, government should not replicate the tort system, even to the imperfect extent of the VCF...
...Payments to date bear this out...
...The widest circle is the least distinct, but the most troubling...
...In his frequent public appearances explaining and defending the VCF, Feinberg has emerged as a reflective advocate...
...They also recover more in personal injury actions, because they suffer greater economic loss...
...Whatever the legal merits of their case, the ©2003 John G. Culhane 40 n DISSENT / Fall 2003 plaintiffs' frustration is understandable...
...Thus, the VCF actually allows recovery to those who would otherwise be denied it, even if the treatment of unmarried couples remains unequal to that of their married counterparts...
...Government can't restore everything taken by all tragedies...
...There may be another explanation for the VCF, which is cynical only if untrue...
...A friend's chilling metaphor has stayed with me: We piled sandbags full of money at the borders...
...Victims may also be required to seek a loan before qualifying for outright grants...
...The VCF will reduce the number of suits, and therefore the potential for damaging disclosures—not to mention the government's own liability...
...September 11 delivered a unifying shock that could vibrate into other cases of suffering...
...Parents believed that their chances would be better under the Act than by suing the drug companies in tort law, where problems with establishing the causal connection between the vaccine and the injury usually meant defeat...
...Nonetheless, DISSENT / Fall 2003 • 4 5 VICTIM COMPENSATION the amounts paid out are instructive...
...The disaster-relief approach is preferable...
...After all, the massive bailout engendered by the Act hasn't prevented major domestic carriers from seeking bankruptcy protection, and domestic air travel hasn't stopped...
...The injured party must also have sought medical attention or stayed overnight at a hospital...
...This victim had neither a spouse nor dependents, or else an additional $100,000 in noneconomic loss for each additional person would have been paid out...
...The VCF's unusually generous payout, which replicates the tort system in fundamental ways, was a mistake that should not be repeated...
...In the days that followed the establishment of the VCF, the dominant focus was on these issues...
...The industry worried about unaffordable liability exposure, if even in a tiny number of cases, and threatened to bolt from the vaccine market had protective legislation not been drafted...
...And the VCF does hedge its commitment to full tort recovery...
...Sometimes the issue is cast even more broadly: When and why do we, or do we not, compensate those affected by tragedy...
...In most states, only those who stood in certain enumerated relationships to the deceased have standing to sue for "wrongful death...
...Congress instead propped up the industry by forcing a messy collision of tort and taxpayer-funded compensation, thereby putting government in the position of perpetuating inequality...
...Compensation should be the rule, not the unfair exception...
...Too much would be lost by forgoing such insurance...
...This past summer, the discussion was refueled by allegations of abuses under the Patriot Act...
...Even for those with the financial resources to deal with such tragedy, the emotional and practical toll of these misfortunes is often overwhelming...
...Although the Federal Tort Claims Act (FTCA) waives the sovereign immunity that the United States otherwise enjoys in suits by its citizens, it has an important exception for so-called discretionary functions...
Vol. 50 • September 2003 • No. 4
