The terrorist attacks on the Twin Towers on September 11, 2001, presented the American legal system with unprecedented challenges regarding whether, and how, to compensate those who suffered harm as a result. Congress stepped in almost immediately to provide a victims’ compensation fund that dealt primarily with those who were directly and immediately affected. But many other harms manifested later. In the months that followed as many as 60,000 persons came to the World Trade Center (WTC) to aid in what amounted to around-the-clock rescue, recovery, and debris removal at the WTC site. Of that number, over 10,000 responders filed tort claims for injuries they claimed to have suffered as a result of exposure to contaminants at the site. Aside from workers’ compensation and disability insurance, their lawsuits in federal court were their only means by which to seek damages for their injuries.
No one questions that the atmosphere around the WTC site was a toxic cocktail of epic proportions, especially in the earlier months. Plaintiffs’ complaints set forth claims of negligence, violation of safe-place statutes, and failure to disclose the true nature of the relevant risks. The plaintiff-responders wound up alleging over 380 different injuries arising from their exposures. They claimed that the City of New York, the Port Authority of New York and New Jersey, four prime contractors and hundreds of subcontractors were liable to them in tort. Congress assigned all of these responder claims to the United States District Court for the Southern District of New York, and the cases were ultimately consolidated before Judge Alvin K. Hellerstein, who presided over all of the tort claims arising from the 9/11 attacks. An article entitled Managerial Judging: The 9/11 Responders’ Tort Litigation, coauthored by Judge Hellerstein and Special Masters Henderson and Twerski, recently published in the Cornell Law Review, contains a comprehensive analysis of the 9/11 litigation and ultimate settlement. This Article will focus and enlarge on one aspect of that subject, the creation of a program of core discovery and a database to gather and maintain information about all 10,000 claimants. The function of the database was to aid the court and the parties to manage discovery and to choose cases for further and intensive discovery and early trial in order to make it possible for the parties to negotiate a comprehensive settlement of the massive litigation.