Hellerstein Bars "Government Report on [9/11]" From Evidence in Airline Liability Case
I'm pretty sure that the airlines' liability is limited to whatever their insurance will pay, thanks to the Aviation and Transportation Security Act...
AMR, UAL Lose Pre-Trial Rulings in Trade Center Cases (Update1)
By David Glovin
July 16 (Bloomberg) -- AMR Corp.’s American Airlines and UAL Corp.’s United Airlines were among defendants losing rulings that might have helped prove their defense in three wrongful death and 19 property damages cases stemming from the terrorist attack on the World Trade Center in New York.
U.S. District Judge Alvin Hellerstein in New York today rejected the airlines’ request for favorable evidentiary rulings, including a bid to question agents of the Federal Bureau of Investigation. The airlines seek to show that the U.S. failure to catch the terrorists and stop the attacks was so considerable that it excuses any fault of theirs.
“The issues to be tried relate to the acts and omissions of the aviation defendants, not the government,” Hellerstein wrote in a 45-page opinion. “The government’s failures to detect and abort the terrorists’ plots would not affect the aviation defendants potential liability.”
On Sept. 11, 2001, terrorists commandeered four commercial jets and killed almost 3,000 people in attacks on the World Trade Center and the Pentagon. Scores more were injured. One of the planes crashed in a field in Pennsylvania.
Most of the lawsuits filed in the aftermath were settled. Hellerstein said he would set a date for a trial of the remaining cases.
Other defendants in the cases include Continental Airlines Inc., Boeing Co., U.S. Airways Group Inc., Globe Airport Securities Services Inc., and other transportation companies.
In his ruling, Hellerstein also barred the defendants from introducing as evidence a government report on the attacks, although portions of it may be admissible.
The case is In Re September 11 Litigation, 21-MC-00101, U.S. District Court, Southern District of New York (Manhattan).
To contact the reporter on this story: David Glovin in New York federal court at dglovin@bloomberg.net.
Last Updated: July 16, 2009 13:13 EDT
Hellerstein Bars "Government Report on [9/11]" From Evidence
>BUMP<
Hellerstein Also Bars FBI Testimony in Airline Liability Case
Judge Narrows Discovery for 9/11 Federal Claims
Mark Hamblett
New York Law Journal
July 17, 2009
Defendants being sued for negligence in connection with the Sept. 11, 2001, terrorist hijackings will not be able to depose six FBI agents on the government's investigation into the attacks, Southern District of New York Judge Alvin K. Hellerstein ruled Thursday.
Airlines, airline security companies and the Port Authority of New York and New Jersey asked Hellerstein to allow the depositions in the hope they might show that the government's failure to stop the terrorists was so egregious that the attacks would have happened regardless of any negligence on their part.
But Hellerstein, ruling in the three remaining wrongful death cases and 19 property damage claims stemming from the attacks, said Thursday in In Re September 11 Litigation (pdf), 21 MC 101, that he would not allow the depositions for several reasons.
"The issues to be tried relate to the acts and omissions of the Aviation Defendants, not the government," he said. "The government's failure to detect and abort the terrorists' plot would not affect the Aviation Defendants' potential liability."
Similarly, the judge refused a defense request for admission of portions of the trial of convicted terrorist Zacarias Moussaoui, the 9/11 Commission Report and related reports and a journalist's interview with terrorist leader Ramzi Binalshibh.
Hellerstein granted the defendants' motion only to the limited extent that these sources "can (1) provide information for an agreed narrative summary that explains to the jury the events of Sept. 11, 2001" and "(2) reveal the hijackers plans and preparations."
The judge said the efforts of the defendants to conduct the depositions, review transcripts of the Moussaoui trial and other material "would cause confusion and prejudice, and burden the court and jury with long delays and unduly lengthy trial proceedings."
The ruling came amid a broader discovery dispute between attorneys for the plaintiffs and the aviation defendants. While the plaintiffs have been trying to set trial dates quickly, the defendants, as reported by the judge, "present a long list of witnesses and issues still remaining to be discovered."
The cases in this litigation are part of a subset of those people who elected to sue rather than go through the federal September 11th Victim Compensation Fund administered by Special Master Kenneth R. Feinberg. Ninety-seven percent of people with claims, totaling 5,560 claimants, were paid a total of $7 billion from the fund.
That left 95 cases to be litigated before Hellerstein, who is also presiding over 9,000 cases claiming respiratory and other illnesses caused during the emergency response at Ground Zero and its subsequent cleanup.
In March, Hellerstein received a final report on the 95 cases from mediator Sheila L. Birnbaum of Skadden, Arps, Slate, Meagher & Flom. Ms. Birnbaum said 92 of those matters had settled for a total of $500 million.
Hellerstein, in his 45-page opinion Thursday, said discovery has been "extensive and difficult," and the Transportation Security Administration has acted as a "filter" to review the production of documents, regulate depositions and protect against the disclosure of sensitive information.
FBI INVESTIGATORS
All six of the FBI agents the defendants sought to depose investigated the 9/11 attacks and four of the six testified at the Moussaoui trial. The U.S. Attorney for the Southern District of New York denied the airlines' deposition requests in 2007 and 2008, and Hellerstein upheld that denial Thursday, saying it was reasonable for the government to contend that the depositions would interfere with its continuing investigation into the attacks.
Hellerstein said the additional discovery being sought by the defendants "would add little of relevance, threaten national security, cause major digressions at trial and cause substantial unnecessary expense and delays concerning the progress of the cases before me."
The parties next meet for a conference on July 28 to determine what discovery needs to be completed and to set a trial date.
Plaintiffs liaison counsel Donald A. Migliori of MotleyRice could not be reached for comment.
Desmond T. Barry Jr. of Condon & Forsyth, the lead lawyer for the airline defendants, could not be reached for comment.
http://www.law.com/jsp/article.jsp?id=1202432324476