Defense counsel came to Baltimore to settle 9/11 cases

Daily Record, The (Baltimore), Oct 15, 2007 by Brendan Kearney

On the morning of Tuesday, Sept. 18, Desmond T. Barry Jr. and Joseph F. Wayland took the train from New York to Baltimore.

Barry and Wayland, partners at their respective midtown Manhattan law firms, had a scheduled meeting that afternoon with Keith S. Franz and Judson H. Lipowitz at the Towson office of Azrael, Gann & Franz LLP.

Franz and Lipowitz represented the families of four Maryland residents killed at the Pentagon and the mother of a New York woman killed in the World Trade Center when American Airlines flights 77 and 11, hijacked by terrorists, crashed into the buildings on Sept. 11, 2001 -- six years and one week earlier.

After years of discovery, depositions, mediation, and settlement discussions, Barry, representing American Airlines, and Wayland, representing Argenbright Security, had come to parley.

"The level of confidence was unpredictable," Lipowitz said later. "But the fact that they agreed to come to our offices encouraged us."

The foursome had lunch and then got down to brass tacks in the firm's purple-walled, pink-columned fifth-floor conference room.

By dinnertime, they had hashed out a settlement agreement that compensated the families of the victims and dismissed all the remaining parties to the litigation -- including Boeing and the Metropolitan Washington Airports Authority -- on behalf of whom Barry and Wayland had been negotiating.

The defense lawyers did not return calls for comment for this story. American Airlines spokesman Tim Wagner declined to comment on that arrangement or the settlement, citing pending litigation involving other plaintiffs.

"It's bittersweet -- there's no true satisfaction in a tragedy," said Lipowitz. "It's a chapter of their lives that they can close and be proud of. Many felt that they did exactly what their loved ones wanted them to do, which was to inquire and learn about what happened and stand up for their rights."

Opting to sue

The resolution of the civil litigation for the Towson firm's clients had been a long time coming.

They had filed suit on behalf of 11 clients in 2003 after the judge, Alvin K. Hellerstein of U.S. District Court for the Southern District of New York, rejected a motion on behalf of the airlines, security companies and port authorities to dismiss all such claims.

By the February 2004 deadline for application to the federal September 11 Victim Compensation Fund of 2001, six of their clients had filed with the fund. More than 98 percent of all claimants took that route, according to the U.S. Department of Justice's final report on the fund.

"It was a guaranteed payment, it did not involve litigation, it was paid early and quickly, and some of the clients had very personal explanations for why they made the decision, and we honored our clients' wishes," said Lipowitz.

The five remaining clients pressed on with their civil legal claims.

"At that point, there was no negotiating whatsoever," said Lipowitz. "The purpose of the litigation was to get answers and find out what happened ... The core question was if anyone besides the terrorists contributed to the event?"

Key to those answers would be the defendants' release of documents, such as the airlines' security training manuals and evaluations of those prescribed protocols. But before that discovery could happen, in 2003, Hellerstein established a protocol of his own.

"Judge Hellerstein had to serve as the referee and deal with competing interests over the right of the litigants in the civil justice system to have him review the situation and the very important need to protect national security," Lipowitz said. "The defendants needed to have that information to give their clients the defense that they were entitled to and for us, more importantly, we needed the information to prove what happened on that tragic day."

Year of depositions

For the next three years, reams of paper passed from the airlines and security companies to the U.S. Department of Justice, where they were redacted before finally being forwarded to the plaintiffs and their lawyers, who are prohibited from discussing what they have learned in the process.

The haggling over documents continued until a year ago.

"It was quite a journey, because it was not until Sept. 12 of 2006 that we were able to take our first deposition of a witness," said Lipowitz. "The first witness was a supervisor of a checkpoint at Boston Logan [International Airport...from which [American Airlines] Flight 11 originated."

Lipowitz said that, as of his firm's settlement announcement two weeks ago, the plaintiffs' litigation team, which has included New York-based Kreindler & Kreindler LLP and South Carolina-based Motley Rice LLC, had taken approximately 80 depositions.

"From top to bottom: from the security screeners to their trainers to their higher-ups," he said. "We took depositions of the owner of one of the security companies [and] one of the vice presidents of American Airlines."

Beginning in 2004, settlement talks ran parallel to discovery, Lipowitz said. The first round, without a mediator, was "totally unproductive," he said.