Saturday, September 11, 2010

Among 9/11 Families, a Last Holdout Remains

The New York Times

September 10, 2010

Among 9/11 Families, a Last Holdout Remains


In the nine years since Sept. 11, 2001, the legal claims for people who were injured or killed in the attacks have almost entirely been resolved. Thousands of victims and families entered a special compensation fund created by Congress and were paid more than $7 billion; a much smaller group chose to file lawsuits, which have been settled over time for about $500 million.

All, that is, but one.

The holdout is the family of Mark Bavis, a passenger on United Airlines Flight 175, the second plane to strike the World Trade Center. Ever since the family filed suit in 2002, it has spurned efforts to negotiate, despite settlement attempts and a court mediation session.

They recognize that they could have obtained a quicker resolution by settling; they say the case is not about money. They say they want to prove in a public courtroom what they and their lawyers believe was a case of gross negligence by United and other defendants that allowed the hijackers to board Flight 175 and the attacks to occur.

The victim’s brother, Michael, who was his identical twin, said in an interview that the family had never considered settling out of court. “Settlement has not been in our vocabulary,” he said.

The family’s lawyers said they filed papers on Friday proposing that a federal judge in Manhattan schedule a trial date.

Donald A. Migliori, a lawyer with Motley Rice, the firm that represents the Bavises and was involved in more than 50 other cases, said the firm’s investigation had focused on failures at airport security checkpoints, flawed cockpit doors, inadequate training and how the industry ignored confidential government warnings about terrorist threats.

“The security breaches that day,” he said, “were absolutely known to these defendants before 9/11, and should have been addressed before this could happen.”

United and other defendants, including Boeing and a firm that ran the checkpoint at Logan International Airport in Boston, where Flight 175 took off, all denied liability. At one point, United offered not to contest liability in the case and proposed a trial only on the issue of damages. But the family objected, and the judge rejected the airline’s motion.

This week, a United spokeswoman said, “This was a tragic event, and we are actively working to resolve this case.” Boeing declined to comment.

The family’s push for a trial has ignited a debate among legal experts about the value of litigation as a forum for disclosure.

Michael Bavis, 40, said the family believed that only through a trial could the defendants be held accountable. “The public should know,” he said. “We’ve got a responsibility to hold them to the fire.”

Other victims’ families praised the Bavises’ stance. Julie Sweeney Roth, who sued over the death of her husband, Brian D. Sweeney, 38, also on Flight 175, said she had wanted to pursue a trial but ultimately remarried and settled her suit a few years ago.

“I always hoped,” she said, “that there would be at least one — it only takes one family — to hold out and bring them to trial and get the answers that everyone deserves.”

Mark Bavis was 31 when he died. He grew up in the Roslindale section of Boston, the son of a city police officer. He played ice hockey with his brother, Michael, first in high school and later at Boston University. The brothers were strong defensive players. “Mark was a gritty and competitive leader,” recalled Michael, now an assistant coach at Boston University.

Mark Bavis eventually became an assistant coach at Brown and Harvard and was working as a scout for the Los Angeles Kings in the National Hockey League when he flew on Flight 175 to Los Angeles.

His brother, Michael, who said he flew 50,000 miles last year for his job, grew disenchanted with the aviation industry’s approach to security, which he said was based on what is “fastest and cheapest.”

He pointed to information turned up in the investigation by the Motley Rice law firm, as well as well-known episodes like the Nigerian man who was allowed to board a flight to Detroit last Christmas with explosives sewn into his underwear.

“The airlines,” he said of the events on 9/11, “had the most narrowly focused task, to make sure that illegal weapons cannot pass through that security checkpoint — box cutters, pepper spray, knives.” He also cited the failures in cockpit security.

“Really in our hearts, it’s been about how my brother was wronged,” Mr. Bavis said, citing what he called the aviation industry’s knowledge of the imminence of a terrorist threat and the vulnerability of the system.

“We feel like they made a conscious choice not to do anything about it,” he said. “And that’s not acceptable.”

Mr. Bavis said that while some might feel a settlement could bring closure, “For our family, receiving a settlement is not putting it behind us.”

Mr. Bavis’s mother, Mary, 79, said the family never wavered in its approach. “We discussed that really from the beginning — that we wanted answers,” she said.

Mrs. Bavis and her six surviving children, among them a schoolteacher, a retired Army officer and a housewife, would meet or hold conference calls to discuss the case. “They didn’t make off-the-cuff decisions,” said their lawyer, Mary F. Schiavo, a partner at Motley Rice. “Everything was very well thought out.”

At one point, the family met with the judge, Alvin K. Hellerstein of Federal District Court in Manhattan, as part of mediation efforts. The family was polite but firm about not wanting to settle, Ms. Schiavo said, and the talk turned to hockey (the judge was also a fan).

In addition to the wrongful death suits, the judge has been trying to resolve property damage suits and health claims by more than 10,000 rescue and recovery workers at ground zero.

“It’s rather extraordinary,” Judge Hellerstein told lawyers in court last January, noting that they were still involved in the litigation so long after the attacks.

“But we know from reading the newspapers that the dust hasn’t settled. Society still feels its wounds,” he said, and the lawsuits “continue to move along.” Some years ago, Judge Hellerstein told litigants that he believed lawsuits were “not good tools for investigation.” But last year he made clear that the plaintiffs had a choice. “I’ve run my course as a judge not twisting arms to settle,” he said. “If they want to have a trial, I’m going to give it to them.”

The issue now permeates the debate over the Bavis case.

Kenneth R. Feinberg, the special master who administered the government’s Victim Compensation Fund, said “the idea that a lawsuit will compel disclosure I think is unrealistic.”

Mr. Feinberg said that when he talked years ago with families who chose to sue rather than seek compensation through the fund, they offered two major reasons for doing so. Some said a suit would make the airlines safer; others said a suit was the only way to find out what really happened and who was to blame, he recalled.

He said he told the families that suits were unlikely to achieve either goal. “If you want to know what really happened,” he recalled saying, “go to the Senate and House intelligence committees; go to the special commission that President Bush set up. That’s where critical information is going to be analyzed and disclosed.”

Mark Dombroff, an aviation industry lawyer who was not involved in the Bavis case, concurred, saying that the litigation process was intended to resolve disputes, and in the case of wrongful death, “the only resolution the courts can give is money.”

But Michael Sandel, the Harvard political theorist and author of “Justice: What’s the Right Thing to Do?” said: “The primary purpose of civil courts is to settle claims and to provide damages and compensation. But courts are public institutions, and in this case it sounds as though the family cares more about having a voice than winning a settlement.

“That’s a perfectly understandable human impulse: to express a public grievance, in hopes of holding an industry accountable,” he said.

Alice Hoagland of Los Gatos, Calif., who received compensation through the victims’ fund, said she understood that impulse. Ms. Hoagland’s son, Mark Bingham, 31, was a passenger on United Flight 93 who fought back against the hijackers before that plane crashed in Shanksville, Pa. She called the Bavises “a brave group,” and said she would attend if there were a trial. “I wouldn’t miss it,” she said.

The Bavis family planned to gather Saturday at the 9/11 memorial in the Boston Public Garden and also to attend other events. This week, in discussing their lawsuit, the victim’s mother, Mary, said: “I don’t know if we expected it would take this long. If justice is done, and if we get some answers, it’ll all be worth waiting for.”

Copyright 2010 The New York Times Company

Donations can be sent to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD 21218.  Ph: 410-366-1637; Email: mobuszewski [at]


"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs


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