NEW YORK (Reuters) - A
federal appeals court in New York has revived claims by
211 cleanup workers who sought compensation for their
alleged exposure to toxic contaminants in buildings near
the World Trade Center site after the Sept. 11, 2001,
attacks.
The 2nd U.S. Circuit Court of Appeals on Thursday said a lower court
judge erred in dismissing the claims, after the workers had answered
"none" when asked if they had been "diagnosed" with ailments,
injuries or diseases.
These workers were employed by cleaning companies hired by Verizon
Communications Inc, Brookfield Properties and dozens of other owners
of downtown Manhattan buildings damaged or destroyed in the attacks,
the court said.
"The fact that plaintiffs answered 'none' to the interrogatory was
an insufficient basis, by itself, for a blanket conclusion that all
211 plaintiffs could not establish their claims against defendants
as a matter of law," Circuit Judge Denny Chin wrote for a
three-judge 2nd Circuit panel.
Thursday's decision overturned an August 2012 dismissal of the
claims by U.S. District Judge Alvin Hellerstein in Manhattan, who
oversees much of the Sept. 11 litigation.
Verizon spokesman Bob Varettoni had no immediate comment. Lawyers
for the phone company and the other defendants did not immediately
respond to requests for comment.
"I applaud the 2nd Circuit for having the ability and desire to do
the right thing," Marc Bern, a lawyer for the workers, said in a
phone interview. "It is clear that the exposures that these
individuals had led to their injuries."
The 2nd Circuit said Hellerstein should have examined whether each
plaintiff suffered a compensable injury, even if it had been
undiagnosed or surfaced late.
It also gave examples of workers who reported no diagnosed symptoms
but deserved a chance to press their claims.
One complained of dizziness, fatigue and shortness of breath but
received no diagnosis when he saw a doctor, while a second reported
bronchitis, chronic coughing and difficulty breathing.
"While we appreciate that the sheer number of cases before the
district court made its task of managing this mass tort litigation
extraordinarily difficult, the district court was obligated to
individually consider each plaintiff's answer of 'none' in the
context of any other evidence of injury," Chin wrote.
The 2nd Circuit also upheld Hellerstein's dismissal of claims by 31
workers who did not timely pursue their cases.
The case is Markut et al v. Verizon New York Inc et al, 2nd U.S.
Circuit Court of Appeals, Nos. 12-3403 and 12-3729.
(Reporting by Jonathan Stempel in New York; editing by Gunna
Dickson)
