Markut v. Verizon N.Y. Inc. (In re World Trade Ctr. Lower Manhattan Disaster Site Litig.)
| Decision Date | 10 July 2014 |
| Docket Number | Nos. 12–3403–cv(L), 12–3729(Con).,s. 12–3403–cv(L), 12–3729(Con). |
| Citation | 758 F.3d 202 |
| Parties | In re WORLD TRADE CENTER LOWER MANHATTAN DISASTER SITE LITIGATION. Dorota Markut, et al., Plaintiffs, Byron Acosta, et al., Plaintiffs–Appellants, v. Verizon New York Incorporated, Defendant–Appellee, Tully Industries, Inc., et al., Defendants, WTC Captive Insurance Company, Inc., Interested–Party, Worby Groner Edelman & Napoli Bern, LLP, Cross–Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Denise A. Rubin (Paul J. Napoli and W. Steven Berman, on the brief), Napoli Bern Ripka Shkolnik LLP, New York, N.Y., for Plaintiffs Dorota Markut, et al., and Plaintiffs–Appellants Byron Acosta, et al.
Lee Ann Stevenson, Kirkland & Ellis LLP, New York, N.Y., (Richard E. Leff, McGivney & Kluger, P.C., on the brief), New York, N.Y., for Defendant–Appellee Verizon New York Incorporated.
James E. Tyrell, Patton Boggs LLP, Newark, NJ, for Defendants Tully Industries Inc., et al.
Margaret H. Warner, McDermott Will & Emery LLP, Washington, DC, for Interested–Third–Party WTC Captive Insurance Company, Inc.
Before: LYNCH, CHIN, and DRONEY, Circuit Judges.
In the aftermath of the attacks on the World Trade Center (“WTC”) on September 11, 2001, thousands of individuals participated in rescue, recovery, and clean-up operations at the World Trade Center site and surrounding areas. Many sustained injuries and brought lawsuits seeking compensation. These cases were consolidated before a single judge, the Honorable Alvin K. Hellerstein, in the United States District Court for the Southern District of New York. In this case, plaintiffs-appellants are cleaning workers who purportedly were exposed to toxic contaminants while working in buildings on the periphery of the World Trade Center site following the attacks. Plaintiffs were employed by cleaning companies hired by defendants,owners of various buildings in lower Manhattan that were damaged or destroyed in the attacks.
Two orders of the district court are challenged on this appeal. First, the district court granted summary judgment dismissing the claims of 211 plaintiffs who answered “none” to an interrogatory asking plaintiffs to identify “diagnosed” conditions, injuries, and diseases for which they were seeking recovery. Second, the district court dismissed the claims of another 31 plaintiffs for failure to prosecute because they did not certify their interrogatory responses by a court ordered deadline. We vacate and remand with respect to the grant of summary judgment dismissing the claims of the 211 plaintiffs, and we affirm with respect to the dismissal of the claims of the 31 plaintiffs for failure to prosecute.
In response to the terrorist attacks and their aftermath, Congress enacted the Air Transportation Safety and System Stabilization Act of 2001 (“ATSSSA”), Pub.L. No. 107–42,115 Stat. 230 (). Among other things, ATSSSA established the Victim's Compensation Fund (the “VCF”) to provide relief to individuals who suffered physical harm or death as a result of the terrorist attacks. See id. §§ 401, 403. To be eligible for the VCF, individuals were required to waive their right to pursue damages in court for injuries that they sustained as a result of the terrorist attacks. See id. § 405(c)(3)(B)(i). ATSSSA, as amended, also provided for a federal cause of action for damages arising from the terrorist attacks and mandated that the United States District Court for the Southern District of New York have original and exclusive jurisdiction to hear such claims. See id. § 408(b)(3) (as amended).
The VCF was originally open to claims from December 21, 2001 through December 22, 2003. See id. § 405(a)(3); see alsoJames Zadroga 9/11 Health and Compensation Act of 2010, Pub.L. No. 111–347, § 202(b)(3),124 Stat. 3623 (2011) (the “Zadroga Act”); James Zadroga 9/11 Health and Compensation Act of 2010, 76 Fed.Reg. 54112, 54112 (Aug. 31, 2011) (codified at 28 C.F.R. § 104). Congress passed the Zadroga Act to amend ATSSSA, reopen the VCF, and provide medical monitoring and treatment benefits to those workers who responded to and cleaned up after the terrorist attacks. The Zadroga Act and its implementing regulations provided, among other things, that to be eligible for the VCF, claimants had to withdraw any pending civil actions for damages related to WTC work by January 2, 2012. See28 C.F.R. § 104.61(b) (2011).
B. The Proceedings Below1. The Pleadings and Initial Discovery
Plaintiffs' claims are part of the mass tort litigation arising from the terrorist attacks. These cases were consolidated before the district court for pre-trial purposes on November 1, 2002.1
In their First Amended Master Complaint (the “Master Complaint”), dated March 28, 2008, plaintiffs asserted claims for negligence, wrongful death, and violations of the New York Labor Law. They alleged that defendants failed to “provide for [their] safety, protection and well-being”by failing to adequately monitor their working conditions and provide safety equipment to protect them from harmful airborne contaminants. App. at 11276–80. As a result, plaintiffs contended that they:
sustained severe and permanent personal injur[ies] and/or disabilit[ies] and will be permanently caused to suffer pain, suffering, inconvenience and other effects of such injuries which included conscious pain and suffering and/or which may result in ... wrongful death ... including the fear of same.... In addition, [plaintiffs] incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and ... ha[ve] suffered and will necessarily suffer additional loss of time and earnings from employment.
Pl. Amend. Compl. at ¶ 142.
The district court required individual plaintiffs to complete and submit a “Pro–Forma First Amended Complaint by Adoption” (the “Check-off Complaint”). The Check-off Complaint included, among other things, each plaintiff's personal information, the hours and locations at which she worked, and the injuries she alleged as a result of her work. Some plaintiffs also completed “core discovery responses,” which contained, among other things, a list of injuries and symptoms that they alleged resulted from WTC-related work, the contact information of the physicians or healthcare providers who treated or diagnosed them, a list of diagnoses (if any) that they received related to their injuries, and information as to whether a physician or healthcare provider connected their injuries to WTC-related work. Some plaintiffs also submitted medical records. The information generated from the core discovery responses and the medical records were stored in court-ordered databases.
On February 2, 2011 the district court stayed all proceedings, with the exception of “core discovery obligations,” until July 25, 2011.
2. The TCDI Database
On August 2, 2011, the district court held a conference to determine how to proceed in light of the expiration of the July 25 stay. The district court and the parties acknowledged that, throughout the litigation, medical information and discovery responses had been gathered and stored in the court-ordered databases. Nevertheless, the district court discussed the need for a neutral database (the “TCDI Database”),2 comprised of responses to a set of interrogatories agreed to by the parties, to gather and house essential information about each plaintiff. The district court explained that the TCDI Database was necessary to determine how many of the approximately 1,500 plaintiffs were pursuing their cases or instead were opting out of the litigation to receive compensation through the VCF under the Zadroga Act. Further, plaintiffs were to certify their answers to the interrogatories, so as to provide reliable information about their claims. Finally, the district court explained and the parties agreed that the TCDI Database would serve as a tool to choose the cases that would proceed as a group for more intensive discovery. The further discovery would verify the reliability of information provided in the initial discovery process and prepare initial cases for trial.
The district court summarized the discovery and scheduling issues that were raised at the August 2 conference in an order dated August 29, 2011. The district court ordered counsel to create a set of questions with the court-appointed Special Masters that each plaintiff would answer and certify. Plaintiffs were “required to complete the questionnaires in a timely fashion” and “[a]ny [p]laintiff who fail[ed] to fill out his or her questionnaire in a time period that enable[d] ... th[e] discovery program to proceed [would] be liable to be dismissed for failure to prosecute their case.” App. at 1746–47. From the information generated by the interrogatories and stored in the TCDI Database, the Special Masters were to generate a list of cases from which counsel and the district court would choose an initial 45 cases to proceed with further discovery. The process was to be completed by October 11, 2011.
The TCDI Database was to be created through plaintiffs' responses to 33 interrogatories, organized under nine headings: (1) case profile data; (2) WTC work background data; (3) deceased plaintiffs; (4) tobacco use; (5) pre-existing disorders, diseases, and anatomical abnormalities; (6) diagnosed conditions/ injuries and diseases for which plaintiff seeks recovery in this litigation; (7) loss of earnings; (8) disability claims; and (9) workers' compensation claims. Under the heading “Diagnosed Conditions/ Injuries and Diseases for which P[laintiff] seeks recovery in this litigation,” one interrogatory asked “[f]or which diagnosed condition(s)/injury(s)/disease(s) does P[laintiff] seek recovery?” U.S.C.A. dkt. no. 12–3403, doc. no. 164 at 2.
3. Enlargements of Time and the December 8, 2011 Order
...
To continue reading
Request your trial
-
Medical Monitoring – 50-State Survey
...Corp., 959 F.3d 491, 501 (2d Cir. 2020) (applying New York law); see In re World Trade Center Lower Manhattan Disaster Site Litigation, 758 F.3d 202, 213 (2d Cir. 2014) (“Medical monitoring is not an independent cause of action under New York law,” and is contingent “on the plaintiff establ......
-
American Law Institute Proposes Controversial Medical Monitoring Rule in Final Part of Torts Restatement.
...to a plaintiff who has no cognizable claim for personal injury"); but see In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d 202, 213 (2nd Cir. 2014) (stating that "a fear of cancer without some physical manifestation of contamination is not an independent basis for a c......