Sept. 11 plaintiffs wait for answers, resolution

Sacha Pfeiffer

In the aftermath of Sept. 11, 2001, a tiny percentage of people who lost loved ones or were injured in the attacks sued the aviation industry, spurning a federal compensation fund that ultimately distributed more than $7 billion to more than 5,500 victims.

Now, nearly five years after the historic disaster, roughly 60 lawsuits are still grinding their way through court. And the families pushing ahead with litigation, including numerous New Englanders, are mired in a massive legal case that has become a complicated behemoth for the federal judge overseeing it.

“I’ve never been in any litigation more frustrating than this,” said Frank H. Granito, Jr., a New York lawyer who represents the family of an American Flight 11 passenger and several insurance companies in the matter.

The case pits those who consider the day’s events an unpreventable tragedy against others who believe government and aviation officials ignored clear warnings that such an assault was possible. That lapse, in their view, led to the deaths of beloved friends and relatives, and they now want accountability and answers.

For some litigants, their decision to sue was met by public disapproval from skeptics who questioned their motives and dismissed their quest for justice as futile. But in interviews with the Globe, many family members said they are committed to pursuing the case until government, airline, and security officials are held responsible for their roles in the attacks. And they are aware that litigation is a gamble that could produce neither answers nor money, they said.

The New York-based case has been slowed by the federal government’s sweeping refusal to release materials on aviation security, outraging lawyers for both sides. It has also been stalled by the South Carolina law firm Motley Rice, which made billions suing the tobacco industry and represents 53 victims in the case, or nearly 60 percent of all plaintiffs. Its clients include the families of Flight 11 pilot Captain John Ogonowski of Dracut, crew member Madeline Sweeney of Acton, Rhode Island native David Angell, creator of the sitcom “Frasier,” and many high-earning New England executives.

“Right now we have it under a magnifying glass, and it’s impossible to really determine whether what Motley Rice is doing is a good or a bad thing,” said Margaret Ogonowski, a mother of three who was widowed in the attacks, adding that she feels “well treated by the firm.”

“Motley is driving a new course,” she said, “and we have to step back and examine it when it’s all finished to make a better determination as to whether they did a good job or maybe they botched it.”

While other lawyers have resolved most or all of their cases — at least 32 of the roughly 90 total lawsuits have settled — Motley Rice has settled only three. Of the cases left to settle, all but 7 are being handled by Motley Rice, whose founding partner, Ronald L. Motley, said in an interview that his clients “won’t take cheap early money.”

The firm is advancing to trial, where it says it can win jury awards larger than the settlements being offered and expose systemic failures that allowed the attacks to take place.

Waiting for a trial date
Motley Rice has maintained its stance despite repeated urgings to settle by US District Judge Alvin K. Hellerstein, who so far has denied requests by Motley Rice and other firms to schedule a trial. Hellerstein has also chastised Motley Rice, pledged to prevent “rewarding holdouts who prefer to settle later rather than earlier in the hope that they might be able to use leverage to gain additional funds later on,” and warned that not settling could mean “you will not only be litigating for my lifetime but your grandchildren’s lifetime.”

Still, many of the firm’s clients say they sued not for financial gain, but because they believe litigation will fully reveal whether government and aviation officials could have anticipated and prevented the events of Sept. 11. Some also sued because life insurance and other “offsets” would have reduced their payments from the compensation fund, which awarded $2 million in death cases and $400,000 in injury cases, on average.

“We did not join this lawsuit or choose to sue for monetary reward,” said Carie Lemack, whose mother, Judy Larocque of Framingham, chief executive of a market research firm, died on Flight 11, which originated in Boston. “It was always about accountability and it remains about accountability today, because reforms that are desperately needed are not happening.”

“You only settle when it’s appropriate to settle, and if other families felt they needed to settle I can’t judge that,” said Lemack. “For people who’ve chosen not to settle, I completely respect their decision and think the judge owes them a trial date. They deserve that. We deserve that.”

Lemack and other plaintiffs reject suggestions that, by suing, they have prolonged an emotional ordeal that delays closure, strains families, presents unknown risks, and potentially enriches the lawyers representing them — without a guarantee that they will find what they are searching for.

“If by litigating you’re looking for answers, you might be disappointed,” said Faith R. Arter, board president of the Massachusetts 9/11 Fund, founded to support people who lost loved ones in the attacks. “Litigation’s just not fun, and my real concern is emotional: How much more can you bear? But I want the families to get some peace out of the process, and if that has to be in a trial I support it.”

According to several lawyers and plaintiffs in the case, Motley Rice has made unusually high settlement demands, often 5 to 10 times higher than similar plane crash cases. The higher demands stem from Motley’s calculations for what it calls “terror damages” — compensation for the amount of time frightened victims knew they were fated to die — of between $750,000 and $1 million a minute, according to those lawyers and clients, who requested that their names not be used because the settlement process is confidential.

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