The Highest Law

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On Friday, February 17th, 2006, lawyers representing the defendants in the “World Trade Center Cough” lawsuits filed motions to dismiss the complaints, including the allegations against the engineering firms that have been swept into these lawsuits. Public outrage has again flared over the claims that authorities failed to inform and protect the 9/11 clean-up workers from toxic site conditions since the January 5th death of a New York City police detective allegedly due to respiratory complications developed from his presence at Ground Zero. Engineers subcontracted to assist in the emergency response sympathize, but believe that plaintiffs are irrationally assigning responsibility to them.

The real problem is that the widespread web of purported blame encompasses every professional and administrative service involved with WTC assistance, including the engineers retained only to provide structural consulting services. Initial lawsuits against firms who worked at Ground Zero were filed roughly two years ago (with the structural design consultants being brought in over the past few months) and have since mushroomed to include over 5,000 plaintiffs (more than 8,000 plaintiffs when including spouses) seeking compensation. The predominant claims of the lawsuits in which the structural engineers have been sued are based on alleged respiratory afflictions or fears of future ailments.

The structural engineering firms that responded to the disaster were contracted only to provide structural consulting services, and never represented themselves to have expertise in environmental assessment. In fact, many engineers were on or near Ground Zero working side-by-side with the uniformed services following the collapse of the World Trade Center out of a sense of civic and professional responsibility. The lawsuits negate the goodwill and humanitarian nature of their efforts, and have left the greater engineering community in an untenably vulnerable position. Unfortunately, the consequences became painfully obvious, when the United States suffered another historic disaster—Hurricane Katrina.
Many New Yorkers felt that one of the few positive outcomes of 9/11 was an extraordinary sense of solidarity with their fellow New Yorkers and fellow Americans. Evidence of support and appreciation for rescue workers permeated life in New York, and was continually touted by national and international media. In dramatic contrast, the sentiment around the city was quite different in the aftermath of Katrina. Engineers were more reluctant to offer their services during the emergency, and SEAoNY President, Joseph Tortorella, was informed that some firms outwardly discouraged their employees from participating in the emergency hurricane relief, for fear this would expose their firms to further unwarranted liability suits.

For years, the Structural Engineers Association of New York (SEAoNY) along with similar organizations like the New York chapter of the American Institute of Architects (AIA), and the American Council of Engineering Companies (ACEC), among others, have been advocating for legislation that would give immunity to engineers and other design professionals for their services rendered in a state of emergency when practiced in good faith and without compensation. However, this law isn’t entirely applicable to the predicament that design professionals found themselves in following 9/11. When recovery work commenced after the attack, there had been limited discussion of payment for services. However, the premise was that the firms would receive payment for their work, which disqualifies them as volunteers under Good Samaritan Law. Instead, there are several other well-established doctrines at the State and Federal level from which engineers could derive protection from enterprising plaintiffs’ trial lawyers. For example, it is a federal principle that the government cannot be sued in defense of the public good. Discouraging engineers to act in a state of emergency effectively debilitates the governing body that seeks to protect the welfare of its people.

The ancient Romans coined the tenet “Salus populi supreme lex esto,” which means “The safety of the People is the highest law.” Under this idea, engineers and architects alike have sought protection for their work when responding to civic emergencies. Two attempts have been made to pass bills protecting design professionals from excessive litigation through New York State legislature and both attempts stalled and eventually failed. Lobbyists were hired to represent the engineers in their plea to government, but were ineffective against the significant political clout of the Trial Lawyer Bar, who want to maximize their ability to secure money for their clients.

Engineers are not looking for carte blanche immunity—we are looking for fair treatment and justice on behalf of those who risked their own lives to use their professional expertise to serve the greater good. We want to ensure that the people of this country have access to a community of engineers who are willing to provide professional and physical aid should another disaster befall this country.

Special thanks to Steve Dennis, Managing Principal and General Counsel for Thornton Tomasetti, and to Joseph Hopkins and James Tyrrell of Latham & Watkins, LLP for their time and contribution to this article.