Mass Disaster Litigating the Mass Tort Disaster Case

A Case Study of Mass Tort

Litigation: Litigating The 9/11
Disaster
Timothy Tomacik
Clifford Law Offices
Chicago, IL
William Healy
DecisionQuest
Chicago, IL
Cari Dawson
Alston & Bird LLP
Atlanta, GA

I. INTRODUCTION
After providing a brief overview of the flights and defendants named in this action derived from public
sources,1 this memorandum generally addresses the issues of duty, breach and causation related to
the 9/11 disaster. As discussed more fully below, the plaintiffs case against the Aviation Defendants
is governed by ordinary negligence principles, requiring proof of duty, breach, causation and
damages. The following provides a general overview of the plaintiffs fundamental claims against the
Aviation Defendants; some of the principal facts gathered to date in support of the elements of duty,
1

Discovery, documents and depositions Subject to Confidentiality Protective Order In Re: September 11 Litigation are not part of
this public source summary. All of the information and documents cited to herein are public sources and/or can be accessed through PACER
https://ecf.nysd.uscourts.gov/cgi-bin/login.pl or the website of the Southern District of New York
(http://www1.nysd.uscourts.gov/cases.php?form=sept11)

breach, and causation; and some of the significant rulings in this litigation as an exemplar of the
issues and strategies that might be confronted and pursued, respectively, in mass tort litigation more
generally.
DISCUSSION
I. Overview of the Flights and Defendants
A.

The Airlines

American Airlines & AMR Corporation. On 9/11, American Airlines operated a Boeing
767 aircraft as Flight 11, which departed from Logan National Airport in Boston at 7:59 a.m. with an
intended destination of Los Angeles, California. Flight 11 was hijacked at approximately 8:14 a.m. by
Mohamed Atta, Abdul Aziz al Omari, Waleed al Shehri, Wail al Shehri, and Satam al Suqami. Flight
11 crashed into the north tower of the World Trade Center at 8:46 a.m.
United Airlines & UAL Corporation. On 9/11, United Airlines operated a Boeing 767 aircraft as
Flight 175, which departed from Logan National Airport at 8:14 a.m. with an intended destination of Los
Angeles, California. Flight 175 was hijacked at approximately 8:42 a.m. by Marwan al Shehri, Mohand al
Shehri, Hamza al Ghamdi, Fayez Banihammad, and Ahmed al ghamdi. Flight 175 crashed into the south
tower of the World Trade Center at 9:03 a.m.
Colgan Air, Inc. & US Airways. On 9/11, Colgan Air and US Airways operated regularly
scheduled flights to and from Portland (Maine) International Jetport and Logan National Airport in Boston,
Massachusetts. On 9/11, Colgan Air operated a regularly scheduled passenger flight as US Airways
Flight 5930. Mohamed Atta and Abdul Aziz al Omari boarded this flight and flew to Boston, where they
connected to American Airlines Flight 11.
B.

The Security Companies

Huntleigh USA Corporation & ICTS International NV. Huntleigh USA operated the security
checkpoint at Logan National Airport that terrorists Marwan al Shehri, Mohand al Shehri, Hamza al
Ghamdi, Fayez Banihammad, and Ahmed al Ghamdi passed through to board Flight 175.
Globe, Burns, Pinkertons, & Securitas. The sole security checkpoint at Portland
International Jetport was the responsibility of Globe Aviation Services. Videotape surveillance
shows that terrorists Mohamed Atta and Abdul Aziz al Omari passed through this security checkpoint
at 5:45 a.m. Atta and Omari ultimately ended up on Flight 11. Globe Aviation Services also operated
the security checkpoints at Logan National Airport in Boston where terrorists Mohamed Atta, Abdul
Aziz al Omari, Waleed al Shehri, Wail al Shehri, and Satam al Suqami passed through to Flight 11.
C.

The Manufacturer

Boeing Co. Designed and manufactured the aircraft used for Flight 11 and Flight 175, including
the cockpit doors and locking mechanisms. These mechanisms were unreasonably dangerous and failed
to prevent hijackers from entering the cockpit and taking over the airplane.
II. The Prima Facie Negligence Case
It is well established that airlines have a duty to protect their passengers. In Stagl v. Delta
Airlines, Inc., 52 F.3d 463, 467 (2d Cir. 1995), the court held that airlines have a duty under New York
law to provide security to protect passengers against foreseeable dangers associated with travel.
Equally true, New York law mandates that to the same standard of care as any other tortfeasor:
[common carriers] must exercise ordinary care commensurate with the existing circumstances. See
Poaginos v. American Airlines, Inc., 912 F.2d 57, 59 (2d Cir. 1990). As more concisely described
below, it is the legal responsibility of the airlines to take reasonable security measures given the risk
of a terrorist attack.
In the context of the motions to dismiss filed in this case, Judge Hellerstein concluded that the
Aviation Defendants, and society generally, could reasonably have expected that the screening
methods at Logan, Newark, and Dulles airports were for the protection of people on the ground as
well as for those on board the airplanes that the terrorists hijacked and that the Aviation Defendants
owed a duty of care, not only to their passengers to whom they concede they owed this duty, but also
to victims on the ground. In re September 11 Litigation, 280 F. Supp.2d 279,292-93 (S.D.N.Y. 2003).

Despite the complexity of the events surrounding 9/11, the claims against the Aviation
Defendants are fundamentally negligence actions that require a classic Palsgraff analysis. In order
to establish a prima facie case of negligence under New York law, a claimant must prove: (1) the
defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and, (3)
the plaintiff suffered damage as a proximate result of the breach. Stagl v. Delta Airlines, Inc., 52 F.3d
463, 467 (2d Cir. 1995).

A.

Duty to Ground Victims

Judge Hellerstein ruled that the Aviation Defendants duty extends to property damage
claimants. See In re September 11 Litig., 594 F. Supp. 2d 374, 380 (S.D.N.Y. 2009). The duty of an
air carrier [is] to provide service with the highest possible degree of safety in the public interest. Id.,
citing 49 U.S.C. 44701(d)(1)(A), 44702(b)(1)(A). The air carriers duty extends beyond those
aboard the aircraft to individuals and property on the ground. Id., quoting Williams v. Trans World
Airlines, 509 F.2d 942, 946 (2d Cir. 1975). See also In re September 11 Litig., 280 F. Supp. 2d 279,
296 (S.D.N.Y. 2003) (holding Aviation Defendants could have foreseen that death and destruction on
the ground was a hazard that would arise should hijackers take control of a plane), In re September
11 Litig., 2009 WL 118057 (S.D.N.Y. 2009) (The natural and probable consequence of an aviation
disaster are deaths and injuries of people in the airplane and in the area of the crash, and the injuries
and destruction of property in and around the area.). Moreover, Plaintiffs are not required to prove
precisely how hijackers were able to smuggle weapons on to an aircraft in order to prove an airlines
negligence. See Stanford v. Kuwait Airways, 89 F.3d 117 (2d Cir. 1996).
In light of the known terrorist threat that existed prior to 9/11, the Aviation Defendants owed a legal
duty to people and property on the ground. This duty is to ensure that reasonable care is taken to provide
an effective level of aviation security to deter and minimize risk of a successful terrorist hijacking. In
Stanford, the court applied the generally accepted tort principles of negligence cases, and held that
Middle Eastern Airlines (MEA) had duty to protect against terrorist hijackings given the airlines
knowledge and awareness of the pre-existing threat of terrorist hijackings four terrorists boarded MEA
flight 426 in Beirut, Lebanon. The flight ended in Dubai, United Arab Emirates where the four terrorists
disembarked, and connected with Kuwait Airways flight KU22 1, bound for Karachi, Pakistan. Shortly after
take-off from Dubai, the terrorists hijacked the plane. The plane landed in Tehran, Iran and sat on the
airport tarmac for days while the terrorists tortured the three American passengers, finally murdering two.
There was no evidence relating to how the terrorists were able to get the weapons on board flight KU22 1.
The estates of the two decedents brought suit alleging that MEA's negligence was a proximate cause of
the injuries and deaths occurring aboard the aircraft. The court held that MEA had a duty to protect
passengers on other inter-lined connecting flights from unreasonable risks of harm through the use of
reasonable precautions in the face of reasonably foreseeable risks. The court further held that the plaintiffs
were not required to prove proximate cause beyond a reasonable doubt. The Stanford court determined
that the airline was faced with a set of circumstances in which a jury could reasonably find created a
foreseeable risk, necessitating some action to protect others from the threat of hijacking.
In the 9/11 Litigation, the Aviation Defendants attempted to deflect responsibility for implementing
and maintaining adequate security measures to the FAA. However, federal law does not place the
responsibility of creating and implementing an adequate security program on the FAA. Rather, the law
allocates the responsibility for adopting, implementing and performing the security program squarely on
the air carriers. The law in place on 9/11 required carriers to:
Provide for the safety of persons and property traveling on flights provided by the aircraft
operator against acts of criminal violence and air piracy, and the introduction of explosives,
incendiaries, or deadly or dangerous weapons aboard an aircraft.
14 C.F.R. 108.103(a)(1), as amended July 17, 2001. Prior to the July 17, 2001 amendment, the
applicable regulations were substantially the same, requiring carriers to:
Provide for the safety of persons and property traveling on air transportation and intra-state air
transportation against the acts of criminal violence and air piracy.
14 C.F.R. section 108.7(a)(1), as amended July 10, 1989 and December 3, 1996.

Further, In re September 11 Litigation, 280 F. Supp. 2d 279, 296 (S.D.N.Y. 2003), Judge
Hellerstein held that the Aviation Defendants owed plaintiffs including property plaintiffs whose
buildings were destroyed on 9/11 a duty to screen persons boarding aircraft:
[T]he aviation defendants controlled who came onto the planes and what was carried aboard.
They had the obligation to take reasonable care in screening precisely because of the risk of
terrorist hijackings, and the dangerous consequences that would inevitably follow. The
consequences that in fact followed were within the scope of the duty that the aviation defendants
undertook to carry out.
Judge Hellerstein further held:
[T]he aviation defendants could best control the boarding of airplanes, and were in the best position to
provide reasonable protection against hijackings and the dangers they presented, not only to the crew
and passengers, but also to ground victims. Imposing a duty on the aviation defendants best allocates
the risks to ground victims posed by inadequate screening, given the aviation defendants' existing and
admitted duty to screen passengers and items carried aboard.
Id. at 294. In ruling on the motions to dismiss, Judge Hellerstein found that those who suffer property damage or
injury on the ground were within the zone of foreseeable victims. Id. at 296.
B.
Foreseeability
Under New York law, the risk reasonably to be perceived defines the duty to be obeyed,
Palsgraff v. Long Island R. Co., 248 N.Y. 339, 344 (1928). Based upon readily available information and
documents, the airlines had actual and/or constructive notice of the risk of terrorist hijackings. One of the
starting points in this risk perceived analysis is the fact that prior to 9/11, a multi-billion dollar security
system was in place. Thus, a fundamental risk was perceived prior to the attack. The question then
becomes whether the Aviation Defendants failed to exercise reasonable care in light of the perceived
risk of terrorist hijackings. Did the failure of the Aviation Defendants to implement adequate procedures
and the systemic weaknesses in aviation security increase the risk of harm to passengers, people and
property on the ground? The historical events and trends preceding 9/11 demonstrate that the Aviation
Defendants failed to exercise reasonable care in light of the perceived risks.
Foreseeability is an issue that will not be presumed it must be proven. Thus, a key focus of
this case has been in garnering proof that it was foreseeable on 9/11 that terrorists could attempt to
hijack aircraft, crash them and cause catastrophic destruction on the ground. Documents from widely
available public sources as well as some publicly filed in this litigation, some of which are discussed
below, demonstrate that the prospect of hijackers commandeering commercial aircraft to use them as
flying bombs and crash them into buildings was not only imaginable, it was imagined and had been
attempted.2
III. Events and Historical Trends
History demonstrates that the threat of terrorism markedly increased between 1961 and
2000 and that the airlines had actual and/or constructive notice of the risk of terrorist hijackings:

1961: The first hijacking of an American carrier occurs in the United States.

1964: A former member

of the Philippine Olympic Yachting Team boarded a Pacific Airlines plane, shoots the pilot and copilot, and crashes the plane.

1968: An El Al Boeing 707 flying from Rome to Tel Aviv is hijacked by three members of the Popular Front
for the Liberation of Palestine (PFLP) and flown to Algeria. The hijacking establishes a historical

See supra note 1 and accompanying text.

precedent: the first terrorist hijacking in which political demands are met. The incident leads to a dramatic
rise in politically motivated hijackings over the ensuing years.

1970: Members of the PFLP hijack Pan Am Flight 93, TWA Flight 741 and a Swissair flight, all bound
for New York. The same day, the PFLP attempts to hijack El Al Flight 219 but are thwarted by air
marshals during the flight.

1970: On September 9, a BOVAC VC-10 from Bombay to Beirut is hijacked by the PLFP to urge
realization of their demands. The hijackers demand release of Palestinian extremists imprisoned in
Germany, Switzerland, and Israel. On the Pan Am flight, two passengers with handguns and grenades
order the plane to Lebanon and then Egypt. At a stop in Beirut, the plane is loaded with explosives which
detonate shortly after landing, leaving little time for passengers or crew to escape. All of the passengers
are held hostage until September 12, 1970, when 255 hostages from the four flights are released;
however, the terrorists continue to hold 56 passengers. The terrorists also destroy the three remaining
planes. The prisoners are released as a result of negotiations with Britain and several other governments.
This series of events comes to be known as Black September.

1972: Hijackers take over a Southern Airways flight and threaten to crash it into a nuclear power
facility in Oak Ridge, Tennessee.

February 1974: Samuel Byck attempted to hijack Delta Air Lines Flight 523, crash the plane into the
White House, and assassinate President Nixon. Byck was able to board the plane with a gun and a
bomb, enter the cockpit, shoot both pilots, killing one of them, and take control of the plane before his
efforts were thwarted by local police officers who shot and killed him from outside the plane before it
took off.

1985: TWA flight 847 from Athens to Rome is hijacked one half hour into the flight by two men with
guns and hand grenades. The terrorists claim to be members of an Islamic Jihad and commandeer
the Boeing 727 to Beirut. When Beirut refuses them permission to land, the terrorists threaten to crash
the plane into the control tower or the presidential palace.

1985: National Security Decision Directive 180 is signed by President Ronald Reagan: International
civil aviation is becoming a high visibility target for terrorist activities. Numerous terrorists acts
directed against U.S. and other air carriers in recent weeks pose a significant threat to international
commerce and our national interests. Recent violent terrorist acts have resulted in the murder, torture
and kidnapping of U.S. citizens and the death of hundreds of others. It is imperative to prevent and/or
respond to subsequent terrorist acts.

1986: Pan Am Flight 73 from India to New York is hijacked, stopping in Pakistan and Frankfurt, West
Germany.

1986: The Vice Presidents Task Force on Combating Terrorism issues the following
recommendation: Evaluate and strengthen airport and port security, pre-flight screening of
passengers and carry on baggage is a cornerstone of our domestic security program.

1987: Forty-three people die when a Pacific Southwest Airlines Flight 1771 crashes after a disgruntled
former employee shoots the pilots.

1988: Libyan terrorists blow up Pan Am Flight 103 over Lockerbie, Scotland, killing 259 people on the
plane and 11 people on the ground.

1989: RAND Corporation terrorist expert Brian Jenkins publishes his important study The Terrorist
Threat to Commercial Aviation.

1989: Terrorists bomb French UTA Flight 772, from Brazzaville, Congo to Paris. The plane explodes
in mid-air, killing 171 people.

1989: Latin American drug cartel terrorists bomb Columbia Avianca Flight 203 from Bogota to Cali,
Columbia, claiming 107 lives.

1990: The Commission on Aviation Security and Terrorism reports that: Minimum standards for
security personnel do not exist. There is no regular onsite presence to ensure that carriers are
complying with requirements or that requirements are adequate.

1993: Terrorists plot to blow up Holland and Lincoln tunnels (Omar Abdahl Rahman, et al.)

1993: The World Trade Center is bombed by terrorists (Ramsey Yousef, et al.)

1993: Somali tribesman, with Al Qaeda support, shoot down U.S. Blackhawk helicopters, killing 18
and wounding 73.

1994: An Algerian armed Islamic group hijacks Air France Flight 8969 and threaten to crash it into the
Eiffel Tower.

December 1994: Algerian terrorists hijacked an Air France flight in Algiers and threatened to crash it
into the Eiffel Tower. The plot was thwarted when French authorities deceived the terrorists into
thinking the plane did not have enough fuel to reach Paris and diverted it to Marseilles, and a French
anti-terrorist force stormed the plane and killed all four terrorists.

December 1994: Algerian terrorists hijacked an Air France flight in Algiers and threatened to crash it
into the Eiffel Tower. The plot was thwarted when French authorities deceived the terrorists into
thinking the plane did not have enough fuel to reach Paris and diverted it to Marseilles, and a French
anti-terrorist force stormed the plane and killed all four terrorists.

January 1995: A Phillipine National Police raid uncovered material in a Manilla apartment suggesting
that Ramzi Yousef, Abdul Murad, and Khalid Shaykh Mohammad planned, among other things, to
crash an airplane into CIA Headquarters. Information on the threat was passed to the FAA, which
briefed U.S. and major foreign carriers.

April 1995: Issue of Time, the magazines cover story reported on the potential for terrorists to kill
thousands in highly destructive acts. Senator Sam Nunn outlined a scenario in which terrorists destroy
the U.S. Capitol Building by crashing a radio controlled plane into it. Its not far-fetched, he says. His
idea was taken from the popular Tom Clancy book, Debt of Honor, written in August 1994.

1995: The Bojinka Plot to blow up a dozen U.S. airliners while they are aflight over Pacific (Ramsey
Yousef, et al.) is formulated.

1995: Terrorists bomb the office of the U.S. Program Manager for Saudi National Guard in Riyadh,
killing 5 Americans.

1996: Bombing at Khobr Towers, killing 19 U.S. servicemen.

1996: The GAL Report: Aviation Security Urgent Issues Need To Be Addressed, citing airline security
failures is published September 11, 1996.

1997: The White House Commission on Aviation and Security Recommendation advises that airlines:
Certify screening companies and improve screener performance. Better selection, training and
testing of the people who work at airport x-ray machines would result in a significant boost in security.
Also recommended: reduce aircraft vulnerability.

1998: Bin Laden Fatwah: In February,

1998, Osama Bin Laden and Ayman al
Zawahiri published their Fatwah through 12
Arabic newspaper in London, calling for
the murder of any American, anywhere on earth, as the core individual duty for every Muslim who can
do it in any country in which it is possible to do it.

1998: U.S. Embassies are bombed in Kenya and Tanzanea.

1999: Ahmad Rassam is arrested by U.S. Customs agents at U.S. Canadian border as he is
smuggling in explosives in connection with a plot to attack the Los Angeles International Airport.

1999: Islamic terrorists hijack Indian Airlines Airbus 300

1999: On Egypt Air Flight 900, the pilot, while quietly repeating an Islamic prayer, crashes a Boeing
767 into the Atlantic Ocean, killing all aboard the plane.

1999: National Intelligence Council Report titled The Sociology and Psychology of Terrorism: Who
becomes a Terrorist and Why? highlighted new terrorist threats and stated that suicide bomber(s)
belonging to Al Qaeda martyrdom battalion[s] could crash-land an aircraft packed with high explosives
. . . into the pentagon . . . .

April 6, 2000: GAO Report: Aviation Security: Vulnerabilities Still Exist In Aviation Security System:
[T]he need for strong aviation security grows every day. The threat of terrorism against the United
States remains high, as evidenced by the 1995 discovery of a plot to bomb as many as 11 U.S.
airliners, civil aviation is an attractive target.

June 28, 2000: GAO Report: Aviation Security: Long-Standing Problems Impair Airport Screeners
Performance, citing system wide security failures.

October 12, 2000: Terrorist attack on the U.S.S. Cole, killing 17 American sailors.
IV. The Aviation Defendants Had Notice of the Terrorist Threat
In the year preceding 9/11, the Aviation Defendants received scores of warnings regarding al
Qaedas intent to attack American civil aviation domestically, as well as the possible use of aircraft as
flying suicide bombs. The government advised the Aviation Defendants that terrorism experts were
saying it was not a matter of when there would be an attack in the United States, but where and when.
U.S. DEPT. OF TRANSP. OFFICE OF INTELLIGENCE & SEC., The Terrorist Threat Overview for the
United States, Feb. 2001. The following sampling of publically filed documents produced by the Aviation
Defendants in this litigation, discussed in chronological order, provides compelling evidence of the
Defendants knowledge of that threat:
(i)
On March 5, 1999, Massport hosted an airport security meeting at Boston Logan
International Airportthe airport from which American Flight 11 and United Flight 175 departed on 9/11.
This meeting was attended by the air carriers, including American Airlines and United Airlines, as well as
the FAA and the FBI. The prepared minutes from this meeting include a summary of a presentation given
by Ted Distaso, FBI Special Agent from the Boston Office, who was assigned to a joint task force (which
included the FBI, Secret Service, the ATF, and Boston State Police) to monitor terrorism in the area.3 The
minutes state in pertinent part:
[Distaso] suggested complacency about airport security exists because nothing has happened
in a while. He stated he knows of no immediate specific threat, but he mentioned the binLaden terrorists in the Middle East who have made threats against the United States,
and that it is only a matter of time before terrorists attack. He stated his belief that they
targeted the embassies to bomb because of their usually-compromised security, that airports
have had the perception of very tight security. Ted stated he found for himself this is not true;
he was able to walk unchallenged into one of Logans gate areas. He suggested it was in
everyones best interest to harden security.

(ii)
Each air carrier was required to have certain Customer Service Representatives
trained as Ground Security Coordinators (GSCs). GSCs were responsible for overseeing checkpoint
3

Id.

screening at airports at all times as well as being available to respond to any security issues that arose.
The Aviation Defendants provided GSCs recurrent training on an annual basis. The May 2000 American
Airlines Ground Security Coordinator Recurrent Training Reference Handout included a section dedicated
solely to Osama bin-Laden.4 The GSCs were also shown a video entitled The Terrorist and the Super
Power, and then given a written test on Osama bin-Laden. The questions included:
Q:
Who does the United States Department recognize as the
number one terrorist who is bankrolling events against U.S. interests?
A:

Osama bin-Laden.

(iii) In October 2000 the FAAs Office of Civil Aviation Security Intelligence released a report
to air carriers entitled World Wide Threats Against Civil Aviation. Throughout this 31-page report
there are multiple references to the threat posed by Osama bin-Laden and al-Qaeda. Specifically, this
report included the following:
Q:
What is the most serious terrorist threat to the United States at
present?
A:
The Osama bin-Laden network is considered the single most
serious threat to the United States and its interests at the present time....
The report explained how Osama bin-Laden uses the multi-international ties that al-Qaeda
developed, and can call on individuals and groups worldwide to prepare for, or carry out,
terrorist attacks.5
(iv) In February 2001 a report prepared by the Department of Transportation Office of
Intelligence and Security (DOT) entitled The Terrorist Threat Overview for the United States, was
disseminated to the air carriers, including American Airlines who produced it in discovery. In this
report, the DOT stated that the United States has become a more attractive target for terrorist
attacks. The report further advised:
In July 1999, the National Intelligence Community assessed that foreign terrorists probably will
attempt an attack in the United States in the next year or two. The assessment highlighted the
attractiveness of transportation and the transportation infrastructure such as subways, buses,
trains, cruise lines, civil aviation, and pipelines - as potential targets.
This report reiterated the great concern about Osama bin-Laden:
In testimony before Congress in February, 2000, CIA Director George Tenet said the most serious
threat overall terrorist threat that the United States faces worldwide comes from Islamic extremists,
most notably Osama bin-Laden.
The report discussed the changing nature of the terrorist threat, citing to the 1993 bombing of
the World Trade Center, concluding that Islamic extremists had crossed a threshold for more large scale
terrorist attacks and raised the profile of U.S. vulnerability to a terrorist attack. According to the report,
domestically, the World Trade Center bombing in 1993 was a watershed event because it demonstrated
that terrorists changed the way they look at conducting attacks against the United States. In terms of
targeting, this report warned:
TARGETING. The attack on the WTC also represented a change in targeting by international
terrorists. The bombing makes it clear that symbols of U.S. capitalism, trade, and commerce can
be considered viable terrorist targets, a point that was underscored by the planned bombings of
the Lincoln and Holland tunnels, the George Washington bridge in New York City.
4

Id.

Id.

Consequently, it is believed that the threat within the United States has increased, as terrorists
are beginning to recognize the value of attacks against targets not previously considered
symbols of the United States.
This Spring 2001 report concludes by ominously stating that counter terrorism experts are in
agreement that the pressing question for the future is not whether there will be additional terrorist
attacks in the U.S., but when and where.6
(v) In March 2001 the DOT disseminated a report to air carriers entitled Transportation, Security
and Terrorism Review. Specifically, it was a Special Edition entitled USA v. Osama bin-Laden: Technical
and Tactical Insights From the Trial. The DOT discussed how the New York trial of four defendants in the
1998 bombing of U.S. embassies in Kenya and Tanzania provided revealing details on Osama binLadens al-Qaeda network, methods and thinking.
The report examined the terrorist operational cycle and advised air carriers, including
American Airlines and United Airlines, that there are four groups involved in attacking a target. The
first group is the Surveillance Group, which collects information on targets and sends it to the
Bosses. The Bosses, who comprise the second group, decide which target to attack. Then a third,
Logistical Group, provides the weapons and explosives needed to attack the target. The fourth group
then arrives and carries out the attack.7 /here
In terms of target selection, this report warned air carriers that the FBI advised that the
embassy bombings would pave the way for attacks inside the U.S. The report not only linked Osama
bin-Laden directly to the attacks in Africa but commented on bin-Ladens intent to utilize a suicide
bomber. The report quotes terrorism expert Brian M. Jenkins, Ph.D. as stating, They want a lot of
people watching and a lot of people dead. The report also advised air carriers that al-Qaeda is not
only training terrorists in explosives and small arms, but training them in operational principles,
including collecting target intelligence and communications. The report advised that al-Qaeda
selected individuals to send to specialized schools for training in electronics and flying aircraft.8
(vi) In April 2001, the FAAs Office of Civil Aviation Security Intelligence gave regional briefings
to all commercial air carriers and disseminated a CD-ROM that included current threat information
regarding Osama bin-Laden and the possibility of suicide hijackings. This report advised air carriers
that they needed to have a better understanding of the current threat to U.S. air carriers and focused
on the groups and state sponsors deemed likeliest to attack symbols of the United States. There are
numerous references to the threat posed by Osama bin-Laden, including: There is significant
motivation for associates of bin-Laden to conduct a terrorist hijacking. Successful intelligence and law
enforcement operations around the world have led to the arrest and imprisonment of many individuals
linked to his organization. . With the hijacking of Indian Aviation Defendants as a model, were concerned
that bin-Ladens followers may look to duplicate that success by seizing a U.S. airliner to exchange
hostages for the release of these prisoners and others.
Considering everything, we assess that a terrorist attack of a U.S. airliner is more likely to
occur overseas than in the United States. A domestic hijacking would likely result in a greater
number of American hostages, but would be operationally more difficult to accomplish.. . . If,
however, the intent of hijackers is not to exchange hostages for prisoners, but to
commit suicide and a spectacular explosion, a domestic hijacking would probably be
preferable. Fortunately, we have no indication that any group is currently thinking in that
direction.
While the FAA considers the suicide bombing of a U.S. airliner to be a low probability, a nonsuicide bombing continues to be a major concern. For example, convicted members of the
Manilla plot to bomb U.S. airliners in Asia had links to bin-Laden and members of that bombing
6

Id.

This notice the Aviation Defendants received regarding the terrorist operational cycle is relevant because Plaintiffs have uncovered
facts demonstrating that surveillance by the terrorists was taking place prior to 9/11 at Logan and other locations. For example, one American
Airlines employee observed Mohammed Atta videotaping the Logan checkpoint prior to 9/11 one of the many key facts not found in the
9/11 Commission Report. Prior to 9/11, the FAA mandated that any such surveillance be immediately reported to the FAA. American
Airlines did not report this incident to the FAA. See also supra note 1.
8

See supra note 1.

conspiracy are still at large. Also, statements attributed to bin-Laden following the U.S.
missile attack on his camp specifically threatened to bring down and hijack U.S. and
Israeli aircraft.
This presentation included slides that reference a 1994 Air France hijacking where an Islamic
extremist planned to crash a plane into the Eiffel Tower, and a discussion regarding terrorist use of
planes as Flying Bombs.9
(vii) Pinkerton International was a private security firm. Pinkerton provided intelligence reports on a
weekly basis regarding terrorist threats worldwide. On September 7, 2001, just four days before
September 11, Pinkerton reported in its weekly intelligence forecast the following:
The FAA announced on September 3 that a notice had been issued throughout the summer
to U.S. airports to update their vulnerability assessments in light of a terrorist claim that
U.S. airports and/or airlines were a potential target.10
As evidenced by this sampling of publically filed documents, and many, many others that have
been exchanged in discovery and/or are in the public domain, the Aviation Defendants claim that the
government failed to apprise them of the risk is simply not true and, in any event, irrelevant. The
Defendants were put on notice by the government and knew from their own intelligence that a domestic
hijacking was not only foreseeable, but likely to occur. Moreover, serious flaws in the airlines security
system was well known decades before 9/11. The airlines were repeatedly informed of these flaws and
fined by the United States government for their failure to comply with and meet the security standards
of the United States.
A.

Breach
On the morning of September 11th, the hijackers were allowed to board the airplanes with
items which were not allowed to pass through security. Flight attendants and passengers provided
eye and ear witness accounts regarding what occurred on the airplanes via the telephone on 9/11.
Their statements from the planes confirmed that there was mace on board, stabbings, and a device
that appeared to be a bomb all restricted items. For example, in a telephone call from Flight 11,
flight attendant Betty Ong reported:

...somebody is stabbed in business class and I think there is mace. We cant breathe. I dont know, I
think were getting hijacked.. .the cockpit is not answering the phone and there is somebody stabbed
in business class and we cant breathe in Business Class.. .somebodys got mace or something..
.our number one is stabbed...we cant even get up to business class right now because no one
can breathe. Our number one is stabbed right now.. .and our number five. Our galley flight
attendant purser has been stabbed. See http://www.youtube.com/watch?v=7XaCr7lgJTU,
publically available recordings on You Tube.
Despite being continuously warned, fined and admonished as to vulnerabilities that existed in
the security system for years prior to 9/11, the Aviation Defendants continued to look the other way.
As a result, ten terrorists successfully passed through the checkpoint and boarded Flights 11 and 175
with prohibited items. The evidence has shown not only was there a systemic failure as of 9/11 but
actual breaches at the checkpoint occurred in violation of industry and FAA screening procedures.11
B.

Causation

The failures of the Aviation Defendants to timely implement adequate security measures to
guard against terrorist activity aboard American carriers increased the risk of terrorist hijackings and

Id.

10

Id.

2 0 Protective Order In Re: September 11 Litigation are not part of

Discovery, documents and depositions Subject to Confidentiality
this public source summary. All of the information and documents cited to herein are public sources and/or can be accessed through PACER
https://ecf.nysd.uscourts.gov/cgi-bin/login.pl or the website of the Southern District of New York
(http://www1.nysd.uscourts.gov/cases.php?form=sept11).
11

were a proximate cause of the damage and destruction that occurred on 9/11. The law does not require
us to prove the precise methods or weapons employed by the terrorists.
To establish proximate cause under New York law, a plaintiff must show that the defendants
actions were a substantial factor in causing the events which produced injury. Direct evidence of
precisely how the hijackers brought their weapons on board Flights 11 and 175 is not essential to
establish causation under well-settled tort principles discussed below. See Stanford, 89 F.3d at 121,
126-27 (proximate causation established sufficiently in a hijacking case to present the case to the jury
even where [n]o one knew how the hijackers got their weapons on board the airplane held:
Plaintiffs were not required to prove causation beyond a reasonable doubt, it was sufficient to present
evidence from which reasonable minds may conclude that it [was] more probable that the hijacking
was caused by [the airlines] negligence than it was not.)
While intervening criminal acts can, in certain circumstances, break the chain of causation,
New York law is settled that [w]hen...the intervening act is a natural and foreseeable consequence of
a circumstance created by the defendant, liability will subsist. Kush v. City of Buffalo, 59 N.Y.2d 26,
33 (1983). Here, preventing terrorism was an end and aim of the entire aviation security industry, and
the defendants negligence created the very risk a terrorist attack that gave rise to our injuries.
Proximate cause is always a question of fact. The issue is whether hijackings with weapons
were foreseeable and the mere fact that checkpoint screening was in place gives rise to
foreseeability. Plaintiffs do not need to prove that the AVSEC Defendants were the sole or even
primary cause of those events. Demonstrating that the defendants conduct was a substantial factor
in causing damages, regardless of whether there may have been other contributing causes is all that
is required. PROSSER & W. PAGE KEETON, THE LAW OF TORTS, 240 (4th ed. 1971).
The intentional, heinous conduct of the 9/11 hijackers does not absolve the Aviation
Defendants from their own negligence on or before September 11. Nash v. Port Auth. of N.V. & N.J.,
2008 N.Y. Slip Op. 03991 (1st Dept 2008), provides compelling reasoning to refute the Aviation
Defendants contention that negligent actions against third parties arising out terrorist attacks fail
because the intentional heinous conduct of terrorists operates as a superseding/intervening cause
that breaks the chain of causation.
Nash involved plaintiffs injured by the 1993 bombing of the public parking garage in the World
Trade Center who sought to recover damages allegedly attributable to the defendant landlords breach
of its proprietary duty to maintain its premises in a reasonably safe condition. At trial, evidence was
presented that years before the bombing, consultants had advised the defendant that the World Trade
Center was vulnerable to terrorist attack through its public parking garage. The jury assigned 68 percent
of the fault to the defendant owner for the negligence and the circumstances under which it occurred and
contributed to the bombing.
On appeal, defendants argued for a jury instruction providing for limited liability for noneconomic damages for parties 50% or less at fault, arguing that the jury could not assign a negligent
tortfeasor a percentage of fault higher that intentional tortfeasor (terrorists) who caused the bombing. The
Second Circuit rejected the defendants argument, and held that the defendants assigned share of fault
exceeded 50% and that it does not follow that negligent tortfeasors are automatically entitled to a release
from joint and several liability whenever an intentional tortfeasor is also responsible for the harm sued
upon. The Nash court stated in pertinent part:
Neither the magnitude of a defendants negligence, nor its moral blameworthiness, nor the
closeness of its causal relation to a plaintiffs harm necessarily diminishes to subordinate
significance in the attribution of fault by reason of the circumstance that the harm was
concurrently attributable to intentional conduct, even when the intentional conduct is
particularly heinous. To the contrary, as this case so vividly illustrates, the blameworthiness of
negligence may actually be increased by the heinousness of the wrongdoing it directly and
foreseeably facilitates.
In upholding the jurys apportionment of fault,
the court Nash held:

notwithstanding the terrorists wanton conduct,

the evidence... clearly supported the view that defendants negligence had been
extraordinarily conducive to the terrorists conduct so much so that the fulfillment of the

terrorists plot and the ensuing harm could with clear justification have been understood as
primarily attributable to that negligence.
Further, the court stated:
...Here, the evidence overwhelmingly supported the view that the conscientious performance
of the defendants duty reasonably to secure its premises would have prevented the harm.
This civil jury had no power to decide whether the terrorists should in any meaningful sense
be absolved of their murderous acts. What it could and did decide was rather that the acts of
these terrorists, even while obviously odious in the extreme, were not a cause for the easy
absolution of this defendant from its civil obligations.
Thus, the Aviation Defendants cannot successfully advance that the intentional conduct of the
hijackers is the sole proximate cause of Plaintiffs injuries under Nash. More importantly, the post-9/11
verdict in Nash demonstrates New York jurors willingness to hold negligent parties responsible for
their conduct conducive to the terrorists actions.
V. Evidentiary Rulings Have Barred Speculative and Hypothetical Defenses.
Throughout this litigation, the Aviation Defendants have attempted to absolve their own
negligence by blaming the government. The governments failures to apprehend the terrorists and
abort their plots did not excuse the Aviation Defendants alleged faults. In re September 11 Litig., 621
F. Supp. 2d 131, 141 (S.D.N.Y. 2009). The Aviation Defendants sought admissibility of the 9/11
Commission Report (hereafter The 9/11 Report), certain recommended findings of the 9/11
Commission staff, sections of the Moussaoui trial record, and a post-arrest statement of other AlQaeda members in order to demonstrate that the 9/11 attacks occurred as a result of government
failure and that the government should have done more to collect and synthesize intelligence of
terrorist plots and plans. Id. at 140.
Judge Hellerstein held that what the government knew, failed to pass on, and failed to learn
were irrelevant. Id. at 146. The Court granted the motions to the limited extent that these sources
could (1) provide information for an agreed narrative summary that explains to the jury the events of
September 11, 2001, and (2) reveal the hijackers plans and preparations. Id. at 140. Otherwise, the
Aviation Defendants motions were denied. Id. A trial against the Aviation Defendants will focus on
what they knew and should have known about the terrorist threat to civil aviation and on what they
should have done to protect against such threats. Id. at 146 (emphasis added). The governments
failures to detect and abort the terrorists plots would not affect the Aviation Defendants potential
liability. Id. at 141. Essentially, the Aviation Defendants couldnot inject the government as a
wrongdoer to excuse or mitigate their own failures. Id.
New York law is well-settled in that if ones negligence proximately causes a plaintiffs injury,
the fault of another tortfeasor who acts independently in causing the same harm does not eradicate
the fault of the first tortfeasor, unless the second tortfeasor was a superseding cause. Skinner v.
Stone, Raskill & Israel, 724 F.2d 264, 266 (2d Cir. 1983). In In re September 11 Litigation, the Court
found that governments negligence was not a superseding cause of the Aviation Defendants
negligence relieving them from liability for their negligence; the government negligence preceded the
Aviation Defendants negligence. Id. at 147. Thus, the Court concluded, the Aviation Defendants will
be proved negligent to the extent their efforts to secure the airports and airplanes failed to conform to
reasonable duties of care. Id. 147-48. Simply, the governments failures were not relevant, according
to the court. Id. at 149.
Moreover, the evidence sought by the
Aviation Defendants the 9/11 Report, certain
recommended findings of the 9/11 Commission staff, sections of the Moussaoui trial record, and an
interview with the terrorist, Ramzi Binalshibhwas inadmissible because of Federal Rule of Evidence
403. Id. If the probative value of the evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or delay [and] waste of time, the court may exclude the evidence.
Id. (citing Fed. R. Evid. 403.) An inquiry into what the government knew or should have known and did
not tell the defendants threatened to thoroughly confuse, prejudice, and distract the jury and add to
the trials expense and delay. Id.

A.

ii.

The 9/11 Commission Report and Related Staff Reports Are Not Admissible

i. The 9/11 Commission Report

The Aviation Defendants moved for the admission of The 9/11 Report as well as the Staff
Monograph and other Staff Statements written by the 9/11 Commission Staff pursuant to the public
records exception to the hearsay rule (Fed. R. Evid. 803(8)(C)). Id. at 151. The Aviation Defendants
argued that The 9/11 Report, Staff Monograph, and Staff Statements reflected trustworthy and reliable
government-authorized investigations. Id.
First, the Court held that the Staff Monographs and Statements were inadmissible as they did
not satisfy the criteria of Rule 803(8)(C), which permits only reports that set forth . . . factual findings
by public agencies. Id. at 155, citing City of New York v. Pullman, 662 F.2d 910, 914 (2d Cir. 1981).
As recommendations to the 9/11 Commissioners, they were interim reports, not final reports. Id.
Moreover, the Monographs and Statements were findings of the Commission staff, not a public office
or agency. Id.
Second, regarding the 9/11 Report, The Aviation Defendants evidentiary offers as to The
9/11 Report were denied, without prejudice. Id. at 156. While only few parts of the report satisfied
the rules of admissibility, the Court found that those few parts may be useful and important as an
agreed narrative. Id. In so holding, the Court was careful to explain that The 9/11 Report was in no
way a flawed reportthe Commissioners findings were carefully made and based on substantial
corroborative evidence. Id. at 157. However, The Report merely did not withstand the admissibility
requirements pursuant to the Federal Rules of Evidence. Several of the Commissioners findings, as
they themselves acknowledge, are based on sources not completely trustworthy or acceptable in
American courts. Id. at 156. For example, numerous sections were unreliable because they were
based on information derived from torture or otherquestionable investigative techniques. Id.
Moreover, the report contained multiple levels of hearsay; for example, the Commissioners
themselves did not interview the terrorists. Id. at 157. Moreover, the sections in question had very
limited, if any, relevance to the issues before the court and raised substantial dangers of bias,
confusion, and undue delay. Id., citing Fed. R. Evid. 402, 403.
Post-arrest Statements in the 9/11 Report Attributed to Khalid Sheikh Mohammed and Ramzi
Binalshibh Were Not Admissible.
The Aviation Defendants sought to introduce the statements of terrorists Khalid
Sheikh Mohammed and Ramzi Binalshibh contained in The 9/11 Report because the two men were
integral to the planning and implementation of the attacks, were unavailable for depositions, and had
statements attributed to them in The 9/11 Report that were sufficiently trustworthy. Id. at 157.
However, a statement in a public report made by an individual with no business duty to report is
considered hearsay within hearsay, and thus, must satisfy an exception to the hearsay rule. Id., citing
Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991). Moreover, the terrorists statements
were not factual findings for purposes of the public records exception to the hearsay rule. Id.

iii.

Admitting the 9/11 Report Would Result in Unfair Prejudice, Delay, and Confusion, and,
therefore, is Barred by Federal Rule of Evidence 403.
Admitting the 9/11 Report in its entirety, a book brimming with findings and recommendations,
would have choked the proceedings with scores of mini-trials as parties challenged each finding of
the 9/11 Commission. Id. at 158. Although the Court noted that specific statements may have been
relevant, useful, and admissible, admitting longer sections ofthe report would have caused the trial to
digress into innumerable arguments relating to myriad issues, causing undue prejudice, extensive
delay and confusion. Id., citing Fed. R. Evid. 403. Moreover, The 9/11 Report could not be permitted
to displace the time-tested search for truth by examination and cross-examination. Id. at 157.
B.

Ramzi Binalshibhs Journalistic Interview Was Not Admissible.

An Al Jazeera journalist conducted a videotaped interviewed of Ramzi Binalshibh

(Binalshibh), an Al Qaeda member and co-conspirator in the September 11 attacks. Id. at 164. Al
Qaeda kept the videotape and edited selections of the interview on to an audiotape, which it then
forwarded to Al Jazeera. Id. The audiotape recording was then translated into the document that the

Aviation Defendants sought to offer into evidence. Id. Neither the underlying video, audio recordings,
non-translated version of the document, nor the identity of the translator were made available. Id.
The Aviation Defendants argued that the translated interview should be admitted as an
adoptive admission under Fed. R. Evid. 801(d)(2) because one of the Plaintiffs counsel referred to it
in a settlement letter and on its website. Id. The Court rejected this argument and held that the
interview was not admissible. Id. The use of one set of arguments to rebut another set of arguments
does not meet the tests or reliability and trustworthiness required of Rule 801(d)(2). Id. at 43-44.
Moreover, the translated interview was not sufficiently trustworthy to be considered a statement
against interest under Rule 804(b)(3) as Al Qaeda was using the interview as part of a controlled
public relations campaign. Id.

VI. Damages: Court Limits WTC Properties Owners Recovery.

What is the proper measure of damages for an owner of damaged property damaged on the
ground? Plaintiff World Trade Center Properties (WTCP) claim in the September 11th Litigation
sought the recovery of $16.2 billion, which constituted the alleged replacement value of Towers 1, 2, 4
and 5. Were the property damage Plaintiffs, such as WTCP, entitled to the market value of the
leaseholds on the date of loss or the replacement value? This issue was resolved by Judge
Hellerstein in the 9/11 Litigation after protracted Motions for Summary Judgment and a Motion to
Reconsider.
As a result of the terrorist attacks of September 11, 2001, WTC 1, WTC 2, WTC 4, and WTC 5
were entirely destroyed. Following the destruction of the buildings, WTC Properties, the owner of a
ninety-nine year lease of those buildings, which was effective July 16, 2001, collected $4.1 billion in
insurance. However, WTC Properties sought to recover more; it sought to collect the alleged
replacement costs of the buildings, which totaled $8.4 billion, as well as an additional $3.9 billion in
lost rental income. The Aviation Defendants moved for summary judgment on WTCPs claims.
WTCP sought to recover as damages exactly what a century of New York law bars it from
recovering in this case: replacement costs and lost profits. The Defendants have argued that even if
WTCP were able to establish their liability for the terrorists destruction of WTC 1, WTC 2, WTC 4 and
WTC 5, its damages would be governed by the same property loss rule that has applied to every
other New York property owner for more than 100 years. The measure of damages for injury to real
property is the lesser of the diminution in market value or the cost of replacement. Hartshorn v.
Chaddock, 135 N.Y. 116, 122 (1892).
The New York Court of Appeals recently reaffirmed that lost market value and replacement
cost are each potential measures of property loss, but with the lower of the two figures affording full
compensation to the owner. Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534, 540, 749 N.Y. S.2d
467, 470 (2002) (emphasis added). The Aviation Defendants contended that WTCP proceeds as if the
law were the very opposite from this lesser of two rule. It did not deny that the market value of the
destroyed properties was substantially less than the cost to replace them. Nevertheless, WTCP seeks
to collect $8.4 billion in alleged replacement costs and an additional $3.9 billion in lost rental income.
The Defendants argued that, as a matter of law, neither category of damages was
recoverable. The cost to construct an income-producing real estate development was not an injury. It
was an investment opportunity. Once WTCP has recovered fair market value of the destroyed
buildings, it has been put back in the position it was in before September 11, 2001. Were the Court to
award WTCP the damages it seeks: (i) the Aviation Defendants would be forced to finance WTCPs
construction of a brand-new, vastly different complex worth far more than the buildings destroyed on
September 11, 2001 and (ii) WTCP would receive an impermissible double recovery of lost profits.
The law forbids such a windfall.
First, as every reported case from Hartshorn to Fisher has held, the applicable measure of
damages for the property loss in this tort action is the lesser of the lost market value or replacement
costs. The undisputed record evidence regarding the valuation of the WTC properties just two months
before September 11, 2001, the Court should rule that the diminution in market value is no more than
$2.8 billion. It is incontrovertible that on July 16, 2001, after conducting a worldwide competitive auction
involving bids from the most sophisticated commercial real estate developers, the Port Authority leased
WTC 1, 2, 4, and 5 to WTCP in a transaction with a net present value of $2.8 billion. Thus, by

anyones measure, the alleged replacement costs of $8.4 billion far exceed the fair market value of
the destroyed buildings.
Second, as the courts have repeatedly recognized, a supplemental award of future rental
payments on top of fair market value was not available because market value, by definition, already
includes future rental profits.
Third, the insurance proceeds received by WTCP as a result of the attacks on the WTC
buildings (of at least $4.1 billion) exceed the highest possible loss in market value ($2.8 billion).
Under New Yorks collateral source rule, embodied in N.Y. Civ. Prac. L. & Rules 4545(c), the
diminution in market value allegedly suffered by WTCP must be offset by the insurance payments
received by WTCP. As a matter of law, the Defendants conclude that WTCP has no remaining
recoverable damages for the destruction of WTC 1, 2, 4, and 5.
Judge Hellerstein held that New York follows the Lesser of Two rule that a plaintiff whose
property has been injured may recover the lesser of the dimunition of the propertys market
value or its replacement cost, citing Hartshorn v. Chaddock, 135 N.Y. 116, 122 (1892).
The Court emphasized that this rule applies even when the property in question has been
completely destroyed. In re Sept 11th Litig., 590 F. Supp. 2d 535, 541 (S.D.N.Y. 2008), citing Sandoro
v. Harlem-Gennesee Market & Nursery, Inc., 105 A.D.2d 165 (N.Y. App. Div. 1984).
In holding that market value was the appropriate measure of damages, the Court relied upon
the recent New York Court of Appeals decision Fisher v. Qualico Contracting Corp., 779 N.E. 2d 178
(N.Y. 2002) that affirmed the Lesser of Two rule. In re Sept. 11th Litig., 590 F.
Supp. 2d at 541. In Fisher, the plaintiffs Victorian home in Long Island was destroyed in a fire due to
the negligence of a contractor hired by the plaintiff. Fisher v. Qualico Contracting Corp 779 N.E. 2d
178, 179-180 (N.Y. 2002) The plaintiff received $1,000,050.00 from his insurers, who then subrogated
and sued the defendant for negligence and prevailed. Id. at 180. At trial, the subrogated plaintiff
demonstrated that replacement cost was $1,033,000.00, but that the diminution in the market value
was $480,000.00. Id. The court instructed the jury to award $480,000.00, the lesser of the two
amounts. Id. On appeal, the Court of Appeals affirmed, holding that [r]eplacement costs and
diminution of market value are simply two sides of the same coin. Id. at 181-82, and each is a proper
way to measure lost property value, the lower of the two figures affording full compensation to the
owner yet avoiding uneconomical efforts. Id.
In applying the Lesser of Two rule, Judge Hellerstein held that market value of the four
towers as of September 11, 2001, was the limit of WTCPs permissible recovery and that the value
fixed by the parties a few months early was probably, but not necessarily, the market value of the
leaseholds as of September 11, 2001. Id. at 536. Judge Hellerstein further held that the case
presented a narrow question of fact as to what the market value was, and that an issue of diminution
of recovery pursuant to N.Y. C.P.L.R. 4545 because insurance in other possible recoveries,
presented additional issues of fact, and ordered additional proceedings allowing for final
determination. Id. at 548.
In its ruling, the Court rejected WTCPs argument that they were entitled to replacement value
because the World Trade Center qualified as a specialty property. Id. at 532. In granting the
Defendants motion, the Court ruled that the World Trade Center complex was not specialty property,
stating in pertinent part:
The World Trade Center buildings were filled with a variety of commercial tenants, law firms of every
size and character, large national and international public accounting firms, investment banking,
insurance and financial institutions of every description, public restaurants, clubs and gyms, and the
like. Thousands of visitors frequented the retail shops and restaurants throughout the day. Clearly,
the price WTCP paid for the 99 year leases it acquired from the Port Authority reflects a full and fair
market price for the property. If WTCP is entitled to recover, recovery of the propertys market value
would fully compensate it. WTCP is not entitled to recover the larger value of replacement costs.
(emphasis added). Id. at 543.
The Court held that WTCPs claim for loss rental payments was without merit, stating that
the price that WTCP paid to the Port Authority included the value of anticipated rentals and that the
price it paid fully reflected the present value of those rental streams. Id. at 544. The Court, citing
Sandoro v. Harlem-Gennesee Market & Nursery, Inc., 105 A.D.2d 1103 (N.Y. App. Div. 1984),
concluded that WTCP could not recover twice, once in the form of the propertys market value, which

fully included the rental streams reasonably expected from the property and again for the separate
value of the rental streams. Id. at 544. According to the Court, since damages measured by market
value take rental value into account, where a building is totally destroyed there is no separate
allowance for damages for loss of rent. Id., quoting Sandoro, 105 A.D.2d at 1104.
As to the diminutions of recovery under N.Y. C.P.L.R. section 4545 (c), the Court dismissed
WTCPs argument that 4545 (c) cannot be applied until there is a judgment of recovery/verdict, as
an unimportant technical distinction, for the issue of diminution can be tried and determined
immediately following the jury verdict, on the same or a supplemental record. Id. at 548. The Court
directed the parties to inquire into the nature of the insurance recoveries, how they are to be applied,
and how they compare to clarify the record on this issue. Id.
CONCLUSION
As the public record and the decisions above reflect, the aviation industry was acutely aware,
through several completed and attempted terrorist attacks, FAA warnings, GAO Reports, and other
sources that their aircraft were at a high risk for hijackings by terrorists. Hijacking had been viewed as
a persistent threat to aviation dating back to the 1960s, and the risk of terrorism was on the rise in the
years, and even months, leading up to 9/11. In 1989, at an aviation security presentation to aviation
industry members, terrorism expert Brian Jenkins stated that [t]he nightmare of governments is that
suicide terrorists will hijack a commercial airliner and by killing or replacing its crew, crash it into a city
or some vital facility. Brian M. Jenkins, Ph. D., Intl Seminar on Aviation Security, February 1989. In
the months leading up to 9/11, the terrorist threat was increasing, and the level of security
effectiveness was decreasing, leading to a systemic failure that both invited the terrorist attack and
facilitated its success.
On 9/11, the danger of hijacking was both foreseeable and preventable. To the extent that the
dangers in other mass tort cases are equally foreseeable and presentable, manufacturers and
business owners would do well to take a lesson from the case study presented above.

A CASE STUDY OF MASS TORT

LITIGATION:
LITIGATING THE 9/11 DISASTER

TIMOTHY S. TOMASIK
CLIFFORD LAW OFFICES, P.C.
120 NORTH LA SALLE STREET
31st FLOOR
CHICAGO, ILLINOIS 60602
(312) 899-9090

INTRODUCTION
After providing a brief overview of the flights and defendants named in this action derived
from public sources, 1 this memorandum generally addresses the issues of duty, breach and
causation related to the 9/11 disaster. As discussed more fully below, the plaintiffs case against the
Aviation Defendants is governed by ordinary negligence principles, requiring proof of duty, breach,
causation and damages. The following provides a general overview of the plaintiffs fundamental
claims against the Aviation Defendants; some of the principal facts gathered to date in support of
the elements of duty, breach, and causation; and some of the significant rulings in this litigation as
an exemplar of the issues and strategies that might be confronted and pursued, respectively, in mass
tort litigation more generally.
DISCUSSION
I. Overview of the Flights and Defendants
A.

The Airlines
American Airlines & AMR Corporation. On 9/11, American Airlines operated a

Boeing 767 aircraft as Flight 11, which departed from Logan National Airport in Boston at 7:59
a.m. with an intended destination of Los Angeles, California. Flight 11 was hijacked at
approximately 8:14 a.m. by Mohamed Atta, Abdul Aziz al Omari, Waleed al Shehri, Wail al
Shehri, and Satam al Suqami. Flight 11 crashed into the north tower of the World Trade Center at
8:46 a.m.
United Airlines & UAL Corporation. On 9/11, United Airlines operated a Boeing 767 aircraft
as Flight 175, which departed from Logan National Airport at 8:14 a.m. with an intended destination of

Discovery, documents and depositions Subject to Confidentiality Protective Order In Re: September 11
Litigation are not part of this public source summary. All of the information and documents cited to herein are public
sources and/or can be accessed through PACER https://ecf.nysd.uscourts.gov/cgi-bin/login.pl or the website of the
Southern District of New York (http://www1.nysd.uscourts.gov/cases.php?form=sept11)

Los Angeles, California. Flight 175 was hijacked at approximately 8:42 a.m. by Marwan al Shehri,
Mohand al Shehri, Hamza al Ghamdi, Fayez Banihammad, and Ahmed al ghamdi. Flight 175 crashed
into the south tower of the World Trade Center at 9:03 a.m.
Colgan Air, Inc. & US Airways. On 9/11, Colgan Air and US Airways operated regularly
scheduled flights to and from Portland (Maine) International Jetport and Logan National Airport in
Boston, Massachusetts. On 9/11, Colgan Air operated a regularly scheduled passenger flight as US
Airways Flight 5930. Mohamed Atta and Abdul Aziz al Omari boarded this flight and flew to Boston,
where they connected to American Airlines Flight 11.
B.

The Security Companies

Huntleigh USA Corporation & ICTS International NV. Huntleigh USA operated the

security checkpoint at Logan National Airport that terrorists Marwan al Shehri, Mohand al Shehri,
Hamza al Ghamdi, Fayez Banihammad, and Ahmed al Ghamdi passed through to board Flight 175.
Globe, Burns, Pinkertons, & Securitas. The sole security checkpoint at Portland
International Jetport was the responsibility of Globe Aviation Services. Videotape surveillance
shows that terrorists Mohamed Atta and Abdul Aziz al Omari passed through this security
checkpoint at 5:45 a.m. Atta and Omari ultimately ended up on Flight 11. Globe Aviation Services
also operated the security checkpoints at Logan National Airport in Boston where terrorists
Mohamed Atta, Abdul Aziz al Omari, Waleed al Shehri, Wail al Shehri, and Satam al Suqami
passed through to Flight 11.
C.

The Manufacturer
Boeing Co. Designed and manufactured the aircraft used for Flight 11 and Flight 175,

including the cockpit doors and locking mechanisms. These mechanisms were unreasonably
dangerous and failed to prevent hijackers from entering the cockpit and taking over the airplane.
3

II. The Prima Facie Negligence Case

It is well established that airlines have a duty to protect their passengers. In Stagl v. Delta
Airlines, Inc., 52 F.3d 463, 467 (2d Cir. 1995), the court held that airlines have a duty under New
York law to provide security to protect passengers against foreseeable dangers associated with
travel. Equally true, New York law mandates that to the same standard of care as any other
tortfeasor: [common carriers] must exercise ordinary care commensurate with the existing
circumstances. See Poaginos v. American Airlines, Inc., 912 F.2d 57, 59 (2d Cir. 1990). As more
concisely described below, it is the legal responsibility of the airlines to take reasonable security
measures given the risk of a terrorist attack.
In the context of the motions to dismiss filed in this case, Judge Hellerstein concluded that
the Aviation Defendants, and society generally, could reasonably have expected that the screening
methods at Logan, Newark, and Dulles airports were for the protection of people on the ground as
well as for those on board the airplanes that the terrorists hijacked and that the Aviation
Defendants owed a duty of care, not only to their passengers to whom they concede they owed this
duty, but also to victims on the ground. In re September 11 Litigation, 280 F. Supp.2d 279,292-93
(S.D.N.Y. 2003).
Despite the complexity of the events surrounding 9/11, the claims against the Aviation
Defendants are fundamentally negligence actions that require a classic Palsgraff analysis. In
order to establish a prima facie case of negligence under New York law, a claimant must prove: (1)
the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty;
and, (3) the plaintiff suffered damage as a proximate result of the breach. Stagl v. Delta Airlines,
Inc., 52 F.3d 463, 467 (2d Cir. 1995).

A.

Duty to Ground Victims

Judge Hellerstein ruled that the Aviation Defendants duty extends to property damage

claimants. See In re September 11 Litig., 594 F. Supp. 2d 374, 380 (S.D.N.Y. 2009). The duty of an
air carrier [is] to provide service with the highest possible degree of safety in the public interest.
Id., citing 49 U.S.C. 44701(d)(1)(A), 44702(b)(1)(A). The air carriers duty extends beyond
those aboard the aircraft to individuals and property on the ground. Id., quoting Williams v. Trans
World Airlines, 509 F.2d 942, 946 (2d Cir. 1975). See also In re September 11 Litig., 280 F. Supp.
2d 279, 296 (S.D.N.Y. 2003) (holding Aviation Defendants could have foreseen that death and
destruction on the ground was a hazard that would arise should hijackers take control of a plane), In
re September 11 Litig., 2009 WL 118057 (S.D.N.Y. 2009) (The natural and probable consequence
of an aviation disaster are deaths and injuries of people in the airplane and in the area of the crash,
and the injuries and destruction of property in and around the area.). Moreover, Plaintiffs are not
required to prove precisely how hijackers were able to smuggle weapons on to an aircraft in order
to prove an airlines negligence. See Stanford v. Kuwait Airways, 89 F.3d 117 (2d Cir. 1996).
In light of the known terrorist threat that existed prior to 9/11, the Aviation Defendants owed a
legal duty to people and property on the ground. This duty is to ensure that reasonable care is taken to
provide an effective level of aviation security to deter and minimize risk of a successful terrorist
hijacking. In Stanford, the court applied the generally accepted tort principles of negligence cases,
and held that Middle Eastern Airlines (MEA) had duty to protect against terrorist hijackings given the
airlines knowledge and awareness of the pre-existing threat of terrorist hijackings four terrorists
boarded MEA flight 426 in Beirut, Lebanon. The flight ended in Dubai, United Arab Emirates where
the four terrorists disembarked, and connected with Kuwait Airways flight KU22 1, bound for Karachi,
Pakistan. Shortly after take-off from Dubai, the terrorists hijacked the plane. The plane landed in

Tehran, Iran and sat on the airport tarmac for days while the terrorists tortured the three American
passengers, finally murdering two. There was no evidence relating to how the terrorists were able to get
the weapons on board flight KU22 1. The estates of the two decedents brought suit alleging that MEA's
negligence was a proximate cause of the injuries and deaths occurring aboard the aircraft. The court
held that MEA had a duty to protect passengers on other inter-lined connecting flights from
unreasonable risks of harm through the use of reasonable precautions in the face of reasonably
foreseeable risks. The court further held that the plaintiffs were not required to prove proximate cause
beyond a reasonable doubt. The Stanford court determined that the airline was faced with a set of
circumstances in which a jury could reasonably find created a foreseeable risk, necessitating some
action to protect others from the threat of hijacking.
In the 9/11 Litigation, the Aviation Defendants attempted to deflect responsibility for
implementing and maintaining adequate security measures to the FAA. However, federal law does not
place the responsibility of creating and implementing an adequate security program on the FAA.
Rather, the law allocates the responsibility for adopting, implementing and performing the security
program squarely on the air carriers. The law in place on 9/11 required carriers to:
Provide for the safety of persons and property traveling on flights provided by the
aircraft operator against acts of criminal violence and air piracy, and the introduction
of explosives, incendiaries, or deadly or dangerous weapons aboard an aircraft.
14 C.F.R. 108.103(a)(1), as amended July 17, 2001. Prior to the July 17, 2001 amendment, the
applicable regulations were substantially the same, requiring carriers to:
Provide for the safety of persons and property traveling on air transportation and
intra-state air transportation against the acts of criminal violence and air piracy.
14 C.F.R. section 108.7(a)(1), as amended July 10, 1989 and December 3, 1996.

Further, In re September 11 Litigation, 280 F. Supp. 2d 279, 296 (S.D.N.Y. 2003), Judge
Hellerstein held that the Aviation Defendants owed plaintiffs including property plaintiffs
whose buildings were destroyed on 9/11 a duty to screen persons boarding aircraft:
[T]he aviation defendants controlled who came onto the planes and what was carried
aboard. They had the obligation to take reasonable care in screening precisely because
of the risk of terrorist hijackings, and the dangerous consequences that would
inevitably follow. The consequences that in fact followed were within the scope of the
duty that the aviation defendants undertook to carry out.
Judge Hellerstein further held:
[T]he aviation defendants could best control the boarding of airplanes, and were in the best
position to provide reasonable protection against hijackings and the dangers they presented,
not only to the crew and passengers, but also to ground victims. Imposing a duty on the
aviation defendants best allocates the risks to ground victims posed by inadequate
screening, given the aviation defendants' existing and admitted duty to screen passengers
and items carried aboard.
Id. at 294. In ruling on the motions to dismiss, Judge Hellerstein found that those who suffer property damage or
injury on the ground were within the zone of foreseeable victims. Id. at 296.
B.

Foreseeability
Under New York law, the risk reasonably to be perceived defines the duty to be obeyed,

Palsgraff v. Long Island R. Co., 248 N.Y. 339, 344 (1928). Based upon readily available information
and documents, the airlines had actual and/or constructive notice of the risk of terrorist hijackings.
One of the starting points in this risk perceived analysis is the fact that prior to 9/11, a multi-billion
dollar security system was in place. Thus, a fundamental risk was perceived prior to the attack. The
question then becomes whether the Aviation Defendants failed to exercise reasonable care in light of
the perceived risk of terrorist hijackings. Did the failure of the Aviation Defendants to implement
adequate procedures and the systemic weaknesses in aviation security increase the risk of harm to
passengers, people and property on the ground? The historical events and trends preceding 9/11

demonstrate that the Aviation Defendants failed to exercise reasonable care in light of the perceived
risks.
Foreseeability is an issue that will not be presumed it must be proven. Thus, a key focus of
this case has been in garnering proof that it was foreseeable on 9/11 that terrorists could attempt to
hijack aircraft, crash them and cause catastrophic destruction on the ground. Documents from widely
available public sources as well as some publicly filed in this litigation, some of which are discussed
below, demonstrate that the prospect of hijackers commandeering commercial aircraft to use them as
flying bombs and crash them into buildings was not only imaginable, it was imagined and had been
attempted.2
III. Events and Historical Trends
History demonstrates that the threat of terrorism markedly increased between 1961 and
2000 and that the airlines had actual and/or constructive notice of the risk of terrorist hijackings:

1961: The first hijacking of an American carrier occurs in the United States.

1964: A former member of the Philippine Olympic Yachting Team boarded a Pacific
Airlines plane, shoots the pilot and co-pilot, and crashes the plane.

1968: An El Al Boeing 707 flying from Rome to Tel Aviv is hijacked by three members of the
Popular Front for the Liberation of Palestine (PFLP) and flown to Algeria. The hijacking
establishes a historical precedent: the first terrorist hijacking in which political demands are
met. The incident leads to a dramatic rise in politically motivated hijackings over the ensuing
years.

1970: Members of the PFLP hijack Pan Am Flight 93, TWA Flight 741 and a Swissair
flight, all bound for New York. The same day, the PFLP attempts to hijack El Al Flight
219 but are thwarted by air marshals during the flight.

1970: On September 9, a BOVAC VC-10 from Bombay to Beirut is hijacked by the PLFP to
urge realization of their demands. The hijackers demand release of Palestinian extremists
imprisoned in Germany, Switzerland, and Israel. On the Pan Am flight, two passengers with
handguns and grenades order the plane to Lebanon and then Egypt. At a stop in Beirut, the

See supra note 1 and accompanying text.

plane is loaded with explosives which detonate shortly after landing, leaving little time for
passengers or crew to escape. All of the passengers are held hostage until September 12, 1970,
when 255 hostages from the four flights are released; however, the terrorists continue to hold
56 passengers. The terrorists also destroy the three remaining planes. The prisoners are
released as a result of negotiations with Britain and several other governments. This series of
events comes to be known as Black September.

1972: Hijackers take over a Southern Airways flight and threaten to crash it into a nuclear
power facility in Oak Ridge, Tennessee.

February 1974: Samuel Byck attempted to hijack Delta Air Lines Flight 523, crash the
plane into the White House, and assassinate President Nixon. Byck was able to board the
plane with a gun and a bomb, enter the cockpit, shoot both pilots, killing one of them, and
take control of the plane before his efforts were thwarted by local police officers who shot
and killed him from outside the plane before it took off.

1985: TWA flight 847 from Athens to Rome is hijacked one half hour into the flight by
two men with guns and hand grenades. The terrorists claim to be members of an Islamic
Jihad and commandeer the Boeing 727 to Beirut. When Beirut refuses them permission to
land, the terrorists threaten to crash the plane into the control tower or the presidential
palace.

1985: National Security Decision Directive 180 is signed by President Ronald Reagan:
International civil aviation is becoming a high visibility target for terrorist activities.
Numerous terrorists acts directed against U.S. and other air carriers in recent weeks pose a
significant threat to international commerce and our national interests. Recent violent
terrorist acts have resulted in the murder, torture and kidnapping of U.S. citizens and the
death of hundreds of others. It is imperative to prevent and/or respond to subsequent
terrorist acts.

1986: Pan Am Flight 73 from India to New York is hijacked, stopping in Pakistan and
Frankfurt, West Germany.

1986: The Vice Presidents Task Force on Combating Terrorism issues the following
recommendation: Evaluate and strengthen airport and port security, pre-flight screening of
passengers and carry on baggage is a cornerstone of our domestic security program.

1987: Forty-three people die when a Pacific Southwest Airlines Flight 1771 crashes after a
disgruntled former employee shoots the pilots.

1988: Libyan terrorists blow up Pan Am Flight 103 over Lockerbie, Scotland, killing 259
people on the plane and 11 people on the ground.

1989: RAND Corporation terrorist expert Brian Jenkins publishes his important study The
Terrorist Threat to Commercial Aviation.

1989: Terrorists bomb French UTA Flight 772, from Brazzaville, Congo to Paris. The
plane explodes in mid-air, killing 171 people.
9

1989: Latin American drug cartel terrorists bomb Columbia Avianca Flight 203 from
Bogota to Cali, Columbia, claiming 107 lives.

1990: The Commission on Aviation Security and Terrorism reports that: Minimum
standards for security personnel do not exist. There is no regular onsite presence to ensure
that carriers are complying with requirements or that requirements are adequate.

1993: Terrorists plot to blow up Holland and Lincoln tunnels (Omar Abdahl Rahman, et
al.)

1993: The World Trade Center is bombed by terrorists (Ramsey Yousef, et al.)

1993: Somali tribesman, with Al Qaeda support, shoot down U.S. Blackhawk helicopters,
killing 18 and wounding 73.

1994: An Algerian armed Islamic group hijacks Air France Flight 8969 and threaten to
crash it into the Eiffel Tower.

December 1994: Algerian terrorists hijacked an Air France flight in Algiers and threatened
to crash it into the Eiffel Tower. The plot was thwarted when French authorities deceived
the terrorists into thinking the plane did not have enough fuel to reach Paris and diverted it
to Marseilles, and a French anti-terrorist force stormed the plane and killed all four
terrorists.

December 1994: Algerian terrorists hijacked an Air France flight in Algiers and threatened
to crash it into the Eiffel Tower. The plot was thwarted when French authorities deceived
the terrorists into thinking the plane did not have enough fuel to reach Paris and diverted it
to Marseilles, and a French anti-terrorist force stormed the plane and killed all four
terrorists.

January 1995: A Phillipine National Police raid uncovered material in a Manilla

apartment suggesting that Ramzi Yousef, Abdul Murad, and Khalid Shaykh Mohammad
planned, among other things, to crash an airplane into CIA Headquarters. Information on
the threat was passed to the FAA, which briefed U.S. and major foreign carriers.

April 1995: Issue of Time, the magazines cover story reported on the potential for
terrorists to kill thousands in highly destructive acts. Senator Sam Nunn outlined a scenario
in which terrorists destroy the U.S. Capitol Building by crashing a radio controlled plane
into it. Its not far-fetched, he says. His idea was taken from the popular Tom Clancy
book, Debt of Honor, written in August 1994.

1995: The Bojinka Plot to blow up a dozen U.S. airliners while they are aflight over Pacific
(Ramsey Yousef, et al.) is formulated.

1995: Terrorists bomb the office of the U.S. Program Manager for Saudi National Guard in
Riyadh, killing 5 Americans.

1996: Bombing at Khobr Towers, killing 19 U.S. servicemen.

1996: The GAL Report: Aviation

Security Urgent Issues Need To Be Addressed,
12
10

citing airline security failures is published September 11, 1996.

1997: The White House Commission on Aviation and Security Recommendation advises
that airlines: Certify screening companies and improve screener performance. Better
selection, training and testing of the people who work at airport x-ray machines would
result in a significant boost in security. Also recommended: reduce aircraft vulnerability.

1998: Bin Laden Fatwah: In February, 1998, Osama Bin Laden and Ayman al Zawahiri
published their Fatwah through Arabic newspaper in London, calling for the murder of
any American, anywhere on earth, as the core individual duty for every Muslim who can
do it in any country in which it is possible to do it.

1998: U.S. Embassies are bombed in Kenya and Tanzanea.

1999: Ahmad Rassam is arrested by U.S. Customs agents at U.S. Canadian border as he is
smuggling in explosives in connection with a plot to attack the Los Angeles International
Airport.

1999: Islamic terrorists hijack Indian Airlines Airbus 300

1999: On Egypt Air Flight 900, the pilot, while quietly repeating an Islamic prayer, crashes
a Boeing 767 into the Atlantic Ocean, killing all aboard the plane.

1999: National Intelligence Council Report titled The Sociology and Psychology of
Terrorism: Who becomes a Terrorist and Why? highlighted new terrorist threats and
stated that suicide bomber(s) belonging to Al Qaeda martyrdom battalion[s] could crashland an aircraft packed with high explosives . . . into the pentagon . . . .

April 6, 2000: GAO Report: Aviation Security: Vulnerabilities Still Exist In Aviation
Security System: [T]he need for strong aviation security grows every day. The threat of
terrorism against the United States remains high, as evidenced by the 1995 discovery of a
plot to bomb as many as 11 U.S. airliners, civil aviation is an attractive target.

June 28, 2000: GAO Report: Aviation Security: Long-Standing Problems Impair Airport
Screeners Performance, citing system wide security failures.

October 12, 2000: Terrorist attack on the U.S.S. Cole, killing 17 American sailors.
IV. The Aviation Defendants Had Notice of the Terrorist Threat
In the year preceding 9/11, the Aviation Defendants received scores of warnings regarding al

Qaedas intent to attack American civil aviation domestically, as well as the possible use of aircraft as
flying suicide bombs. The government advised the Aviation Defendants that terrorism experts were
saying it was not a matter of when there would be an attack in the United States, but where and
when. U.S. DEPT. OF TRANSP. OFFICE OF INTELLIGENCE & SEC., The Terrorist Threat Overview
11

for the United States, Feb. 2001. The following sampling of publically filed documents produced by
the Aviation Defendants in this litigation, discussed in chronological order, provides compelling
evidence of the Defendants knowledge of that threat:

(i) On March 5, 1999, Massport hosted an airport security meeting at Boston Logan
International Airportthe airport from which American Flight 11 and United Flight 175 departed on
9/11. This meeting was attended by the air carriers, including American Airlines and United Airlines,
as well as the FAA and the FBI. The prepared minutes from this meeting include a summary of a
presentation given by Ted Distaso, FBI Special Agent from the Boston Office, who was assigned to a
joint task force (which included the FBI, Secret Service, the ATF, and Boston State Police) to monitor
terrorism in the area.3 The minutes state in pertinent part:
[Distaso] suggested complacency about airport security exists because
nothing has happened in a while. He stated he knows of no immediate
specific threat, but he mentioned the bin-Laden terrorists in the Middle
East who have made threats against the United States, and that it is
only a matter of time before terrorists attack. He stated his belief that
they targeted the embassies to bomb because of their usually-compromised
security, that airports have had the perception of very tight security. Ted
stated he found for himself this is not true; he was able to walk unchallenged
into one of Logans gate areas. He suggested it was in everyones best
interest to harden security.

(ii) Each air carrier was required to have certain Customer Service Representatives
trained as Ground Security Coordinators (GSCs). GSCs were responsible for overseeing checkpoint
screening at airports at all times as well as being available to respond to any security issues that arose.
The Aviation Defendants provided GSCs recurrent training on an annual basis. The May 2000
American Airlines Ground Security Coordinator Recurrent Training Reference Handout included a

Id.

12

section dedicated solely to Osama bin-Laden. 4 The GSCs were also shown a video entitled The
Terrorist and the Super Power, and then given a written test on Osama bin-Laden. The questions
included:
Q:

Who does the United States Department recognize as the

number one terrorist who is bankrolling events against U.S.
interests?

A:

Osama bin-Laden.

(iii) In October 2000 the FAAs Office of Civil Aviation Security Intelligence released a
report to air carriers entitled World Wide Threats Against Civil Aviation. Throughout this 31page report there are multiple references to the threat posed by Osama bin-Laden and al-Qaeda.
Specifically, this report included the following:
Q:

What is the most serious terrorist threat to the United States at

present?

A:

The Osama bin-Laden network is considered the single most

serious threat to the United States and its interests at the
present time....

The report explained how Osama bin-Laden uses the multi-international ties that al-Qaeda
developed, and can call on individuals and groups worldwide to prepare for, or carry out,
terrorist attacks.5
(iv) In February 2001 a report prepared by the Department of Transportation Office of
Intelligence and Security (DOT) entitled The Terrorist Threat Overview for the United States,
was disseminated to the air carriers, including American Airlines who produced it in discovery. In

Id.

Id.

13

this report, the DOT stated that the United States has become a more attractive target for terrorist
attacks. The report further advised:
In July 1999, the National Intelligence Community assessed that foreign
terrorists probably will attempt an attack in the United States in the next year or
two. The assessment highlighted the attractiveness of transportation and the
transportation infrastructure such as subways, buses, trains, cruise lines, civil
aviation, and pipelines - as potential targets.
This report reiterated the great concern about Osama bin-Laden:
In testimony before Congress in February, 2000, CIA Director George Tenet said
the most serious threat overall terrorist threat that the United States faces worldwide
comes from Islamic extremists, most notably Osama bin-Laden.
The report discussed the changing nature of the terrorist threat, citing to the 1993 bombing of
the World Trade Center, concluding that Islamic extremists had crossed a threshold for more large
scale terrorist attacks and raised the profile of U.S. vulnerability to a terrorist attack. According to the
report, domestically, the World Trade Center bombing in 1993 was a watershed event because it
demonstrated that terrorists changed the way they look at conducting attacks against the United
States. In terms of targeting, this report warned:
TARGETING. The attack on the WTC also represented a change in targeting
by international terrorists. The bombing makes it clear that symbols of U.S.
capitalism, trade, and commerce can be considered viable terrorist targets, a
point that was underscored by the planned bombings of the Lincoln and
Holland tunnels, the George Washington bridge in New York City.
Consequently, it is believed that the threat within the United States has
increased, as terrorists are beginning to recognize the value of attacks against
targets not previously considered symbols of the United States.
This Spring 2001 report concludes by ominously stating that counter terrorism experts are
in agreement that the pressing question for the future is not whether there will be additional
terrorist attacks in the U.S., but when and where.6

Id.

14

(v) In March 2001 the DOT disseminated a report to air carriers entitled Transportation,
Security and Terrorism Review. Specifically, it was a Special Edition entitled USA v. Osama binLaden: Technical and Tactical Insights From the Trial. The DOT discussed how the New York trial of
four defendants in the 1998 bombing of U.S. embassies in Kenya and Tanzania provided revealing
details on Osama bin-Ladens al-Qaeda network, methods and thinking.
The report examined the terrorist operational cycle and advised air carriers, including
American Airlines and United Airlines, that there are four groups involved in attacking a target.
The first group is the Surveillance Group, which collects information on targets and sends it to the
Bosses. The Bosses, who comprise the second group, decide which target to attack. Then a
third, Logistical Group, provides the weapons and explosives needed to attack the target. The
fourth group then arrives and carries out the attack.7 /here
In terms of target selection, this report warned air carriers that the FBI advised that the
embassy bombings would pave the way for attacks inside the U.S. The report not only linked
Osama bin-Laden directly to the attacks in Africa but commented on bin-Ladens intent to utilize a
suicide bomber. The report quotes terrorism expert Brian M. Jenkins, Ph.D. as stating, They want
a lot of people watching and a lot of people dead. The report also advised air carriers that al-Qaeda
is not only training terrorists in explosives and small arms, but training them in operational
principles, including collecting target intelligence and communications. The report advised that al-

This notice the Aviation Defendants received regarding the terrorist operational cycle is relevant because
Plaintiffs have uncovered facts demonstrating that surveillance by the terrorists was taking place prior to 9/11 at Logan
and other locations. For example, one American Airlines employee observed Mohammed Atta videotaping the Logan
checkpoint prior to 9/11 one of the many key facts not found in the 9/11 Commission Report. Prior to 9/11, the FAA
mandated that any such surveillance be immediately reported to the FAA. American Airlines did not report this
incident to the FAA. See also supra note 1.

15

Qaeda selected individuals to send to specialized schools for training in electronics and flying
aircraft.8
(vi) In April 2001, the FAAs Office of Civil Aviation Security Intelligence gave regional
briefings to all commercial air carriers and disseminated a CD-ROM that included current threat
information regarding Osama bin-Laden and the possibility of suicide hijackings. This report
advised air carriers that they needed to have a better understanding of the current threat to U.S. air
carriers and focused on the groups and state sponsors deemed likeliest to attack symbols of the
United States. There are numerous references to the threat posed by Osama bin-Laden, including:
There is significant motivation for associates of bin-Laden to conduct a terrorist hijacking. Successful
intelligence and law enforcement operations around the world have led to the arrest and imprisonment
of many individuals linked to his organization. . With the hijacking of Indian Aviation Defendants as a
model, were concerned that bin-Ladens followers may look to duplicate that success by seizing a U.S.
airliner to exchange hostages for the release of these prisoners and others.
Considering everything, we assess that a terrorist attack of a U.S. airliner is
more likely to occur overseas than in the United States. A domestic hijacking
would likely result in a greater number of American hostages, but would be
operationally more difficult to accomplish.. . . If, however, the intent of
hijackers is not to exchange hostages for prisoners, but to commit
suicide and a spectacular explosion, a domestic hijacking would
probably be preferable. Fortunately, we have no indication that any group
is currently thinking in that direction.
While the FAA considers the suicide bombing of a U.S. airliner to be a low
probability, a non-suicide bombing continues to be a major concern. For
example, convicted members of the Manilla plot to bomb U.S. airliners in
Asia had links to bin-Laden and members of that bombing conspiracy are
still at large. Also, statements attributed to bin-Laden following the U.S.
missile attack on his camp specifically threatened to bring down and
hijack U.S. and Israeli aircraft.

See supra note 1.

16

This presentation included slides that reference a 1994 Air France hijacking where an Islamic
extremist planned to crash a plane into the Eiffel Tower, and a discussion regarding terrorist use of
planes as Flying Bombs.9
(vii) Pinkerton International was a private security firm. Pinkerton provided intelligence reports
on a weekly basis regarding terrorist threats worldwide. On September 7, 2001, just four days before
September 11, Pinkerton reported in its weekly intelligence forecast the following:
The FAA announced on September 3 that a notice had been issued
throughout the summer to U.S. airports to update their vulnerability
assessments in light of a terrorist claim that U.S. airports and/or
airlines were a potential target.10
As evidenced by this sampling of publically filed documents, and many, many others that have
been exchanged in discovery and/or are in the public domain, the Aviation Defendants claim that the
government failed to apprise them of the risk is simply not true and, in any event, irrelevant. The
Defendants were put on notice by the government and knew from their own intelligence that a
domestic hijacking was not only foreseeable, but likely to occur. Moreover, serious flaws in the
airlines security system was well known decades before 9/11. The airlines were repeatedly informed
of these flaws and fined by the United States government for their failure to comply with and meet
the security standards of the United States.
A.

Breach
On the morning of September 11th, the hijackers were allowed to board the airplanes with

items which were not allowed to pass through security. Flight attendants and passengers provided
eye and ear witness accounts regarding what occurred on the airplanes via the telephone on 9/11.

Id.

10

Id.

20
17

Their statements from the planes confirmed that there was mace on board, stabbings, and a device
that appeared to be a bomb all restricted items. For example, in a telephone call from Flight 11,
flight attendant Betty Ong reported:
...somebody is stabbed in business class and I think there is mace. We cant breathe. I
dont know, I think were getting hijacked.. .the cockpit is not answering the phone and
there is somebody stabbed in business class and we cant breathe in Business Class..
.somebodys got mace or something.. .our number one is stabbed...we cant even get up
to business class right now because no one can breathe. Our number one is stabbed
right now.. .and our number five. Our galley flight attendant purser has been stabbed.
See http://www.youtube.com/watch?v=7XaCr7lgJTU, publically available recordings
on You Tube.
Despite being continuously warned, fined and admonished as to vulnerabilities that existed
in the security system for years prior to 9/11, the Aviation Defendants continued to look the other
way. As a result, ten terrorists successfully passed through the checkpoint and boarded Flights 11
and 175 with prohibited items. The evidence has shown not only was there a systemic failure as of
9/11 but actual breaches at the checkpoint occurred in violation of industry and FAA screening
procedures.11
B.

Causation
The failures of the Aviation Defendants to timely implement adequate security measures to

guard against terrorist activity aboard American carriers increased the risk of terrorist hijackings and
were a proximate cause of the damage and destruction that occurred on 9/11. The law does not
require us to prove the precise methods or weapons employed by the terrorists.
To establish proximate cause under New York law, a plaintiff must show that the
defendants actions were a substantial factor in causing the events which produced injury. Direct
11

Discovery, documents and depositions Subject to Confidentiality Protective Order In Re: September 11
Litigation are not part of this public source summary. All of the information and documents cited to herein are public
sources and/or can be accessed through PACER https://ecf.nysd.uscourts.gov/cgi-bin/login.pl or the website of the
Southern District of New York (http://www1.nysd.uscourts.gov/cases.php?form=sept11).

18

evidence of precisely how the hijackers brought their weapons on board Flights 11 and 175 is not
essential to establish causation under well-settled tort principles discussed below. See Stanford, 89
F.3d at 121, 126-27 (proximate causation established sufficiently in a hijacking case to present the
case to the jury even where [n]o one knew how the hijackers got their weapons on board the
airplane held: Plaintiffs were not required to prove causation beyond a reasonable doubt, it was
sufficient to present evidence from which reasonable minds may conclude that it [was] more
probable that the hijacking was caused by [the airlines] negligence than it was not.)
While intervening criminal acts can, in certain circumstances, break the chain of causation,
New York law is settled that [w]hen...the intervening act is a natural and foreseeable consequence
of a circumstance created by the defendant, liability will subsist. Kush v. City of Buffalo, 59
N.Y.2d 26, 33 (1983). Here, preventing terrorism was an end and aim of the entire aviation
security industry, and the defendants negligence created the very risk a terrorist attack that
gave rise to our injuries.
Proximate cause is always a question of fact. The issue is whether hijackings with weapons
were foreseeable and the mere fact that checkpoint screening was in place gives rise to
foreseeability. Plaintiffs do not need to prove that the AVSEC Defendants were the sole or even
primary cause of those events. Demonstrating that the defendants conduct was a substantial factor
in causing damages, regardless of whether there may have been other contributing causes is all that
is required. PROSSER & W. PAGE KEETON, THE LAW OF TORTS, 240 (4th ed. 1971).
The intentional, heinous conduct of the 9/11 hijackers does not absolve the Aviation
Defendants from their own negligence on or before September 11. Nash v. Port Auth. of N.V. &
N.J., 2008 N.Y. Slip Op. 03991 (1st Dept 2008), provides compelling reasoning to refute the
Aviation Defendants contention that negligent actions against third parties arising out terrorist
19

attacks

fail

because

the

intentional

heinous

conduct

of

terrorists

operates

as

superseding/intervening cause that breaks the chain of causation.

Nash involved plaintiffs injured by the 1993 bombing of the public parking garage in the
World Trade Center who sought to recover damages allegedly attributable to the defendant
landlords breach of its proprietary duty to maintain its premises in a reasonably safe condition. At
trial, evidence was presented that years before the bombing, consultants had advised the defendant
that the World Trade Center was vulnerable to terrorist attack through its public parking garage. The
jury assigned 68 percent of the fault to the defendant owner for the negligence and the circumstances
under which it occurred and contributed to the bombing.
On appeal, defendants argued for a jury instruction providing for limited liability for noneconomic damages for parties 50% or less at fault, arguing that the jury could not assign a
negligent tortfeasor a percentage of fault higher that intentional tortfeasor (terrorists) who caused the
bombing. The Second Circuit rejected the defendants argument, and held that the defendants
assigned share of fault exceeded 50% and that it does not follow that negligent tortfeasors are
automatically entitled to a release from joint and several liability whenever an intentional tortfeasor is
also responsible for the harm sued upon. The Nash court stated in pertinent part:
Neither the magnitude of a defendants negligence, nor its moral blameworthiness,
nor the closeness of its causal relation to a plaintiffs harm necessarily diminishes
to subordinate significance in the attribution of fault by reason of the circumstance
that the harm was concurrently attributable to intentional conduct, even when the
intentional conduct is particularly heinous. To the contrary, as this case so vividly
illustrates, the blameworthiness of negligence may actually be increased by the
heinousness of the wrongdoing it directly and foreseeably facilitates.
In upholding the jurys apportionment of fault, notwithstanding the terrorists wanton conduct,
the court Nash held:
the evidence... clearly supported the view that defendants negligence had been
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extraordinarily conducive to the terrorists conduct so much so that the

fulfillment of the terrorists plot and the ensuing harm could with clear justification
have been understood as primarily attributable to that negligence.
Further, the court stated:
...Here, the evidence overwhelmingly supported the view that the conscientious
performance of the defendants duty reasonably to secure its premises would have
prevented the harm. This civil jury had no power to decide whether the terrorists
should in any meaningful sense be absolved of their murderous acts. What it
could and did decide was rather that the acts of these terrorists, even while
obviously odious in the extreme, were not a cause for the easy absolution of this
defendant from its civil obligations.
Thus, the Aviation Defendants cannot successfully advance that the intentional conduct of
the hijackers is the sole proximate cause of Plaintiffs injuries under Nash. More importantly, the
post-9/11 verdict in Nash demonstrates New York jurors willingness to hold negligent parties
responsible for their conduct conducive to the terrorists actions.
V. Evidentiary Rulings Have Barred Speculative and Hypothetical Defenses.
Throughout this litigation, the Aviation Defendants have attempted to absolve their own
negligence by blaming the government. The governments failures to apprehend the terrorists and
abort their plots did not excuse the Aviation Defendants alleged faults. In re September 11 Litig.,
621 F. Supp. 2d 131, 141 (S.D.N.Y. 2009). The Aviation Defendants sought admissibility of the
9/11 Commission Report (hereafter The 9/11 Report), certain recommended findings of the 9/11
Commission staff, sections of the Moussaoui trial record, and a post-arrest statement of other AlQaeda members in order to demonstrate that the 9/11 attacks occurred as a result of government
failure and that the government should have done more to collect and synthesize intelligence of
terrorist plots and plans. Id. at 140.
Judge Hellerstein held that what the government knew, failed to pass on, and failed to learn
were irrelevant. Id. at 146. The Court granted the motions to the limited extent that these sources
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could (1) provide information for an agreed narrative summary that explains to the jury the events
of September 11, 2001, and (2) reveal the hijackers plans and preparations. Id. at 140. Otherwise,
the Aviation Defendants motions were denied. Id. A trial against the Aviation Defendants will
focus on what they knew and should have known about the terrorist threat to civil aviation and on
what they should have done to protect against such threats. Id. at 146 (emphasis added). The
governments failures to detect and abort the terrorists plots would not affect the Aviation
Defendants potential liability. Id. at 141. Essentially, the Aviation Defendants couldnot inject the
government as a wrongdoer to excuse or mitigate their own failures. Id.
New York law is well-settled in that if ones negligence proximately causes a plaintiffs
injury, the fault of another tortfeasor who acts independently in causing the same harm does not
eradicate the fault of the first tortfeasor, unless the second tortfeasor was a superseding cause.
Skinner v. Stone, Raskill & Israel, 724 F.2d 264, 266 (2d Cir. 1983). In In re September 11
Litigation, the Court found that governments negligence was not a superseding cause of the
Aviation Defendants negligence relieving them from liability for their negligence; the
government negligence preceded the Aviation Defendants negligence. Id. at 147. Thus, the Court
concluded, the Aviation Defendants will be proved negligent to the extent their efforts to secure
the airports and airplanes failed to conform to reasonable duties of care. Id. 147-48. Simply, the
governments failures were not relevant, according to the court. Id. at 149.
Moreover, the evidence sought by the Aviation Defendants the 9/11 Report, certain
recommended findings of the 9/11 Commission staff, sections of the Moussaoui trial record, and an
interview with the terrorist, Ramzi Binalshibhwas inadmissible because of Federal Rule of
Evidence 403. Id. If the probative value of the evidence is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or delay [and] waste of time, the court may exclude
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the evidence. Id. (citing Fed. R. Evid. 403.) An inquiry into what the government knew or should
have known and did not tell the defendants threatened to thoroughly confuse, prejudice, and
distract the jury and add to the trials expense and delay. Id.
A.

The 9/11 Commission Report and Related Staff Reports Are Not Admissible
i. The 9/11 Commission Report
The Aviation Defendants moved for the admission of The 9/11 Report as well as the Staff

Monograph and other Staff Statements written by the 9/11 Commission Staff pursuant to the public
records exception to the hearsay rule (Fed. R. Evid. 803(8)(C)). Id. at 151. The Aviation
Defendants argued that The 9/11 Report, Staff Monograph, and Staff Statements reflected
trustworthy and reliable government-authorized investigations. Id.
First, the Court held that the Staff Monographs and Statements were inadmissible as they
did not satisfy the criteria of Rule 803(8)(C), which permits only reports that set forth . . . factual
findings by public agencies. Id. at 155, citing City of New York v. Pullman, 662 F.2d 910, 914
(2d Cir. 1981). As recommendations to the 9/11 Commissioners, they were interim reports, not
final reports. Id. Moreover, the Monographs and Statements were findings of the Commission staff,
not a public office or agency. Id.
Second, regarding the 9/11 Report, The Aviation Defendants evidentiary offers as to The
9/11 Report were denied, without prejudice. Id. at 156. While only few parts of the report
satisfied the rules of admissibility, the Court found that those few parts may be useful and
important as an agreed narrative. Id. In so holding, the Court was careful to explain that The 9/11
Report was in no way a flawed reportthe Commissioners findings were carefully made and
based on substantial corroborative evidence. Id. at 157. However, The Report merely did not
withstand the admissibility requirements pursuant to the Federal Rules of Evidence. Several of

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the Commissioners findings, as they themselves acknowledge, are based on sources not
completely trustworthy or acceptable in American courts. Id. at 156. For example, numerous
sections were unreliable because they were based on information derived from torture or
otherquestionable investigative techniques. Id. Moreover, the report contained multiple levels of
hearsay; for example, the Commissioners themselves did not interview the terrorists. Id. at 157.
Moreover, the sections in question had very limited, if any, relevance to the issues before the court
and raised substantial dangers of bias, confusion, and undue delay. Id., citing Fed. R. Evid. 402,
403.
ii.

Post-arrest Statements in the 9/11 Report Attributed to Khalid Sheikh

Mohammed and Ramzi Binalshibh Were Not Admissible.

The Aviation Defendants sought to introduce the statements of terrorists Khalid

Sheikh Mohammed and Ramzi Binalshibh contained in The 9/11 Report because the two men
were integral to the planning and implementation of the attacks, were unavailable for depositions,
and had statements attributed to them in The 9/11 Report that were sufficiently trustworthy. Id. at
157. However, a statement in a public report made by an individual with no business duty to report
is considered hearsay within hearsay, and thus, must satisfy an exception to the hearsay rule. Id.,
citing Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991). Moreover, the terrorists
statements were not factual findings for purposes of the public records exception to the hearsay
rule. Id.
iii.

Admitting the 9/11 Report Would Result in Unfair Prejudice, Delay, and
Confusion, and, therefore, is Barred by Federal Rule of Evidence 403.

Admitting the 9/11 Report in its entirety, a book brimming with findings and
recommendations, would have choked the proceedings with scores of mini-trials as parties
challenged each finding of the 9/11 Commission. Id. at 158. Although the Court noted that specific

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statements may have been relevant, useful, and admissible, admitting longer sections ofthe report
would have caused the trial to digress into innumerable arguments relating to myriad issues,
causing undue prejudice, extensive delay and confusion. Id., citing Fed. R. Evid. 403. Moreover,
The 9/11 Report could not be permitted to displace the time-tested search for truth by
examination and cross-examination. Id. at 157.
B.

Ramzi Binalshibhs Journalistic Interview Was Not Admissible.

An Al Jazeera journalist conducted a videotaped interviewed of Ramzi Binalshibh

(Binalshibh), an Al Qaeda member and co-conspirator in the September 11 attacks. Id. at 164.
Al Qaeda kept the videotape and edited selections of the interview on to an audiotape, which it
then forwarded to Al Jazeera. Id. The audiotape recording was then translated into the document
that the Aviation Defendants sought to offer into evidence. Id. Neither the underlying video, audio
recordings, non-translated version of the document, nor the identity of the translator were made
available. Id.
The Aviation Defendants argued that the translated interview should be admitted as an
adoptive admission under Fed. R. Evid. 801(d)(2) because one of the Plaintiffs counsel referred to
it in a settlement letter and on its website. Id. The Court rejected this argument and held that the
interview was not admissible. Id. The use of one set of arguments to rebut another set of arguments
does not meet the tests or reliability and trustworthiness required of Rule 801(d)(2). Id. at 43-44.
Moreover, the translated interview was not sufficiently trustworthy to be considered a statement
against interest under Rule 804(b)(3) as Al Qaeda was using the interview as part of a controlled
public relations campaign. Id.

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VI. Damages: Court Limits WTC Properties Owners Recovery.

What is the proper measure of damages for an owner of damaged property damaged on the
ground? Plaintiff World Trade Center Properties (WTCP) claim in the September 11th
Litigation sought the recovery of $16.2 billion, which constituted the alleged replacement value of
Towers 1, 2, 4 and 5. Were the property damage Plaintiffs, such as WTCP, entitled to the market
value of the leaseholds on the date of loss or the replacement value? This issue was resolved by
Judge Hellerstein in the 9/11 Litigation after protracted Motions for Summary Judgment and a
Motion to Reconsider.
As a result of the terrorist attacks of September 11, 2001, WTC 1, WTC 2, WTC 4, and
WTC 5 were entirely destroyed. Following the destruction of the buildings, WTC Properties, the
owner of a ninety-nine year lease of those buildings, which was effective July 16, 2001, collected
$4.1 billion in insurance. However, WTC Properties sought to recover more; it sought to collect the
alleged replacement costs of the buildings, which totaled $8.4 billion, as well as an additional $3.9
billion in lost rental income. The Aviation Defendants moved for summary judgment on WTCPs
claims.
WTCP sought to recover as damages exactly what a century of New York law bars it from
recovering in this case: replacement costs and lost profits. The Defendants have argued that even if
WTCP were able to establish their liability for the terrorists destruction of WTC 1, WTC 2, WTC
4 and WTC 5, its damages would be governed by the same property loss rule that has applied to
every other New York property owner for more than 100 years. The measure of damages for injury
to real property is the lesser of the diminution in market value or the cost of replacement.
Hartshorn v. Chaddock, 135 N.Y. 116, 122 (1892).

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The New York Court of Appeals recently reaffirmed that lost market value and
replacement cost are each potential measures of property loss, but with the lower of the
two figures affording full compensation to the owner. Fisher v. Qualico Contracting
Corp., 98 N.Y.2d 534, 540, 749 N.Y. S.2d 467, 470 (2002) (emphasis added). The
Aviation Defendants contended that WTCP proceeds as if the law were the very opposite
from this lesser of two rule. It did not deny that the market value of the destroyed
properties was substantially less than the cost to replace them. Nevertheless, WTCP seeks
to collect $8.4 billion in alleged replacement costs and an additional $3.9 billion in lost
rental income.
The Defendants argued that, as a matter of law, neither category of damages was
recoverable. The cost to construct an income-producing real estate development was not an injury.
It was an investment opportunity. Once WTCP has recovered fair market value of the destroyed
buildings, it has been put back in the position it was in before September 11, 2001. Were the Court
to award WTCP the damages it seeks: (i) the Aviation Defendants would be forced to finance
WTCPs construction of a brand-new, vastly different complex worth far more than the buildings
destroyed on September 11, 2001 and (ii) WTCP would receive an impermissible double recovery
of lost profits. The law forbids such a windfall.
First, as every reported case from Hartshorn to Fisher has held, the applicable measure of
damages for the property loss in this tort action is the lesser of the lost market value or replacement
costs. The undisputed record evidence regarding the valuation of the WTC properties just two months
before September 11, 2001, the Court should rule that the diminution in market value is no more than
$2.8 billion. It is incontrovertible that on July 16, 2001, after conducting a worldwide competitive
auction involving bids from the most sophisticated commercial real estate developers, the Port
Authority leased WTC 1, 2, 4, and 5 to WTCP in a transaction with a net present value of $2.8
billion. Thus, by anyones measure, the alleged replacement costs of $8.4 billion far exceed the
fair market value of the destroyed buildings.

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Second, as the courts have repeatedly recognized, a supplemental award of future rental
payments on top of fair market value was not available because market value, by definition,
already includes future rental profits.
Third, the insurance proceeds received by WTCP as a result of the attacks on the WTC
buildings (of at least $4.1 billion) exceed the highest possible loss in market value ($2.8 billion).
Under New Yorks collateral source rule, embodied in N.Y. Civ. Prac. L. & Rules 4545(c), the
diminution in market value allegedly suffered by WTCP must be offset by the insurance
payments received by WTCP. As a matter of law, the Defendants conclude that WTCP has no
remaining recoverable damages for the destruction of WTC 1, 2, 4, and 5.
Judge Hellerstein held that New York follows the Lesser of Two rule
that a plaintiff whose property has been injured may recover the lesser of
the dimunition of the propertys market value or its replacement cost, citing
Hartshorn v. Chaddock, 135 N.Y. 116, 122 (1892).
The Court emphasized that this rule applies even when the property in question has been
completely destroyed. In re Sept 11th Litig., 590 F. Supp. 2d 535, 541 (S.D.N.Y. 2008), citing
Sandoro v. Harlem-Gennesee Market & Nursery, Inc., 105 A.D.2d 165 (N.Y. App. Div. 1984).
In holding that market value was the appropriate measure of damages, the Court relied
upon the recent New York Court of Appeals decision Fisher v. Qualico Contracting Corp., 779
N.E. 2d 178 (N.Y. 2002) that affirmed the Lesser of Two rule. In re Sept. 11th Litig., 590 F.
Supp. 2d at 541. In Fisher, the plaintiffs Victorian home in Long Island was destroyed in a fire
due to the negligence of a contractor hired by the plaintiff. Fisher v. Qualico Contracting Corp
779 N.E. 2d 178, 179-180 (N.Y. 2002) The plaintiff received $1,000,050.00 from his insurers, who
then subrogated and sued the defendant for negligence and prevailed. Id. at 180. At trial, the
subrogated plaintiff demonstrated that replacement cost was $1,033,000.00, but that the diminution

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in the market value was $480,000.00. Id. The court instructed the jury to award $480,000.00, the
lesser of the two amounts. Id. On appeal, the Court of Appeals affirmed, holding that
[r]eplacement costs and diminution of market value are simply two sides of the same coin. Id. at
181-82, and each is a proper way to measure lost property value, the lower of the two figures
affording full compensation to the owner yet avoiding uneconomical efforts. Id.
In applying the Lesser of Two rule, Judge Hellerstein held that market value of the four
towers as of September 11, 2001, was the limit of WTCPs permissible recovery and that the value
fixed by the parties a few months early was probably, but not necessarily, the market value of the
leaseholds as of September 11, 2001. Id. at 536. Judge Hellerstein further held that the case
presented a narrow question of fact as to what the market value was, and that an issue of
diminution of recovery pursuant to N.Y. C.P.L.R. 4545 because insurance in other possible
recoveries, presented additional issues of fact, and ordered additional proceedings allowing for
final determination. Id. at 548.
In its ruling, the Court rejected WTCPs argument that they were entitled to replacement
value because the World Trade Center qualified as a specialty property. Id. at 532. In granting
the Defendants motion, the Court ruled that the World Trade Center complex was not specialty
property, stating in pertinent part:
The World Trade Center buildings were filled with a variety of commercial tenants, law
firms of every size and character, large national and international public accounting firms,
investment banking, insurance and financial institutions of every description, public
restaurants, clubs and gyms, and the like. Thousands of visitors frequented the retail shops
and restaurants throughout the day. Clearly, the price WTCP paid for the 99 year leases it
acquired from the Port Authority reflects a full and fair market price for the property. If
WTCP is entitled to recover, recovery of the propertys market value would fully
compensate it. WTCP is not entitled to recover the larger value of replacement costs.
(emphasis added). Id. at 543.

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The Court held that WTCPs claim for loss rental payments was without merit, stating
that the price that WTCP paid to the Port Authority included the value of anticipated rentals and
that the price it paid fully reflected the present value of those rental streams. Id. at 544. The
Court, citing Sandoro v. Harlem-Gennesee Market & Nursery, Inc., 105 A.D.2d 1103 (N.Y. App.
Div. 1984), concluded that WTCP could not recover twice, once in the form of the propertys
market value, which fully included the rental streams reasonably expected from the property and
again for the separate value of the rental streams. Id. at 544. According to the Court, since
damages measured by market value take rental value into account, where a building is totally
destroyed there is no separate allowance for damages for loss of rent. Id., quoting Sandoro, 105
A.D.2d at 1104.
As to the diminutions of recovery under N.Y. C.P.L.R. section 4545 (c), the Court
dismissed WTCPs argument that 4545 (c) cannot be applied until there is a judgment of
recovery/verdict, as an unimportant technical distinction, for the issue of diminution can be tried
and determined immediately following the jury verdict, on the same or a supplemental record. Id.
at 548. The Court directed the parties to inquire into the nature of the insurance recoveries, how
they are to be applied, and how they compare to clarify the record on this issue. Id.
CONCLUSION
As the public record and the decisions above reflect, the aviation industry was acutely
aware, through several completed and attempted terrorist attacks, FAA warnings, GAO Reports,
and other sources that their aircraft were at a high risk for hijackings by terrorists. Hijacking had
been viewed as a persistent threat to aviation dating back to the 1960s, and the risk of terrorism
was on the rise in the years, and even months, leading up to 9/11. In 1989, at an aviation security
presentation to aviation industry members, terrorism expert Brian Jenkins stated that [t]he
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nightmare of governments is that suicide terrorists will hijack a commercial airliner and by killing
or replacing its crew, crash it into a city or some vital facility. Brian M. Jenkins, Ph. D., Intl
Seminar on Aviation Security, February 1989. In the months leading up to 9/11, the terrorist threat
was increasing, and the level of security effectiveness was decreasing, leading to a systemic failure
that both invited the terrorist attack and facilitated its success.
On 9/11, the danger of hijacking was both foreseeable and preventable. To the extent that
the dangers in other mass tort cases are equally foreseeable and presentable, manufacturers and
business owners would do well to take a lesson from the case study presented above.

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