Putting a price on suffering

By Times staff
© St. Petersburg Times
published March 19, 2002

From a document prepared by Kenneth Feinberg, the special master overseeing the federal government's Sept. 11 Victim Compensation Fund.

On March 7, Feinberg published final rules describing who is eligible for money and how much they are likely to get. The money, expected to average $1.85-million per claim before deductions, will go to individuals who were injured in the attacks or who lost loved ones. Those receiving money must waive their right to file suits over the attacks.

A preliminary set of rules said survivors would receive payments of $250,000 for the pain and suffering of the victim, plus $50,000 for the spouse and each dependent of the victim. Feinberg asked for comments before deciding on the final rules, and he summarized some of those comments in his preamble. They are printed below.

While Feinberg decided to increase the pain-and-suffering awards and will allow each person to argue for more money than the formula would normally grant them, he chose not to draw distinctions between the different classes of victims. The full text of the rule is available at www.usdoj.gov/victimcompensation/finalrule.html

-- CHUCK MURPHY, Times staff writer

While many lauded the decision not to distinguish (at least presumptively) between the pain and suffering of victims or loved ones, many others voiced their disapproval and urged that all presumptions be removed. Many of the comments addressing this topic focused on the pain and suffering of those left behind, while others referred to the pain and suffering experienced by the victims who lost their lives.

Those in favor of presumed equality pointed out the alleged difficulty in drawing distinctions. For instance, one commenter (speaking of the pain and suffering she has experienced) focused on another commenter's assertions that he deserved more money for pain and suffering because he spoke to his wife (who was in the World Trade Center) after one of the planes hit her building but before she lost her life. She stated that -- although she did not talk to her husband prior to his death -- she experienced just as much (if not more) pain and suffering because she never had the opportunity to say goodbye to him.

Other commenters, however, expressed their views on how distinctions should be made. For example, one family member (speaking of his son's pain and suffering) proposed the creation of a separate category of pain and suffering that differentiates between those victims who were trapped above the impact area of each World Trade Center building from those who were physically located below it. He believes his son's pain and suffering was greater than those who died below the respective impact zones. Moreover, proposed distinctions were made depending upon whether someone was an emergency worker or not. Some argued that emergency workers should receive more by way of noneconomic losses because they sacrificed their lives to save victims. In contrast, others argued that emergency workers should receive less because "they knew the risks when they pursued their careers in public service."

. . . One commenter urged that consequential and incidental damages be included in the noneconomic calculations. Another indicated that noneconomic losses should not be comparable to military benefits. Finally, at least one commenter argued that those who died without children are being "forgotten" or "penalized."

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