Sheila Birnbaum of Skadden, Arps, Slate, Meagher & Flom is one of the most prominent litigators in the field of products liability and mass tort and a pioneer for women in the profession. Dubbed the 'Queen of Toxic Torts,' Birnbaum played a groundbreaking role in products liability cases involving oral contraceptives, breast implants and other sprawling litigation.
She has also been deeply involved in the compensation of people who lost family members or were injured themselves in the al Qaida attacks on the World Trade Center on Sept. 11, 2001. At the behest of Southern District Judge Alvin Hellerstein, she mediated more than 90 wrongful death cases to settlement between victims, the airline industry, airline security companies and the insurance industrycases that were brought by people who declined to take part in the initial September 11th Victim Compensation Fund overseen by special master Kenneth Feinberg.
Birnbaum, 72, is now working pro bono managing the reopened victim compensation fund set up by Congress in passing the Zadroga Act, where in excess of 14,000 responders, survivors and people who live near Ground Zero have filed claims concerning damage done by the toxic dust in the air on and after 9/11. Birnbaum anticipates that the fund will begin making its first payments early in the new year.
Q: The reopened September 11th Victim Compensation Fund has $1.55 billion for treatment of any illness determined to be related to the clean-up at Ground Zero and then additional compensation for diminished quality of life. How did you determine which illnesses to include?
A: Basically, for the compensation part of the bill, we followed the determinations of NIOSH, the National Institute of Safety and Occupational Health, which administers the treatment program, because they had the medical expertise and scientific expertise as to what injuries should be covered as related to the World Trade Center injuries. We also concluded if NIOSH added new injuries as a result of re-examining the medical and scientific evidence, the fund would also add them, so when NIOSH added certain cancers to the treatment program we agreed to add those cancers as 9/11 related.
Q: How did the division among experts on the causal link between Ground Zero dust exposure and cancer affect your decisions?
A: Well, we didn't make an independent inquiry as to the issues of scientific and medical causation but relied on the determination made by NIOSH. In part, since administrative costs are included in the limit on the funding we did not want to spend those limited resources to have an independent evaluation done. NIOSH had the credibility.
Q: You have come under some criticism by some World Trade Center advocates and Senator Charles Schumer because the fund has yet to begin making payments. Why is that?
A: I think the reason for that is we don't have any forms that need to be completed for people to be compensated - we can't even review them. The problem is they are not giving us the information we need to make a determination. Almost 80 percent of the claims being brought are brought by lawyers, so we are reaching out to law firms and applicants to tell them specifically what we need as quickly as possible so we can make the payments. If Schumer would have called me instead of doing what he does so quickly, he might have gotten the real information. I knew someday the honeymoon would be over and people would be taking pot shots.