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‘Who Gets What’: Putting A Price On Human Tragedy

Filed by KOSU News in Art & Life.
June 28, 2012

When a tragedy like the Sept. 11 attacks or the Virginia Tech shooting strikes, shock and grief quickly give way to blame. And when it’s time to figure out if and how victims should be compensated, lawyer Kenneth Feinberg’s phone rings.

Over the past three decades, Feinberg has developed a unique specialty: overseeing compensation funds by doing the difficult, often contentious and politically charged work of figuring out who deserves payment — and often, how much they will receive.

Starting with the Agent Orange settlement of 1984, Feinberg has served as special master for numerous high-profile compensation cases, including the fund for victims of the Virginia Tech shooting, the Sept. 11 Victim Compensation Fund, claims disbursement in the wake of the BP oil spill, and many more.

In Who Gets What: Fair Compensation After Tragedy and Financial Upheaval, Feinberg shares experiences from his long career. He talks with NPR’s Neal Conan about the book, and the political and personal pressures of putting a price on human life after a tragic event.

Interview Highlights

On whether creating funds for some harms, and not others, is fair

“Nobody ever said it was fair. One word that is never used in the work that I do is ‘fair.’ You don’t expect victims — claimants — to talk about fairness after they’ve lost somebody or suffered horrible, horrible loss.”

On the importance of listening to victims

“You listen. You let them vent. I learned some valuable lessons about what not to say, I’ll tell you that. In 9/11, I made the terrible blunder during a hearing of telling a father who lost a daughter, ‘I know how you feel.’ And he looked at me, and he said, ‘Mr. Feinberg, you’re trying to do your best. Don’t you ever tell me you know how I feel. You have no idea how I feel in losing my daughter.’

“So the most I told people when I listened to them is, ‘I wish I could do more. I can’t bring your daughter back … You say you’d rather replace — you’d rather take your daughter’s place at the World Trade Center. I haven’t got that power. All I can do, and it’s not much, is try and demonstrate your country’s desire to help you through compensation, financial certainty. Other than that, life is unfair, and I wish I could do more.’

“There’s very little you can say three or four or five months after a tragedy to try and ameliorate the rawness and the damage of families that [have] lost loved ones. You’re really held hostage to their venting on that …

“That is the single most difficult aspect of what I do. It’s not the calculations. It’s not cutting the checks. The most difficult part of all of these assignments is sitting in a room with the victim’s family, inviting them to vent about life’s unfairness.

On the value to families of sharing their frustration and grief

“[Family members] rarely discuss money. Almost always, they want to discuss the memory of the lost loved one.

“They come in with videotapes of weddings years ago, just to demonstrate that we’re at one with somebody who died as a result of the tragedy …

“[Federal Judge Jack Weinstein in Brooklyn, N.Y.] taught me a valuable lesson. When you set up these programs, if you can do it, give every claimant the right to be heard. Let the claimant vent, vent about, ‘Why me, why the loss of my brother, why the loss of my wife or my husband? They were angels. Those murderers. There is no God. There can’t be a God that would allow something like this.’

“And that opportunity — to express, to disclaim — very, very important to the success of voluntarily signing up for the programs.”

On why mental anguish is grounds for compensation for some funds and not others

“[For the Sept. 11 Victims Compensation Fund,] the statute prohibited it. The statute said that if you died on 9/11 or if you suffered a physical injury, you could be compensated. If you suffered purely mental trauma from the 9/11 attacks, you’re ineligible. Congress was concerned that if mental trauma was eligible, you might get 5 million people who watched it on CNN or listened on NPR calling in, saying, ‘I was listening to Neal on Talk of the Town, some of these stories, Neal — I can’t get out of bed as a result of Talk of the Town, so pay me.’

“[But in the case of Virginia Tech], we did compensate. But we made some rules, because we only had a limited amount of money. If you want to recover a check compensation for mental anguish, you have to have been a student in the Norris Hall classrooms where everybody else was killed and murdered.

“One young student came to see me [and said], ‘The only reason I escaped, Mr. Feinberg, is the student to my left was shot dead in front of me, the student to my right was shot dead in front of me. The murderer, the deranged gunman, pointed the gun at me. “Click” — no bullets. While he reloaded, I jumped out a window and escaped. But I can’t get out of bed.’

“We paid her.

“Any other student on campus wasn’t in the room [and who] watched from the dorm or on television, we gave them free university-related mental counseling. Help — mental help — but not a check.”

On the unconventional process for the Agent Orange settlement for Vietnam veterans

“It was a very, very thorny problem. No individual Vietnam veteran could prove that his malady, his illness — cancer, respiratory injuries, chloracne [a skin condition] — no one could prove as a matter of law that their injury was caused by Agent Orange. They might have got those diseases in any event.

“So we had to figure out what is a good formula to be used in distributing the money. And a very creative, brilliant judge, Jack Weinstein in the Eastern District of Brooklyn … we worked out this formula by asking the Vietnam veterans themselves: ‘How would you like to see the money distributed?’

“And … virtually no Vietnam veteran said, ‘I don’t care how you distribute it, just make sure I get mine.’

“Instead, human nature, the brotherhood of the military [prevailed]. They all virtually said, ‘Give the money to … the Vietnam veterans most in need of the money. Don’t worry about me.’ ” [Copyright 2012 National Public Radio]

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