1 76PJ911C Conference 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 IN RE: SEPTEMBER 11TH LITIGATION 21 MC 97 AKH 4 ------------------------------x 5 6 7 June 25, 2007 4:07 p.m. 8 9 10 11 Before: 12 HON. ALVIN K. HELLERSTEIN, 13 District Judge 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 76PJ911C Conference 1 (In open court) 2 (Case called) 3 THE COURT: I thought this would be a small committee 4 meeting to discuss the issue of how we should proceed further 5 with this idea of a trial on damages that would precede the 6 trial of liability. I have the suggestions of Condon & Forsyth 7 and Motley Rice. I would like to review them and any other 8 ideas that anyone might have. I take it that others have seen 9 these ideas? You have seen the letter that circulated? 10 MR. BARRY: Yes, your Honor. 11 THE COURT: One or a few cases have been cited for 12 each of the flights. The first question I want to put is 13 whether there is any merit to having a disbursal of the flights 14 or whether other types of illustrative cases might be put. 15 In Flight 11, for example, there are two passengers 16 with claims and one crew member with claims, leaving out ground 17 plaintiffs. So there are three remaining claims, 22 of 7. 18 In American Flight 77, which is the plane that crashed 19 into the Pentagon, there are 7 passengers of 23 who sued still 20 remaining, no crew members, and 8 claims for the ground. 21 Flight 175 into the south tower of the World Trade 22 Center, 8 of 13 cases brought by passengers remain, and the 23 only crew member left still remains, and there is one personal 24 injury claimant on the ground. 25 Flight 93, the one that crashed into the field in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 76PJ911C Conference 1 Shanksville, Pennsylvania, of 14 passengers who began, 7 still 2 remain. No crew members. 3 Let me try a thought. Since American Flight 11 has 4 the fewest cases, if we manage to settle some other flights, 5 perhaps there might be an inertia that would make it less 6 useful to exert effort and time with Flight 11 than perhaps for 7 others. In fact, if that was a true proposition, I don't know 8 if it is or not, then perhaps we should spend more effort or 9 earlier effort with the other three flights. 10 With regard to the other three flights, since there 11 are different states, different people, perhaps different 12 circumstances involved, maybe we should start with one from 13 each of those three flights. I don't know if that makes sense 14 or not. What is your observation? Mr. Motley, if you wish to 15 speak or delegate this to one of your colleagues. 16 MR. MOTLEY: I would like to delegate Mr. Migliori, 17 the first in the Goodwill Center. 18 MR. MIGLIORI: Good morning, good afternoon. 19 THE COURT: I want to thank you for proffering these 20 suggestions. I understand it is without prejudice to your 21 overall position that it is not a suitable exercise. 22 MR. MIGLIORI: Thank you, your Honor. We appreciate 23 you knowing that. We DID spend a lot of time since our last 24 conference talking with clients, trying to find out various 25 levels of willingness to participate. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 76PJ911C Conference 1 We have proffered our list sort of as the folks who 2 were least uncomfortable with an uncomfortable situation, and 3 so in that since what we proffered in our letter of today 4 represents the most willing of our clients, with their 5 reluctance noted to go forward. 6 Flight 77, as the court points out, has quite a few 7 claims left. Most of the four flights, Motley Rice and the 8 France law firm represents all of those claims. What is unique 9 about that flight is that I think the choice of law issues have 10 been agreed to; that is, during the process of mediation, it 11 seems that all parties are in agreement that Virginia law would 12 govern. 13 THE COURT: It is interesting because Dulles Airport 14 is in Virginia. The conduct which allegedly could have been 15 negligent occurred in Virginia and the injury occurred in 16 Virginia, so the criteria that are involved in classic choice 17 of law analysis, two important criteria took place in Virginia. 18 MR. MIGLIORI: If I may? There are four. Virginia 19 has the Low case as a primary presumption. It is a pretty 20 clean case in terms of getting that issue behind us. There are 21 strong claims for what we have been calling the noneconomic 22 component of this case which the court has noted may have some 23 value in terms of moving other cases along once a value has 24 been arrived at or at least adjudicated by one jury. 25 The other cases, the other flights, Flight 93, those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 76PJ911C Conference 1 are all Motley Rice plaintiffs. We put up the Driscoll case, a 2 single nondependent case. Again it is a representative claim 3 in the sense it would deal with the noneconomic components. It 4 does have choice of law issues that may come up. This is a New 5 Jersey resident with a flight that took off in New Jersey and, 6 of course, ended in Pennsylvania. The court has taken under 7 advisement our choice of law brief -- 8 THE COURT: I am working on the opinion. 9 MR. MIGLIORI: -- for Pennsylvania law. It seems like 10 the working options for that case at least would be New Jersey 11 or Pennsylvania. 12 Again it would have some value in terms of the other 13 single nondependent cases that are involved in that mix. I can 14 tell you that there are quite a few on the death side -- 15 sorry -- there are quite a few of those cases remaining that 16 are, in fact, single nondependent as opposed to economic 17 components. 18 Flight 175, we put up the Nassaney case. It is an 19 economic case. 20 THE COURT: Would you say that if I had to choose 21 where I could perhaps find a case that would have the most 22 residents, it will be a single nondependent case? 23 MR. MIGLIORI: I wouldn't necessarily say it would 24 have the most residents because of the cases we proffered have 25 the noneconomic component. The Nassaney case which has an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 76PJ911C Conference 1 economic component would still have the remaining issues of 2 noneconomic damage. 3 THE COURT: Of the noneconomic damages, namely, grief 4 and suffering of life, they're common to all cases in the 5 single nondependent case, the person who died without having 6 dependents who would be entitled to recover. That would be in 7 the starkest, and other factors are less prominent in the sense 8 that would perhaps have more utility in relationship to others. 9 MR. MIGLIORI: It is fair to say that every case has 10 that base component of single nondependent, but I'd have to 11 point out, for example, the low case was an Arkansas resident. 12 Arkansas would have, if that law applied, the law of domicile. 13 If that law applied, it would mean there was the noneconomic 14 pre-death pain and suffering. Under Arkansas, there would be 15 grief and sorrow of the family post-event, post-accident. 16 Under Arkansas law, there would also be noneconomic damage, the 17 loss of life which is also a component under New Hampshire law, 18 one of the defendant offerings for Flight 175. 19 Every case has a base of a common economic component, 20 but depending on which state law applied, there may be 21 additional aspects, there may be a requirement of proof of 22 pecuniary loss for that noneconomic claim, and in some states 23 there are some kind of itemization of those costs versus a jury 24 discretion to pick a number, if you will. It is hard to say 25 there is one case that will cover the spectrum. There are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 76PJ911C Conference 1 cases that will cover more of the spectrum than others. 2 THE COURT: Let me get a quick view from Mr. Barry and 3 come back to you. 4 MR. BARRY: Good afternoon, your Honor. 5 THE COURT: Good afternoon. 6 MR. BARRY: I think we have to ask ourselves what 7 we're trying to accomplish here. If we are trying to -- 8 THE COURT: I can tell you what thoughts went through 9 my mind. The thoughts that went through my mind was that we're 10 unfortunately substantial time away from completing discovery 11 in all aspects of the case. Therefore, the public interest in 12 relationship to prompt disposition of the case is not being 13 served as well as I would like to have it served. 14 Secondly, although people have a desire, many of them 15 have a desire to find out in a way that is to put on a record 16 of what happened and to express their displeasure at what 17 happened and have it somehow translated into a jury verdict; 18 and, therefore, they have some, some people a desire to have 19 this whole case tried. 20 Others may be more interested in obtaining resolution 21 earlier. If there are such others, and it is possible for me 22 as a judge to structure the case in such a fashion as to give 23 those people an opportunity to obtain a disposition earlier, 24 then it is worthwhile for me to try to do that provided that I 25 don't prejudice other people. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 76PJ911C Conference 1 Third, the value of settling the cases, and it is 2 clear there is a very substantial value in settling I think 3 have largely run their course because it seems to me that fewer 4 cases are settling and the relative perceptions of value of the 5 case as between plaintiffs and defendants are becoming more 6 difficult to bridge. So if there is a way to create a better 7 inertia towards a consensus developing on value, and I can 8 produce that by structuring the cases through a damages first 9 trial, then it would be worthwhile to try to do that. 10 Without having thought the issue through in all its 11 complexities -- and I haven't -- it would seem to me that I 12 would serve three important policy values in putting forward 13 the proposition of a damages-first trial with a sampling of 14 cases. 15 I thought the prejudicial effect would be minimal, if 16 any. I thought the interest that could be served with people 17 having an opportunity to obtain values for their cases and, 18 therefore, an opportunity to liquidate their claims and put all 19 of this terrible memory behind them, to a substantial degree 20 will never, never will happen but to as substantial degree as 21 possible would be served. 22 Therefore, it seemed to me it was a good idea because 23 the third point of waiting until we have everything done will 24 take a long time, and even then people will have to wait as one 25 case after another gets tried. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 76PJ911C Conference 1 I thought this might be a useful device, and we had a 2 very brief discussion on the record or probably off the record, 3 with the idea of putting all of this on the record. It 4 commends itself to me. I think both you and Mr. Migliori made 5 the very sensible point rather than leaving the judge 6 identifying the cases, let's see if the two of you can identify 7 the cases. If there are people who would like to have this 8 procedure, let them go first. Those were good ideas I adopted. 9 MR. BARRY: I understand what your goals are, your 10 Honor. I can tell you that from the defense point of view, we 11 want to see all of these wrongful death and penalty injury 12 cases settled. 13 I think really what we're trying to do here is set 14 some benchmarks in terms of verdicts which, in turn, will 15 foster more settlements. I think it is very, very important 16 that the correct cases be selected if we are going to go down 17 this road and as I said in my letter, we have reservations, and 18 as I correctly stated, there are a lot of complexities in doing 19 this. 20 There are a lot of evidentiary issues that are going 21 to be raised by the plaintiffs. To take the cases that the 22 plaintiffs have suggested -- for example, the first two cases, 23 Low and Nassaney -- each are cases that are going to possibly 24 be governed by the law of the jurisdiction that does not apply 25 to any other case. They've, of course, been selected because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 76PJ911C Conference 1 those two cases, if you apply the law of -- 2 THE COURT: Those both cases deal with the World Trade 3 Center. 4 MR. BARRY: That's correct. Low is a crew member in 5 Flight 11. That is a crew case, and the issue in that case is 6 whether or not the law of Massachusetts or the law of Arkansas 7 would apply. It is very similar -- 8 THE COURT: Why Arkansas? 9 MR. BARRY: Because she was raised in Arkansas. There 10 is some evidence that she still had family ties there even 11 though she was at the time domiciled in Massachusetts. It is a 12 question similar to the Angel case. 13 THE COURT: It presents an issue of conference of law 14 resolution that the court would have to decide. 15 MR. BARRY: It is an issue of domicile just like 16 Angel. 17 THE COURT: I would have to decide that, I would have 18 to decide that in terms of the admissible proofs that would be 19 involved in the case, probably the discovery phase of the case. 20 MR. BARRY: As I said to you last week, I think it has 21 got to be decided before trial so that we know what wrongful 22 death statute we are operating under because the elements of 23 damage are different. 24 THE COURT: Let Mr. Barry finish his exposition, and 25 I'll call on you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 76PJ911C Conference 1 MR. MIGLIORI: Thank you. 2 THE COURT: That is Low and Nassaney. 3 MR. BARRY: Nassaney, although it is a United case, I 4 understand has a very similar issue as to whether the law of 5 Rhode Island applies or Massachusetts. 6 THE COURT: Again what are the factors there? 7 MR. ELLIS: Nassaney is a case where -- 8 THE COURT: Mr. Barry yields to Mr. Ellis. 9 MR. ELLIS: Not very often, Judge. The Nassaney case 10 is a case where he is a Rhode Island resident apparently, and 11 Mr. Migliori has presented settlement demands under Rhode 12 Island law, the law of his domicile, and most likely that is 13 what we will be using. 14 However, your Honor, as I said to Mr. Migliori when we 15 argued the Flight 93 damage law, if for some reason there are 16 arguments on that motion that convince you we should be 17 applying one law for all of these cases, we might very well be 18 saying Mr. Nassaney's case should be brought under the law of 19 New York or whatever other place your Honor might see fit. 20 The bottom line is, one of the problems with Nassaney, 21 as Mr. Barry indicates, it is a Rhode Island case. I don't 22 think there are any other cases brought under Rhode Island law. 23 Surprisingly, it is very favorable to plaintiffs, but there are 24 big economic components in that case as well as personal 25 consumption issues that I think are going to take a little bit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 76PJ911C Conference 1 of discovery, cases we had identified seemed like they were 2 relatively straightforward. 3 THE COURT: Let me have the rationale for Wilson and 4 Teague. 5 MR. BARRY: On our letter, your Honor? 6 THE COURT: Yes. 7 MR. BARRY: There are a couple of rationales for 8 Wilson. We call it the Wiswe case, the name of the decedent. 9 It is a single nondependency case in New York, no conflicts of 10 law issue, New York domiciliary, killed in New York. She was 11 in the World Trade Center. It is a case -- 12 THE COURT: Passenger? 13 MR. BARRY: No, no. Ground victim. It is the only 14 ground victim left in Flight 11 other than the Cahill case, and 15 that is a totally separate issue. 16 THE COURT: You renew your defense on duty, won't you? 17 MR. BARRY: That is still a lot, Judge, alive as far 18 as we are concerned. 19 THE COURT: I didn't kill it. I did not end that 20 issue. I said it should be considered after discovery. 21 MR. BARRY: Right. We are talking damages only here. 22 THE COURT: Yes. 23 MR. BARRY: This presents a very clean single 24 nondependency case represented by Azrael Gann which, as you 25 know, has been, for lack of a better word, I'll call an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 76PJ911C Conference 1 impediment to settlement of their cases because of their 2 demands. 3 If they're going to get an evaluation from a New York 4 jury what a single nondependency case is worth, perhaps that 5 would foster more settlements of their cases. That was the 6 rationale. 7 THE COURT: Tell me about Teague. 8 MR. BARRY: Teague is another single nondependency 9 case. The Warsaw Convention case your Honor is dealing with, 10 it is a Flight 77 case under Virginia law, another 11 straightforward, single nondependency case, but a different 12 flight. 13 THE COURT: It seems to me from the very brief 14 discussions that the plaintiffs have identified cases that will 15 produce the highest verdicts and defendants have identified 16 cases that will likely produce the lowest verdicts. 17 MR. BARRY: You're right on the first part of that, 18 Judge. On the second part, we are looking to break that single 19 nondependency logjam. 20 MR. ALEXANDER: That can't be true because we didn't 21 put up the Angel case. 22 MR. BARRY: You know, your Honor, there is a choice of 23 law issue in that case. 24 MR. ALEXANDER: Also another case that touches on 25 Rhode Island. There are at least two or three that seem to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 76PJ911C Conference 1 significant in that regard with regard to Rhode Island law. 2 MR. BARRY: Not if the court sees the light and -- 3 THE COURT: I would rather take a passenger in someone 4 else because most of the cases deal with passengers. I would 5 like to do a passenger. Tell me about the cases of Flight 77. 6 Did you want to say anything more, Mr. Migliori? I 7 cut you off. 8 MR. MIGLIORI: Brian covered one point. I point out 9 that they're making a distinction between cases in terms of 10 valuation, but every case has the pain and suffering pre-impact 11 component that they're talking about. They're just picking the 12 ones that only have that as opposed to other aspects which 13 involve, for example, grief with the family, loss of life 14 enjoyment. 15 I'll find at the base whether we pick Rhode Island law 16 for Nassaney or not, the pain and suffering component which 17 will be a distinct aspect of the verdict form would be in any 18 case irrespective of law, it would be in any case and it is not 19 driven by choice of law issues. 20 MR. BARRY: That is not true under Virginia law. 21 THE COURT: Mr. Migliori, did Nassaney have 22 dependents? 23 MR. MIGLIORI: No. This was a 26-year-old man 24 traveling with his fiance, and he has brothers, two brothers 25 and parents who survived. The parents are co-administrators of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 76PJ911C Conference 1 his estate. 2 THE COURT: What did he do? 3 MR. MIGLIORI: He was an up-and-coming management 4 person at American Power Conversion, a Rhode Island 5 corporation. It would be a straightforward case in terms of 6 economic, there is a straight amount of money. 7 We have been debating the actual consumption rates of 8 the economic growth of the future lost earnings, but that is a 9 matter of experts or just testimony before the court. There is 10 nothing special about that. He had a bright future ahead of 11 him, and he was a person who was clearly aware and on the plane 12 on 175 during the horrific events. We bring in all the 13 evidence that would relate to all of the other claims on 175. 14 Again most importantly, while the court may have said 15 we picked the highest value, this truly was driven by the 16 people who were most anxious to take the three policy values 17 that you articulated and say yes, please put our name into that 18 process if it is going to happen. 19 THE COURT: Have you and Mr. Barry had mediation 20 discussions in the Nassaney case. 21 MR. MIGLIORI: This would be Mr. Ellis. 22 MR. BARRY: A united case. 23 THE COURT: You have not been able to bridge the gap 24 between them? 25 MR. ELLIS: I thought we were getting close on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 76PJ911C Conference 1 numbers. How close? We seemed to float around a little bit. 2 We had agreed to talk again about this case. I think that Mr. 3 Migliori is correct to identify their issues with respect to 4 consumption and his projected earnings. There is a very 5 substantial economic analysis that, quite frankly, involves a 6 lot of factual issues. 7 However, we defer to you. The only -- 8 THE COURT: It seems to me Nassaney may be a good case 9 to start with because it has a lot of different factors, so it 10 has useful precedential value, but it also has other values 11 that would allow you to do a lot of arguing the differences and 12 similarities. 13 MR. ELLIS: There will be a lot of discovery, in all 14 fairness, in order to nail these things down. I would also 15 indicate again it is Rhode Island law, and those issues I'm not 16 so sure is going to translate to any other cases. I know there 17 is a legal issue with respect to the Angel case, but I haven't 18 seen any other cases under Rhode Island law. 19 The reason we suggested different types of cases, 20 where they seemed much more easier to get a handle on 21 factually, they are much more straightforward and seem to have 22 more precedential value for the remaining cases that would not 23 be litigated. 24 THE COURT: Let me move you on to the Flight 77 cases, 25 the one that struck the Pentagon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 76PJ911C Conference 1 MR. BARRY: Correct. Plaintiffs have selected two 2 personal injury cases out of Flight 77 and a single 3 nondependency case. 4 THE COURT: Which is the one -- 5 MR. BARRY: Ambrose is the single non -- 6 MR. MIGLIORI: Just because the court admonished us as 7 we were leaving on the 14th that you wanted representative 8 cases, as we have discussed in the mediation process, we do 9 have four claims on the ground. Of the four that we have, Hunt 10 and Bruno are the most exigent, if you will, so that if the 11 court is inclined to bring one of those cases into the fold, 12 the court notes there are still 8 ground claims for that 13 flight. 14 THE COURT: Tell me about those two cases. 15 MR. MIGLIORI: They're both survivors. They're 16 physical and emotional injury cases. Hunt is actually in a 17 situation now where she is in economic need of resolution, but 18 because of the lack of communication between the parties or 19 movement between the parties on mediating those, we understand 20 that they're not getting a priority treatment in terms of 21 valuation from the defense side. 22 THE COURT: I don't think that is true. There was an 23 effort to mediate those, the values were widely apart, and I 24 think a determination was made that they would not be 25 successfully mediated, and so it is not that they haven't been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 76PJ911C Conference 1 thought about, it is the prospects of success were overlooked. 2 MR. MIGLIORI: I meant no ill motive in it, just 3 simply they were not getting -- we provided everything we can, 4 especially with respect to these two cases. 5 THE COURT: These are two survivors. What are their 6 claims of injury? Is there someone from France here? 7 MR. MIGLIORI: This is actually our case. I believe 8 it is a leg injury and psychiatric. 9 MR. BARRY: Primarily post-traumatic stress disorder. 10 They had minor physical injuries, but these are 11 anxiety, depression, post-traumatic stress disorder, these 12 types of issues where we have not yet conducted any meaningful 13 discovery on. So to take two personal injury cases when there 14 is such a limited number of them, I don't think is represented. 15 THE COURT: Ambrose is a case -- Mr. Migliori, he 16 responded to what I asked him to do -- Ambrose is a case of a 17 passenger? 18 MR. BARRY: No. 19 MR. MIGLIORI: Yes. 20 MR. BARRY: Yes, Flight 77 passenger, single 21 nondependency, a young doctor. 22 THE COURT: Let's go on to -- you told me about the 23 Teague case. Flight 175, you've identified Peters. 24 MR. BARRY: Mariani. Mr. Ellis, I will. 25 THE COURT: Isn't Ms. Mariani one of the cases where SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 76PJ911C Conference 1 she really wanted to identify the record what went on? 2 MR. ELLIS: Right. Ms. Mariani was the first person 3 to bring suit in this litigation. 4 THE COURT: She felt very, very strongly she wanted to 5 have a public record made about it. 6 MR. ELLIS: I don't remember the details. I know 7 there was a dispute apparently between family members, and I 8 believe that it is Ms. Mariani's daughter who is now bringing 9 the action. 10 MR. MIGLIORI: If I may, your Honor, this is a case 11 brought by Charles Capace, Boston attorney, who associated 12 Motley Rice for the purposes of mediation and trial. That 13 happened recently. The court did note at the beginning she was 14 one of the early filers. She filed against the U.S. Government 15 and I believe subsequently withdrew some of those or never 16 served those claims. 17 This is a case, I just received an E-mail from Mr. 18 Capace, after receiving the defendant's letter this afternoon, 19 and his client is not anxious to do this by any stretch for the 20 reasons the court notes. Moreover -- 21 THE COURT: Thank you. 22 MR. MIGLIORI: Thank you. 23 THE COURT: I don't want by this process to prevent a 24 plaintiff that wants to see this through to finality from doing 25 that. My perception is that there may be a fair number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 76PJ911C Conference 1 people who have gone through this process long enough to know 2 if they can get a fair resolution, they would prefer it. I am 3 here to serve that interest. I don't think Ms. Mariani falls 4 within that category. 5 MR. ELLIS: Just from what you indicated at the last 6 conference, maybe I misunderstood, but I thought you indicated 7 that if damages were tried in a reverse bifurcation method, 8 those parties that didn't want to accept whatever numbers might 9 be assessed by the jury would then have the opportunity to wait 10 around until the end of the case and participate in the 11 liability trial. 12 THE COURT: I didn't think it through, and I still 13 have not thought it through enough. I would like help. This 14 is what I think: 15 In a damages trial, we're assuming liability. Some 16 statement of facts needs to be developed to be told to the jury 17 as to what they're doing and what the situation is with regard 18 to the assumption of liability; namely, that they should assume 19 that liability can be proved. 20 They will have some kind of a statement describing the 21 events. They will be told that there is a major dispute as to 22 whether or not this is true or not. There will be eventually 23 be a trial with regard to this issue. They're being asked to 24 make a determination, to deliver a verdict on the assumption 25 that liability can be proved, what will be the recoverable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 76PJ911C Conference 1 damage, and then the trial will proceed on the issue of 2 damages. It will result in a verdict. 3 If the parties, if the defendant then wishes to pay 4 the verdict and say I concede liability, the case is over. If 5 the defendant does not wish to pay, then I think the next step 6 will be a trial on liability or a settlement of some type. 7 I think those are the two possibilities. Maybe there 8 are others and maybe these possibilities are not good ones. I 9 think, I think we need to think these things through. 10 There are two points: One, the jury is being told to 11 assume liability. I prefer they be told they disregard a 12 question of liability. Obviously, a set of facts or 13 assumptions must be given to the jury that will neither 14 prejudice nor advance either side's position. 15 MR. PODESTA: I would like to make one other 16 suggestion about the jury selection of cases. Not uncommon in 17 situations like this for the court to say to plaintiffs and 18 defendants, I will let the plaintiffs take half of the cases 19 they wish to try ready for trial and let the defendants pick 20 half of the cases and that way they can each, each side can 21 pick some cases that they think will be useful to help expedite 22 the settlement process. 23 THE COURT: That is one possibility, but I am 24 envisioning perhaps three or four trials occupying maybe a 25 month or two and then seeing where the process goes. I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 76PJ911C Conference 1 anticipate there are a number of settlements that will occur in 2 anticipation of trial and a number of settlements will occur in 3 consequence of a trial. How many we don't really know. I 4 think it very much depends on the jury verdicts that come out. 5 I have not seen any precedents in this area. This 6 whole exercise in administering these cases is largely 7 unprecedented, and we call upon a great deal of knowledge that 8 many of us have in different kinds of flex cases, but each case 9 is unique and each track is unique and it has been challenged 10 throughout. 11 I am coming to this procedure because of the reasons I 12 set out before, not that I think it is a splendid procedure, 13 but we have to make choices in a given area. Otherwise, we'll 14 be here forever. So I look upon this as one way of creating a 15 dynamic of how to resolve many more of these cases. 16 Okay. So we have done 175. We spoke a bit about 77. 17 I would note Flight No. 93 and Motley Rice suggests Driscoll 18 versus Argenbright, and Condon & Forsyth suggests O'Hare and 19 Kemmerer versus Argenbright. Why don't you start first, Mr. 20 Barry. 21 There is a footnote, "This case may have been 22 settled." If so, then -- 23 MR. ELLIS: It is the Marcin case, Judge. Quite 24 frankly, we listed this one as a footnote. I don't know, maybe 25 Mary may know this, Ms. Schiavo may know whether or not that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 76PJ911C Conference 1 case is settled. They were before your Honor and we thought it 2 was settled, and we haven't seen the release or maybe it is 3 not. 4 MS. SCHIAVO: No, your Honor, it is not settled at 5 this time, but it was the subject of mediation, and that was 6 one of the ones you worked on. 7 THE COURT: This is it a good case to start with? 8 MS. SCHIAVO: I guess it would depend on conversations 9 that Mr. Ellis and our firm might continue. I did understand 10 we were still having some discussion. We didn't propose that 11 one because it was not the most representative case or didn't 12 pose issues that we thought would be most legally helpful to 13 the court. 14 THE COURT: You put forward, Mr. Migliori, THE 15 Driscoll case? 16 MR. MIGLIORI: That's correct. In fact, Ms. Schiavo 17 is probably the best to speak about it factually, but it is a 18 case again with our criteria being the most willing participant 19 from our firm with representative issues. This is either going 20 to be a New Jersey -- and there are other New Jersey cases -- 21 either going to be New Jersey choice of law, and it will be 22 Pennsylvania if we are successful on the briefing we had with 23 the court last week. It is discrete with choice of law issues, 24 a single, nondependent, older gentleman. 25 THE COURT: A passenger? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 76PJ911C Conference 1 MR. MIGLIORI: A passenger. 2 MR. ELLIS: Your Honor, insofar as 93 is concerned, I 3 believe what we had talked about was either the Marcin case 4 because we thought it was relatively straightforward. 5 THE COURT: Marcin is the same as O'Hare and Kemmerer. 6 MR. ELLIS: That is the one. 7 THE COURT: Tell me about that one. 8 MR. ELLIS: It is a woman who I believe was 79 years' 9 old. Her husband had predeceased her. She has grown children. 10 It seemed like a relatively straightforward case. There wasn't 11 much in the way of substantial discovery that we thought we'd 12 have to do there, though there will obviously be some 13 discovery, but not of the nature in a complicated life earnings 14 capacity. 15 The other case we had selected was the Talignani case. 16 In that case, unlike Mr. Driscoll, I think Mr. Migliori 17 misspoke when he said Mr. Driscoll was a single non case. 18 Mr. Driscoll was married. Mr. Talignani was not. 19 THE COURT: Driscoll was 70 years' old. 20 MR. ELLIS: Yes, he was married and had four grown 21 children. Mr. Talignani was unmarried. Again it looked like a 22 relatively straightforward-type case that would have some 23 precedential value. I believe there is also New York law in 24 that case as well. 25 THE COURT: Which one is that one? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 76PJ911C Conference 1 MR. ELLIS: Talignani. 2 MR. BARRY: That is the substitute case, Judge, the 3 one I mentioned in my letter. 4 THE COURT: Bertorelli-Zangrillo against Argenbright. 5 MR. ELLIS: Mr. Talignani was unmarried. 6 MR. MIGLIORI: While he is doing that, may I correct 7 his pronunciation. It hurts me. He is half Italian, too, so I 8 find it particularly offensive. 9 (Pause) 10 THE COURT: How is it pronounced? 11 MR. MIGLIORI: Talignani. 12 MR. ELLIS: At least I say, "Migliori." 13 MR. MIGLIORI: You do after five years. 14 THE COURT: I haven't done so well with your name. 15 MR. MIGLIORI: You may, your Honor, do as you please. 16 MR. ELLIS: He corrects me more on his name than he 17 does with his clients. 18 Mr. Talignani was 74 years of age at the time, so a 19 similar age to Mr. Driscoll and was unmarried. There are no 20 children. There are nieces, sisters, a daughter-in-law and a 21 brother, and basically it seemed to us as a relatively 22 straightforward-type case and having some precedential value, 23 more precedential value than Mr. Driscoll because most of the 24 Flight 93 cases seemed to be similar. That was our thinking. 25 MS. SCHIAVO: If I might add one thing? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 76PJ911C Conference 1 In the Marcin case, I can't speak for all the clients 2 because we talked to certain ones that had expressed a 3 willingness with, of course, reserving the reservations that we 4 put forward, but I do not believe that the Marcin case would be 5 willing or would consent at this point to it. I wanted to 6 raise that issue. 7 THE COURT: I have a feeling, Ms. Schiavo, that if 8 Marcin settled, that won't necessarily affect anyone else; but 9 if others get resolved, it might affect Marcin. 10 MS. SCHIAVO: That is possible. 11 THE COURT: Does anyone know anything about the case 12 of Houtz? 13 MR. LIPOWITZ: Judson Lipowitz. We represent the 14 Houtz estate. She was an analyst working at the Pentagon 15 working on the Cole investigation. She was 28 years' old and 16 is a single nondependent case. She left behind a mother, a 17 stepfather and a sister. 18 MR. BARRY: We think that would be a good case to try, 19 your Honor. 20 THE COURT: It is a ground case? 21 MR. BARRY: Ground case out of the Pentagon and a 22 death case. 23 MR. LIPOWITZ: She was a Maryland resident. 24 THE COURT: And she died? 25 MR. LIPOWITZ: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 76PJ911C Conference 1 THE COURT: And another case on Flight 93, 2 Pennsylvania, N. Miller, 21 years' old, single, no dependents, 3 resident of California. One of your cases? 4 MR. MIGLIORI: It is. Mary can speak to it. 5 MS. SCHIAVO: It is one of ours. You summed up the 6 victim correctly. She was a college student traveling home to 7 California. I cannot say here today that they would be willing 8 to go through this process. They weren't one of the ones who 9 specifically -- how Mr. Migliori eloquently put it, they didn't 10 reluctantly volunteer, but the facts are correct, she was a 11 single, non case and she was 21 years' old on the plane. 12 THE COURT: Many of the people identified here 13 expressed strong feelings about wanting ultimate presentation 14 of all the information? 15 MR. MIGLIORI: I can tell you Mr. Driscoll's claim was 16 the first, was pointed out to us as a reluctantly-willing 17 participant. That is a Flight 93 choice presented by Motley 18 Rice. 19 THE COURT: It may be that those people -- do they 20 want to go through this process? 21 MR. MIGLIORI: They will go through it. They cannot 22 listen to our advice about the idea of a sterile trial and not 23 think well, I need to take that into consideration. I cannot 24 say for any of them that they're all gung ho, absolutely 25 willing to do it, but these are the folks who said you are able SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 76PJ911C Conference 1 to put our name in a public filing saying we will do it if that 2 is where the court is going. We did vet them that way. 3 For us, the four choices that we listed are the most 4 willing. 5 THE COURT: Do you think if we took, let's say, four 6 or five of the six cases and put them up for discovery on a 7 rather intensive basis with the idea that they would be among 8 the group that would be chosen for early trial on damages, that 9 we could have the beginning of this process, say, in September 10 or October? 11 MR. MIGLIORI: Speaking for plaintiffs, your Honor, if 12 we go through this, we want it the sooner the better. We'll be 13 willing to do this August. 14 THE COURT: That is soon. 15 MR. MIGLIORI: They had our brochures now for years. 16 Economic issues for their experts, their consulting experts to 17 crunch and analyze, that material has been in defendants' hands 18 going back years. 19 Depositions, as the court knows, is just a matter of 20 scheduling them. We can get those done very quickly. I 21 believe in one of the mediation processes Mr. Barry said in a 22 damage-only component, it would be three or four depositions as 23 opposed to 40 or 50 on the liability side. We think we can do 24 it, schedule it timely and move forward. We prefer to do that 25 sooner rather than later and let the liability aspect continued SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 76PJ911C Conference 1 without interruption. 2 THE COURT: What would your estimate be about the 3 length of the trial? 4 MR. MIGLIORI: If they're discrete economic and 5 noneconomic claims even with an economic component, we could 6 get the case in on the plaintiff's side in 5 to 7 trial days. 7 THE COURT: A two-week trial? 8 MR. MIGLIORI: At best. 9 THE COURT: How would we go about presenting a 10 scenario for the jury that would neither prejudice nor advance 11 either side? 12 MR. MIGLIORI: I think as the court's undoubtedly done 13 in many circumstances, throughout the course of the trial 14 instructions can be gathered. I do think you have to start 15 with the premise that the jury can't consider fault at all one 16 way or another. 17 The language as I heard it over my shoulder from 18 Mr. Podesta seemed to suggest if you have a predisposition that 19 these defendants aren't liable, you can factor that in. We 20 have to look at language on paper, but I am very confident we 21 can navigate instructions that say set aside who, if anyone, 22 pays this amount. Your charge in this case is to analyze this 23 component of the case and come out with an outcome. 24 THE COURT: Perhaps plaintiffs might start drafting 25 some language like that and defendants could edit it and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 76PJ911C Conference 1 perhaps the court can have a suggestion there, too. 2 MR. BARRY: I don't really take issue with the 3 time-frame that Mr. Migliori is talking about. I think October 4 is probably the earliest realistic time that the defendants can 5 be ready for a damages-only trial. 6 If you are talking about simultaneous damage discovery 7 in four cases, let's say, I certainly think that is the 8 earliest. Yes, we have had damage brochures, but getting 9 evidence into -- 10 THE COURT: Is different. 11 MR. BARRY: -- into form for trial is a totally 12 different ballgame. We can do it. If we are going to go ahead 13 with liability discovery, I have a calendar here that shows 14 July, August, getting into September now with weeks filled up 15 with liability depositions as well. 16 THE COURT: What should we -- Mr. Migliori? 17 MR. MIGLIORI: Just to point out, the brochures are 18 not narratives. They contain exhibits. 19 THE COURT: I have seen them. Both sides have 20 depositions with that. I can't say it is useful. 21 MR. MIGLIORI: The only concern I have is if we go as 22 far out as October, that actually in my view will delay 23 liability more than it will promote a dual-track, so I ask it 24 be intensive and focused and not allow liability discovery to 25 linger. Certainly our firms are large enough where we can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 76PJ911C Conference 1 double and tripple track out. 2 THE COURT: We are on to July. This is the last of 3 June now. I have a vacation planned for the last half of 4 August. I am going to have to carve out dates in September and 5 October, and I have a criminal calendar that is there already. 6 It is going to be juggling on my part. My ambition 7 would be to try to fit these in, and I don't know how many, in 8 those two months. Listen, if I can try them in October rather 9 than September, it won't make a big deal difference. The aim 10 is to get it done. 11 I think what I have to do is to think about what you 12 have told me here and identify a few cases that will be then 13 the subjects of intensive damages discovery. I'll probably 14 need another conference in a couple of weeks and get your 15 discovery objectives down pat, and we'll create a schedule then 16 that will run into the trial dates. That is where I think we 17 are going. Is there going to be a settlement dynamic in 18 anticipation of this event or not? What do you think? 19 MR. MIGLIORI: As I represented last week, your Honor, 20 there are -- 21 THE COURT: This could freeze things or makes things. 22 MR. MIGLIORI: Trial dates can only make things move 23 if they're going to move. If they're not going to move, then 24 nothing will. A trial date certainly will create more 25 activity. I would imagine Mr. Ellis and I are in discussions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 76PJ911C Conference 1 about the 175 cases. This, I anticipate, will truncate that 2 delay in getting those discussions moving. I know that there 3 are meetings set for this week on Flight 77 as well. 4 I think this is an important component. If it is 5 going to happen, it is an important component that will resolve 6 if they can be. 7 MR. BARRY: Mr. Podesta and Mr. Wayland and I are 8 meeting with Mr. Rice tomorrow. We have continued our efforts 9 to press toward settlement. I am not sure that the scheduling 10 of these trials is going to foster settlements any more than 11 our discussions will. We are continuing. We're doing our 12 best. 13 MR. PODESTA: I would just say that in terms of one of 14 the biggest gaps in the settlement discussions is the Azrael 15 Gann firm over the value of their noneconomic damages, and I 16 think -- 17 THE COURT: These are the ground -- 18 MR. PODESTA: There are ground victims in the 19 Pentagon, the Wiswe wrongful death case from New York. If we 20 said either the Wiswe case or the Houtz case, the ground 21 damage, ground victim death case from the Pentagon, single non 22 for trial, that might be the most useful in stimulating 23 settlement of those five cases. 24 THE COURT: What was the settlement? 25 MR. PODESTA: Houtz, H 0 U T Z, also named by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 76PJ911C Conference 1 Shontere, S H 0 N T E R E. 2 MR. LIPOWITZ: If I may? Judson Lipowitz. 3 We have consulted with our clients on numerous 4 occasions, and they are not interested in having a bifurcated 5 trial. They rejected, deliberately rejected the Victims 6 Compensation Fund. They had philosophical goals of 7 accountability and responsibility. They said to us repeatedly 8 and they said to the defendants that mediation, if they were 9 sent to the -- it is not about the money to them. There are 10 nonmonetary objectives. 11 THE COURT: I thought you complained to Ms. Birnbaum 12 that she was not scheduling you, she was neglecting you? 13 MR. LIPOWITZ: Sorry? She was neglecting us? 14 THE COURT: That is what was reported to me, which 15 seems to be inconsistent with the position you just told me. 16 MR. LIPOWITZ: We asked for a full discussion of the 17 nonmonetary demands which were conveyed in writing to the 18 defendants. 19 THE COURT: Why would you want to do that if you were 20 interested only in the ultimate outcome? 21 MR. LIPOWITZ: Not their top priority. There are 22 other issues in the cases. 23 THE COURT: It seems to me you are speaking out of 24 both sides of your mouth at the same time. 25 MR. LIPOWITZ: That is certainly not my intention. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 76PJ911C Conference 1 THE COURT: It is certainly the effect. Thanks very 2 much. 3 MR. ELLIS: May I say one last thing in terms of 4 potential cases for 175. As we were looking at them, there 5 was -- 6 THE COURT: Excuse me. There is a couple of more 7 things. We are not recessing just yet. 8 MR. ELLIS: Let me throw out for your Honor's 9 consideration the Carstanjen case. It is from California. 10 There are California plaintiffs. 11 THE COURT: The name of it? 12 MR. ELLIS: Carstanjen. 13 THE COURT: Would you spell it. 14 MR. ELLIS: I hope I am pronouncing it right. I will 15 defer to Ms. Schiavo. 16 THE COURT: Which flight is it? 17 MR. ELLIS: 175, your Honor. 18 MS. SCHIAVO: Do you want me to spell it? C A R S T A 19 N J E N. It is not a town. 20 MR. ELLIS: The reason we were throwing that out as a 21 possible case to consider is he was 33 years' old. He was 22 single. I believe he was survived by his mom, if I remember 23 correctly, and it just seems those were issues that might have 24 more precedential value than the Nassaney case. Again we throw 25 those suggestions to you and look to your guidance. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 76PJ911C Conference 1 THE COURT: Mr. Clifford. 2 MR. CLIFFORD: Robert Clifford, Mr. Reporter. 3 I would be remiss if I didn't stand before you and say 4 property damage is still here. 5 THE COURT: I know. 6 MR. CLIFFORD: We do. 7 THE COURT: I know, Mr. Clifford. 8 MR. CLIFFORD: The only thing I heard you say today, 9 with all due respect, I would like to at least talk about is 10 you suggested at the beginning that the remaining aspects of 11 the case with liability could take a substantial amount of 12 time. I have heard the forecast of a couple of years from 13 some. 14 We do think we ask you to at least put somewhere in 15 your thoughts the idea that you could bifurcate the liability. 16 They have done virtually and not necessarily need to do damage 17 discovery on the property damage claims, especially now that 18 the rest of the coverage litigation, as the court well knows, 19 is resolved and there has been that settlement most recently 20 with World Trade Center Properties. 21 Those claims files are being gathered as we speak. We 22 hope to tender them over to counsel within the next 90 days or 23 so, but we believe that fact discovery on liability can be 24 completed by Thanksgiving, experts by the spring and a trial on 25 liability in the late spring without any discovery necessarily SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 76PJ911C Conference 1 going forward on the damages because if there is no liability, 2 why bother? 3 THE COURT: I think there is a disparity of thinking 4 between plaintiffs' side and the defendants' side. I heard 5 this also from the wrongful death plaintiffs. They feel that 6 their discovery they still need is very little, and the 7 defendants think that the discovery they need is quite great, 8 large. Probably the answer is somewhere in-between. Where 9 somewhere in-between is I don't really know. 10 MR. CLIFFORD: If you set a trial date, believe me it 11 will get done, Judge. 12 THE COURT: That issue has comes up a number of times. 13 Mr. Migliori has presented to me, others have presented to me, 14 and I have been reluctant to do it because realistically I know 15 that there are aspects of this case, the discovery of liability 16 issues that lie beyond my control. 17 Setting a trial date and expecting discovery to be 18 completed within a prospect time that allows that trial date 19 requires the control of the district judge in determining what 20 discovery is needed, when it should be had and how much of it 21 should be had, but when so much discovery involves the Social 22 Security Administration and various concessions of what is 23 sensitive security information, with final determination to the 24 TSA going not to me, but to Courts of Appeals, there is too 25 much in the way of discovery issues that lie beyond my control. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 76PJ911C Conference 1 Without a clear idea of exactly what discovery is that 2 is needed and when it will be had, I can't respond to your 3 request for a trial date. There has recently been put to me 4 the issue of obtaining some kind of ruling what discovery would 5 be appropriate or inappropriate. I Was unwilling to rule 6 because the issue had too much of an abstract quality to it. 7 When there are discovery disputes, I will resolve 8 them. In the meantime, the parties should go about getting 9 their discovery in as quick a time as they can, both sides. I 10 think I have created a problem for you. If I am going to 11 advance the trial dates of personal injury cases and put close 12 dates before you, which is my intention, I think inevitably 13 they will affect the scheduling of discovery that you're 14 interested in. I think we'll have to compromise both because 15 both are needed and both must go forward. I have no other 16 wisdom to convey in this. 17 MR. CLIFFORD: Could I speak to one thing in response, 18 though? 19 THE COURT: Yes. 20 MR. CLIFFORD: Please be mindful that relative to any 21 discovery that they need on the wrongful death cases, whether 22 they're exemplary or not, the TSA in all likelihood does not 23 need to attend any of those, so that that discovery can go 24 forward without any obstacles at all by the TSA. 25 THE COURT: On values? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 76PJ911C Conference 1 MR. CLIFFORD: On the damages. 2 THE COURT: I think I made a suggestion a long time 3 ago about that. I think if you were to tender -- since most of 4 your clients are subrogated insurers and since the damages are 5 the amounts they paid and they're looking to be reimbursed 6 essentially for amounts they paid, then if you were to serve 7 the demands backed up by the files, you would have your 8 discovery. 9 MR. CLIFFORD: I understand that. 10 THE COURT: I said that a long time ago. 11 MR. CLIFFORD: We are on track with that. It would be 12 helpful, not to whine here, the fourth wave of documents is yet 13 to be delivered to the TSA for analysis of SSI and the first 14 three waves aren't complete on getting them to the reading 15 room. There is no excuse for that. 16 I ask that you ask them to speak to that so that can 17 get done and we can continue to prepare those very requests to 18 admit both on liability and damages. 19 THE COURT: You want someone to respond from the 20 airline side? 21 MR. CLIFFORD: I would appreciate it if they would. 22 MR. BARRY: Airline side or TSA? 23 MR. CLIFFORD: Airline side. If I understand it 24 correctly, the TSA is yet to receive the fourth wave of 25 documents for analysis of SSI, and all the documents yet to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 76PJ911C Conference 1 be -- 2 MR. BARRY: I don't think that is true. 3 THE COURT: Shall we have a report? Folks, folks, 4 folks, shall we have a report from the TSA? 5 MS. VARGAS: Your Honor, we have authorized for 6 inclusion the reading room -- 7 THE COURT: This is Ms. Vargas. 8 MS. VARGAS: Yes, your Honor, first and second wave 9 documents and videotapes as well. I think approximately we 10 have authorized for inclusion in the reading room approximately 11 10,000 pages at this point. 12 It is my understanding that most of those pages have 13 now been included. Very recently we received American's 14 submissions in the last few days. I have not yet checked to 15 see if that submission is complete with respect to all the 16 documents we have authorized for inclusion in the reading room. 17 We are still in the midst of analyzing third wave 18 documents for inclusion in the reading room and we anticipate 19 that will be done in not too much more time. United Airlines, 20 I do not believe we have United's submission to the reading 21 room, if that is the question, as far as I am been aware. If 22 it came in the last few days, I have not been notified. As of 23 a few days ago -- 24 MR. CLIFFORD: Ditto, we did not know they have the 25 American submissions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 76PJ911C Conference 1 THE COURT: Now you know. What do you want me to do? 2 MR. CLIFFORD: I would like very much for us to focus 3 on the idea they need to do discovery on wrongful death damages 4 is not mutually exclusive to the idea of working on the 5 liability. 6 THE COURT: I can't respond in the abstract. It is my 7 impression people are working in the proper form, but if 8 they're not, someone has to complain and put it to me for a 9 ruling. 10 MR. CLIFFORD: Yes, sir, we will. Thank you. 11 MR. MIGLIORI: One fact. First of all, we endorse 12 that. We don't want our liability discovery which is joint 13 with property damage to slow down. 14 Second and much more important, there is one week a 15 month dedicated to the defendants to take their offensive 16 discovery. That has produced two depositions in almost a year 17 now, to my knowledge. While this may be a need to get 18 discovery and go through this important TSA process, defendants 19 have voluntarily chosen not to use the time they have. 20 THE COURT: Why don't you sit down and fill out a 21 calendar, both of you, both sides, fill out a calendar and then 22 if there are bad dates, complain. I can't deal with this in 23 the abstract. Anybody else? 24 MS. SCHIAVO: I should note one thing for the record. 25 In spelling "Carstanjen," I didn't want to suggest SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 76PJ911C Conference 1 they had been one of the volunteers. It is not any of our 2 clients are trying to slow the process, but that is not one of 3 the ones that volunteered. I wanted to get the spelling right 4 for your Honor. 5 MR. MIGLIORI: Could I make one more observation about 6 Driscoll? If I misspoke and said single non -- 7 THE COURT: Excuse me. If I would identify Carstanjen 8 as one of the cases that might be advanced, that would be 9 highly offensive to that particular plaintiff? 10 MS. SCHIAVO: They haven't agreed to it yet, your 11 Honor, and they haven't expressed a willingness to do it. 12 THE COURT: Why did you sound them out? Was it -- 13 MS. SCHIAVO: He left parents, a male decedent. 14 THE COURT: Who is suing? 15 MS. SCHIAVO: The parents are the personal 16 representatives. 17 THE COURT: Perhaps you should ask the parents whether 18 or not they would like their case advanced in this fashion. 19 MS. SCHIAVO: I certainly will, your Honor. They 20 haven't agreed to date. We will continue to talk to them. 21 THE COURT: I understand. It could be a very good 22 opportunity. 23 MS. SCHIAVO: I will talk to them, your Honor, as I 24 have. Thank you. 25 THE COURT: I learned long ago as a lawyer that many SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 76PJ911C Conference 1 cases of principle stop being cases of principle when there are 2 elements of expense or recovery that are presented. I have had 3 clients come to me and say look, I want you to defend me, it is 4 a case of principle. Then when I presented my first bill, it 5 stopped being a case of principle. I think it is common 6 experience. 7 Similarly on the other side, people say I don't care 8 what the recovery is, I want my day in court until someone 9 gives them a check. It is very crass and it probably will come 10 back to be critical of me, but there is an expression that is 11 sometimes very useful, "Money is the universal lubricant." It 12 makes it easier to go on with one's life. 13 Out of the mundane, you can fashion something that 14 makes a great deal of sense. We are coming on six years from 15 the terrible event of September 11th, 2001. The public life is 16 4 score and 10 if it is correct. There is a great value in 17 living out those years that God has allotted to each of us in a 18 way that is most productive for the individual and for society. 19 What happened on September 11th, 2001 is now a memory with 20 different degrees of pain for different people, for some degree 21 of pain for each and every American and perhaps beyond the 22 United States of America. 23 Each of us has a choice either to never forget that 24 pain and have it ever present in our lives or to fashion a life 25 beyond the pain. If one looks at the issue in that way -- and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 76PJ911C Conference 1 I suggest that it is the only way to look at it -- the question 2 then becomes what's the fairest, the most efficient, what is 3 the best way to get on with the rest of our lives. It seems to 4 me that if I were your client, Ms. Schiavo, and one day perhaps 5 I'll be lucky enough to perhaps be your client or a client of 6 someone else or perhaps maybe I'll be lucky, lucky to have 7 avoided some of the terrible problems in life that brings us -- 8 in any event, if I were your client and I were presented with 9 an opportunity to get a fair and proper disposition, I think I 10 would jump at the chance. 11 Perhaps if the opportunity came to Mr. and Mrs. 12 Carstanjen with regard to the memory they have of their son, 13 they would find the benefits of a fair and proper disposition 14 so important and so appropriate as to go past their suffering. 15 They have others. They can do good for themselves and for 16 others. There is a value in this. 17 In a way that I was called upon to express here, this 18 is really what I am trying to achieve with all the settlements. 19 I am not trying to cut values here, I am not trying to cut 20 short any justice or compromise in any way. I am trying to 21 deal as best I can with a problem that is searing. 22 Somehow we need to get past September 11, 2001 as a 23 country and individually for all clients, and I would like to 24 bring about that possibility as best I can, as efficiently as I 25 can in a short a period of time as I can. I guess we are all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 76PJ911C Conference 1 enlisted in that cause. It is to that end I want to develop 2 these kinds of procedures that I am talking about. 3 Have a good 4th of July. See you soon. 4 (Court adjourned) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300