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A Federal Appeals Court Overturned Ruling on Workers Pursuing Undiagnosed Injury Claims
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Workers represented by Parker Waichman LLP, a national personal injury law firm that has spent many years representing workers from WTC September 11th  saw a new glimmer of hope when a federal appeals court just reopened 211 claims in which they sought compensation over alleged exposure to the toxins in and around the Manhattan World Trade Center site following September 11, 2001, according to a July 10, 2014 Reuters report. The case is Markut et al v. Verizon New York Inc., et al, 2nd United States Circuit Court of Appeals, Nos. 12-3403 and 12-3729.

According to the appeals court, a lower judge’s ruling was in error when the claims were dismissed in response to the workers having had indicated “none” when asked had they been “diagnosed” with ailments, injuries or diseases, Reuters reported. The workers involved were working for cleaning companies hired by Verizon Communications Inc., Brookfield Properties, and other lower Manhattan building owners whose buildings were either damaged or destroyed in the 9/11 attacks, the court indicated. The new decision overturned the August 2012 dismissal of claims by U.S. District Judge Alvin Hellerstein who, in Manhattan, oversees a great deal of the litigation involving the September 11th attacks. The 2nd Circuit did uphold the judge’s dismissal of 31 workers’ claims for not pursuing their claims in a timely fashion.

Parker Waichman LLP, which worked alongside Ground Zero first responders and their advocates to ensure passage of the Zadroga Act, vows to continue its efforts to ensure these heroes receive all of the Zadroga Act compensation they need and deserve.

“The fact that plaintiffs answered ‘none’ to the interrogatory was an insufficient basis, by itself, for a blanket conclusion that all 211 plaintiffs could not establish their claims against defendants as a matter of law,” Circuit Judge Denny Chin wrote for a three-judge Second Circuit panel, according to Reuters. The 2nd Circuit found that Judge Hellerstein should have examined if the plaintiffs had, in fact, experienced compensable injury, even if that injury had been undiagnosed or had surfaced late. “While we appreciate that the sheer number of cases before the district court made its task of managing this mass tort litigation extraordinarily difficult, the district court was obligated to individually consider each plaintiff’s answer of ‘none’ in the context of any other evidence of injury,” Chin continued.

“We are delighted that the 211 recovery and cleanup workers who indicated “none” when asked about any “diagnosed” 9/11 injuries may still pursue claims seeking compensation for injuries not identified by their physicians,” said Gary Falkowitz, Managing Attorney for Parker Waichman LLP.

“The use of the word ‘diagnosed’ in the interrogatory created some ambiguity,” Judge Chin also pointed out in his paper, noting that “It was possible that a plaintiff manifested symptoms of a condition, illness, or disease that had not yet been diagnosed when he answered the interrogatory. Indeed, claims arising from exposure to toxic or harmful substances often present nuanced and fact-specific questions as to whether and when a legally cognizable injury exists,” according to a Courthouse News Service report dated July 10, 2014

Photo by Tim Evanson

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Joseph Shaheen
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