Opinion
No. 21 MC 100(AKH).
February 19, 2009.
OPINION DISCUSSING METHODOLOGY FOR DISCOVERY AND TRIALS OF SAMPLE CASES
In the months following September 11, 2001, thousands of workers participated in New York City's effort to clean up the vast destruction caused by terrorists. The airplane crashes and explosions at the World Trade Center left acres of twisted metal and crumbled concrete. Noxious dust blanketed the rubble and hung in the air for weeks, producing an acrid smell throughout downtown Manhattan. Those who helped in the search and rescue operations, and in the effort to clear the mountains of debris, had to breathe this air as they worked. According to the allegations, protective masks, when worn, filtered this air in varying degrees.
Overlapping government agencies managed the workers, as did private contractors engaged by the City's Department of Design and Construction. Nine thousand and ninety of these workers have filed suits in this court claiming various respiratory injuries and cancers resulting from their exposures to worksite contaminants. They claim inadequate safety procedures and supervision.
The number, 9,090, reflects the current count, eliminating duplication and transfers to other dockets. The larger number previously represented was approximately 10,500.
I. Procedural History
Most of the cases were initiated in the New York Supreme Court and then removed to this court. They were assigned to me as related to docket 21 MC 97, which contained September 11th wrongful death actions that I had grouped into one coordinated proceeding. I denied class status because of the variety of illnesses alleged by the plaintiffs, the varying severity of their illnesses, the transient nature of the worksites, the varying levels of supervision governing plaintiffs' work, the variety of defendants, and the complexity of determining and evaluating pre-existing medical conditions. See Transcript of Status Conference at 31-34 (Oct. 28, 2004).
I organized the cases into their own master docket, 21 MC 100, and considered the issue of jurisdiction. The aggregate demands of the lawsuits — those already filed and the hundreds more that were expected — promised far to exceed the maximum liability set by the Air Transportation Safety and System Stabilization Act ("ATSSSA"), 49 U.S.C. § 40101. ATSSSA capped liability at $350 million or the City's insurance protection, whichever was larger. The latter, at the time, seemed not to exist.
I ruled, in an extensive opinion, that claims arising from the search and rescue operations, extending for two weeks after September 11th, arose from the terrorist-related aircraft crashes and were subject to the district court's exclusive jurisdiction. However, claims arising from work and exposures thereafter were much more akin to the activities and risks of construction worksites and to issues addressed by the New York Labor Law, on which the New York Supreme Court had developed a century of expertise. Accordingly, I remanded these later claims to that court. Hickey v. City of New York, 270 F. Supp. 2d 357 (S.D.N.Y. 2003). An appeal followed and, after lengthy consideration, the Court of Appeals ruled that all the cases were to be considered subject to the district court's exclusive jurisdiction. McNally v. Port Auth., 414 F.3d 352 (2d Cir. 2005). See Robin J. Effron, Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation, 81 S. Cal. L. Rev. 199 (2008).
I had held previously that traditional workplace injuries similarly were to be remanded. Graybill v. City of New York, 247 F. Supp. 2d 345 (S.D.N.Y. 2002); Spagnuolo v. City of New York, 245 F. Supp. 2d 518 (S.D.N.Y. 2002).
Following remand of the cases to me, I turned to their organization. I appointed Liaison Counsel for plaintiffs and for defendants. Case Management Order No. 2 (Feb. 7, 2005). At plaintiffs' request, I ordered master pleadings to be filed that alleged the issues common to all plaintiffs. Case Management Order No. 4 (May 12, 2005); see Master Complaint (Sept. 16, 2005). And, I ordered the parties to file short form complaints. Case Management Order No. 4 (May 12, 2005). These complaints were intended to set out where, when, and for which contractors plaintiffs worked, as well as the causes of their injuries and the defendants' alleged faults.
At the same time, defendants sought to advance their defense that the City and the contractors enjoyed immunity arising from federal and New York State laws. Both sides considered that the prospective substantial litigation expense made it important to clarify the reach and efficacy of this defense at an early time. I ordered discovery on limited issues relevant to the defense. The same discovery also would be relevant to defining the relationships between plaintiffs and the scores of defendant contractors, between defendant contractors and the City, and among the City, the State, and federal agencies that were active at the World Trade Center worksite.
The parties pursued discovery to satisfy both objectives with mixed success. The pleadings were conclusory in their allegations and impossible to understand in relation to essential facts and issues. Remonstrations at conferences and rulings on motions did not seem to advance matters. See, e.g., Transcript of Status Conference at 31-32 (May 13, 2005); Order Regulating Limited Discovery (June 15, 2005). As happens with discovery confined to limited issues, it proved difficult to define boundaries. Finally, however, defendants made their motions, and I denied the motions in a lengthy opinion, ruling that the issue of immunity hinged on controverted facts. Opinion Denying and Granting Motions for Judgment on the Pleadings and for Summary Judgment (Oct. 17, 2006). I denied defendants' motion that my order was eligible for immediate review or, alternatively, for certification for interlocutory review, Opinion and Order Denying Motion for Interlocutory Appeal and Asserting Continuing Jurisdiction (Jan. 8, 2007), but the Court of Appeals ruled that the appeal could nevertheless be pursued because rulings on immunity sufficiently satisfied an exception for final decisions on severable issues. 469 F. Supp. 2d 134 (S.D.N.Y. 2007), rev'd,McCue v. City of New York, 503 F.3d 167 (2d Cir. 2007). The Court of Appeals also granted a stay of all proceedings on March 9, 2007, causing a complete stand-still until March 26, 2008, when the stay was dissolved. The Court of Appeals then affirmed my decision. McCue v. City of New York, 521 F.3d 169 (2d Cir. 2008).
II. The Litigation's Complexities
During the lengthy stay, I considered how these cases should progress were they to be remanded. There were few precedents, perhaps none. These are not typical mass tort claims in which a single product or event injures the victims in a relatively similar way. Here, the victims were injured over a protracted period of time — days, weeks, and months, varying with the hours and dates particular plaintiffs worked in the widespread area (sixteen acres) constituting the World Trade Center site. Case Management Order No. 3 (Feb. 7, 2005) (defining World Trade Center site). The exposure to the environment had different medical effects on different individuals. The environment itself varied from one worksite area to another depending on which toxic materials prevailed at which place and time. In aggregate, plaintiffs allege hundreds of different diseases from working among the debris, each of different severity and effects.
The complexity in sorting the plaintiffs' claims is matched by the complex interplay of defendants. Many governmental agencies and scores of contractors were responsible for the World Trade Center work, in varying degrees and with varying overlap. The contractor defendants were engaged in different ways, by different prime contractors, and were supervised and guided by different layers of government agencies. Nor is responsibility clear, for some defendants may be covered by various immunities under federal or state laws and, if found liable, may enjoy a congressional liability cap. Because of such a cap, I would have to carefully administer all settlements and judgments since each plaintiff's recovery would diminish the next plaintiff's potential recovery.
The insurance coverage issues provide additional complexities. Related proceedings clarified the City's insurance coverage and were beginning to disclose the coverage of private contractors. My early concern, that ATSSSA's $350 million liability cap would mean partial and inadequate satisfaction for vast numbers of claimants, had become academic. § 408(a)(3), 49 U.S.C. § 40101. New York City, in fact, is covered by several layers of private coverage, amounting to approximately $75 million, in excess of the costs of defense, and one billion dollars of coverage through a captive insurance company funded by the Federal Emergency Management Agency. See WTC Captive Ins., Inc. v. Liberty Mutual Fire Ins. Co., 549 F. Supp. 2d 555, 557-58 (S.D.N.Y. 2008), appeal docketed, No. 08-2787 (2d Cir. June 5, 2008). And, beyond that, the private contractors have their own insurance to an extent not yet known.
It would be difficult, perhaps impossible, to obtain and sort all this insurance information in conventional discovery proceedings relating to more than 9,000 cases. While all might have a claim, of possible and varying merit, against the City, it would be necessary to match specific claims of plaintiffs against specific contractors, and to evaluate such claims in relation to different and varying layers of primary, excess, and reinsurance agreements and exclusions.
Finally, all that I and the parties do must be done with an eye towards public accountability. The September 11th litigation stems from an unprecedented national tragedy that impacted New York City, the State, and the Nation in long-lasting ways. The resolutions of these cases must depend on careful and individual evaluations of personal injury and merits in a manner that allows the public to view and understand the results.
III. Court-Ordered Discovery and Special Masters
The inability of counsel to style useful pleadings, or to proceed with discovery relevant to the immunity defenses without excessive and wasteful disputes, made it necessary to develop an alternative manner of proceeding. See, e.g., Transcript of Status Conference at 23-26 (Nov. 3, 2006). Normal discovery to advance 9,090 cases against more than 200 defendants is not possible. But neither is it tolerable to neglect these cases, nor to postpone recoveries for years, nor to allow attorneys motivated in part by their own economics to dictate which cases advance and how. There must be criteria developed to select cases meriting early treatment and capable of serving as models for the rest. Case Management Order No. 8, as amended, sets out a protocol that reflects such criteria. It provides a procedure for selecting appropriate cases for intensive pre-trial discovery, motions, and trials on specific dates. I now set out the efforts leading to this order.
I believed that the parties and I needed core discovery to provide the fundamental facts of the cases, the varying responsibilities of government agencies and contractors, and the complex layers of insurance coverage. I required Special Masters, skilled and impartial, to help me devise such discovery, and to develop computer systems to collect the information and make it accessible.
Following the return of the case to my jurisdiction, after the Court of Appeals dissolved its stay, and after vetting the issue with the lawyers, I appointed Professors James A. Henderson, Jr. of Cornell Law School and Aaron D. Twerski of Brooklyn Law School as Special Masters. Memorandum and Order Appointing Special Masters (Dec. 12, 2006). Professors Henderson and Twerski are distinguished scholars, neutral in relation to the issues of the litigation. Given the assistance of computer experts engaged through competitive bidding, they have the experience and capability to structure and oversee the required exchange of information between the parties and the collection of that information in an efficient and accessible database.
Professors Henderson and Twerski are the co-authors of the leading treatise Products Liability: Problems and Process (4th ed. 2000) and co-reporters for the RESTATEMENT OF THE LAW (THIRD) TORTS: PRODUCTS LIABILITY. Professor Henderson, Cornell Law School's Frank B. Ingersoll Professor of Law, and Professor Twerski, Brooklyn Law School's Irwin and Jill Cohen Professor of Law, have also together and individually published articles in the nations leading law journals, including the Yale Law Journal and Columbia Law Review.
Working with the lawyers, the Special Masters have developed the structure for creating a large database for the litigation. The parties will be required to answer under oath approximately 360 narrowly-tailored questions seeking case-crucial data for each plaintiff: pedigree information, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, and any worker's compensation filings and recoveries. Each plaintiff and each defendant will have to detail the hours plaintiffs worked and for which employers, in addition to the safety warnings given, the safety training provided, and the safety precautions taken. Each defendant will disclose his insurance and indemnity protection. The database should promote success because it requires greater detail and specificity than prior efforts at core discovery, operates in a more sophisticated medium, and limits the responses to certain key questions to a list of permissible answers (called a "pick list"). See Transcript of Status Conference at 5 (Sept. 16, 2008).
A previous effort did not succeed. I had ordered each plaintiff to provide details of when and where the plaintiff worked, the injuries the plaintiff claimed, and other basic information. Each defendant was required to supply particulars of its insurance coverage, describe the work it performed, and name subcontractors and employees it engaged. See Case Management Order No. 4 (May 12, 2005). However, conclusory answers and numerous objections frustrated the effort.
I have attached a print-out of the database (Attachment 1).
A. Traditional Discovery and Trials as Enforcement Mechanisms
The database should provide an enormous amount of relevant discovery information in a functional format. But the information, to be provided by each party, could be self-serving, and needs to be tested for integrity and reliability. While conventional discovery and trials are a court's traditional tools in this regard, there were too many cases to proceed in a traditional manner. Select cases would have to be chosen for discovery and trial.
Deciding which cases adequately represent the field would be difficult. How could information from hundreds of doctors' reports and thousands of examinations be studied for prior conditions and severity of current illnesses? How could one sort the conditions of scores of workplaces and intersecting levels of supervision? Solving such problems — indeed, even enumerating all possible issues — threatened to overwhelm progress. It was critical to establish a set of priorities, and allow those priorities to determine how to proceed.
The first priority was to tend to the most severely injured plaintiffs. Their cases deserved to be tried first, for if they were to prevail, they had the greatest need for a monetary recovery. The second priority was to create a methodology for sampling in relation to the general run of cases, severe, mild, and everything between, in order that rulings on liability, damages, and responsibility might be extended from the particular case in which rulings are made to the rest of the cases. Every case had to be considered as important, for each plaintiff and each defendant deserved rulings on particular merits.
B. Determining the Most Severely Injured
Determining who are the most severely injured is not a straightforward task. The 9,090 plaintiffs, in the aggregate, claim approximately 387 diseases ranging from the most life-threatening to the merely irritating. Some plaintiffs have very mild cases of serious diseases while others have very severe cases of less serious diseases. Even permitting trials of only the most severe cases of each disease could mean hundreds of trials, still too many to administer in a reasonable period of time.
To proceed, the Special Masters, in cooperation with Liason Counsel, looked to a diagnostic system established by the American Medical Association and the American Thoracic Society. The system ranks the severity of an individual's illness among the population suffering from that illness by grading that person's condition from 0 (least severe) through 4 (most severe). The rank corresponds to recorded outcomes of standard medical tests taken by the plaintiff, typically measuring the degree of dysfunction associated with the disease. In consultation with Liason Counsel, the Special Masters selected six major disease categories that subsumed the generality of illnesses. Although the rankings are specific to each disease category, and severity cannot easily be evaluated across the different categories, the medical criteria do allow a neutral observer to identify a set of the most severely ill in each of the six disease categories. Final selections from this set can be made after considering additional limited criteria considered relevant, for example, plaintiff's length of exposure to hazardous worksite conditions or plaintiff's pre-existing medical conditions.
The AMA uses additional criteria when determining diagnoses, but these tests compose much of the objective component used in diagnosing. For two diseases the parties agreed on objective criteria partially derived from AMA ratings and other sources.See Attachment 5 (Severity Chart for Interstitial Lung Disease and Upper Digestive Tract Diseases, e.g., Gastroesophageal reflux disease, Barrett's Esophagus, Gastritis, Esophagitis, and GI stricture).
The database allows for those who have not yet taken the required test, but those plaintiffs will not be eligible to be selected as one of the 200 cases ranked most severe.
IV. The Resulting Order
The court proposed and approved Case Management Order No. 8 with modifications suggested by the parties. The amended Order, issued today and attached herein, implements these criteria.
1. The 9,090 cases are to be divided into five groups of 2,000 cases, according to their filing sequence. Every forty days, one such group of plaintiffs is to populate a subset of the data fields, specifically fields eliciting each plaintiff's disease rankings, the duration of exposure at the World Trade Center, and any pre-existing disorders.
2. The Special Masters, within ten days following, will identify 200 cases categorized as severe. From these 200, plaintiffs and defendants will each choose two cases.
3. The Special Masters also will select twenty-five additional cases for diseases not necessarily included in the severity chart.
4. From this pool of 225 cases, I (with the assistance of the Special Masters) will select two cases, additional to the four selected by plaintiffs and defendants.
5. The six cases thus identified, from the field of 2,000, will proceed through full pre-trial discovery, to be completed within a set period of time (ranging from 270 days for some of the cases in the first field of 2,000 to 190 days for cases in the fifth field), followed by motions, followed by trial (if dismissal motions are not successful).
6. Thirty cases will be set for trial, six from each field of 2,000. Despite the sequential process in which these cases will be selected, all trials will begin on a fixed date — May 17, 2010. If one case is resolved, later-filed cases will be tried instead. If more than one case for trial remains, other judges may be asked to preside over them, or they may be reached in sequence.
7. Thus, a resolution is in sight for the most severe cases and for representative cases. And one can expect that many of these cases, and many others, will settle either in anticipation of firm trial dates or aided by values gleaned from trials or settlements.
The fifth group will contain the remainder of the cases. beyond 8,000, including any after-filed cases. Plaintiffs may file cases within three years of the time plaintiff discovers, or reasonably should have discovered, the injury, whichever is earlier, even though their cause of action accrues upon ingestion or aspiration of the polluting substance. N.Y. C.P.L.R. § 214-c(2) (McKinney 2000).
This was the experience in the wrongful death actions brought by passengers and crew in the four hijacked airplanes. Setting fixed trial dates for issues of damages and reserving liability issues for a later time resulted in a large number of settlements, without the need of any trials. At present, ninety-three of the original ninety-six claimants have settled, leaving but three for completion of discovery and trial. I ordered the master docket, 21 MC 97, closed and transferred the remaining cases to 21 MC 101, the collection of property damage cases against the aviation defendants. See In re September 11 Litig., 567 F. Supp. 2d 611, 616-17 (S.D.N.Y. 2008).
The procedures outlined above were intended swiftly to identify a representative few cases for discovery of all issues and early trials. But the entire field of 2,000 could not be neglected. It was necessary to develop information relevant to all the cases, for otherwise the parties could not share key knowledge about the field of cases, or intelligently discuss the degree to which the cases identified for discovery and trial were representative. Two additional procedures provided for the full field:
8. The parties are required to populate the entire database for each of the 2,000 cases in the group, according to a fixed schedule. Forty days after the Special Masters choose the 225 cases, the parties are to populate the entire database for these cases. On the same day they select the 225 cases, the Special Masters will identify 400 additional cases (chosen at random) from that group of 2,000. The parties must fully populate the database for these 400 cases 120 days later. Every forty days, this process is repeated for the next group of 2,000 cases. By November 27, 2009, the parties will have fully populated the entire database for 3,125 cases, taken from all five groups (5 multiplied by 625). Finally, the parties will populate the database for each of the 1,375 cases in every group that were not selected as part of the 225-case subgroup or the 400-case subgroup. By January 1, 2011, the entire database for each filed case will be populated.
9. From each group of 400 randomly selected cases, each party will choose two cases, and I (with the Special Masters' assistance) will select an additional two. These cases will proceed with pre-trial discovery along with the selected "severe" cases. However, trial dates will not be set for these cases, at least not until we know the outcome of the schedule for the "severe" cases.
I recognize that the methodology of Case Management Order No. 8 is extraordinarily complex. It needed to be so because of the number and variety of cases, and to create a consensual agreement for going forward. I recognize also that complexity creates an artificial rigidity that needs adjustment. As further orders may be necessary, they will be made. But the trial and motion schedules will remain firm.
I have attached to this decision the amended Case Management Order No. 8 (Attachment 2), its accompanying schedule (Attachment 3), the Severity Chart which parties must complete prior to responding to certain database fields (Attachment 4), and the Severity Chart's introductory language which was agreed upon by the parties (Attachment 5).
V. Rationale of Case Management Order No. 8
The plan involves three stratagems to bring the thousands of cases before me to resolution. First, since the claims of those most gravely injured commend themselves to highest priority, the plan provides a procedure to identify these cases, a methodology to select a representative sample for full discovery and early trial, and a firm and intensive schedule to begin trials. Full discovery on all issues will assure the integrity of each side's disclosures in the database and a thorough testing of all claims and defenses. A basis for settlement, or valuation by trial, should promote prompt resolution of all such severe cases.
Second, the full population of the database of all remaining cases, first by sample and then in full, enables values to be negotiated for all cases.
Third, the combination of court-established interrogatories for the database and traditional, broad discovery in selected cases will allow the parties vigorously to test their opponents' claims, assuring the integrity and reliability of the parties' disclosures and establishing a procedure that can promote broad resolutions of cases in a fair, efficient, and just manner.
VI. Conclusion
No general plan for over 9,000 cases can be so wise as to be immutable, or so clever as to foresee all possibilities. However, Case Management Order No. 8 was forged with the experience of earlier failures and frustrations, and with full and intensive cooperation of Special Masters and plaintiffs' and defendants' counsel. It establishes a flexible, fair, and efficient plan to move these cases through discovery and to trial in reasonable time. It remains for the parties to act consistently with its provisions to bring about just such results.
SO ORDERED.
ATTACHMENT 1 Merged Data Elements Chart as Coded by Special Masters
Field # Data Element Data Type Who Populates 1 CASE PROFILE DATA WTC WORK BACKGROUND DATA DEMOGRAPHIC DATA CURRENT EMPLOYMENT HISTORY PREVIOUS EMPLOYER(S) (FROM 1995 TO 9/11/01) TOBACCO USE DURATION OF PE'S WTC WORK RESPIRATOR(S) AVAILABLE TO/RECEIVED BY PE AT WTC SITE PPE (OTHER THAN RESPIRATORS) AVAILABLE TO/RECEIVED BY PE AND WTC PRIOR RESPIRATOR EXPERIENCE ENVIRONMENTAL HEALTH AND SAFETY TRAINING PRE-EXISTING (1995-9/11/01) DISORDERS, DISEASES AND ANATOMY AND ABNORMALITIES DISABILITY CLAIMS WORKERS' COMPENSATION CLAIMS FILED BY PE DIAGNOSED CONDITIONS, INJURIES, AND DISEASES FOR WHICH PE SEEKS PE OVERY IN THIS LITIGATION DIAGNOSTIC TESTS UNDERGONE BY PE (9/11 to PRESENT) RESULT(S) OF DIAGNOSTIC TEST(S) PULMONARY FUNCTION TEST (1995 to PRESENT) METHACHOLINE CHALLENGE TEST(S) (1995 to PRESENT) SEVERITY CHARTS RANKING DATA PRESCRIPTION MEDICATION(S) COLLATERAL SOURCES DEFENDANT IDENTIFYING INFORMATION DF'S HEALTH INSURANCE/WORKERS COMPENSATION INSURANCE DF'S WTC SITE SAFETY DEFENDANT'S EMPLOYMENT PRACTICES DF'S MEDICAL SURVEILLANCE PROGRAM DF'S HEALTH AND SAFETY PRACTICES INDEMNIFICATION AGREEMENTS (Defendants understand that to the extent that responses to fields 285-311 beyond reporting factual events circumstances to other data they should not be constued as binding admissions as to any legal position and/or considered Further, Defendants preserve all of their rights and arguments with respect to disputes concerning erroneous denials of coverage, or with respect to any other litigation, and shall not be limited to argument by responses to fields 285-311 that go beyond reporting factual events circumstances or the dates. INSURANCE INFORMATION (Defendants understand that to the extent that responses to fields 312-328 beyond reporting factual events circumstances to other data they should not be constued as binding admissions as to any legal position and/or considered Further, Defendants preserve all of their rights and arguments with respect to disputes concerning erroneous denials of coverage, or with respect to any other litigation, and shall not be limited to argument by responses to fields 312-328 that go beyond reporting factual events circumstances or the dates. DID DF PROVIDE PPE (OTHER THAN RESPIRATORY PPE) TO ITS EMPLOYEES DID DF PROVIDE RESPIRATORY PPE TO ITS EMPLOYEES?
2 Plaintiff-Employee (PE) last name Text Plaintiff 3 PE first name Text Plaintiff 4 PE docket number Text Plaintiff 5 PE social security number Numeric Both 6 Identify all defendants against whom PE has brought WTC actions. Pick List Plaintiff 7 Defendant (DF) focused on in this record (same as #235) Pick List Plaintiff 8 9 Did DF hire/engage PE as an employee to work at WTC? Yes/No Both 10 On which dates did PE work as DF's employee? Date(s) Both 11 If DF did not hire/engage PE as an employee, which of the following statements best Pick List Plaintiff describes the basis on which DF is allegedly responsible for PE's safety in connection with PE's WTC work? 12 Was PE hired/engaged on a full-time basis? Yes/No Both 13 For what type(s) of work was PE hired/engaged to perform? Pick List Both 14 Did DF train PE for work at WTC? Yes/No Both 15 On what dates did DF train PE for Work at WTC? Date(s) Both 16 Did DF instruct/direct PE to work at WTC? Yes/No Both 17 On which date(s) did DF instruct/direct PE to work at WTC? Date(s) Both 18 Which of DF's agents instructed/directed PE to work at WTC? (Identify by status.) Pick List (by Both status) 19 For what type(s) of work was PE instructed/directed to perform? Pick List Both 20 What type(s) of work did PE actually perform at WTC? Pick List Both 21 At which WTC location(s) did PE work? Pick List Both 22 On what date(s) did PE work at each WTC location? Date(s) Both 23 Was PE terminated from WTC employment prior to the end of DF's work on the WTC Yes/No Both project? (separate entry for each DF) 24 On what date(s) was PE terminated? Date(s) Both 25 What was stated reason(s) for termination? Pick List Both 26 At which WTC location(s) did DF work? Pick List Defendants 27 On what date(s) did DF work at each WTC location? Date(s) Defendants 28 Which entity(s) hired/engaged DF to work at WTC? Pick List Defendants 29 On what date(s) was DF hired/engaged by this entity(s)? Date(s) Defendants 30 For what specific task(s) was DF hired/engaged? Pick List Defendants 31 Which entity(s) instructed/directed DF to perform work at WTC? Pick List Defendants 32 Did DF enter agreement(s) with other entity(s) regarding DF's WTC work? Yes/No Defendants 33 What type of agreement(s)? (Oral, written, other.) Pick List Defendants 34 With which entity(s) did DF enter agreement(s) regarding DF's WTC work? Pick List Defendants 35 On what date(s) was this agreement(s) entered into? Date(s) Defendants 36 Did DF provide PPE to its WTC employees generally? Yes/No Defendants 37 By what means did DF provide PPE to its WTC employees? Pick List Defendants 38 On what date(s) did DF provide PPE to its WTC employees? Date(s) Defendants 39 What type(s) of PPE did DF provide to its WTC employees? Pick List Defendants 40 Did DF provide instructions, directions, or training regarding PPE to its WTC employees? Yes/No Defendants 41 What type(s) of instructions, directions, or training did DF provide? Pick List Defendants 42 43 What is PE's date of birth? Date Plaintiff 44 Is PE deceased? Yes/No Plaintiff 45 What is date of death, if deceased? Date Plaintiff 46 What was stated cause of death? Text Plaintiff 47 Was death certificate Issued? Yes/No Plaintiff 48 Was autopsy performed? Yes/No Plaintiff 49 50 Who is PE's current employer(s)? Text Plaintiff 51 What is PE's current employer's address? Text Plaintiff 52 What is PE's current occupation(s)? Pick list Plaintiff 53 What was PE's first date of employment with current employer? Date Plaintiff 54 What Is PE's current gross annual income from current employment? Currency Plaintiff 55 56 Did PE have a previous employer(s), other than DF, from 1995 to 9/11/01? Yes/No Plaintiff 57 Who was PE's previous employer(s) from 1995 to 9/11/01? Text Plaintiff 58 What Is each previous employer's address? Text Plaintiff 59 What was PE's occupation(s) in each previous employment? Pick List Plaintiff 60 What were PE's dates of employment for each previous employer? Date(s) Plaintiff 61 What was PE's gross annual income from each previous employment? Currency Plaintiff 62 63 Did PE ever use tobacco product(s)? Yes/No Plaintiff 64 Does PE currently use tobacco product(s)? Yes/No Plaintiff 65 What type(s) of tobacco product(s) have been used by PE? Pick list Plaintiff 66 At what age did PE begin to use tobacco product(s)? Numeric Plaintiff 67 How frequently did PE use tobacco product(s)? Pick list Plaintiff 68 Has PE finally stopped all tobacco product use? Yes/No Plaintiff 69 At what age did PE finally stop all tobacco product use? Numeric Plaintiff 70 71 72 What was first date that PE was present at WTC site? Date Plaintiff 73 What was last date that PE was present at WTC Site? Date Plaintiff 74 How many hours did PE work at WTC site on 9/11/01? Numeric Plaintiff 75 How many hours did PE work at WTC site on 9/12/01? Numeric Plaintiff 76 How many hours did PE work at WTC site on 9/13/01? Numeric Plaintiff 77 How many hours did PE work at WTC site from 9/14/01-9/30/01? Numeric Plaintiff 78 How many hours did PE work at WTC site from 10/1/01-10/31/01? Numeric Plaintiff 79 How many hours did PE work at WTC site from 11/1/01-11/30/01? Numeric Plaintiff 80 How many hours did PE work at WTC site from 12/1/01-12/30/01? Numeric Plaintiff 81 How many total WTC hours did PE work at WTC site after 12/30/01? Numeric Plaintiff 82 83 Were respirator(s) available to PE from any on site source in connection with WTC Yes/No Plaintiff work? 84 What type(s) of respirator(s) was available to PE from any source on site in connection Pick list Plaintiff with WTC work? 85 Did PE obtain respirator(s) from any source in connection with WTC work? Yes/No Plaintiff 86 What type(s) of respirator(s) did PE obtain from any source in connection with WTC Pick list Plaintiff work? 87 On what dates did PE obtain respirator(s) in connection with WTC work? Date Plaintiff 88 Which individual(s) or entity(s) provided respirator(s) to PE in connection with WTC Pick list Plaintiff work? 89 On what dates did PE wear respirator(s) in connection with WTC work? Date Plaintiff 90 Did PE receive respirator training from any source in connection with WTC work? Yes/No Plaintiff 91 On what dates did PE receive respirator training at WTC site? Text Plaintiff 92 Which individual(s) or entity(s) provided PE with respirator training at WTC site? Pick list Plaintiff 93 94 Did PE receive PPE (other than respirators) in connection with WTC work? Yes/No Plaintiff 95 What type(s) of PPE (other than respirators) did PE receive in connection with WTC Pick list Plaintiff work? 96 On what date(s) did PE receive PPE (other than respirators) at WTC site? Date(s) Plaintiff 97 On what date(s) did PE wear PPE (other than respirators) in connection with WTC work? Date(s) Plaintiff 98 Did PE receive PPE (other than respirator) training at WTC site? Yes/No Plaintiff 99 On what dates did PE receive PPE (other than respirator) training at WTC site? Date(s) Plaintiff 100 Which individual(s) or entity(s) provided PE with PPE (other than respiratory) training AT Pick List Plaintiff WTC site? 101 102 Did PE ever use a respirator prior to 9/11? Yes/No Plaintiff 103 Did PE ever receive respirator training from any source prior to 9/11? Yes/No Plaintiff 104 105 Did PE receive environmental health and safety training regarding PPE in connection Yes/No Plaintiff with WTC work? 106 On what date(s) did PE receive environmental health and safety training in connection Date(s) Plaintiff with WTC work? 107 What individual(s) or entity(s) provided environmental health and safety training to PE? Pick list Plaintiff 108 Did PE receive training certificate(s)/certification(s) for environmental health and safety Yes/No Plaintiff training received while working at WTC site? 109 On what date(s) did PE receive certificate(s)/certification(s) in connection with WTC Date(s) Plaintiff work? 110 111 Does or did PE suffer from one or more pre-existing (1995 to 9/11/01) disorder(s), Yes/No Plaintiff disease(s), or anatomical abnormality(s)? 112 If so, from what type(s) of pre-existing (1995 to 9/11/01) disorder(s), disease(s), or Pick list Plaintiff anatomical abnormality(s) does or did PE suffer? 113 On what date(s) did PE's pre-existing (1995 to 9/11/01) disorder(s), disease(s), or Date Plaintiff anatomical abnormality(s) begin? 114 Has PE's pre-existing disorder(s), diseases(s), or anatomical abnormality(s) ended? Yes/No Plaintiff 115 If so, on what date(s) did PE's pre-existing (1995 to 9/11/01) disorder(s), disease(s), or Date(s) Plaintiff anatomical abnormality(s) end? 116 Was PE's pre-existing (1995-9/11/01) disorder(s), disease(s), or anatomical abnormality Yes/No Plaintiff diagnosed? 117 On what date was PE's pre-existing (1995 to 9/11/01) disorder(s), disease(s), or Date Plaintiff anatomical abnormality(s) diagnosed? 118 Were medications prescribed to treat PE's pre-existing (1995 to 9/11/01) disorder(s), Yes/No Plaintiff disease(s), or anatomical abnormality(s)? 119 If so, what medications were prescribed for PE's pre-existing condition(s)? Pick List Plaintiff 120 What type of treatment(s), modality(s) or surgery(s) was used to treat PE's pre-existing Pick List Plaintiff (1995 to 9/11/01) disorder(s), disease(s), or anatomical abnormality(s)? 121 122 Did PE file any disability claim(s) from 1995 to date? (Only if related to a disorder, Yes/No Plaintiff disease or anatomical abnormality, of a sort the same as, or similar to, the disorder, disease or anatomical abnormality for which recovery is sought in this litigation.) 123 Did PE file any disability claim(s) in connection with WTC work? Yes/No Plaintiff 124 If so, on what date(s) did PE file disability claim(s)? Date(s) Plaintiff 125 What was medical basis(s) for disability claim(s)? Pick List Plaintiff 126 What was disposition of disability claim(s)? Pick List Plaintiff 127 128 Did PE file any workers' compensation claim(s) from 1995 to 9/11/01? (Only if related to Yes/No Plaintiff injury of type for which recovery is sought in this litigation and present at time of 9/11.) 129 Did PE file any workers' compensation claim(s) in relation to WTC work? Yes/No Plaintiff 130 If so, on what date(s) did PE file workers' compensation claim(s)? Date(s) Plaintiff 131 What was medical basis for pre-9/11/01 workers' compensation claim(s)? Pick List Plaintiff 132 What was disposition(s) of pre-9/11/01 workers' compensation claim(s)? Pick List Plaintiff 133 134 For which diagnosed condition(s)/injury(s)/disease(s) does PE seek recovery? Pick list Plaintiff 135 On what date(s) was PE's condition(s)/injury(s)/disease(s) diagnosed? Date Plaintiff 136 Which professional(s)/entity(s) made the diagnosis? Text Plaintiff 137 What was the profession/specialty of diagnosing professional(s)/entity(s)? Pick list Plaintiff 138 Was a physical exam conducted as part of diagnostic process? Yes/No Plaintiff 139 Was a medical, social, and occupational history taken as part of diagnostic test? Yes/No Plaintiff 140 Did PE experience an emergency room visit(s) and/or hospitalization(s) related to Yes/No Plaintiff diagnosed condition? 141 If so, on what date(s) did such emergency-room visit(s) and/or hospitalization(s) occur? Date(s) Plaintiff 142 Was drug therapy(s) prescribed to treat PE's diagnosed condition(s)? Yes/No Plaintiff 143 What course(s) of drug therapy (including dosage(s)) was prescribed to treat PE's Pick list Plaintiff diagnosed condition(s)? 144 Who was treating physician(s) for PE's diagnosed condition(s)? Text Plaintiff 145 Was there a primary treating physician for PE's diagnosed condition? Yes/No Plaintiff 146 What type of physician(s) treated PE's diagnosed condition(s)? Pick list Plaintiff 147 What Is treating physician's address? Text Plaintiff 148 Did PE's treating physician(s) treat PE prior to 9/11/01? Yes/No Plaintiff 149 Has plaintiff undergone surgery(s) related to diagnosed condition, injury and/or disease? Yes/No Plaintiff 150 What surgery(s) did PE undergo? Pick list Plaintiff 151 On what date(s) did each surgery occur? Date(s) Plaintiff 152 What medical provider(s)/entity(s) performed such surgery(s)? Text Plaintiff 153 What was outcome(s) of the surgery(s)? Text Plaintiff 154 Has PE's diagnosed condition(s)/injury(s)/disease(s) been resolved? Yes/No Plaintiff 155 156 Have diagnostic tests been undergone by PE (1995 to 9/11/01) in connection with any Yes/No Plaintiff condition of the sort for which PE seeks to recover in this litigation? Respiratory, MRI, Blood, Urine, Sleep Studies, X-Rays, etc.) (Separate response for each test). (For those diagnostic tests with voluminous and significant test values (i.e. PFTs), there will be separate data fields. See below.) 157 What type(s) of diagnostic test(s) did PE undergo? Pick list Plaintiff 158 What were the date(s) of these diagnostic test(s)? Date(s) Plaintiff 159 Which medical entity/individual conducted PE's diagnostic test(s)? Text Plaintiff 160 161 What were the results of (CT Sinus Scan)? Pick list Plaintiff 162 Re sleep apnea tests, what were the number of obstructive events per hour Numeric Plaintiff (Polysomnogram)? 163 What was PE's VHI score (Voice Handicap Index Test)? Pick list Plaintiff 164 What were the results for PE's Strobovideo-laryngoscopy? Pick list Plaintiff 165 What were the results for PE's Objective Voice and Speech Measures Test(s)? Pick list Plaintiff 166 Did PE undergo an inspiratory view (High Resolution Computed Tomography)? Yes/No Plaintiff 167 What were the results of PE's Endoscopy-Gastroenterological Test(s)? Pick list Plaintiff 168 Was PE graded on Los Angeles ("L.A.") Classification (Endoscopy — Yes/No Plaintiff Gastroenterological)? 169 Results of PE graded on Los Angeles ("L.A.") Classification (Endoscopy — Pick List Plaintiff Gastroenterological)? 170 Impression / Results of Diagnostic Tests Text Plaintiff 171 172 Did PE undergo a Pulmonary Function Test (PFT) (1995 to Present)? Yes/No Plaintiff 173 What was the date of PFT (1995 to Present)? Date Plaintiff 174 Who was the medical provider/entity who conducted PFT? Text Plaintiff 175 What was PE's Forced Vital Capacity ("FVC")? Numeric Plaintiff 176 What was PE's FVC% predicted? Numeric Plaintiff 177 What was PE's Forced Expiratory Volume ("FEV1") Numeric Plaintiff 178 What was PE's FEV1% predicted? Numeric Plaintiff 179 What was PE's FEV1/FVC ratio? Numeric Plaintiff 180 Was PE's FEV1/FVC Ratio below 70%? Yes/No Plaintiff 181 What was PE's FEV1 after bronchodilator? Numeric Plaintiff 182 What was PE's numeric change in FEV1 after bronchodilator? Numeric Plaintiff 183 What was PE's percentage change in FEV1 after bronchodilator? Numeric Plaintiff 184 Was percentage change in FEV1 after bronchodilator greater than 12%? Yes/No Plaintiff 185 What was PE's Total Lung Capacity (TLC)? Numeric Plaintiff 186 What was PE's TLC% predicted? Numeric Plaintiff 187 What was PE's Forced Expiratory Flow 25-75? Numeric Plaintiff 188 What was PE's Residual Volume (RV)? Numeric Plaintiff 189 What was PE's RV% predicted? Numeric Plaintiff 190 What was PE's RV/TLC Ratio? Numeric Plaintiff 191 What was PE's Diffusion Capacity for Carbon Monoxide ("DLCO")? Numeric Plaintiff 192 What was PE's DLCO% predicted? Numeric Plaintiff 193 VO2 Max (Exercise Test) (ML per Kg per minute) Numeric Plaintiff 194 Did PE Smoke on day of PFT? Yes/No Plaintiff 195 Did PE ingest respiratory medication(s) on day of PFT? Yes/No Plaintiff 196 If so, what medications, in what dosages? Pick List Plaintiff 197 What were the results of PE's PFT test? Pick List Plaintiff 198 199 Did PE undergo a Methacholine Challenge Test (1995 to Present)? Yes/No Plaintiff 200 On what date(s) did PE undergo a Methacholine Test? Date(s) Plaintiff 201 What were the test results for PE's Methacholine Test? Pick list Plaintiff 202 What dose of methacholine caused 20% reduction in PE's FEV1? Numeric Plaintiff (mg/ml) 203 How many days prior to Methacholine Challenge did PE use bronchodilator? Numeric Plaintiff 204 What medical entity/individual conducted PE's Methacholine Challenge Test? Text Plaintiff 205 206 Does PE seek to recover for an impairment that qualifies for a ranking on Chart One of Yes/No Plaintiff the Severity Charts? 207 If so, for which impairment(s) identified in Chart One does PE claim to recover? Pick List Plaintiff 208 What is the ranking level(s) for such impairment(s)? Numeric Plaintiff 209 Does PE seek to recover for a previous, completely-resolved impairment under Part I of Yes/No Plaintiff Chart Two of the Severity Charts? 210 If so, for which previous impairment(s) identified in Chart One does PE seek to recover? Pick List Plaintiff 211 What is the ranking level for such previous, completely-resolved impairment(s)? Numeric Plaintiff 212 Does PE seek to recover for a partially-resolved impairment under Part II of Chart Two of Yes/No Plaintiff the Severity Charts? 213 If so, for what partially-resolved impairment(s) identified in Chart One does PE seek to Pick List Plaintiff recover? 214 What is the ranking level for the previous impairment before partial resolution? (See Numeric Plaintiff subpart(a) of Part II of Chart Two.) 215 What is the ranking level for the residual impairment after partial resolution of the Numeric Plaintiff previous impairment? (See subpart (b) of Part II of Chart Two.) 216 Does PE seek to recover for an impairment referred to in Chart Three of the Severity Yes/No Plaintiff Charts? 217 If so, for which such impairment(s)? Pick List Plaintiff 218 219 What medication(s) was prescribed for PE from 1995 to date? Pick list Plaintiff 220 On what date(s) was medication(s) first prescribed? Date(s) Plaintiff 221 Who is/was the prescribing healthcare provider(s)? Text Plaintiff 222 For what medical conditions or illnesses were medications prescribed for PE from 1995 Text Plaintiff to present? 223 Did PE actually take the medication(s) as prescribed from 1995 to date? Yes/No Plaintiff 224 What was the dosage/frequency with which prescribed medication(s) was actually taken Pick list Plaintiff from 1995 to date? 225 226 Did PE receive any collateral payment(s) related to WTC work and/or alleged injury(s) Yes/No Plaintiff (including insurance, government, VCF, Medicare, Medicaid, Social Security)? 227 What type(s) of collateral payment(s) has PE received related to WTC work and/or Pick list Plaintiff alleged injury? 228 On what date(s) did payment(s) to PE related to WTC work and/or alleged injury begin? Date(s) Plaintiff 229 What insurance carrier(s) or other entity(s) has provided PE with payment(s) related to Text Plaintiff WTC work and/or alleged injury? 230 What has been the disposition of PE's claim(s) related to WTC work and/or alleged Pick list Plaintiff injuries? 231 What is the reason(s) for PE receiving benefit(s) related to WTC work and/or alleged Pick list Plaintiff injury(s)? 232 What is the yearly amount(s) that PE has received from all collateral sources related to Currency Plaintiff WTC work or alleged injuries? 233 What is the total amount of payment(s) that PE has received to date from all collateral Currency Plaintiff sources related to WTC work or alleged injuries? 234 235 Name of the defendant (DF) upon whom this record focuses. [cf. field #7.] Pick list Plaintiff 236 Where is DF's principal executive office? Open Text Defendants 237 What is the name of DF's Registered Agent? Open Text Defendants 238 What is DF's registered agent's address? Open Text Defendants 239 By what other name(s) is DF known? Open Text Defendants 240 What is the address of the DF's headquarters? Open Text Defendants 241 Is DF still engaged in business? Yes/No Defendants 242 243 Who is and/or was PE's health insurance carrier(s) during the time PE worked at the Pick list Plaintiff WTC site? 244 Did PE receive medical service(s) related to PE's work at the WTC site that was paid for Yes/No Plaintiff by health insurance? 245 What was the total amount paid for such services by PE's health insurance carrier? Currency Plaintiff 246 Did PE file workers compensation claim(s) related to the collapse of the WTC? Yes/No Plaintiff 247 On what date(s) did PE file the workers compensation claim(s) related to the collapse of Date Plaintiff the WTC? 248 What was the disposition(s) of PE's WTC-related workers compensation claim(s)? Pick list Plaintiff 249 How much, in total, did PE receive under the workers compensation claim(s)? Currency Plaintiff 250 During what period(s)/on what date(s) did Plaintiff receive compensation under the Date(s) Plaintiff workers compensation claim(s)? 251 252 Did DF ever stop any work related to the collapse of the WTC for safety and/or health Yes/No Defendants concerns of any workers? 253 How many times did DF stop any work related to the collapse of the WTC for safety Numeric Defendants and/or health concerns of any workers? 254 Was any of DF's work related to the collapse of the WTC stopped by someone other Yes/No Defendants than DF for health or safety concerns? 255 On what date(s) was DF's work related to the collapse of the WTC stopped for health or Date(s) Defendants safety concerns? 256 Why was DF's work related to the collapse of the WTC stopped for health or safety Text Defendants reasons? 257 Were DF's employees told to wear respirators for work related to the WTC site? Yes/No Defendants 258 On what dates were DF's employees told to wear respirators for work related to the WTC Date(s) Defendants site? 259 Did any of DF's employees attend health and safety meeting(s) for work related to the Yes/No Defendants collapse of the WTC? 260 On what date(s) did DF's employees attend health and safety meeting(s) for work related Pick List Defendants to the collapse of the WTC? 261 Who conducted the health and safety meeting(s) that DF's employees attended for work Pick List Defendants related to the collapse of the WTC? 262 Did any of DF's employees complete an environmental exposure incident report for work Yes/No Defendants related to the collapse of the WTC? 263 264 Does DF maintain employee files? Yes/No Defendants 265 Do DF's employee files contain results of employees' medical evaluations? Yes/No Defendants 266 Do DF's employee files contain any medical records? Yes/No Defendants 267 268 Does DF require its employees to undergo "entry medical" examinations prior to Yes/No Defendants employment? 269 Who is the medical provider performing such "entry medical" examinations? Pick list Defendants 270 Did PE undergo an "entry medical" examination prior to employment? Yes/No Both 271 What were the results of the PE's "entry medical" examination? Pick list Defendants 272 Did PE undergo an "entry medical" exam prior to working at WTC site? Yes/No Both 273 What was the result of PE's "entry medical" exam prior to working at the WTC site? Pick List Defendants 274 On what date(s) was the "entry medical" examination(s) performed on PE? Date(s) Both 275 Did the PE undergo an "exit medical" exam? Yes/No Both 276 On what date(s) did PE undergo an "exit medical" examination? Date Both 277 Who was the medical provider who performed such "exit medical" examination(s)? Pick list Defendants 278 What were the results of PE's "exit medical" examination(s)? Pick List Defendants 279 280 Did DF provide any type of Safety and Health training to employees generally after Yes/No Defendants 9/11/01? 281 What type of Safety and Health training did DF provide employees generally after Pick List Defendants 9/11/01? 282 Did DF have a respiratory protection compliance program after 9/11/01? Yes/No Defendants 283 Did DF inform its employees after 9/11/01 about environmental hazards by any form of Yes/No Defendants material data safety sheets and/or employee training? 284 Did DF have a PPE compliance program after 9/11/01? Yes/No Defendants 285 286 Was there a contract (written or oral) purporting to require DF to indemnify the City of Yes/No Defendants New York? 287 Was there a contract (written or oral) purporting to require DF to indemnify the Port Yes/No Defendants Authority of New York and New Jersey? 288 Was there a contract (written or oral) purporting to require DF to indemnify Bovis Lend Yes/No Defendants Lease? 289 Was there a contract (written or oral) purporting to require DF to indemnify Tully Yes/No Defendants Construction? 290 Was there a contract (written or oral) purporting to require DF to indemnify Yes/No Defendants Turner/Plaza? 291 Was there a contract (written or oral) purporting to require DF to indemnify AMEC Yes/No Defendants Construction? 292 Was there a contract (written or oral) purporting to require DF to defend the City of New Yes/No Defendants York? 293 Was there a contract (written or oral) purporting to require DF to defend the Port Yes/No Defendants Authority of New York and New Jersey? 294 Was there a contract (written or oral) purporting to require DF to defend Bovis Lend Yes/No Defendants Lease? 295 Was there a contract (written or oral) purporting to require DF to defend Tully Yes/No Defendants Construction? 296 Was there a contract (written or oral) purporting to require DF to defend Turner/Plaza? Yes/No Defendants 297 Was there a contract (written or oral) purporting to require DF to defend AMEC Yes/No Defendants Construction? 298 Was there a contract (written or oral) purporting to require DF to name the City of New Yes/No Defendants York as an additional insured? 299 Was there a contract (written or oral) purporting to require DF to name the Port Authority Yes/No Defendants of New York and New Jersey as an additional insured? 300 Was there a contract (written or oral) purporting to require DF to name Bovis Lend Lease Yes/No Defendants as an additional insured? 301 Was there a contract (written or oral) purporting to require DF to name Tully Construction Yes/No Defendants as an additional insured? 302 Was there a contract (written or oral) purporting to require DF to name Turner/Plaza as Yes/No Defendants an additional insured? 303 Was there a contract (written or oral) purporting to require DF to name AMEC Yes/No Defendants Construction as an additional insured? 304 Was there a contract (written or oral) purporting to require an entity to indemnify DF? Yes/No Defendants 305 Was there a contract (written or oral) purporting to require an entity to defend DF? Yes/No Defendants 306 Was there a contract (written or oral) purporting to require an entity to name DF as an Yes/No Defendants additional insured? 307 What were the terms of any oral agreement for indemnification where defendant agreed Open Text Defendants to perform work that related to worker and site health and safety? 308 What were the terms of/parties to any oral agreements regarding indemnification? Open Text Defendants 309 What were the terms of/parties to any oral agreements to defend? Open Text Defendants 310 What were the terms of/parties to any oral agreements to name one of the above listed Open Text Defendants entities as an additional insured? 311 On what date(s) was (were) such agreements entered into? Date(s) Defendants 312 313 Is there any insurance that may be available or claimed to be available, other than the Yes/No Defendants WTC Captive or OCIP, to cover any liabilities that DF may incur in this litigation? 314 What type of insurance, other than the WTC Captive or OCIP, may be available or Pick list Defendants claimed to be available to cover any liabilities DF may incur in this litigation? 315 For each type of insurance identified above, identify the potentially applicable policy Date — Date Defendants periods. 316 Who is/are the Insurance Carrier(s) who wrote the policy? Pick list Defendants 317 What are the Insurance Policy Number(s)? Open Text Defendants 318 What are the initial policy limits set out in the policy? Numeric Defendants 319 What are the remaining policy limits? Numeric Defendants 320 Are the policies claims-made or occurrence based? Pick list Defendants 321 If policy is claims-made, what is the prior acts date and/or retroactive date? Date — Date Defendants 322 Was/were there claims made against this policy with respect to plaintiffs in this litigation? Yes/No Defendants 323 Was there a communication from the insurer that purported to disclaim with respect to Yes/No/Unkn Defendants any plaintiffs in this litigation? own 324 What was the date(s) of the communication from the insurer purporting to disclaim with Date(s) Defendants respect to any plaintiffs in this litigation? 325 Was there a communication from the insurer that purported to reserve rights with Yes/No/Unkn Defendants respect to plaintiffs in this litigation? own 326 What was the date(s) of the communication from the insurer that purported to reserve Date(s) Defendants rights with respect to plaintiffs in this litigation? 327 What is/was the stated basis of the communication from the insurer that purported to Pick list Defendants disclaim or purported to reserve rights with respect to plaintiffs in this litigation? 328 Was a declaratory judgment action filed against the carrier with respect to this litigation? Yes/No Defendants 329 330 Did DF provide PPE (other than respiratory) to its employees? Yes/No Defendants 331 If so, what type(s) of nonrespiratory PPE? Pick list Defendants 332 At what locations did DF distribute PPE (other than respiratory) to its employees? Pick list Defendants 333 Was instruction given on proper use of PPE (other than respiratory) (donning on/off, Yes/No Defendants etc.)? 334 On what date(s) was instruction on proper use of PPE (other than respiratory) given? Date(s) Defendants 335 336 Did DF provide respiratory PPE to its WTC employees? Yes/No Defendants 337 What type(s) of respiratory PPE did DF distribute to its employees who worked at WTC? Pick list Defendants 338 At what location(s) at WTC site did DF distribute respiratory PPE? Pick list Defendants 339 Did DF give instruction(s) on proper use and maintenance of respiratory equipment? Yes/No Defendants 340 Which of DF's agents gave such instruction(s)? Pick list Defendants 341 At what location(s) was the instruction(s) given? Pick List Defendants 342 On what date(s) was the instruction(s) given? Date(s) Defendants 343 Did DF provide cartridges for respiratory PPE to its WTC employees? Yes/No Defendants 344 How frequently did DF provide cartridges for respiratory PPE? Pick List Defendants 345 Did PE receive a qualitative respirator fit test? Yes/No Plaintiff 346 On what date(s) was/were the qualitative respirator fit test(s) given to plaintiff? Date(s) Plaintiff 347 Did PE receive information about the need for and/or consequences of not wearing Yes/No Plaintiff respirators for work related to the collapse of the WTC? 348 Who gave PE information regarding the need for and/or consequences of not wearing Pick list Plaintiff respirators for work related to the collapse of the WTC? 349 On what date(s) was information regarding the need for and/or consequences of not Date(s) Plaintiff wearing respirators given to PE for work related to the collapse of the WTC? 350 Did DF require its employees to use respiratory protection for work related to the Yes/No Defendants collapse of the WTC site? 351 What type of respiratory protection did DF generally require for work related to the Pick List Defendants collapse of the WTC? 352 On what date(s) did DF require the use of respiratory protection for work related to the Date(s) Defendants collapse of the WTC? 353 Who required the use of respiratory protection for work related to the collapse of the Pick List Defendants WTC? 354 Did DF discipline its employees at any time, in any manner for failing to wear respiratory Yes/No Defendants protection for work related to the collapse of the WTC? 355 Which employee(s) did DF discipline for failing to wear respiratory protection for work Text Defendants related to the collapse of the WTC? 356 How did DF discipline its employees for failing to wear respiratory protection for work Pick List Defendants related to the collapse of the WTC? 357 On what date(s) were employees disciplined for failing to wear respiratory protection for Date(s) Defendants work related to the collapse of the WTC? 358 Did DF document employee discipline in any manner for failing to wear respiratory Yes/No Defendants protection or work related to the collapse of the WTC? 359 Did anyone ever inform DF of the environmental conditions at the WTC site on or Yes/No Defendants following September 11, 2001? 360 How was DF informed of the environmental conditions at the WTC site? Pick List Defendants 361 Who informed DF of the environmental conditions at the WTC site? Pick List Defendants 362 On what date(s) was DF informed of the environmental conditions at the WTC site? Date(s) Defendants 363 What information did DF receive about the environmental conditions at the WTC site Pick List Defendants following September 11, 2001? 364 Did DF receive any instructions from any source concerning PPE use for work related to Yes/No Defendants the collapse of the WTC? 365 How were instructions on PPE given to the DF? Pick List Defendants 366 What was the source of the instructions DF received concerning PPE use for work Pick List Defendants related to the collapse of the WTC? 367 On what date(s) did DF receive instructions concerning PPE use for work related to the Date(s) Defendants collapse of the WTC? 368 What instructions concerning PPE use for work related to the collapse of the WTC did Pick List Defendants DF receive?ATTACHMENT 2
ORDER AMENDING CASE MANAGEMENT ORDER NO. 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ___________________________________ x IN RE WORLD TRADE CENTER DISASTER : SITE LITIGATION : : : 21 MC 100(AKH) : ___________________________________ x ALVIN K. HELLERSTEIN, U.S.D.J.: Negotiations have concluded between the parties and Special Masters regarding the form and substance of the Discovery Database, and I approve the resulting final version. I issue this order amending Case Management Order No. 8 to reflect certain modifications and to order into effect this most recent version of the Database.I have heard and considered recommendations, including those presented at the December 10, 2008 Status Conference, from the parties and the Special Masters regarding the case management plan in this matter. I order that the protocol outlined below, and illustrated in the attached schedule (Attachment 1), shall regulate the onward progression of these cases towards final resolution.
1. Divide the aggregate number of plaintiffs into five groups.
A. Group A: Cases with case index numbers 1 — 2000
B. Group B: Cases with case index numbers 2001 — 4000
C. Group C: Cases with case index numbers 4001 — 6000
D. Group D: Cases with case index numbers 6001 — 8000
E. Group E: Cases with case index numbers 8001 — (highest index #)
2. Forty days after the onset of this process which began on January 1, 2009, the parties must deliver to the Special Masters responses, under oaths of plaintiffs and defendants, for Group A, in index number sequence, fully and truthfully answering the following set of 35 data entry points ("Severity and Other Fields" or "SOF") from the attached Discovery Database ("Database").
A. Case profile information (data entry points 2-6)
B. Duration of exposure at World Trade Center site (data entry points 72 — 81)
C. Plaintiff's pre-existing disorders (data entry points 111-117)
D. Severity of claimed illnesses (data entry points 206 — 217)
E. Conditions, injuries, and diseases for which plaintiff seeks recovery (data entry point 134)
3. Ten days later (the 50th day), the Special Masters shall identify:
A. Group A1: 200 cases selected as most severe from Group A
B. Group A2: 25 cases selected from the remainder of Group A
C. Group A3: 400 additional cases selected randomly from the remainder of Group A
D. Group A4: All remaining cases within Group A
4. Forty days later (the 90th day), the parties shall populate the entire Database for Groups Al and A2, fully and truthfully answering all data entry points, under oaths of plaintiffs and responding defendants.
5. Five days later (the 95th day), plaintiffs' Liason Counsel and defendants' Liason Counsel shall each have identified two Group Al cases for discovery and trial.
A. The parties may make their selection(s) any time after Group Al is designated.
B. Once a case has been selected, discovery will commence promptly and will be permitted on all issues relevant for discovery and trial, including information disclosed in response to database queries.
C. The discovery completion date, the final date for filing motions, the date upon which parties will argue motions, and the trial date are fixed in the attached schedule.
6. Five days later (the 100th day), the Court will select two additional Group Al or Group A2 cases for discovery and trial. These two cases will also proceed through discovery and trial as set out in "Step 5 A-E."
7. Eighty days after database completion is required for Groups A1 and A2 (the 170th day), entire Database completion is due for Group A3.
8. Five days later (the 175th day), plaintiffs' Liason Counsel and defendants' Liason Counsel shall each have identified two Group A3 cases for discovery only.
9. Five days later (the 180th day), the Court will select two additional A3 cases for discovery only.
10. The protocol in Steps 2 through 9 shall be repeated for Groups B through E. Each Group will begin this process 40 days after the previous Group begins.
11. The entire Database will be completed for Groups A4, B4, C4, D4, and E4 on or before January 1, 2011.
12. The onset date ("Day 1" for purposes of the attached schedule) is January 1, 2009. Weekends and legal holidays are included even when set time periods are brief.
13. If a case chosen for discovery settles significantly prior to the date upon which discovery must conclude, plaintiffs or defendants may ask the Court to substitute another case from the same subgroup.
14. Database Fields 313 — 328 (relating to insurance information) will be populated by defendants' Liaison Counsel, fully and truthfully, under oaths by February 27, 2009.
There are no specific criteria for this selection. The rationale is to enable various types of cases to be chosen for discovery and trial.
A computer program will perform the random selection.
SO ORDERED.18
Date: February , 2009 New York, New York ____________________ ALVIN K. HELLERSTEIN United States District JudgeATTACHMENT 3 Exhibit
ExhibitIn re World Trade Center Disaster Site Litigation, 21 MC 100 (AKH) Case Management Schedule Pursuant to Court Order of February 18, 2009
175 180 200 210 215 220 250 255 260 290 295 300 325 330 Discovery is concluded Each Party Court to has chosen choose 2 2 cases for cases for discovery discovery from A3. from A3. Each Party Court to Completed has chosen choose 2 Database on 2 cases for cases for B3 discovery discovery from B3. from B3. Each Party Court to has chosen choose 2 2 cases for more cases discovery from and trial C1 and/or from C1. C2 for discovery and trial. Each Party Court to Completed has chosen choose 2 Database on 2 cases for cases for C3 discovery discovery from C3. from C3. Each Party Court has chosen choose 2 Completed 2 cases for more Database on discovery cases D1 and trial from D1 from D1. and/or D2 for Completed discovery Database on and trial. D2 Each Party Completed has chosen Court to Database on 2 cases for choose 2 D3 discovery more cases from D3. from D3. Each Party Special Completed has chosen Court to Masters Database on 2 cases for choose 2 have E1 discovery more cases determined and trial from E1 200 cases from E1 and/or E2 ranked most for severe (E1); discovery Severity selected a Completed and trial. and Other set of 25 Database on Fields additional E2 Finished cases (E2); for Group and selected E a set of 400 additional Completed cases AT Database on random E3 (E3) Remaining cases are in Group E4 Trials to Begin Trials to Begin Trials to Begin Trials to Begin Trials to Begin Trials Begin Trials to Begin Trials to Begin Trials to Begin Trials to Begin 335 340 365 370 400 405 410 435 440 445 465 475 485 501 730 All Motions Motions Filed Argued Discovery All is Motions Motions concluded Filed Argued Discovery is concluded Completed Database on A4 Discovery All is Motions Motions concluded Filed Argued Discovery All Motions is Motions Argued concluded Field Discovery is concluded Completed Database on B4 Discovery All is Motions Motions concluded Filed Argued Discovery All Discovery All Motions to is Motions Argued concluded Filed Discovery is concluded Completed Database on C4 Discovery All is Motions Motions concluded Filed Argued Discovery All is Motions Motions concluded Filed Argued Discovery is concluded Completed Database on C4 Discovery All is Motions Motions concluded Filed Argued Discovery All is Motions Motions concluded Filed Argued Each Party Court to Discovery has chosen choose 2 is 2 cases for cases for concluded discovery discovery from E3 from E3 Completed Database on E4ATTACHMENT 4
ExhibitExhibit
CHART ONE: SEVERITY CLASSIFICATIONS WITHIN DISEASE CATEGORIES FOR CLAIMS INVOLVING CURRENT IMPAIRMENT UPPER DIGESTIVE TRACT DISEASES
ExhibitATTACHMENT 5 Introduction to Severity Charts
Chart One ranks the relative severities of current physical impairments of WTC plaintiffs who claim to suffer from certain enumerated diseases. It ranks severities only within each enumerated disease category, and does not compare or rank severities across the disease categories for which rankings are provided. Thus, for example, while a rank-four emphysema impairment claim is more severe than a rank-three emphysema claim, it may or may not be more severe — measured by negative impacts on the plaintiff — than a rank-three asthma claim. Comparisons across disease categories are left to a later date. Chart One relies on clearly stated criteria that do not make cross-disease comparisons.
Chart One does not purport to test the factual accuracy of plaintiffs' assertions that they suffer from particular diseases or, for that matter, that those diseases were caused or aggravated by exposures to WTC conditions. For example, Chart One does not require, as do the relevant AMA guidelines, plaintiffs to show they have been examined and diagnosed by a qualified physician. This information will be included in the database. To succeed with a claim for which Chart One provides relative rankings of severity of current impairment, a plaintiff will be required to satisfy proof requirements on all elements of traditional tort claims.
Chart One does not purport, even within the enumerated disease categories, to measure the relative monetary values of claims. To be sure, relative severity of impairment is a relevant consideration to monetary value; but so also are other considerations not included in the chart. Indeed, claims that do not qualify for an impairment ranking in Chart One may have significant monetary value. It also follows that the "Zero" column on Chart One does not necessarily connote claims that have no value, but rather refers to claims that currently do not satisfy the criteria for an impairment ranking of "One" or higher.
Chart Two deals with claims that do not currently satisfy the criteria applied in Chart One for ranking impairment. When impairments that satisfied Chart One criteria are alleged to have existed previously but have subsequently been completely resolved, the previous impairment will be ranked according to the criteria in Chart One even though such impairment is not current within the terms employed in Chart One. Thus, a plaintiff who previously suffered from a relatively severe impairment that has been completely resolved and thereby eliminated (by medication, or otherwise), may have a valuable tort claim even though the plaintiff's claim does not belong on Chart One. For example, a patient suffering from GERD who underwent anatomy-altering surgery leaving no residual impairment may be entitled to damages reflecting that reality. In cases involving partial resolutions of previous, higher-level impairments, any residual, post-resolution impairment will be treated as a separate claim for impairment under Chart One.
Chart Three asserts that claims for impairments based on diseases enumerated in Chart One for which the tests referred to in Chart one have not been performed will not be ranked for severity.