After work on 9/11, BP claims, mediator Kenneth Feinberg will deal with Sandusky suits
October 7, 2012 4:00 AM
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Kenneth Feinberg says he will never get used to stories of people's pain, despite years handling 9/11 claims and an Agent Orange lawsuit.
Patrick Semansky/Associated Press
Kenneth Feinberg answers concerned citizens' questions during a town hall meeting in Grand Isle, La., about the impact of BP's Deepwater Horizon explosion that killed 11 men and caused an environmental calamity along the Gulf Coast in 2010.
By Tracie Mauriello Post-Gazette Washington Bureau
WASHINGTON - Kenneth Feinberg has a string of appointments in Aurora, Colo., over the next few weeks. After that his calendar is empty.
The lawyer and victims' compensation negotiator has seen so many lives torn apart by sudden and horrific tragedies that he's not confident he'll be alive and able to honor commitments scheduled too far out.
"You never know what's going to happen out there. It's tough," Mr. Feinberg said during an interview in his law office last week. As a mediator, he has negotiated settlements and distributed billions of dollars to victims of some of the nation's most violent crimes and largest environmental disasters. His job: to put a dollar value on loss.
He was retained in September to help negotiate a settlement between Penn State University and about a dozen young men who were victimized by Jerry Sandusky, the former assistant football coach who was convicted in a child sex-abuse scandal that rocked the campus.
People tell the 66-year-old that his work has made him fatalistic. He prefers to think that it's made him more empathetic.
"But for fortune, these things could happen to anybody in the world: the World Trade Center or an airplane, in a movie theater watching 'Batman' or on a bucolic campus like Virginia Tech," he said, mentioning just a few of the cases he's worked on.
"Who in their wildest dreams would think that your son or daughter is going to be murdered in Blacksburg, Va., by a deranged gunman?"
Still, he's managed to keep his emotions at bay when it's time to apply laws and guidelines for compensation - even when he doesn't agree with them.
"He has been personally affected," said Supreme Court Justice Stephen Breyer, a close friend since the two were young Senate aides to Ted Kennedy of Massachusetts.
"He listens to some tragic stories but he keeps his mind on his goal, which is to resolve the problem in front of him," Justice Breyer said.
"The World Trade Center really forced him to come to grips with the most terribly tragic stories, and it helped him learn how to communicate and show he did sympathize while he worked out some kind of a settlement."
Hard work, fairness, sympathy
The Penn State case will be much more straightforward, Mr. Feinberg said. It involves a comparatively small group of victims and each of their settlements will be negotiated separately.
Penn State president Rodney Erickson said university leaders are hoping for out-of-court settlements in many of the cases so that the victims won't be drawn through legal processes.
Mr. Feinberg and his law partner Michael Rozen already have begun to sketch out compensation ideas on yellow legal pads and have started to meet with victims' attorneys.
"We've had what can truly be described as preliminary but constructive discussions. They have an appearance of sincerity but they will need to match their deeds to their words," said Tom Kline, who represents one of the victims and who has negotiated settlements with Feinberg Rozen for other clients involved in pharmaceutical cases.
"They are skillful. They have a reputation of being solid and blunt and direct and forthright, but they have a very thorny problem that has some complexity," he said.
"Hopefully this is a relatively modest assignment, but one very emotional one I must say," Mr. Rozen said. "Penn State wants to move on, to turn the page in this very sorry chapter in its history and try and reaffirm its greatness as a university in this country. If we can facilitate settlements to chose this chapter that would be good," he said.
Mr. Feinberg has no binding authority to compel a settlement but will work to facilitate agreement between the university and victims, who would then give up their right to sue.
Mr. Kline said his client, who testified during Sandusky's criminal trial, is prepared to take the stand again if Penn State doesn't offer acceptable settlement terms.
Penn State has acknowledged spending $17 million in legal fees and public relations related to the sex abuse scandal, he said.
"Now it's time to come to terms with the people truly hurt: the victims," he said.
"The university was the enabler of Jerry Sandusky. It's well established, they know it, and it's clear to me that Penn State understands that they owe the victims compensation, so the question is really how much. That's why they hired Feinberg."
Mr. Feinberg typically works pro bono for cases such as the 9/11 attacks and the shootings at Virginia Tech and in Aurora, Colo. Penn State is paying him for his work.
He referred questions about his compensation to the university.
Penn State spokesman David La Torre declined to provide the terms of Feinberg Rozen's contract but said the university would disclose payments online at www.progress.psu.edu after they're processed.
The Penn State community can expect hard work, fairness, understanding and sympathy from Mr. Feinberg, Justice Breyer said.
"That doesn't mean pleasing everybody," he said. "You cannot solve everyone's problem, but [Mr. Feinberg] has learned quite a lot about how to do this and I think he'll bring that knowledge."
Mr. Feinberg isn't yet sure whether he will meet with Sandusky's victims or just their lawyers, but he is prepared for staggering stories of sexual abuse spanning decades. He's ready but he never gets used to hearing about other people's pain.
Gives voice to victims
In the 33 months after the 9/11 terrorist attacks, Mr. Feinberg heard some 900 stories from people who had lost loved ones, who suffered illnesses after breathing in debris, who were injured during rescue efforts, and who managed to escape physically unharmed but were emotionally destroyed after watching co-workers jump to their deaths.
He was able to help 5,560, who collectively received more than $7 billion from the government. But there were thousands he couldn't help - not because he thought they didn't deserve it, but because Congress in its haste to create the fund in 11 days hadn't legislated compensation that covered such things as mental distress or respiratory ailments suffered by people who breathed contaminated air that wafted across the Hudson River. He would pace around his bedroom at 3 a.m. thinking about them.
"I had to tell all of those people who escaped the World Trade Center ... with bodies flying and landing beside them, debris, broken glass, oil dripping down. Through sheer luck many of them escaped the World Trade Center without a scratch and yet the next day, traumatized, they couldn't get out of bed. I had to tell them they were ineligible for any compensation," he said.
And so Mr. Feinberg became the face of a system that failed thousands of people, including spouses of firefighters whose lives were valued at far less than stockbrokers under a system that took future earnings into account. There were also families whose life insurance payouts were deducted from their payouts because of another divisive provision in the statute.
People screamed at him during public hearings. They cried. Yet he continued to have public hearings and face-to-face meetings to give a voice to every victim who wanted to speak. The hearings and meetings weren't required, and many mediators would have avoided them.
"It affects you, but you feel a real professional obligation to do it," he said in his office at Feinberg Rozen. "You are constantly tugged in the emotional direction and you want to do whatever you can to assuage the anger and the frustration. It's very difficult." Even when settlements and guidelines allow him to award multimillion-dollar payouts, he knows the money will never be enough to compensate the recipients, who lost their spouses, their limbs or their livelihoods.
"In these programs, you don't ever use the words 'happy' or 'fair' or 'just.' What's happy or fair or just to someone who's lost a loved one to a traumatic shooting or a murder with no opportunity to say goodbye, no opportunity to plan. No, those are the wrong adjectives," he said
Resolved veterans case
Mr. Feinberg, the son of a bookkeeper and a tire salesman in Brockton, Mass., is amiable and welcoming, but serious. He laughed not once during a 45-minute interview in a third-floor office filled with classical music, framed family photos displayed alongside prized handwritten letters from President Barack Obama and former U.S. Attorney General John Ashcroft praising his work.
Still, friends say it was the humor and wit on display at a party - not his compassion or legal sense - that got him into the field of alternative dispute mediation. Mr. Feinberg, a lover of opera who once considered a life in the theater, did a dead-on and hilarious impression of New York State Court of Appeals Judge Stanley Fuld, for whom he'd clerked in Brooklyn after law school at New York University. It was a hit among guests, especially U.S. District Judge Jack Weinstein.
A decade later, when Judge Weinstein was trying to dispose of a massive class-action suit that had been weighing on his mind and on his docket for five years, he remembered the funny bit at the party and the brilliant lawyer who did it.
Some hundreds of Vietnam veterans were claiming that exposure to the herbicide Agent Orange caused them to develop ailments including cancer, respiratory problems and skin conditions. The judge was sympathetic to the veterans' plight, but knew there wasn't enough scientific evidence to demonstrate a link between exposure and each claimant's ailment.
He knew a settlement was the veterans' best shot at compensation and took the unusual step of advocating from the bench for an out-of-court agreement. But who best to negotiate compensation that wouldn't further divide the country and demoralize the veterans who had just returned from an unpopular war?
To Judge Weinstein, the answer was obvious: the young lawyer he'd had his eye on since Judge Fuld's party.
His choice wouldn't just change the life of a promising young lawyer, but it would have profound implications on the legal system.
Mr. Feinberg already had worked as a federal prosecutor, a Senate aide and a private-practice lawyer, but he had no experience as a mediator. Judge Weinstein believed the young lawyer's smarts coupled with empathy were more important than mediation experience.
He was right. Mr. Feinberg was able to bring the case to a resolution in six weeks by getting the herbicide's manufacturers to pay $180 million, a sizable settlement that legitimized the plight of Vietnam veterans in the eyes of the American people.
But the work wasn't finished. Now Judge Weinstein and Mr. Feinberg had to figure out how to distribute the money. They took another unorthodox approach: convening a series of hearings in New York, Chicago, Houston, Atlanta and San Francisco to ask veterans how they thought the money should be divided.
In the end, Mr. Feinberg - with Judge Weinstein's approval - directed the bulk of the settlement to veterans with the most disabling injuries and the rest provided social service programs, medical assistance and advocacy programs for all veterans.
"What we really learned from that is that some people just want to be heard," the judge said, adding that Mr. Feinberg used it in the 9/11 and BP cases. "He goes out and listens to people and that's helpful."
The Agent Orange case was a watershed moment for class-action suits, and one that made Judge Weinstein a target of both praise for creativity and criticism for judicial activism.
Mr. Feinberg, in his 2012 book on compensation after tragedy, said the case exemplified how creativity can stretch the boundaries of law to accomplish justice.
It's been an example to other attorneys, if not a precise road map for how to reach amicable agreements in complex cases, Justice Breyer said. He credits both Judge Weinstein and Mr. Feinberg.
"Mediation has really grown enormously as a method and [Mr. Feinberg] had a role in it because he's been successful, very successful in very different actions that have involved problems of fairness," Justice Breyer said. "They're very hard, complicated cases that involve terrible problems and he's managed to reach solutions that are acceptable to large numbers of people and that save enormous costs and emotion."
The legal system wasn't meant for mass litigation, Mr. Feinberg said. The courts are ill equipped to deal with thousands of similar claims one by one, Mr. Feinberg said.
"It takes too long," he said. "Justice delayed is justice denied."
Judge Weinstein knew there had to be a better way, even if it meant bending the system to consolidate claims, including many that otherwise would have been too expensive or too time consuming for the injured to pursue.
"It's a real problem for the rule of law," he said.
It's problematic, too, when the government creates victims compensation funds for certain tragedies and not others. Congress didn't create compensation funds for victims of Hurricane Katrina or the Oklahoma City bombing, he said.
"Bad things happen to good people every day in this country," he said.
"You should have read some of my emails during 9/11. 'Mr. Feinberg: I don't get it. My daughter died in the basement of the World Trade Center in the original 1993 bombing. Where's my money?'" he said. "Ineligible."
His advice: "You better be careful, politicians."
Still, he says, the 9/11 compensation fund was the right thing at the right time. He doesn't expect to ever see it replicated in his lifetime.
"The 9/11 terrorist attacks are unique in our history. We wanted to show our empathy, our cohesiveness as American people," and the compensation fund did that, he said.
Escape into opera
When he needs a break from his work, he indulges in opera, playing it softly through speakers in his law office or blaring it in a custom-built soundproof room in his Bethesda home.
In his office Tuesday, though, he was listening to classical instrumental music. Earlier he'd had on "Die Fledermaus," a comic Strauss opera, but he turned it off - "a little too jovial for me these days."
Lately he's been preparing for a series of meetings with victims of the July movie theater shooting in Aurora, Colo. There, he'll hear from mothers who lost children, and moviegoers who watched their friends die, couples who tried to hide under theater seats and heroes who used their own bodies to shield friends and strangers from bullets - horrific stories, all.
Operas are Mr. Feinberg's escape from that. He finds comfort even in the tragic ones.
"Opera is just the height of civilization," he said. "You're in a world full of tragedy and horror and uncertainty and loss, and then you can go and listen to the opera and just soar."