Will the Post 9/11 World Be a Post-Tort World?

86 Pages Posted: 21 Dec 2006 Last revised: 31 Oct 2007


This essay looks at the impact of 9/11 on provisions for civil recourse by victims of harm.

The short answer to the title question is: NO. But tort law will continue to be eroded by attrition, by lopping off remedies - especially by limiting damages and expanding immunities - unless we are able to grab hold of the public's conscience and consciousness to bring home the point that liability in tort is not some form of punishment, erratically inflicted.

We discuss and analyze the legislative responses that followed:

* the September 11 Victims Compensation Fund

* establishment of the World Trade Center Captive Insurance Company to provide defense and excess liability insurance of $1 billion to the City of New York and its contractors.

* the smallpox vaccination campaign and the liability limitations and modest compensation scheme of the Smallpox Emergency Personnel Protection Act of 2003.

* the adoption of the government contractor defense for suppliers of "qualified anti-terrorism technology" to the newly created Department of Homeland Security in the SAFETY Act of 2004.

* the BioShield Act of 2004 which established a "strategic national stockpile" of " drugs, vaccines and other biological products, medical devices, and other supplies " for use in the event of bioterrorist attack or public health emergency.

* The Public Readiness and Emergency Preparedness Act of 2005,(PREPA) which declares "targeted liability protections for pandemic and epidemic products and security countermeasures".

* S. 2291, a bill introduced in 2006 by the Democratic leadership, would repeal the PREPA and create a defense in a narrow class of medical products for which use is permitted without completing the usual regulatory vetting, due to their importance in a threatened emergency.

We discuss the ATSSSA, reviewing the strengths and weaknesses of the tort claims of those who were injured and died on 9/11. Next reviewed are the WTC respiratory injury occupational disease tort claims, their necessity and justice, examining their vulnerability in light of the immunity and lack of duty defenses raised. The claims affirm the importance and vigor of the tort remedy. The other post 9/11 liability-limiting legislative measures are discussed. They provide broad protection for many classes of actors and sellers, including administrators and producers of vaccines.

A survey of the historic experience with the Swine Flu vaccine campaign of 1976 shows the centrality of familiar tort liability principles of responsibility. In the Swine Flu vaccination the government stood in the shoes of vaccine manufacturers. The United States admitted strict liability in tort for some vaccine complications (such as confirmed paralytic Guillain Barre Syndrome), and fought others. And under the Federal Tort Claims Act the United States defended its own "hard sell" of the Swine Flu vaccine. Liability was imposed on the United States itself for the Centers for Disease Control's failure to adequately inform citizens of vaccine risks. The British Hepatitis C-contaminated blood cases are discussed as another important instance of government agency liability. There the National Blood Authority was held accountable as collector and distributor of blood products for its tardy implementation of an effective test for viral contamination.

First presented as the 2006 Raynes McCarty Distinguished Health Law Lecture, Widener Law School, October 11, 2006

Suggested Citation

Conk, George W., Will the Post 9/11 World Be a Post-Tort World?. Penn State Law Review, Vol. 112, No. 175, 2007, Fordham Law Legal Studies Research Paper No. 952979, Available at SSRN: https://ssrn.com/abstract=952979 or http://dx.doi.org/10.2139/ssrn.952979

George W. Conk (Contact Author)

Fordham Law School ( email )

150 West 62nd Street
New York, NY 10023
United States
212-636-7446 (Phone)

HOME PAGE: http://law.fordham.edu

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