Keeping Ground Zero in Perspective: The Problem With Heroes

Cross-posted from Tort Deform

Today, the NY Times has a story reporting that the recently deceased symbolic representative for sick Ground Zero Workers and first responders did not "rush" to Ground Zero in the wake of the 9/11 attacks as reported by some news sources. Instead, he served near Ground Zero beginning a little over three months after the attacks. When asked why they did not correct what became the public story the widow said she was too busy grieving as her husband came near to and eventually succumbed to death. The son, who went to the State of the Union with Senator Clinton as her guest to help bring attention to the issue, said that he did not know the exact details of his father's work at Ground Zero and did not know the representation in the press to be different than the reality.

The discrepancy between the symbolic emblematic hero story, and the reality of the man, gives fodder to what has been a surprisingly and jarringly un-empathetic opposition by those opposed to medical care and financial support for Ground Zero workers.

Sadly, heroes are rarely "perfect" human beings under the microscope. For all we know, Ceasar Borja could have been a horrible person, a bad husband, or even a bad father.

However, what Borja definitely was, was a person exposed to contaminants at and near Ground Zero. While he came late to the cleanup effort, he began working there three months into a cleanup that lasted ten months, and ultimately spent at least 17 days working in the area around Ground Zero on security and traffic detail.

Pointedly, it appears Ceasar Borja himself never made any public statements claiming anything other than the truth. It appears he was too sick to deal with the media. His son was the primary teller of his story, but was a storyteller without knowledge of the exact contours of the story. It's unfortunate, but understandable how that might happen as one's father is dying.

So the change in the story is that instead of rushing to the pile in the immediate aftermath of 9/11, Borja, a cop who served New York for 20 years, was exposed to contaminants doing his job as a police officer.

Although it makes for a less completely heart wrenching sound bite, the fact that a police office like Ceasar Borja got sick with a Ground Zero related illness actually makes a stronger case of Ground Zero related illness for those who actually worked on the pile, worked closer to the day of the initial attacks, and/or logged more hours at the site. If even Ceasar Borja can get sick from his work at Ground Zero, others who worked more intensively are potentially at an even higher risk than many had thought to be the case before.

Without having to even look at the tort "reform" movement commentators' attack on the right for all Ground Zero workers to access the courts, I want to make prediction about what they will say.

Actually, before I even make that prediction, I want to make clear where the tort "reform" movement comes out on the issue for all sick Ground Zero workers, including those who did race to Ground Zero immediately after the attacks.

Jim Copland, Director of the Manhattan Institute's Center for Legal Policy, wrote a New York Post op-ed titled "Simply Wrong" criticizing the decision by Judge Hellerstein to not bar out of hand all 8,000 claims of Ground Zero workers and responders against NYC and its contractors. The suit was filed against these entities for not providing and implementing the use of proper safety equipment at Ground Zero. Copland would move to have all claims of these workers and first responders simply barred out of hand before discovery was allowed to investigate evidence of the extent, nature, and duration of the city's failings.

Here's what the right wing (the same right wing that calls those who don't "support the troops" unpatriotic) about those who worked in and around Ground Zero. (again, without having even read their blog yet).

Ceasar Borja, despite his twenty years of NYPD service, despite being exposed to Ground Zero contaminants, despite having a respiratory disease like other Ground Zero workers are coming down with, and despite (like others) coming down with his ailment in the years and months after exposure at Ground Zero, did not deserve free medical treatment, would not deserve workers' compensation (were he alive), and his family does not deserve increased pension benefits after his Ground Zero related death. In fact, we should do everything within our power to prevent him and those like him from being compensated in life and death, and for that matter from having provided medical treatment for his injuries.

However, Ceasar, had he lived, and Ceasar's family in his death, does not deserve these things because the right wing tort "reformers" think it is a good idea, he and/or they deserve them because they are entitled to them by law.

They will also say that because he smoked until the mid 90's (ten years ago), it was his smoking and not his exposure at Ground Zero that caused his illness. Today, although much less so in the past, many people know the risks of smoking and know (despite previous false representations by Big Tobacco) that it is addictive.

However, those who are "informed" smokers and started recently make a risk assessment (although many current smokers are still simply addicted from having started before there was as much public information on the health effects) based on the risks associated with smoking. Exposure at Ground Zero puts those who smoked at a higher risk of becoming ill with Ground Zeros illnesses, but those who smoked accepted the risk of smoking, not an interaction between smoking and exposure to the dust of the twin towers on the job. Ceasar Borja may have been more vulnerable to WTC contamination as a former smoker, but he was not supposed to have been exposed to contamination in the first place.

The point that we have driven home is that the challenges faced by Ground Zero workers and responders are emblematic of all those attempting to seek justice in the courts. If even these heroes face as much opposition and attack when asking for medical treatment and in the case of workers a maximum of 400 in workers compensation a week, imagine what you or I might face if injured in a less public manner and while having no access to the national media spotlight.

Predictably, as the claim to classic "hero-hood" of rushing to Ground Zero fades, so does protection from attack for all those less "heroic" persons with legitimate claims who may not have risen to the level of national heroes, but who responded or worked there nonetheless.

In fact, to the extent that the tort "reform" movement pounces on this one case of the 40,000 people who worked at or near Ground Zero (or the landfill used for Ground Zero debris), they further demonstrate what has been my underlying my point: the tort "reform" movement is out to reduce and question the right of all Americans to access the courts in whatever context, unless and only unless, their injuries are too politically dangerous to critique.

Then again, as Copland's op-ed demonstrates, at times they are willing to slam the courthouse door in the face of people like Ceasar Borja the hero, even as he was previously described in the papers before the NY Times correction.

Ceasar Borja, may not have been "Ceasar Borja," but countless others at Ground Zero were. Indeed, the larger point about Ground Zero is that all Americans, whether "heroes""medium-heroes""quasi-heroes," or even just people doing their jobs deserve to be supported and compensated when the negligence or misconduct of others (in this case primarily the federal and NYC governments and their contractors) cause them bodily harm or death.

In the wake of this story, tort "reformers" will attempt to draw attention from the well documented negligence of misconduct of government agencies and businesses in failing to protect responders, workers, and residents from exposure in Manhattan, and place the focus on one of 40,000 workers and responders, and an unknown number of residents and office workers, because in this one case the amount and type of service at Ground Zero was not as well documented as it should have been.

What this NY Times story ultimately stands for is the fact that sometimes we make people who put themselves in harm's way bigger than they actually are because as a nation we need heroes (for another example here's coverage of the Former Mayor Rudolph Giuliani's over glorified yet flawed 9/11 response)

In response to the story Senator Clinton's office observed "[S]acrifices were made by so many whether it was in the hours, days, weeks, or months after the attacks...they all deserve our help." Agreed.

Let's not forget our heroes, our "less than hero" Ground Zero workers and responders, or for that matter, our everyday Americans when fight for access to the courts in America today.

The challenges faced by Ground Zero workers affect us all because many of us were Ground Zero workers, many of us will face avoidable health risks like those faced by Ground Zero workers in the future, and many of the residents of Manhattan and Brooklyn are contaminated right now and will become sick within the next 20-30 years.

It's just that we just don't know it yet.

Tags: 9/11 Ceasar Borja, Ground Zero, tort deform, tort reform (all tags)


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