Appeared in The Wall Street Journal, Sept. 11, 2002
Over the past 12 months, Julie Sweeney has listened to her husband's recorded voice endlessly, not only for comfort but for guidance.
"Jules, this is Brian," he says. "I'm on an airplane that's been hijacked."
He knew when he dialed that his wife would not be home, that he would be speaking to an answering machine.
"If things don't go well -- and it's not looking good -- I just want you to know I absolutely love you."
She has memorized the message. It's the tone she can't master. When she repeats the words, her voice trembles with grief. On the tape, Brian is steady, all business. He makes only one request: "I want you to do good and go have good times."
Ms. Sweeney has reflected on her husband's words, which sound so carefully chosen. By "do good," he probably meant do well, she has concluded. He wanted her to be healthy and happy and to get on with her life.
But she has found it difficult to follow that advice. In March, she became one of the first people to sue in response to the Sept. 11 attacks. In a lawsuit filed in federal court in Manhattan, she alleges United Airlines and Huntleigh USA Corp., an airport-security company, should have prevented terrorists from hijacking Flight 175, the plane that was supposed to carry her husband on a business trip from Boston to Los Angeles but instead slammed into the World Trade Center. United's parent, UAL Corp. , and Huntleigh decline to comment on her suit. Both companies have filed responses in court denying any liability in light of the hijackers' "intervening" actions.
In suing, Ms. Sweeney has rejected a government settlement that would have given her more money than she expected to see in a lifetime. If the suit leads to protracted legal wrangling, she will spend the next few years revisiting the events that led to Brian's death.
But Ms. Sweeney, 30 years old and a former schoolteacher, says she is too angry to take the settlement and walk away. She wants the government and the airlines to admit that the hijackings didn't have to happen. She hopes, by exposing flaws in aviation security, to make another terrorist attack less likely.
"I can't bring Brian back," she says. "But when I filed [the suit], I guess things came into focus. I had a new purpose and a goal in mind, something to hold onto and to fight for."
"Families need to have accountability," says Mary Schiavo, the high-profile lawyer Ms. Sweeney has hired.
Lawsuits have become part of the ritual of American tragedy. Often long, bitter and expensive, they rise from the ashes of most fatal plane crashes, automobile accidents and fires. Litigation embodies a profound tension about how to respond to something awful: seek vengeance, justice and understanding -- or move on. But after Sept. 11, Congress, the Department of Justice and hundreds of the nation's leading plaintiffs' lawyers did something unusual, even radical: They urged Americans not to sue. Then something even more unusual happened: People listened.
So far, 695 families have filed claims with the federal Victim Compensation Fund, and eventually a large majority of the relatives of the 2,800 men and women who died on Sept. 11 are expected to do so. The fund is thought likely to pay an average of $1.85 million, tax-free, per family. Twenty-one families have agreed to settlements to date. In accepting the money, the relatives surrender their right to sue any U.S. corporations or arms of government.
Suits have been filed on behalf of at least 30 victims' families against airlines, port authorities and security companies. Ms. Schiavo's Los Angeles-based law firm has filed the vast majority of those, putting it at odds with many of its rival plaintiffs' firms. The Sweeney suit seeks an unspecified amount of damages. If Ms. Sweeney loses in court, she would wind up with nothing.
"I think it's a mistake," says Kenneth Feinberg, the official appointed by President Bush to administer the government's compensation fund. Mr. Feinberg, an attorney who specializes in supervising settlements of mass-injury litigation, has traveled across the country meeting with victims. Only a handful have told him they intend to go to court.
"I hear a consistent reason for why they're suing," he says. "It has nothing to do with money. All of them, I believe, are suing because they feel that only through litigation can they vindicate their lost loved ones. They view the lawsuit as a discovery tool. They hope to expose negligence on the part of the airlines or knowledge among higher-ups as to what really happened."
Mr. Feinberg says he witnessed the same thing in the 1970s, when he helped settle injury claims by Vietnam veterans exposed to the defoliant Agent Orange. But the veterans who sued never got satisfactory answers, he says, and this latest group of litigants probably won't either. Mr. Feinberg explained as much to Ms. Sweeney when they spoke by phone earlier this year. But he failed to persuade her.
If anything, Mr. Feinberg's insistence made Ms. Sweeney more suspicious about what the government and airlines had to hide. Over the course of the past year, she says, some of her grief has turned to anger. After a year of chaos, she hopes to assert a measure of control. She wants to affix blame. Lately, some other plaintiffs' firms say they have been talking to relatives of victims who may file suit for similar reasons.
"I would have probably walked away with close to $2 million," Ms. Sweeney says, estimating her likely payment from the victims fund. "But you know what? I can't take their money to keep this quiet."
Top Gun
They met in 1998 in a trendy bar in Philadelphia. She was 26; he was 35. They both liked to say that it wasn't the sort of place they ordinarily went. Yet there they were.
Brian, a former Navy "Top Gun" pilot, was working for Lockheed Martin Corp. as a consultant and living in Philadelphia. Julie was living and working as a teacher in southern New Jersey. When she saw him, dressed in jeans, hiking boots and an L.L. Bean jacket, she thought he didn't quite fit in with the well-to-do crowd, and she liked that. "I thought, that's the kind of guy I could sit in front of a fire in the Poconos and grow old with." That night, they danced, he dipped her and they kissed. Seven months later, they were married.
Friends called him "Moose." Brian was big and burly but never liked the nickname. In truth, it didn't do him justice. He was outgoing and thoughtful and careful about his appearance. He owned an old Singer sewing machine and tailored his own clothing, tapering shirts at the waist for a nice trim fit.
In 1999, he and Julie bought their first home, in Marlborough, Mass. He found consulting work with a local defense contractor. She took a job teaching health and physical education at Marlborough High School. Last summer, they moved to a house in Barnstable, on Cape Cod, where Brian had always dreamed of settling down and starting a family.
They were together for about two years. Now the time seems artificially abbreviated, like a movie montage, too much of it filled with work. When Brian wasn't at his job, he was laboring around the house, rebuilding the deck, adding a mud room or tinkering with his antique Jeeps. When Ms. Sweeney tried out for the CBS program "Survivor," her husband sewed a Viking costume that she wore for her audition video. The producers of the show never called. At the time, it seemed a big disappointment.
With the move to the Cape last year, Ms. Sweeney took a job teaching physical education and health at Dennis-Yarmouth Regional High School. Sept. 11, 2001, was her fourth day at the new school. She kissed her husband good-bye that morning and wished him a safe trip to Los Angeles.
A little later, when he realized his plane had been hijacked, he called home and left the message for his wife. Then he phoned his mother in western Massachusetts. It was Mr. Sweeney's mother who called the school to tell Julie what was happening.
"I remember being surrounded by all these people I didn't know," she says. "The principal didn't want to turn the TV on at first. Then he did, and I saw a replay of the plane going into the tower. I didn't know if it was his plane, but I knew Brian had been a part of it. I drove home, and my neighbor met me there. I grabbed Brian's pillow, a shirt of his and some of my things. Why? I don't know. Then I listened to the answering machine."
The days and weeks that followed were surreal. She ate little more than bread and olives. Her cellphone rang almost constantly. Friends and relatives arrived, somehow, from all over the country, and more than 2,500 people turned out for a memorial service. It was months before pain pierced the fog, she says. When it did, she returned again and again to Brian's voice on the answering machine.
"I knew what he was saying and thinking three minutes before he died," she says. She wished that everyone who suffered a loss that day could have had the same sort of knowledge.
But she wasn't ready to move on, she says. It was too soon to go back to work. She didn't feel like jogging or lifting weights or traveling. When people talked about getting on with life, it only made her angry. Didn't they know that nothing would ever be normal again?
When she wasn't surrounded by family and friends, she sat in front of the computer studying Web sites dedicated to victims of the terrorist attacks. She wanted to know more about the people who had been with her husband in the final moments of Flight 175.
As newspapers and television stations began to report details of the terrorist plot, Ms. Sweeney, like so many others, learned more about airport security than she ever thought she would care to know. Baggage scanners, cockpit doors, box-cutters -- these were the things that absorbed and distracted her.
On a Web site devoted to aviation safety, she came across the name of Ms. Schiavo, a former inspector general for the Department of Transportation, who had left to practice law privately. Ms. Schiavo's imperfect vision had kept her from a commercial pilot's career. Instead, she became a federal prosecutor, then joined the transportation agency.
In 1996, after a ValuJet crash in Florida killed 110 people, Ms. Schiavo publicly criticized the airline industry and her own department for failing to act on reports of unsafe practices. Elected officials fired back at Ms. Schiavo, saying she should have taken her concerns to Congress before the media. She resigned and briefly worked as an on-air analyst for ABC News.
In 1999, while promoting a book she had written on air safety, she tried to demonstrate that airlines often fail to keep track of whether passengers who check luggage actually board their planes. She checked a bag at the airport in Columbus, Ohio, then didn't get on the flight. The unaccompanied bag was detected, and an airport runway was closed for four hours while security officials investigated. No charges were filed against Ms. Schiavo, who had invited television news crews along to videotape her caper.
Later that same year, she joined a 10-lawyer Los Angeles-based firm -- now known as Baum, Hedlund, Aristei, Guilford & Schiavo -- that specializes in filing suit on behalf of relatives of plane-crash victims. There, she has helped handle such cases as a pending suit over the crash of an Alaska Air passenger jet off the coast of California in January 2000, in which 88 people died.
Paul Hedlund, a senior partner at the firm, says Baum Hedlund decided within two months of the Sept. 11 attacks to seek to file suit on behalf of victims' families who consider the government fund inadequate. Ms. Schiavo and another attorney at the firm will be co-lead counsel of its Sept. 11 cases. Ms. Schiavo says she tried about a dozen cases as a prosecutor, winning all but one, but she hasn't previously taken an aviation case to trial.
In the months after Sept. 11, Ms. Schiavo gave media interviews and talks to groups of victims' families in which she criticized U.S. airlines for moving swiftly to protect themselves from litigation and Congress for granting that protection. When Ms. Sweeney came across some of Ms. Schiavo's remarks on a Web site, she quickly phoned the attorney's office in Los Angeles. A few days later, Ms. Schiavo was on a plane to New England.
When tragedy strikes, who is to blame? Clearly, in this instance, the terrorists. But it oversimplifies to blame the hijackers and not look at other parties who might be responsible, says Ms. Schiavo.
"There's a process for plane crashes," the 46-year-old lawyer says. It includes an investigation by the National Transportation Safety Board and, usually, litigation on behalf of those killed on the plane. The legal action, in Ms. Schiavo's view, accomplishes several things: It enables lawyers to examine the lapses in safety that led to a crash. It compensates victims' families, and it helps the relatives come away with a sense that their loss was not in vain.
But after Sept. 11, this process was disrupted, Ms. Schiavo says. Before the dust had cleared at the Pentagon and Trade Center, the airlines began lobbying Congress for emergency assistance. Saying they wanted to protect the nation's air-transportation system, lawmakers capped liability at the amount of insurance covering each flight -- an amount the airlines refuse to disclose but which has been estimated at $1.5 billion per plane. Then the government announced it would use tax dollars to compensate relatives who agreed not to sue any U.S. corporations or government agencies.
Ms. Schiavo didn't view this as generosity, but as an attempted sell-out on the cheap. "I thought I'd seen all the greed and lobbying and disgusting deals," she says. "But that shocked me."
She and her firm decided to go to court -- but not on principle alone. Baum Hedlund is charging its Sept. 11 clients a fee of 15% of any recovery. That is a discount from the firm's usual aviation-disaster rate of 20% to 25%, reflecting the special sensitivity surrounding Sept. 11, says Ms. Schiavo.
By seeking these cases, the firm put itself distinctly in the minority within the plaintiffs' bar. The main trade group for that segment of the legal profession, the Association of Trial Lawyers of America, announced immediately after Sept. 11 that its members would offer free legal services to victims' families. The ATLA lawyers agreed they would recommend that most, if not all, of the families they are steering through the process should accept settlements.
"Most of the clients who are coming to us have already made up their minds that they're going to take the fund," says Larry Stewart, a Miami attorney who serves as president of Trial Lawyers Care, a nonprofit group ATLA formed after Sept. 11. "I think there's been enough in the media about how difficult to litigate this will be, how long it will take and how limited the funds will be."
Those thinking about suing should ask themselves how they plan to prove an airline's liability, Mr. Stewart says. If security had been tighter, he adds, the hijackings might have been avoided, but security was as tight as federal law required. Box cutters, apparently the principal weapon used in the attacks, were not banned by the F.A.A. "Tell me what the airlines did wrong," he says.
Proving liability on the part of the Port Authority of New York and New Jersey, the owner of the Trade Center, might be even more difficult, according to some lawyers. That's because plaintiffs probably would have to make the case that the shocking events of Sept. 11 should have been foreseen. More than 1,000 families have filed notices preserving their right to sue the authority if they decide not to seek money from the victims fund. A spokesman for the agency declines to comment on potential litigation.
Last winter, Baum Hedlund received a lot of criticism in legal circles for seeking out relatives who wanted to sue airlines. But now, some firms are reconsidering. Lee Kreindler of New York, one of the nation's leading aviation-disaster attorneys, says at first he hesitated to get involved in Sept. 11 lawsuits. But he says he changed his mind because of concern that the victims fund will offer some families much less money than they could potentially win through litigation. Mr. Kreindler says he is talking to two dozen families considering suits against airlines.
Christie Coombs has considered the hazards of suing and is leaning toward applying to the victims fund. Her husband, Jeffrey Coombs, a securities analyst, was a passenger on American Airlines Flight 11, the other plane that crashed into the Trade Center. "If we sued, there's no guarantee we'd win," says Ms. Coombs, a freelance journalist raising three young children. "Anyway, it's not something I want to put myself or the children through."
Still, for many families, the desire to sue is a powerful one. Even many of those who have applied to the victims fund have found that they harbor an overwhelming urge to see someone punished. More than 600 families filed suit in August in U.S. district court in Alexandria, Va., against those accused of funding Osama bin Laden's terrorist network. The defendants include Saudi officials, the government of Sudan and various banks and Muslim charities.
The preliminary filings in the Sweeney suit are sketchy, which isn't unusual in this sort of case. The suit accuses United and Huntleigh, a unit of ICTS International NV of the Netherlands, of recklessly breaching their legal duty to protect Brian Sweeney from terrorists.
Filling in some of the details, Ms. Schiavo says that in addition to box-cutters, some of the terrorists reportedly had pepper spray -- illegal aboard planes even before Sept. 11. There are some reports that the hijackers might have had guns and fake bombs, too. She says she can prove that baggage-scanning workers were inadequately trained and that certain other safety procedures were ignored.
When courting potential clients, such as Ms. Sweeney, Ms. Schiavo often brings flowers. She sits beside them and helps select family photos most likely to elicit sympathy from a jury. Touched by the relatives' grief, she says she sometimes cries.
When the lawyer met Ms. Sweeney last winter, the widow was fretting over the expense of a new car she had bought to replace a beat-up older one that had survived as long as it had only because Brian had lovingly maintained it. "Brian isn't here," the lawyer said. "We'll sue them" for the cost of the new car.
Ms. Sweeney has put away some of the photos of Brian that filled her shelves and walls. She has limited her memorial space to one room, where she keeps her husband's old Navy flight helmet and a commemorative wreath made of red, white and blue candies.
On her way to dinner one recent night, Ms. Sweeney was a passenger in another car, one equipped with a satellite-based navigational system. The device had been programmed to give directions to a nearby restaurant. When the driver made a wrong turn, an automated voice announced the error almost instantly.
"That's amazing," she said. At the time, she wondered: If a rental-car company can afford such technology, why doesn't the Pentagon or the Federal Aviation Administration know in an instant when a plane steers off course?
Tattered Flags
Everything looks different since Sept. 11. In Barnstable, she is recognized in every shop and greeted tenderly. But as American flags flying from car antennae grew tattered, and then disappeared, she took it personally. She still finds herself looking for flags on every car she passes. "It puts me at peace," she says, "even if the car is filled with kids playing loud music."
She will be going back to college later this month to begin working toward a master's degree in education. The lawsuit doesn't occupy much of her time for the moment, although that would change if it moves forward. "It's part of my life," she says. "I've accepted it. I've been determined to have it run parallel and not overtake the rest of my life."
She isn't sure whether she can afford to continue to live on Cape Cod, where housing is expensive. For the past year, she has paid her mortgage thanks mostly to the charity of strangers. Brian had a small life-insurance policy, she says, but nothing else. She recently took a part-time job as a bartender at a restaurant. She also adopted a puppy and named it Moose.
Now, as the charity and insurance begin to dwindle, it occurs to her that the government settlement check would have taken care of all of her financial worries. Most plane-crash cases take three years or more. But Ms. Sweeney says she has no regrets.
Twelve months later, she still listens to Brian's message. But she is on her own now, and she remembers something else he said.
"Brian told me once that I'd never suffered any intense pain," she recalls. "I'd never broken a bone or been hospitalized. I'd stub my toe, and I'd pout and he'd just put his arm around me and he'd say, 'Some day you're going to be really tested, and you're going to see the strength you have.' "