Susan M. Holden - Press

From the Pioneer Press - 4/25/09

Too much pain, not enough money: How three lawyers divided state funds to I-35W bridge collapse victims

How do you put a dollar figure on someone's pain? That was the job of the three people who allotted compensation to victims of the Interstate 35W bridge collapse.

The three personal-injury lawyers, chosen as the special masters panel, divided $36.6 million in state funds among 179 claims. In the more than four months they spent hearing the details of the victims' problems, Chairwoman Susan Holden and panel members Mike Tewksbury and Steven Kirsch were profoundly moved by the victims' stories.

"The bridge case emotionally affected me," Kirsch said. "I would review a lot of these claims late at night. I felt so bad for these people. I think all of us had sleeping problems."

Throughout the process, Kirsch said, the panel members and their spouses would meet to share stories and offer support. "We would talk to each other, because we were going through it together.

"My wife tells me I told her more times in the last year that I love her than I ever have," Kirsch added.

One small but telling detail: After reviewing a bridge file, Kirsch cried while watching a movie, a first for him.

Their mission required them to hear testimony and apply the law. In essence, they were both judge and jury. They drew on their combined 75 years background as personal-injury lawyers, their common sense and, sometimes, a healthy dose of skepticism when something didn't ring true.

After picking over stacks of documents and talking with victims, the panel concluded that the claims were worth nearly $100 million. Subtracting what insurance companies already had covered brought that to $46.3 million. But by law, they had $36.6 million to spend, so the panel had some hard decisions to make.

"It wasn't as difficult to come up with the gross amount," Kirsch said. "What was difficult was the cutting, because they're all deserving, and we knew everybody would take significant hits."

WHAT COST SUFFERING?

First came addition: They added up the gross amount each victim was entitled to, using state law as their guide. That included medical bills, income loss, pain and suffering, disability, emotional distress due to an injury, and property damage. The panel also considered potential future costs like medical care needs and job prospects. Expert opinions from doctors and labor economists figured prominently in the more complicated cases.

Coming up with a dollar figure for pain and suffering was difficult. Tewksbury said considerations included the loss of aid, comfort, guidance, assistance and companionship. It's very individual, Kirsch said: For one person, a bad back is a nuisance, but for someone who, say, loves to garden, a bad back is considered suffering and should be compensated. Another consideration: Many victims have post-traumatic stress disorder and other emotional or psychological problems, Kirsch said.

Tewksbury said a major accident can upset a person's life in ways beyond physical injury and a segment of the public doesn't appreciate how people can get money for pain and suffering.

"The goal of this fund was to get at the human suffering," Holden added.

Next came subtraction: If something was covered by insurance — medical, disability, long-term care, automobile, workers' compensation, property loss — that amount was deducted from the preliminary total. Some victims had taken money from an emergency state fund, and that was also deducted.

Life insurance and charitable contributions were not subtracted. Victims were not dinged for the $1.3 million donated to Minnesota Helps by individuals and foundations, nor for the pancake breakfasts or other fundraisers that friends or relatives put together.

The $36.6 million victim compensation total comes in two funds: The larger one, at $24 million, was designated to be used for pain and suffering in addition to medical and income issues. The individual cap was $400,000. The other portion, at $12.6 million, was a supplemental fund that applied only to medical bills and income loss.

"We didn't have enough, and there was a great need," Holden said.

TELLING THEIR STORIES

As part of the process, the panel created thorough yet easy-to-use forms that victims and their lawyers filled out. To back up what they said, they attached documents such as medical bills, pay stubs and expert reports. Victims were also asked to tell the panel about their lives: Were there any unique circumstances they wanted the panel to be aware of? Was the relationship between them and their spouses and children damaged? Before-and-after pictures could be part of the record.

Victims could also choose whether to meet with one or all three panel members. They could request an hour or longer to explain their situations. The panel thought it was key to give people the chance to tell their stories.

Each panel member pored over every form and discussed each victim appearance, and together they attached a preliminary dollar figure to each victim. After they'd talked to about 80 percent of the victims, Holden said, they realized the total would exceed the appropriation.

They returned to each file. Simply decreasing each award by an equal dollar amount would have left around 40 percent of the victims without any award at all, so instead they reduced claims by a set percentage. Then they grouped the claims and reduced them at different rates. The list they began with — the size of the worth of each claim — was in the same order at the end, although the numbers were smaller.

After the final appropriations last week, the special masters felt a sense of relief.

"We're for the most part the only ones who saw the whole picture," Tewksbury said. "It was very rewarding to us ... to observe the resiliency of human nature."

Said Holden: "What an honor it's been to be able to serve the state of Minnesota."

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From the Star Tribune - 4/27/09

Editorial: A job well done on 35W bridge fund

Minnesotans can be proud of the work of the Special Masters Panel that distributed $36.6 million to survivors of the 13 people who were killed in the Interstate 35W bridge collapse and those who were injured on that horrible day in August 2007.

Remarkably, all 179 eligible recipients accepted the compensation, with settlements ranging from $4,500 to $2.2 million, depending on the severity of individual cases. In the process, all waived the right to sue the state, although several are taking legal action against two firms that worked on the bridge.

The fund was authorized by the Legislature, led by Sen. Ron Latz, DFL-St. Louis Park, and Rep. Ryan Winkler, DFL-Golden Valley. Their bill, which received bipartisan support, revamped a law that would have only authorized $1 million in total compensation.

But like nearly every good public policy outcome in the state, the effort went well beyond elected officials. The three special masters appointed to the panel -- chairwoman Susan Holden, as well as Steven Kirsch and Mike Tewksbury -- deserve special praise. "The three panel members took their responsibilities very seriously," said Latz. "I think it went extraordinarily well." The Solomonic decisionmaking was critical. Unlike the federal Sept. 11th Victim Compensation Fund, which had no budget cap, the Minnesota panel had to divide a finite pie. "The legislators were trying to be responsible in using Minnesota taxpayer dollars. They did the right thing in doing that," explained Holden.

But 9/11 was still a useful model. The panel spoke to Kenneth Feinberg, who headed the 9/11 victim's fund, and members read his book, "What is Life Worth?" Concluded Latz: "The 9/11 fund was as much an international diplomacy statement as it was a compensation statement."

 

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