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Jury set to view hijacking terror

Lawyer in 9/11 suit to re-create last 21 minutes

By Stephanie Ebbert
Globe Staff / July 29, 2011

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One of the enduring horrors of the Sept. 11, 2001, terrorist attacks is what the passengers of the hijacked aircraft experienced as they came to realize their planes would be used as weapons.

Now, lawyers for the only family still suing over the death of a 9/11 victim want to ask jurors to imagine that scenario and to put a dollar value on those final moments of horror. On Wednesday, a federal judge in New York said he is inclined to allow jurors to consider awarding damages for the final “21 minutes of terror’’ on United Flight 175 before its crash into the World Trade Center.

US District Court Judge Alvin K. Hellerstein said he will probably allow terror damages, based on existing Massachusetts case law, including a $3 million award to the mother of one of James “Whitey’’ Bulger’s victims who was terrorized before he died.

The 9/11 suit filed against United Airlines and its security contractor by the mother of Mark Bavis, a 31-year-old pro hockey scout from Boston, is the only wrongful death suit from the terrorist attacks to go to trial. On Wednesday, oral arguments establishing some of the legal theories were hashed out in court, and the Massachusetts Port Authority was dismissed from the case.

But the Bavises, who resisted settling for their day in court, could face a painful November trial as lawyers make the case for compensation. To establish his case, lawyer Donald A. Migliori said by phone yesterday, he intends to use an animated re-creation of Flight 175, showing the flight pattern, with all its erratic twists and turns, from the time it was seized and diverted until its ultimate crash into the World Trade Center.

“You’ll see the building in the re-creation, and you’ll see the actual impact,’’ Migliori said.

The jury will also hear from expert witnesses about what happens physically to a person enduring such an ordeal, said Migliori.

All that can be grueling for family members, said Jeffrey Denner, an attorney who represented the victim’s family in the 2006 Bulger case that Hellerstein cited in court Wednesday.

“Every time you hear it, it kind of reestablishes the terror in your hearts and in your soul,’’ said Denner. “You relive it each time. When it’s a client, it’s tough. When it’s a stranger, it’s hard. If it’s your father, your brother, your son, it’s unbelievable. The pain is beyond endurance.’’

Denner represented the family of John McIntyre, who successfully sued the federal government, blaming the FBI for revealing McIntyre as an informant, causing his death. Before he was killed, McIntyre had been held for hours, bound to a chair, and tortured so brutally that he had begged to be shot, Denner said. Bulger then took him to a basement and unsuccessfully tried to strangle him before shooting him repeatedly, the judge said.

“In the McIntyre case, the issue was, what encompasses conscious pain and suffering,’’ said attorney William Christie, who also represented the McIntyre family. “We argued that it was not only the period of time when the murder was actually taking place, but the period in time leading up to the murder. The government took the position that you could only consider the discrete period of time when the murder was taking place.’’

Ultimately, Christie said, the judge only took into account the time after McIntyre was brought to the basement to be killed.

Hellerstein said that there was “not much case law for such an important question.’’

“But there does seem to me to be a trend in Massachusetts toward recognizing fright as an element of damage,’’ he said.

A lawyer for United Airlines said that Massachusetts law does not allow such damages and that the McIntyre case actually favored the government. “The wrongful death statute limits pain and suffering to that which arose from ‘the same injury’ that caused death,’’ United attorney Michael Feagley said in court.

Some 93 other families who brought suits related to the terrorist attacks have settled their claims. Because settlements are confidential, it remains unclear how the damages were awarded.

Payments to the 2,983 families who settled through the Sept. 11 Victim Compensation Fund, established by the government shortly after the attacks, included compensation for pain and suffering. While individuals received different amounts for factors such as loss of income, payouts based on pain and suffering were standardized, said Kenneth Feinberg, who administered the fund. Each victim’s spouse received $250,000, and each surviving dependent received $100,000. The victims’ compensation averaged $2 million.

“We assumed, for purposes of our formula, that every victim suffered pain and suffering, every surviving family member suffered emotional distress,’’ said Feinberg. “That served us very well, because otherwise we would have been forced to try to fine-tune pain and suffering in hundreds of cases, and that would be divisive for family members.’’

Stephanie Ebbert can be reached at ebbert@globe.com. Follow her on Twitter @StephanieEbbert.