Countering loss with compassion and money
When the weight of strangers’ grief overwhelms him, Kenneth Feinberg takes a walk.
Sometimes he buys an ice cream and sits on a park bench, letting the sun replenish his depleted well of compassion.
Other times, after listening to the pain, anger and recriminations of the bereaved, Feinberg takes refuge in opera — not for its cathartic pathos, but because it’s the one place where he can count on falling asleep.
A balding, bespectacled lawyer with skin nearly as thick as his Boston accent, Feinberg must daily sort the emotional rubble of disaster. He has spent the last quarter of a century putting dollar values on suffering and loss: the Sept. 11 attacks, the Virginia Tech campus shooting, the gulf oil spill.
It is a vocation the Washington-based Feinberg neither sought nor guards, even in its latest iteration as special master for the Gulf Coast Claims Facility.
“When you’re asked by the president of the United States or the attorney general or a governor, you do what, frankly, millions of Americans would do if asked. It’s an obligation of patriotism,” Feinberg said of accepting the task of triage in tragedy’s wake.
“You try and maintain a certain objectivity — you have to, in order for the credibility of the program to prosper. But it’s very, very difficult. People get very emotional, understandably. They are outraged at life’s unfairness. You do the best you can.”
From his first call to settle a drawn-out dispute over Vietnam veterans’ exposure to Agent Orange to his work over the last decade dispensing financial balm to disaster victims, Feinberg has become “a brand unto himself,” the go-to guy for mass-dispute resolution, the American Bar Assn. Journal observed this year.
“He’s a problem-solver who has taken on the grimmest and most intractable problems” confronting the nation, often serving as a sympathetic ear for sad memories and sounding board for pent-up outrage, said Thomas J. Stipanowich, academic director of Pepperdine University law school’s Straus Institute for Dispute Resolution, which hosted Feinberg for an academic exchange this month.
In the case of the Sept. 11 compensation program, Feinberg met with 900 families that lost a loved one, one at a time. He patiently listened to their rage and incomprehension, then took on the role of claims adjuster, handing out government money.
“They’d say, ‘Mr. Feinberg, I lost my son at the Pentagon. He was 21. I’d like to start this hearing by showing you a video of his bar mitzvah, when he was 13….’ ‘Mr. Feinberg, I lost my wife at the World Trade Center. I’d like you to listen to the audio tape of her calling me from the 103rd floor to say goodbye.’ ”
By the time his 33-month pro bono assignment wrapped up, the artifacts of the dead surrounded him. “My office was overflowing with ribbons, medals, diplomas, certificates of good conduct. The memorabilia filled the room,” Feinberg said. “No family that I met with came primarily to talk about money. They came to validate the memory of the lost loved one.”
The saddest case, he said, came from the first hearing: A 24-year-old woman came to see him, sobbing over the death of her firefighter husband. She said she knew Feinberg was going to give her money, but she needed it within a month.
“She said: ‘I have cancer. I have 10 weeks to live. My husband was going to survive me and take care of our two children. Now they’re going to be orphans,’ ” Feinberg recalled, his voice thickening with emotion. He got the check out in time for her to create a trust for her 6- and 4-year-old children. Eight weeks later, she died.
In the end, Feinberg doled out $7 billion to 1,600 families, or 97% of those who filed a claim instead of a lawsuit.
Money wasn’t enough to salve the wounds of the grieving, nor was Feinberg’s demeanor to every petitioner’s liking. In his 2005 book “What Is Life Worth?” Feinberg recounts how the angry widow of a firefighter responded to his compensation offer with, “I spit on you and your children.”
Charles Wolf, whose wife died in the north tower of the World Trade Center, ran an anti-Feinberg website, accusing the mediator of being “patronizing, manipulative and at times even cruel.” He eventually softened his views on the compensation czar, who says he weathered that and other criticism with the conviction that he was doing the best he could in a highly emotional situation.
“There will never be closure, but I do think I contributed to tempering and minimizing one big problem — financial uncertainty,” Feinberg said.
Putting price tags on lost property and income from the 2010 Deepwater Horizon explosion in the Gulf of Mexico — the rare dispute resolution assignment for which he actually gets paid — is only marginally less distressing, Feinberg said.
“Do not underestimate the emotion associated with financial uncertainty,” Feinberg said, raising a finger to blunt any suggestion that economic losses are less traumatic than fatalities. “The future of your livelihood in the gulf — will there be shrimp five years from now, what will happen to the oyster beds, what about my mom-and-pop hotel where tourism’s down? The common denominator in all of these tragedies is emotional anger, frustration, worry, disappointment.”
One task less stressful for the man dubbed the “master of disasters” was his assignment two years ago to put curbs on the pay of Wall Street executives whose firms took taxpayer bailout money under the Troubled Asset Relief Program, after the housing speculation bubble burst.
Congress demanded a quid pro quo of reductions in executive pay for the seven biggest bailed-out institutions, including AIG, Bank of America and CitiGroup. Feinberg was handed the hatchet, and he cut the compensation for 175 corporate elites.
“That was a program that Congress enacted that was pure populist revenge,” he said. “There’s no question that acceleration of repayment was driven by the knowledge that until they repay, the government would continue to determine their pay.... Bank of America even borrowed money to get the government out.”
Feinberg noted that the mass resolution of compensation is tougher in cases with capped funds. With the exception of the $8-million Hokie Spirit Memorial Fund he distributed evenly among the families who lost someone to the Virginia Tech massacre four years ago, Feinberg hasn’t had to “take from Peter to pay Paul,” he said.
One fact of compensation case law, Feinberg says, is the dispassionate number-crunching to quantify a victim’s lost future earnings. “Courts do that every day and have for over two centuries,” he said. “The stockbroker or the banker killed in a train wreck gets more than the waiter or the busboy. That’s the American legal system.”
Although funds and marching orders to settle the financial fallout of disaster have helped alleviate money woes among victims, that strategy for dispute resolution has limited application, Feinberg has concluded.
“The idea that these programs like BP or the 9/11 fund are a precedent — forget it,” he said with a wave. “These are one-off programs designed to respond to very unique tragedies. They’re not a model for anything.”
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