As Ground Zero cases go to trial, respirator rule is revealed

February 28, 2010
by Alison Gendar
New York Daily News

A lawyer in two Ground Zero sickness cases green-lighted for trial says he has a smoking gun: buried city documents that prove firefighters should have gotten respirators.

The papers emerged in a veritable mountain of files the city turned over to workers who believe they were sickened by toxins after the 9/11 terrorist attacks.

Lawyer Andrew Carboy, whose firm represents more than 600 firefighters, said the FDNY had rules on the book requiring Bravest be equipped with respirators before Sept. 11.

But memos showing that weren't handed over until this summer - in a data dump of 3 million documents - five years after the legal battle began. "They provide everyone with helmets, with bunker gear, with [air] packs. They could have done the same with respirators, and they withheld the documents saying they had a program to do it," Carboy said.

Carboy's firm represents Firefighters Frank Malone and the late Raymond Hauber, whose cases are among a dozen picked to go to trial, starting in May.

Four were chosen from more than 9,000 by a federal judge, four by the city, and four by plaintiffs' lawyers. More than $1 billion in damages hinge on the outcome.

To show the city is liable, Carboy plans to wield memos about the FDNY's "respiratory protection program," which was supposed to provide respirators for "reasonably foreseeable emergency situations" like building collapses.

The FDNY didn't follow its own guidelines and had only 600 respirators for more than 11,200 uniformed members when the twin towers fell Sept. 11, Carboy said.

A 2003 FDNY memo called for the head of safety and health for the department, Tennyson Headley, to be canned in part because of the dysfunctional respirator program. But Headley is still on the FDNY payroll.

In a Feb. 5 deposition, he admitted he didn't know the FDNY had a program until well after 9/11, or that he was responsible for making sure firefighters were trained to use the masks.

The city's lawyers deny the memo was hidden, saying documents about the program were "irrelevant" because a separate respirator policy was created for Ground Zero after the attacks.

On Sept. 11, the FDNY ordered 5,000 respirators for $20 to $25 each, court documents say.

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